Opinion
Case No. C2-98-953
April 20, 2001
OPINION AND ORDER
petitioner, Mark E. Lovejoy, a state prisoner, brings this action for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. 52254. This matter is before the Court on the petition, return of writ, petitioner's traverse to the return of writ, and exhibits of the parties
On February 24, 1994, the Franklin County grand jury indicted petitioner on one count of aggravated murder (prior calculation and design), one count of aggravated murder (felony-murder), both with a death specification, one count of aggravated robbery, one count of kidnapping, and one count of having a weapon under a disability all with firearm specifications. Exhibit A to Return of Writ. Petitioner was accused of being involved in the shooting death of one Nathan Curry, a drug dealer, and of stealing marijuana from Curry's home. Curry's wife was restrained during the murder and robbery. Another individual, Darrell Stephenson, appears to have been the actual shooter. The state's case rested largely on evidence that petitioner and-Stephenson were seen together about the time of the shooting, that a second man entered Curry's home after Stephenson shot him, and that petitioner was in possession of marijuana allegedly taken from Curry's home during the murder/robbery.
On November 14, 1994, a jury found petitioner not guilty of aggravated murder (prior calculation and design) as well as the lesser included offenses of murder and involuntary manslaughter. The jury was unable to reach a. verdict as to the aggravated murder (felony-murder), aggravated robbery, and kidnapping counts. petitioner then moved to have the felony murder count dismissed on double jeopardy and collateral estoppel grounds. The trial court denied the motion, and, after a second trial before a different jury, petitioner was subsequently found guilty of felony murder and the other remaining charges. The trial court sentenced petitioner to life imprisonment with parole eligibility after twenty years on the aggravated murder count and an aggregate sentence of fourteen to twenty-five years on the remaining counts and specifications. Exhibit E to Return of Writ.
Petitioner filed a timely appeal with the Tenth District Court of Appeals, in which he asserted the following assignments of error:
I. The denial of defendant-appellant's motion to dismiss the aggravated murder charge set forth in count two of the indictment on double jeopardy and collateral estoppel grounds was error. Since the issue of purpose to kill, which is an essential element of the offense of aggravated murder, was resolved in the defendant-appellant's favor when the jury in his first trial acquitted him of the lesser included offenses of murder and manslaughter, the state was barred by the collateral estoppel doctrine embodied in the double jeopardy protections of the federal and state constitutions, and in the common law of this state, from relitigating the same issue in a retrial of the aggravated murder count upon which the first jury failed to agree.
II. The court of common pleas abused its discretion and denied defendant-appellant his federal and state constitutional right to due process and a fair trial when it reopened sua sponte after closing argument the evidence in the bench trial upon the charge of having a weapon under a disability, as set forth in count five of the indictment; conducted its own investigation on the existence of the disability element of the offense upon which the state failed to find sufficient evidence; and took judicial notice of the records and proceedings in an entirely separate criminal prosecution involving defendant-appellant.
III. Defendant-appellant's convictions for having a weapon under a disability and for aggravated murder are not supported by sufficient evidence.
Exhibit G to Return of Writ. On February 8, 1996, the court of appeals sustained petitioner's first and second assignments of error and reversed the petitioner's conviction. Exhibit K to Return of Writ.
On March 27, the prosecution filed an appeal with the Ohio Supreme Court, in which they asserted the following proposition of law:
WHEN THE STATE HAS DONE ALL THAT IT CAN TO PROSECUTE CLOSELY RELATED CHARGES IN A SINGLE TRIAL, THE STATE IS ENTITLED TO A VERDICT ON EACH COUNT OF THE INDICTMENT
A. The double jeopardy clause and the doctrine of collateral estoppel protect against governmental overreaching, and should be inapplicable absent governmental overreaching.
B. Assuming that the doctrine of collateral estoppel applies to inconsistent verdicts in the same trial, appellee has failed to prove that the jury must necessarily have found that appellant did not intend to kill Nathan Curry.
Exhibit M to Return of Writ. Petitioner filed a memorandum in response as well as a cross-appeal. Exhibit O to Return of Writ. On September 24, 1997, the Ohio Supreme Court reversed the judgment of the court of appeals and reinstated petitioner's conviction as to the felony-murder, aggravated robbery and kidnapping convictions. Exhibit K to Return of Writ. The Ohio Supreme Court, however, dismissed the having a weapon under a disability charge. Id.
