.. _. SHIRLEY STRICKLAND SAFFOLD, JUDGE: STATE OF OHIO ) )SS: CUYAHOGA COUNTY ) IN THE COURT OF COMMON PLEAS. Case No. CR

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1 .. _. STATE OF OHIO SS: CUYAHOGA COUNTY IN THE COURT OF COMMON PLEAS STATE OF OHIO Plaintiff, -vs- CLARENCE BOGAN Defendant. Case No. CR OPINION SHIRLEY STRICKLAND SAFFOLD, JUDGE: The Defendant's, Clarence Bogan (hereinafter "Defendant", trial was declared 'a. mistrial on July 24, 2017 and Defendant will be re-tried on a separate date on all claims. Defendant's Double Jeopardy rights will not be violated pursuant to a retrial on all counts. I. FACTUAL BACKGROUND: This case concerns the proceedings in Defendant Bogan's Cuyahoga County Common Pleas case State of Ohio v. Clarence Bogan, CR A. Defendant Bogan was indicted on Counts: [1] Aggravated Murder pursuant to Ohio Revised Code l(A, [2] Murder pursuant to Ohio Revised Code (8, [3] Felonious Assault pursuant to Ohio Revised Code 2903.ll(A(l with a Repeat Violent Offender Specification pursuant to Ohio Revised Code (A and a Notice of Prior Conviction pursuant to Ohio Revised Code (F(6, and [4] Domestic Violence pursuant to Ohio Revised Code S(A, to which he pleaded not guilty at his arraignment on April 22, Defendant Bogan's trial was commenced on July 13, 2017 to the Amended Counts [1] Ohio Revised Code (A, Murder, [2] Ohio Revised Code (8, 1

2 Murder, [3] Ohio Revised Code (A(1, Felonious Assault, and [4] Ohio Revised Code (A, Domestic Violence. The Repeat Violent Offender Specification, pursuant to Ohio Revised Code (A, and the Notice of Prior Conviction, pursuant to Ohio Revised Code (F(6,were tried to the Bench prior to trial. The entire trial was marred with misconduct on behalf of the Defendant as well as a juror, which ultimately led to a declaration of a mistrial. During the course of the trial it was necessary for the Court to advise Defendant's Counsel, as well as Defendant directly, that the Court would not allow the continued disrespect on behalf of Defendant towards the jurors as well as the Court. Defendant's conduct during trial was so egregious that it was determined by the Court to be undermining the integrity of the proceedings, and Defendant was therefore reprimanded in open court and advised to cease the disrupting behavior. Throughout the jury deliberation process there were also multiple notifications to the Court, via the jury foreperson, of juror misconduct and bias on behalf of one of the jurors, Juror 5. Throughout the trial it was noted by a number of individuals, individuals on the jury as well as the Court, that it appeared that Juror 5 and Defendant were communicating with one another during testimony, both by non-audible mouth movements and body gestures. The foreperson further instructed the court that the jurors were unable to communicate with Juror 5, thereby hindering their ability to come to a verdict. There was an undeniable perception, in the Court's view, that there was misconduct by both Defendant and Juror 5 during the pendency of the case which undermined the integrity of the proceedings and required both reprimand, as it pertains to Defendant, and ultimately the declaration of a mistrial prior to completion of the jury deliberation and verdict, based upon the behavior of both Juror 5 and Defendant. 2

3 The Court, using its sound discretion, determined that based upon the behavior of Defendant and Juror 5, that a mistrial was necessary. Defendant and Juror S's behavior permeated so deeply into the trial and jury deliberations, that it was determined by the Court that the integrity of the proceeding was compromised and that there was no way to properly cure the problem.thereby ultimately resulting in the necessity of a mistrial. This determination was made based upon a manifest necessity under the circumstances of the case, and in accordance with the rights of the Defendant and the prosecution. Such a determination was made based upon the belief that a fair trial was no longer possible, and that there was no possibility of curing the issue. Therefore, on July 24, 2017, prior to the jury returning a unanimous verdict on any of the counts, the Court declared a mistrial on all counts, believing that the ends of substantial justice could not be attained without discontinuing the trial. Accordingly, this matter will be re-tried and Defendant's Double Jeopardy rights will not be violated due to retrial based upon the mistrial. An oral hearing was held on the record on July 25, 2017 to address any issues with the Court's declaration of a mistrial and to insure that the record reflected that the mistrial was declared as to all counts heard during trial. A review of the verdict forms indicated that the jurors had not reached a verdict on all counts at the time of the declaration of mistrial, and that Juror 5 attempted to rescind her signature on Count 4's verdict form by "scratching" out her signature. Counsel for the State and Defendant, as well as the Defendant, and a Court Reporter were present for the hearing. I 3

