Summary
In State v. Tolbert, 60 Ohio St.3d 89, 573 N.E.2d 617 (1991), the Ohio Supreme Court clearly held: "To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment, a court must first apply the Blockburger test.
Summary of this case from State v. GrimmOpinion
No. 90-666
Submitted February 12, 1991 —
Decided June 5, 1991.
Criminal law — Determining whether a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment — Subsequent prosecution not barred, when.
O.Jur 3d Criminal Law §§ 398, 403.
1. To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment, a court must first apply the Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, the subsequent prosecution is barred. ( Grady v. Corbin, 495 U.S. ___, ___, 109 L. Ed. 2d 548, 561, 110 S. Ct. 2084, 2090; Brown v. Ohio, 432 U.S. 161, 166, applied and followed; State v. Thomas, 61 Ohio St.2d 254, 261, 15 O.O. 3d 262, 266, 400 N.E.2d 897, 903, explained and followed.)
2. An exception to the Blockburger test exists where the state is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. ( Grady v. Corbin, 495 U.S. ___, ___, 109 L. Ed. 2d 548, 561, 110 S. Ct. 2084, 2090, fn. 7; Brown v. Ohio, 432 U.S. 161, 169, fn. 7; Ashe v. Swenson, 397 U.S. 436, 453, fn. 7 [Brennan, J., concurring]; Diaz v. United States, 223 U.S. 442, 448-449, applied and followed; State v. Thomas, 61 Ohio St.2d 254, 15 O.O. 3d 262, 400 N.E.2d 897, paragraph five of the syllabus, explained and followed.)
APPEAL from the Court of Appeals for Hamilton County, No. C-890148.
At about 9:20 a.m. on November 8, 1988, defendant-appellee Randy Tolbert assaulted the victim, Gail Renee Ochs. Following the assault, Ochs gave a statement to Police Sergeant Mark Hildebrand of the Cincinnati Police Department. Based on the information obtained from Ochs and an eyewitness to the assault, Hildebrand arrested Tolbert for assault. Then Ochs caused charges to be filed against Tolbert for misdemeanor assault, although neither Ochs nor Hildebrand knew at that time the full extent of Ochs's injuries. After Ochs signed the charges against Tolbert, on that same morning, she was transported to Christ Hospital for diagnosis and treatment of her injuries arising from the assault.
On November 9, 1988, Tolbert entered a plea of no contest to the misdemeanor assault in a municipal court proceeding. Subsequently, on the same day Tolbert entered his plea, Hildebrand was informed by an assistant police chief that Ochs had suffered injuries more severe than those that would characterize a simple assault. Hildebrand then attempted to verify the information by contacting Ochs's place of employment. Pursuant to the information he had obtained, Hildebrand attempted to amend the charges against Tolbert. Thereafter, Hildebrand signed a charge against Tolbert for felonious assault.
The record does not reflect the journal entry from the municipal proceeding accepting Tolbert's plea and sentencing him on misdemeanor assault and menacing charges. Thus, we will accept the stipulation at the February 15, 1989 evidentiary hearing that Tolbert pled no contest to the charge, and the state's statement in its brief that Tolbert was sentenced on his plea at the arraignment proceeding as evidence of Tolbert's prior conviction.
Tolbert was indicted on the charge of felonious assault by the Hamilton County Grand Jury on December 21, 1988. On January 19, 1989, Tolbert filed a motion to dismiss on the basis of the state's violation of his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. On March 3, 1989, the trial court granted Tolbert's motion to dismiss.
The state appealed and the judgment was affirmed on double jeopardy grounds.
The cause is before this court upon the allowance of a motion for leave to appeal.
Arthur M. Ney, Jr., prosecuting attorney, and David L. Prem, for appellant.
Sand Stidham and Chuck R. Stidham, for appellee.
The single issue presented is whether Tolbert's conviction on the lesser included offense prevents the state from later prosecuting him on the greater offense because of the protection against double jeopardy of the Fifth Amendment to the United States Constitution. For the reasons that follow, we answer such query in the negative.