On May 14, 1997, while his case was still pending in the Ohio Supreme Court, petitioner filed an application to reopen his appeal with the court of appeals, in which he argued that his appellate counsel was ineffective for failing to appeal his convictions for aggravated robbery and kidnapping and for failing to appeal his murder conviction on the ground of identity. Exhibit P to Return of Writ. The state appellate court denied petitioner's application on August 8, 1996. Exhibit S to Return of Writ. It does not appear that petitioner filed an appeal from this decision.
On September 22, 1998, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. THE REFUSAL TO DISMISS THE AGGRAVATED MURDER CHARGE IN COUNT TWO OF MR. LOVEJOY'S INDICTMENT ON DOUBLE JEOPARDY GROUNDS WAS ERROR. IT IS A VIOLATION OF THE DOUBLE JEOPARDY PROTECTIONS AFFORDED MR. LOVEJOY UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION TO RETRY HIM ON A GREATER OFFENSE AFTER A HUNG JURY MISTRIAL, WHERE THE ORIGINAL JURY ACQUITTED HIM OF THE LESSER INCLUDED OFFENSE.
2. PRINCIPLES OF COLLATERAL ESTOPPEL, EMBODIED IN THE DOUBLE JEOPARDY PROTECTIONS OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION, BAR THE RETRIAL OF A MISTRIED COUNT OF A MULTICOUNT INDICTMENT WHEN THE FIRST JURY [ACQUITS] THE ACCUSED ON ONE PRINCIPAL COUNT AND ALL ITS LESSER INCLUDED OFFENSES, AND IS UNABLE TO AGREE UPON A VERDICT ON A RELATED PRINCIPAL COUNT OF THE SAME INDICTMENT WHERE TIRE LESSER INCLUDED OFFENSE, OF WHICH PETITIONER LOVEJOY WAS [ACQUITTED], AND THE MISTRIED PRINCIPAL COUNT INVOLVE THE SAME ISSUES OF ULTIMATE FACT.
Respondent opposes the petition and argues that petitioner's claims are without merit.
I.
In his first claim, petitioner argues that because he was acquitted of the lesser included offense of murder on Count 1 in his first trial the same offense preclusion prong of the Double Jeopardy Clause prevented his retrial on the aggravated felony murder count. In his second claim, petitioner argues that the doctrine of collateral estoppel barred his retrial on aggravated murder after his acquittal on the murder count. Specifically, petitioner argues that the issues which the state sought to relitigate were issues that had previously been decided in his favor.
In constitutionalizing the doctrine of issue preclusion as encompassed within the Double Jeopardy Clause of the Fifth Amendment, the Supreme Court held that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443 (1970); see also United States v. Payne, 2 F.3d 706, 710-11 (6th Cir. 1993); United States v. Uselton, 927 F.2d 905, 907-08 (6th Cir. 1991). In assessing claims of issue preclusion in those cases where acquittal was based upon a jury's general verdict, as in the case at bar, the Court specified that a reviewing court must "examine the record of a prior proceedings, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Ashe, 397 U.S. at 444 (quotingSealfon v. United States, 332 U.S. 575, 579 (1948)). In making this inquiry, it is important to note that issue preclusion can exist only as to those precise factual determinations which were previously litigated and essential to the judgment. Once petitioner establishes a non-frivolous double jeopardy claim, the burden of proof shifts to the government to show it is not attempting to prosecute the same offense.United States v. Jabara, 644 F.2d 574, 576-77 (6th Cir. 1981)
The test set forth by the Supreme Court in Ashe requires this Court to determine (1) the precise issue or issues which petitioner claims have been decided and which he now seeks to foreclose from consideration in the subsequent prosecution; and (2) whether a rational jury could have grounded its verdict upon an issue other than that which petitioner proffers.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause has been interpreted as protecting criminal defendants from successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for double jeopardy claims is the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the court to determine whether each charged offense "requires proof of an additional fact which the other does not") TheBlockburger test is designed to deal with the situation where closely connected conduct results in multiple charges under separate statutes. In a Blockburcrer case, the critical question is whether the multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on whether the statutory elements of the two crimes charged are duplicative. If the elements of the two statutes are substantially the same, then double jeopardy is violated by charging the defendant under both.
