Opinion
No. 82-436
Decided March 9, 1983.
Criminal law — Aggravated murder — R.C. 2903.01(B) — Retrial of felony murder charge barred by Double Jeopardy Clause after accused acquitted of underlying felony at previous trial.
APPEAL from the Court of Appeals for Cuyahoga County.
On October 6, 1977, Daniel Greene was killed as he entered his car when a dynamite bomb, placed in the car parked next to his, was detonated by remote control. Anthony Liberatore, appellee herein, was indicted on three counts in connection with this incident: (1) aggravated arson (R.C. 2909.02); (2) aggravated murder (R.C. 2903.01[B]); and (3) engaging in organized crime (R.C. 2923.04).
This count was dismissed before trial on the basis of State v. Young (1980), 62 Ohio St.2d 370 [16 O.O.3d 416], which held R.C. 2923.04 unconstitutional.
At trial, the state did not suggest that appellee acted directly or was present at any time an attempt was made to kill Greene. Rather, the state attempted to prove that appellee participated in an ongoing conspiracy to murder Greene.
Accordingly, the trial court instructed the jury on the law relating to complicity and conspiracy in connection with the aggravated arson charge, and incorporated both principles into its specific charge on aggravated murder. In so doing, the court set forth the elements which the state was required to prove in order to sustain a verdict of guilty on the charge of aggravated murder:
"* * * [T]he State must prove:
"First, that Daniel J. Greene was a living person, and that his death was caused by a principal offender or offenders in Cuyahoga County, Ohio, on or about October 6, 1977; and
"Second, that the killing was done purposely; and
" Third, that the killing was done while the principal offender or offenders were committing Aggravated Arson; and
" Four, that defendant did participate therein as an aider and abettor to such principal offender or offenders, and/or as a co-conspirator with them.
"* * *
" Then to sustain the charge of Aggravated Murder, the acts proximately causing the purposeful death must have been performed while — as an aider and abettor, and/or as a co-conspirator — the defendant was committing complicity in the commission of Aggravated Arson * * *." (Emphasis added.)
After lengthy deliberation, the jury returned a verdict of not guilty on the charge of aggravated arson, but announced that it was unable to reach a verdict on the charge of aggravated murder. The court thereupon accepted the verdict as to the former count and declared a mistrial as to the latter.
Appellee's motion for judgment of acquittal and motion to dismiss the remaining charge on the grounds of former jeopardy were denied.
Upon appeal, the court of appeals reversed the ruling of the trial court, holding that "* * * under the facts and indictment in this case, the double jeopardy provisions of the United States and Ohio Constitutions preclude a subsequent prosecution for aggravated murder * * * [since such prosecution] would necessitate a complete and identical relitigation of factual issues already resolved in the first trial."
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Albin Lipold, for appellant.
Mr. Elmer A. Giuliani and Mr. Mark R. DeVan, for appellee.
Where successive prosecutions are at stake, the double jeopardy guarantee serves "a constitutional policy of finality for the defendant's benefit." United States v. Jorn (1971), 400 U.S. 470, 479. That policy protects the accused from attempts to relitigate facts underlying a prior acquittal. See Ashe v. Swenson (1970), 397 U.S. 436. The question in this case is whether that guarantee would be violated were the state to be allowed to proceed on an aggravated murder charge pursuant to R.C. 2903.01(B) after the accused had already been acquitted of the underlying felony at a previous trial.
The United States Supreme Court has held that the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. See Ashe v. Swenson, supra, at 445. In State v. Thomas (1980), 61 Ohio St.2d 254 [15 O.O.3d 262], this court fully applied this concept in holding, at paragraph four of the syllabus, that "* * * successive prosecutions [are] barred in certain circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." (Emphasis added.) In so doing, we interpreted Ashe and its progeny, Harris v. Oklahoma (1977), 433 U.S. 682, to mean that "* * * a person may not be subjected to multiple prosecutions when proof of the one offense is necessary, as a practical matter, to prove the other, and both completed offenses arose out of the same criminal conduct." Thomas, at 261.
By definition, felony murder requires proof of the underlying felony in order to sustain a conviction under R.C. 2903.01(B). So too does the language of the instant indictment. Any inquiry into Liberatore's participation in the alleged conspiracy to murder Greene would necessarily require proof that appellee had committed aggravated arson, an offense of which he had been previously acquitted. The double jeopardy provisions of the federal and state constitutions would therefore bar subsequent prosecution on the aggravated murder charge. Cf. Harris v. Oklahoma, supra.
The indictment for aggravated murder reads as follows:
"* * * Defendant * * * unlawfully and purposely caused the death of another, to wit: Daniel J. Greene while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit Aggravated Arson." (Emphasis added.)
Accordingly, we hold that the guarantees of double jeopardy prohibit retrial of an accused under R.C. 2903.01(B) after the accused has already been acquitted of the underlying felony at a previous trial. The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, C. BROWN and J.P. CELEBREZZE, JJ., concur.
LOCHER and HOLMES, JJ., dissent.
It is my position that although the principle of double jeopardy would preclude the retrial of the appellee for aggravated arson, such principle would not bar the retrial of appellee for aggravated murder. Consequently, I dissent.
The central question on appeal is whether the state must prove that appellee committed aggravated arson in order to convict him for aggravated murder. In my opinion, it is not necessary to do so here.
The state's theory was not that appellee actually committed aggravated arson; rather, that he participated in a scheme that had the murder of Daniel Greene as its ultimate goal.
As Judge Parrino said in his well-reasoned dissent to the court of appeals' decision:
"Where an accomplice enters into a common design which is reasonably likely to produce a certain result, he is equally guilty with the principal and other accomplices, even though the accomplice did not actually know the means by which the principal would produce that result. See State v. Scott (1980), 61 Ohio St.2d 155 [15 O.O.3d 182]. * * * Accordingly, I would hold that where an accused, acting with a purpose to kill, is an accomplice to murder, and the principal causes the murder while committing aggravated arson, and where aggravated arson was a reasonably foreseeable consequence of the murder scheme, the culpability of the principal is attributable to the accomplice for the purposes of a charge and conviction of aggravated murder. Thus, * * * [appellee] may be tried for and convicted of aggravated murder as an accomplice where the * * * [principals] also committed aggravated arson even though * * * [appellee] himself was acquitted of aggravated arson."
Accordingly, I would reverse the judgment of the court of appeals and remand for a new trial on aggravated murder.
LOCHER, J., concurs in the foregoing dissenting opinion.