IN THE SUPREME COURT OF OHIO Case No. 09-2324 STATE OF OHIO Appellant -vs- WILLIAM CALHOUN On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District, Case No. 92103 Appellant ROBERT L. TOBIK, ESQ. Cuyahoga County Public Defender BY: JOHN T. MARTIN, ESQ. (0020606) Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, OH 44113 (216) 443-7583 (216) 443-3632 FAX MERIT BRIEF OF APPELLEE COUNSEL FOR APPELLEE, WILLIAM CALHOUN WILLIAM D. MASON Cuyahoga County Prosecutor T. ALLEN REGAS, ESQ. (0067336) Assistant Count Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800 COUNSEL FOR APPELLANT, STATE OF OHIO
TABLE OF CONTENTS PAGES STATEMENT OF THE CASE AND FACTS... I ARGUMENT...... 1 In Response to Proposition of Law I (as formulated by the State of Ohio) :...2 For the purposes of double jeopardy, a finding of guilt upon a specification that defines the level of an offense does not constitute a finding of guilt on the underlying crime. A. The Double Jeopardy Clause's Bar on Successive Prosecutions Precluded the Trial of Attempted Murder (Count One) in CR 490330...3 B. The Double Jeopardy Clause's Bar on Multiple Punishment, as Augmented by Ohio's Statutory Bar Against Multiple Punishment of Allied Offenses, Precluded a Second Punishment for Any of the Offenses Alleged in CR 490330...5 CONCLUSION...9 SERVICE...9 i
CASES TABLE OF AUTHORITIES Benton v. Maryland (1968), 395 U.S. 784...:...2 Blockburger v. United States (1932), 284 U.S. 299...5, 6 Illinois v. Vitale (1980), 447 U.S. 410...3 Missouri v. Hunter (1983), 459 U.S. 359...5 North Carolina v. Pearce (1969), 395 U.S. 711...3 Ohio v. Johnson (1984), 468 U.S. 1224...4 State v. Baer (1981), 67 Ohio St.2d 220...6; 7 State v. Blankenship (1995), 102 Ohio App.3d 534...4 State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569...3 State v. Bush, 76 Ohio St.3d 613, 1996-Ohio-8...8 State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625...7 State v. Calhoun, Cuyahoga App. No. 91328, 2009-Ohio-2361...1 State v. Carter (May 21, 1999), Lucas App. Nos. L-97-1162, L-97-1163, L-97-116...4 State v. Haslam, Monroe App. No. 08 MO 3, 2009-Ohio-1663...8 State v. Rance (1999), 85 Ohio St. 3d 632...5, 6 State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2...:...5 State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147...8 United States v. Dixon (1993), 509 U.S. 688...2, 3, 4 United States v. Halper (1989), 490 U.S. 435...3 STATUTES, RULES AND CONSTITUTIONAL PROVISIONS R. C. 2941.25...6, 7 Crim. R. 48...8 Fifth Amendment, U.S. Const...:... passim Article I, Sec. 10, Ohio Constitution...:...2 LEGISLATIVE REPORTS 109`h General Assembly, Ohio Legislative Services Commission, Summary of Am. Sub. H.B. 511...:...7 Ohio Legislative Services Commission, Proposed Ohio Criminal Code, Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedure, March, 1971...7 ii
STATEMENT OF THE CASE AND FACTS Mr. Calhoun supplements the State's factual and procedural recitation as follows. In CR 490330, which is the instant case, Defendant-Appellant William Calhoun was indicted for the attempted murder of Curtis Johnson (Count One), felonious assault of Curtis Johnson (Count Two) and having a weapon under disability. The same allegation of attempted murder contained in Count One of CR 490330 later became a death-penalty specification in an aggravated murder indictment returned against Mr. Calhoun in CR 497811. See Count One in CR 497811. Tr. 4-8. Mr. Calhoun was tried first on the aggravated murder indictment in CR 497811 and was found guilty of the aforementioned aggravated murder count with the aforementioned specification detailing the attempted murder of Curtis Johnson. Tr. 4. He is now serving a sentence of life without possibility of parole. See, State v. Calhoun, Cuyahoga App. No. 91328, 2009-Ohio-2361 (affirming conviction in CR 497811). Subsequent to the trial in CR 497811, Mr. Calhoun, through counsel, moved to dismiss CR 490330 on grounds that a trial on the charges in CR 490330 would violate the Double Jeopardy Clause of the United States Constitution. A hearing was subsequently held on the motion. The State filed no written response to the motion and declined to offer any argument in opposition to the motion at the hearing. Tr., passim. The trial court granted this motion after taking it under consideration. The Eighth District subsequently affirmed the trial court. State v. Calhoun, Cuyahoga App. No. 92103, 2009-Ohio- 6097. This Court subsequently accepted the State's appeal and ordered briefing on the proposition of law set forth below. I
ARGUMENT In Response to Proposition of Law I (asformulated by Appellant State of Ohio): For the purposes of double jeopardy, a finding of guilt upon a specification that defines the level of an offense does not constitute a finding of guilt on the underlying crime. The question before this Court is: Whether the trial court abused its discretion when it dismissed a case that was premised upon conduct that had already been the subject of a previous conviction with a sentence of life without parole? The Fifth Amendment to the United States Constitution provides in pertinent part that: nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb The Fifth Amendment prohibits multiple punishment for a single offense as well as multiple trials for a single offense. United States v. Dixon (1993), 509 U.S. 688, 696. This provision applies to State proceedings via the Fourteenth Amendment. Benton v. Maryland (1968), 395 U.S. 784, 794. The Ohio Constitution, at Article I, Section 10, similarly provides that "[n]o person shall be twice put in jeopardy for the same offense." As this Court has noted, the Double Jeopardy Clause of the United States Constitution and Article I, Section 10 of the Ohio Constitution thus guarantee a criminal defendant three protections: (1) The defendant will not be prosecuted a second time after acquittal for the same offense; (2) The defendant will not be prosecuted a second time after conviction for the same offense; and (3) The defendant will not be punished more than once for the same offense. 2