In addition, the Brown Court held. that a defendant cannot be prosecuted for a greater offense after conviction or acquittal of the lesser included offense. In Brown, the defendant was convicted on his guilty plea to the offense of joyriding and subsequently was convicted of the greater offense of auto theft based on the same events. Under Ohio law, joyriding was a lesser included offense of auto theft. The Court, noting that joyriding is the same offense as auto theft under theBlockburger test because the lesser offense required no additional proof, held that the subsequent prosecution was precluded by double jeopardy principles. 432 U.S. at 168-69. The Court emphasized that the prohibition of successive prosecutions serves a policy of finality, protecting a defendant from attempts to relitigate facts or secure additional penalties. Id. at 165-66.
In the present case, petitioner was indicted for two distinct forms of aggravated murder. The first count charged him with murder with prior calculation and design. Ohio Revised Code § 2903.01(A), which defines this crime, states that "[n]o person shall purposely, and with prior calculation and design, cause the death of another." The second count charged petitioner with felony murder. Ohio Revised Code § 2903.01(B), which defines this crime, states that "[n]o person shall purposely cause the death of another while committing or attempting to commit . . . aggravated robbery . . . ." A lesser included offense of both forms of aggravated murder is murder, defined as "purposely caus[ing] the death of another." O.R.C. § 2903.02(A).
The Ohio Supreme Court made the following conclusions of law in regard to petitioner's claims:
The issue presented to us in this case is whether the doctrines of double jeopardy and collateral estoppel apply when a jury finds a defendant not guilty as to some counts and is hung as to other counts. We find that these doctrines do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count. In such cases, we further find the prosecution is entitled to retry the hung-jury counts provided that other criteria, such as sufficiency of the evidence, are met to allow retrial.
A review of the purpose and history of double jeopardy and collateral estoppel is useful in resolving this issue. Double jeopardy was established by the Fifth Amendment to the Constitution of the United States, which states: "No person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb * * *." The Fifth Amendment has been made applicable to the states through the Fourteenth Amendment
It is well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. United States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556, 567. It protects a person who has been acquitted from having to run the gauntlet a second time. Ashe v. Swenson (1970), 397 U.S. 436, 445-446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476-477. As stated in Green v. United States (1957), 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204:
The underlying idea [embodied in the Double Jeopardy Clause], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
In addition to its primary function of safeguarding against governmental overreaching See Justices of Boston Mun. Court v. Lydon [1984], 466 U.S. 294, 307, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 324), the double jeopardy guarantee protects a defendant's "valued right to have his trial completed by a particular tribunal.'" Crist v. Bretz (1978), 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 31, quoting Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. Once a tribunal has decided an issue of ultimate fact in the defendant's favor, the double jeopardy doctrine also precludes a second jury from ever considering that same or identical issue in a later trial. Dowling v. United States (1990), 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717.
Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer (1916), 242 U.S. 85 [ 37 S.Ct. 68, 61 L.Ed. 161]." Ashe, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. Collateral estoppel generally refers to the acquittal prong of double jeopardy.
However, the United States Supreme Court has held that double jeopardy does not apply to cases involving inconsistent verdicts and, by implication, hung juries. In Dunn v. United States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-359, the United States Supreme Court found that consistency in a verdict was not required and that where offenses were separately charged in counts of a single indictment, even though the evidence was the same in support of each, an acquittal on one count could not be pleaded as res judicata as to the other. The court found that the sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency. The court stated: "`The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'" Id., quoting Steckler v. United States (C.A.2, 1925), 7 F.2d 59, 60.
This principle of law was further affirmed in United States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 823 L.Ed.2d 461, where a defendant was charged with using the telephone to facilitate crimes of conspiracy and drug possession, crimes that were alleged in the indictment separately from the telephone solicitation charge, a compound indictment. In that case, a jury found the defendant not guilty of possession or conspiracy, but guilty of telephone solicitation to distribute cocaine. Even though possession and conspiracy were predicate felonies, the United States Supreme Court still held that the inconsistent verdicts could not be overturned. The court refused to weaken the Dunn rule, finding that "a criminal defendant already is afforded sufficient protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. The court rejected attempts by the lower courts of appeals to carve out exceptions to the Dunn case, and rejected defendant's argument that the principles of res judicata or collateral estoppel should apply to verdicts rendered by a single jury where the jury acquitted the defendant of the predicate felony. The court held: "We believe that the Dunn rule rests on a sound rationale that is independent of its theories of res judicata, and that it therefore survives an attack based upon its presently erroneous reliance on such theories." Id. at 64, 105 S.Ct. at 476, 83 L.Ed.2d at 468.