4 II. LAW AND ARGUMENT: a. Finality of the Verdict In order for a verdict to be final, (1 the deliberations must be over, (2 the verdict must be announced in open court, and (3 upon a poll of the jury, all jurors must assent to the verdict. See State v. Williams, 99 Ohio St.3d 493, hio-7396, 794 N.E.2d 27,,r35. A verdict is therefore deemed to not be final if it is not accepted by the trial court and it is not announced in open court, with the opportunity for a jury poll to prove assent of all jurors. Id. The purpose of the jury poll is "to enable the court and the parties to ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented." Id. at,r37, quoting Miranda v. United States, 255 F.2d 9 (1st Cir. 1958, see also, State v. Hessler, 90 Ohio St.3d 108, 734 N.E.2d 1237 (2000. Therefore, the jury poll is the appropriate benchmark for determining the finality of the verdict. Id. at,r36. Accordingly, a verdict is considered final and complete. after a poll of the jurors has been completed and announced in open court, with all jurors assenting to the verdict. In this case, the verdict cannot be deemed to be final because none of the requirements enumerated above have been met. Based upon the communications with the jury foreperson, as well as a review of the verdict forms, it is clear that the jury had not completed their deliberations at the time of the declaration of a mistrial. Likewise, no verdict was announced in open court, so the parties were not afforded the opportunity to poll the jury to determine their assent to the verdict. Therefore, the verdict cannot be deemed to be final under these circumstances. 4

5 b. Defendant's Double Jeopardy Rights Defendant's constitutional right granted under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article I, Section 10 of the Ohio Constitution, protects a criminal defendant against repeated prosecutions for the same offense, and encompasses the defendant's right "to have his trial completed by a particular tribunal." Oregon v. Kennedy, 456 U.S. 667, , 102 S.Ct L.Ed.2d 416 (1982; State v. Kareski, 137 Ohio St.3d 92, hio-4008, 998 N.E.2d 410,,r 14; quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949. The right to his chosen tribunal is not unlimited, however, and in certain instances this right must be "subordinated to the public's interest in fair trials designed to end in just judgments." State v. Marshall, hio-4677, 22 N.E.3d 207,,r 20 (8th Dist., quoting Wade, 336 U.S. at 689, 69 S.Ct. 834, 93 L.Ed Thus, where a defendant disagrees with a mistrial, the defendant may still be retried if '"manifest necessity' exists for a mistrial, or if 'the ends of public justice would otherwise be defeated."' (Citation omitted. Marshall at,r 21. Although "manifest necessity" is a high standard of necessity in order for a mistrial to be declared, there does not need to be a showing of "absolute necessity" or that there was no other alternative than declaring a mistrial. Id. It is within this Court's sound. discretion, and in balancing the Defendant's constitutional right to have the case determined by his chosen tribunal with the public's interest in fair trials, that the circumstances of this case presented a manifest necessity for a mistrial. The circumstances represented above proved to the Court that the prosecution would not be afforded a fair trial based upon the misconduct of the Defendant and Juror 5, 5

6 ' I and that there existed no possibility of reaching a just result. Accordingly, a mistrial was declared. III. CONCLUSION: Due to the Court's belief that the behavior on the part of Defendant Bogan, as well as Juror 5, undermined the integrity of the proceeding, and led to the manifest necessity for a mistrial, Defendant's Double Jeopardy defense will be unavailable to the Defendant, and this case will be scheduled for a retrial. As no final verdict was reached in the first trial, the retrial will be as to all counts previously submitted to the jury. 6