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Sidney v. Little4/15/1997
EVANS, Presiding Judge.
This appeal was originally placed on the accelerated calendar; however, pursuant to Loc.R. 12(5), we elect to issue the following opinion in this case.
Richard A. Little ("appellant") appeals the decision of the Municipal Court of Sidney denying his motion to dismiss a charge of driving under the influence on double jeopardy grounds.
Appellant was arrested on April 2, 1996, for operating a motor vehicle while under the influence of alcohol in violation of Sidney City Ordinance 333.01(A)(1). Appellant entered a plea of not guilty and on September 24, 1996, the case came on for trial. During the voir dire, defense counsel made a comment that appellant had no prior driving record. The prosecution objected on the ground that the comment was improper. The trial court sustained the objection and instructed the jury to disregard the remark. After the jury was impaneled, opening statements commenced. During the opening statement of the defense, counsel again made a reference to his client's clean driving record, stating that his client would testify at trial that he never had a traffic ticket before in his life. Again, the prosecutor objected on the grounds that the remark was improper and highly prejudicial and requested a mistrial. Defense counsel argued that appellant's driving record was admissible evidence pursuant to Evid.R. 404 and 405. Unpersuaded by the defense argument, the trial court granted a mistrial.
After the motion for mistrial was granted, appellant moved to dismiss the charge of operating a motor vehicle while under the influence of alcohol, claiming that further prosecution on the charge would violate his right under the United States and Ohio Constitutions to be free from double jeopardy. The motion was denied by the court on October 16, 1996. Appellant subsequently pled no contest to the charge and was convicted in December 1996. The sentence imposed by the trial court has been stayed pending this appeal.
Appellant asserts the following assignment of error on appeal:
"The trial court erred in granting a mistrial and in overruling defendant's motion to dismiss on the grounds of double jeopardy."
Under the Double Jeopardy Clause, the issue of whether subsequent prosecution can be had after a mistrial has been declared is dependent on two things: first, whether jeopardy has attached and, second, whether, if jeopardy has attached, a retrial is barred by the Constitution or falls within an exception.
Jeopardy will attach "so as to preclude subsequent criminal proceedings at different points in time depending on the nature of the proceeding in question." State v. Gustafson (1996), 76 Ohio St.3d 425, 435, 668 N.E.2d 435, 443, citing Crissv. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. As in the present case, " here a criminal defendant has invoked the right to trial by jury, jeopardy does not attach so as to preclude subsequent criminal proceedings until the jury is impaneled and sworn." Gustafson at 435, 668 N.E.2d at 443. Clearly, jeopardy had attached in appellant's case since the jury was impaneled and opening statements had commenced.
" n cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville (1973), 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 433. Therefore, whether a subsequent prosecution of appellant could proceed depends on whether an exception applies to the double jeopardy bar. In cases where a mistrial has been declared without the defenda
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