The court analyzed why inconsistent verdicts may work against the government as well as the defendant, and thus should not be used to grant the defendant a windfall when one cannot know the basis of the jury's conclusions. The court therefore decided that the jury verdicts must be accepted as they stand. To do otherwise is too speculative. The court concluded: "We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake. * * * But with few exceptions, * * * once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a jury's thought processes * * *; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality." Id. at 66-67, 105 S.Ct. at 477-478, 83 L.Ed.2d at 469-470.
The United States Supreme Court has applied the same principles to hung juries. In Richardson v. United States (1984), 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242, the court reiterated its determination that neither a jury's failure to reach a verdict nor a trial court's declaration of a mistrial following a hung jury is an event that terminates jeopardy so as to bar a second trial on the mistried charges. Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court explained the logic behind this conclusion as follows:
The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. * * * What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.
Id., 468 U.S. at 324-325, 104 S.Ct. at 3085-3086, 82 L.Ed.2d at 250, quoting Wade v. Hunter (1949), 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974, 978. The Richardson court reasoned that double jeopardy does not bar retrial on mistried counts unless there is some event that terminates the original jeopardy. Id., 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court specifically held that mistrial following a hung jury was not such an event.
Having established that nothing in the federal Constitution bars a retrial after a hung jury, we now turn our attention to our own pronouncements on this issue. The issue of inconsistent verdicts in response to different counts was addressed in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, vacated on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. The court, in approving and following Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566, stated, at paragraph two of the syllabus:
The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. (Browning v. State, 120 Ohio St. 62 [ 165 N.E. 566], approved and followed.)
That proposition was reaffirmed in State v. Brown (1984), 12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889, and most recently approved and followed in State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, 1037.
In Brown, the defendant was indicted on three counts of rape, one count of gross sexual imposition, one count of kidnapping, and one count of robbery. The jury found the defendant not guilty by reason of insanity as to two counts of rape and guilty as to the remaining counts in the indictment. Clearly that fact pattern involved common issues to all counts. The defendant argued that the jury could not consistently find the defendant sane as to some actions and insane as to others.
Noting that the defendant did not contend that an inconsistency existed within a single count, the court found that the testimony in the case was that the defendant's "borderline personality" could fade "in and out of sanity." Id. at 149, 12 OBR at 188, 465 N.E.2d at 892. The court held that the finding that the defendant was insane as to two of the rape charges but sane as to the remaining charges did not require reversal of the convictions.
Turning to the fact pattern involved in this case, this case clearly fits within the parameters of Brown The defense argues that because the defendant was found not guilty of a lesser included offense in Count One, that finding is res judicata or collateral estoppel as to Count Two. However, a basic understanding of how a case is sent to the jury and how the counts are presented to the jury is key to understanding why the Brown holding is still good law.
The jury in this case was instructed that the case involved two counts. Count One charged the appellee with aggravated murder with prior calculation and design. Count Two charged the appellee with felony murder based on aggravated robbery. The lesser included offenses tracked each separate count and were not dependent on each other.
In instructing the jury and reviewing the verdict forms on the track involving Count One, aggravated murder with prior calculation and design, the judge instructed the jury to first consider aggravated murder by prior calculation and design.
The court then instructed on the lesser included charge of murder to Count One:
If you find the State failed to prove the element of prior calculation and design in the charge of aggravated murder, you may consider the lesser offense of murder 85 to Count 1. (Emphasis added.)
The court later read the related verdict form to the jury as follows:
We the jury, being duly impaneled upon our oaths and the law and evidence in this case, and having found the defendant Mark E. Lovejoy not guilty of aggravated murder as he is charged in Count 1 of the indictment, do further find the defendant guilty of murder.
The court next instructed on the second lesser included charge to Count One:.
If you find that the State failed to prove purpose beyond a reasonable doubt that the defendant purposely caused the death of Nathan Curry, you must find the defendant not guilty of aggravated murder and not guilty of murder as to Count 1. You may then consider involuntary manslaughter." (Emphasis added.)