In Benton v. Maryland (1969), 395 U.S. 784, 794, the United States Supreme Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment to the United States Constitution. Therefore, we must review United States Supreme Court precedent, along with our own, to determine whether Tolbert may be prosecuted on the felonious assault charge.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
The United States Supreme Court in Blockburger v. United States (1932), 284 U.S. 299, 304, recognized that the Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute "requires proof of a fact which the other does not." Furthermore, in Brown v. Ohio (1977), 432 U.S. 161, the Supreme Court held that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he or she has already been acquitted or convicted on the lesser included offense. It should be noted that the Blockburger test is not the exclusive means by which the protection against double jeopardy is deemed to apply to particular offenses. "Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires relitigation of factual issues already resolved by the first." Id. at 166-167, fn. 6; Grady v. Corbin (1990), 495 U.S. ___, ___, 109 L. Ed. 2d 548, 563, 110 S. Ct. 2084, 2092. For example, in Ashe v. Swenson (1970), 397 U.S. 436, where the defendant was acquitted on a charge of robbing one of the participants in a poker game, and the verdict was based on doubt that the accused was present at the robbery, the Supreme Court held that "principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims." Brown, supra, at 167, fn. 6.
The Blockburger test emphasizes the elements of the two crimes. Essentially, "[i]f each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. * * *" Iannelli v. United States (1975), 420 U.S. 770, 785, fn. 17.
In Brown the defendant stole an automobile and was caught several days later and charged with "joyriding" — taking or operating the car without the owner's consent. Defendant pled guilty and was sentenced to thirty days in jail and a one-hundred-dollar fine. Id. at 162. After his release from jail Brown was indicted on two counts, charging him with the original theft of the car and joyriding on the same date of the theft. Brown objected to the counts on double jeopardy grounds. Id. at 163. The Brown court decided that Brown could not be convicted of either of the charges since they were the same offense under the Double Jeopardy Clause as the one he had pled guilty to. The court noted that "[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Id. at 169.
In deciding whether the state was precluded from charging a defendant with involuntary manslaughter of a robbery victim subsequent to the defendant's conviction for the robbery, this court in State v. Thomas (1980), 61 Ohio St.2d 254, 261, 15 O.O. 3d 262, 266, 400 N.E.2d 897, 903, set forth a two-part double jeopardy inquiry:
"* * * One is whether the offenses of robbery and involuntary manslaughter are distinguishable under the Blockburger standard; i.e., do[es] each of the crimes of robbery and involuntary manslaughter require proof of a fact which the other does not?
"Two, there being a less serious offense for which the defendant has been previously tried, is the state prohibited from relitigating the factual issues already resolved in the prior trial, or do the facts of this case present an exception to the general rule prohibiting multiple prosecutions?"
The exception referred to in Thomas, supra, originated in Diaz v. United States (1912), 223 U.S. 442, where the Supreme Court recognized an exception to a double jeopardy statute by holding that a defendant's conviction of assault and battery did not prevent a subsequent prosecution for homicide after the death of the victim. The Supreme Court, in Brown v. Ohio, supra, found the constitutional exception to "exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Id. at 169, fn. 7; accord Grady v. Corbin, supra, at ___, 109 L. Ed. 2d at 561, 110 S. Ct. at 2090, fn. 7; Ashe v. Swenson, supra, at 453, fn. 7 (Brennan, J., concurring) ("where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the `same transaction' rule should be made to permit a separate prosecution.").
In the case sub judice, the first inquiry is whether the offenses of misdemeanor assault and felonious assault are distinguishable under the Blockburger standard (do both require proof of a fact which the other does not?). The offense of misdemeanor (or simple) assault is a violation of R.C. 2903.13, which provided:
Subsequent to the assault in this case, R.C. 2903.13(C) was amended by H.B. No. 642, 142 Ohio Laws, Part III, 4696, 4698-4699.
"(A) No person shall knowingly cause or attempt to cause physical harm to another.
"(B) No person shall recklessly cause serious physical harm to another.
"(C) Whoever violates this section is guilty of assault, a misdemeanor of the first degree. * * *" H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1902.
The offense of felonious assault (as charged in this case) is a violation of R.C. 2903.11, which specifies:
"(A) No person shall knowingly:
"(1) Cause serious physical harm to another[.]