The court later read the related verdict form to the jury as follows:
We the jury being duly impaneled and upon our oaths and law and evidence in this case, and having found the defendant Mark E. Lovejoy not guilty of aggravated murder, and not guilty of murder as he is charged in Count One of the indictment, do further find the defendant guilty of involuntary manslaughter.
Count Two, felony murder based on the aggravated robbery, had a similar track:
The defendant is charged with aggravated murder in Count 2 of the indictment. Before you can find the defendant guilty in Count 2, you must find beyond a reasonable doubt that on or about the 16th day of August, 1993, in Franklin County, Ohio the defendant purposely caused the death of Nathan Curry while the defendant was committing or attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery.
The jury was asked to consider lesser included offenses of murder and involuntary manslaughter to the Count Two track, premised on aggravated robbery. The jury instructions and verdict forms paralleled the format of Count One.
The jury, in closing arguments, jury instructions and verdict forms, was advised that it had two tracks to consider, Count One, premised on aggravated murder with prior calculation and design and the two lesser included offenses based on Count One, and Count Two, felony murder while committing an aggravated robbery with its two lesser included offenses.
The lesser included offenses merely flowed from the original. The jury was not charged with only one set of lesser included offenses that could apply to either aggravated murder with prior calculation and design or felony murder based on the robbery. They were given two different sets of lesser included offense verdict forms. To find that collateral estoppel applies because the wording of the lesser included offenses of "murder" was the same in each count is to ignore the simple realities of the way the case went to the jury.
Once the jury decided that prior calculation and design was not proven by the state, it could be considered logical for the jury to acquit the defendant of all charges in the track of Count One as the flow of the verdict forms guided them in that direction. The jury consistently hung on all charged offenses in the track of Count Two, which involved the issue of robbery and its lesser included offenses. However, speculation as to why the jury failed to reach a verdict on the felony murder count only demonstrates the difficulty with trying to analyze a jury's decision. The Dunn court's pronouncement that it is best to just "accept the jury's collective judgment" so as to preserve the sanctity of the jury process is still sound public policy. Powell, 469 U.S. at 67, 105 S.Ct. at 478, 83 L.Ed. 2d at 470.
This fact pattern is clearly distinguishable from State v. Liberatore (1983), 4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116. In Liberatore, the victim was killed by a bomb placed in the car next to his, which was detonated by remote control. The defendant was charged with aggravated arson and aggravated murder with the aggravated arson as the predicate felony. The jury acquitted the defendant of aggravated arson and hung on the aggravated murder charge. The court found that since aggravated arson was the predicate crime for the aggravated murder, a judgment of acquittal on the aggravated arson foreclosed retrial of the defendant on aggravated murder. Id. at 15, 4 OBR at 13, 445 N.E.2d at 1118.
In this case, had the jury acquitted the appellee of the robbery, and hung on Count Two, felony murder based on the aggravated robbery (an inconsistent verdict within a count), Liberatore would clearly apply and double jeopardy would attach. Robbery was the underlying predicate for Count Two. However, Liberatore did not have two distinct tracks as in this case. Murder, as a lesser included offense of each count, is not the same as a predicate felony for an aggravated murder conviction. Thus, there is no need to reach the issues raised in Liberatore because Liberatore involved inconsistencies within the same count, an entirely different issue from that involved in this fact pattern.
In conclusion, we see no reason to distinguish the fact pattern in this case from that in Brown. Browning, Adams, Brown, and Hicks remain good law and resolve the issues in this case. Therefore, we hold that when a jury finds a defendant not guilty as to some counts and is hung on other counts, double jeopardy and collateral estoppel do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count.State v. Loveloy, 79 Ohio St.3d 440, 442-448 (1997), Exhibit K to
II.
28 U.S.C. § 2254 (d) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 120 S.Ct. 1495 (2000), the United States Supreme Court clarified that
state-court judgments must be upheld unless, after the closest examination of the statecourt judgment, a federal court is firmly convinced that a federal constitutional right has been violated.Id. at 1511. Upon review of the entire record, this Court is not convinced that the state court's decision was contrary to clearly established federal law, or so unreasonable so as to justify federal habeas corpus relief. The Court concludes that the reasoning of the Ohio Supreme Court, recited at length above, adequately explains why the second prosecution of petitioner for the charges which the first jury was unable to agree upon is not barred by the United States Constitution's double jeopardy clause. The petition for a writ of habeas corpus is therefore DENIED and this action is DISMISSED.