"* * *"
"(B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. * * *"
It is conceded by the parties that misdemeanor assault is a lesser included offense of felonious assault. Thus, the greater offense, felonious assault, is by definition the same for purposes of double jeopardy as the lesser included offense, misdemeanor assault. See Brown v. Ohio, supra, at 168. Consequently, the two offenses are indistinguishable under the Blockburger standard.
Although the two offenses are the same for purposes of double jeopardy, we must still determine whether the facts in this instance invoke the exception to the general rule. As we stated in Thomas, supra, at 261, 15 O.O. 3d at 266-267, 400 N.E.2d at 903, this "second query depends upon the circumstances existing at the time of the first trial. [And] [t]he reviewing court may determine whether all the actionable facts had come into being or, conversely, whether there were later occurrences which had emanated from the initial conduct * * *."
In the present case Hildebrand testified that the day after the assault took place, and only hours after the defendant pled no contest to a lesser offense, the police were first informed that Ochs's injuries may have been more severe than first indicated. Until Ochs was evaluated by her own physician she had no way to confirm the extent of her injuries. In fact, Ochs's diagnosis was not final until a week after she was attacked. Therefore, even though the facts necessary to sustain the charge of felonious assault occurred prior to Tolbert's plea, these facts were not discoverable despite the exercise of due diligence. See Brown v. Ohio, supra, at 169, fn. 7.
Accordingly, for the foregoing reasons, the judgment of the court of appeals is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY and RESNICK, JJ., concur.
DOUGLAS, J., concurs in judgment only.
WRIGHT and H. BROWN, JJ., dissent.
Although the majority correctly sets forth the applicable law on double jeopardy, I believe that it reaches the wrong result in this case. Therefore, I must respectfully dissent.
It is undisputed that misdemeanor assault is a lesser included offense of felony assault. I agree with the majority's conclusion that the two offenses are indistinguishable under the Blockburger standard and are the same for double jeopardy purposes. Where I part company with the majority, however, is in the attempt to fit the present case under the exception to the Blockburger rule.
The exception provides that double jeopardy may be avoided and a second, more serious charge may be pursued when "the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Brown v. Ohio (1977), 432 U.S. 161, 169, at fn. 7. Although this exception is noted in the long line of cases cited by the majority, only two of those cases, Diaz v. United States (1912), 223 U.S. 442, and State v. Thomas (1980), 61 Ohio St.2d 254, 15 O.O. 3d 262, 400 N.E.2d 897, actually find the exception applicable to the facts of the particular case.
In both Diaz and Thomas it was not possible to bring the more serious charge at the outset because the additional facts necessary to sustain that charge had not yet occurred. In Diaz, supra, the victim died of injuries sustained in the criminal incident after the defendant had been charged with assault and battery. Id. at 448-449. Likewise in Thomas, supra, the victim died from injuries sustained during the course of a robbery after the defendant had been tried and sentenced for robbery.
In the present case, however, all the facts necessary to sustain the felony assault charge (the serious injury to Ochs) had already occurred when Tolbert was charged with misdemeanor assault. Although conceding this distinction, the majority fails to recognize its significance. Instead, the majority merely concludes that the seriousness of the injury to Ochs was not discoverable despite the exercise of due diligence.
Due diligence, however, in a criminal investigation requires that the police and the prosecution ascertain the facts of the crime, as they currently exist, before proceeding with charges against the accused. The extent of injury to Ochs was part of the relevant facts of the case against Tolbert. Nevertheless, the prosecution chose to immediately charge Tolbert with the lesser offense without making the effort to find out how badly Ochs was hurt. These facts were clearly discoverable. If there was doubt concerning the prognosis of the injury to Ochs, the state could have waited the few days necessary to obtain a proper medical diagnosis. Surely this places no undue burden on the prosecution. Rather, the development of the known facts before filing a charge is what should be expected from competent police work.
With adequate investigation, the state could have prosecuted Tolbert on the felonious assault charge and avoided the question of double jeopardy. Instead the majority encourages the state to prematurely file slapdash charges against an accused without ascertaining the full extent of the crime. Accordingly, I must respectfully dissent.
WRIGHT, J., concurs in the foregoing dissenting opinion.