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569. Accord, United States v. Halper (1989), 490 U.S. 435, 440; North Carolina v. Pearce (1969), 395 U.S. 711, 717. A. The Double Jeopardy Clause's Bar on Successive Prosecutions Precluded the Trial of Attempted Murder (Count One) in CR 490330 In the instant case, the Double Jeopardy Clause's prohibition against multiple prosecution precluded trying Mr. Calhoun for attempted murder in CR 490330 after he had already been tried for attempted murder as a specification in CR 497811. In Dixon, the Supreme Court held that a defendant who had already been found in criminal contempt of court for having committed the criniinal offense of cocaine possession while on bond could not be subsequently prosecuted for the underlying cocaine-possession offense. 509 U.S. at 696. The Supreme Court applied the "same elements" test and determined that, because the contempt charge encompassed all the elements of the cocaine-possession charge that had been the basis for the contempt, the Double Jeopardy Clause prohibited a subsequent and separate prosecution for the cocaine charge. Id., at 696-97. The Supreme Court recognized that "the underlying substantive criminal offense is `a species of lesser-included offense."' Id., at 698, quoting Illinois v. Vitale (1980), 447 U.S. 410, 420. Applying Dixon here, the trial court properly concluded that the Double Jeopardy Clause would have been violated had Mr. Calhoun been tried for attempted murder in CR 490330. In CR 497811, Mr. Calhoun was tried for aggravated murder with a specification that he had previously committed attempted murder of Curtis Johnson. Thus, like the contempt charge in Dixon (which encompassed all the elements of the underlying criminal charge), the capital murder charge in CR 497811 encompassed the attempted murder charge in CR 490330. The jury's having found that specification proven beyond a reasonable doubt helped open the door to a possible death penalty and contributed to the life-without-parole sentence that was eventually meted out. In light of Mr. 3
Calhoun's having already been required to run the gauntlet of trial for this attempted murder, the trial court properly prohibited the State from prosecuting the exact offense again in CR 490330. The State attempts to avoid this conclusion by arguing that a capital murder specification is akin to a firearm specification and then arguing that a firearm specification is not an "offense." State's Merits Brief, at 6-7. This ahalogy is misplaced. The capital murder mass-murder specification included within its elements all of the same elements as the separately-prosecutable offense of attempted murder. This is what causes Dixon (where the contempt charge's elements included the elements of the cocaine offense) to be on point. In contrast, a firearm specification, standing alone, simply alleges that a firearrn was possessed, brandished, etc. - activity which does not encompass the elements of any offense, per se, and which could not be separately prosecuted on its face.1 Finally, it should be noted that the Double Jeopardy Clause's successive prosecution provision would not have been violated had the two cases been tried together. Ohio v. Johnson (1984), 468 U.S. 1224 (greater and lesser offenses may be prosecuted in a single prosecution). However, this is not what occurred. Accordingly, the attempted murder count in CR 490330 cannot be tried again. ' The offenses on which the State relies in this regard are even less apposite. State v. Blankenship (1995), 102 Ohio App.3d 534, holds that, within a single prosecution, the multiple punishment provision of the Double Jeopardy Clause is not violated by an enhanced punishment for a firearm specification. State v. Carter (May 21, 1999), Lucas App. Nos. L-97-1162, L-97-1163, L-97-116, holds that, again within a single prosecution, a statutory provision that allows one firearm specification to be stacked atop another does not violate the Double Jeopardy Clause's multiple punishment provision. As discussed infra, the multiple punishment prohibition of the Double Jeopardy Clause is not violated by explicit statutory provisions that permit multiple punishment - unfortunately for the State, no such provisions apply in Mr. Calhoun's case. 4
B. The Double Jeopardy Clause's Bar on Multiple Punishment, as Augmented by Ohio's Statutory Bar Against the Multiple Punishment of Allied Offenses, Precluded a Second Punishment for Any of the Offenses Alleged in CR 490330 While the Fifth Amendment's successive-prosecution prohibition barred the trial of the attempted murder charge in CR 490330, the Fifth Amendment's multiple punishment prohibition precluded the trial court from being able to convict (i.e., entertain a finding of guilt and then sentence)2 Mr. Calhoun for the remaining charges of felonious assault (Count Two) and having a weapon under disability (Count Three), respectively. The Double Jeopardy Clause's prohibition on multiple punishments provides a floor that prohibits double punishment for greater and lesser-included offenses unless there is a State legislative intent to the contrary. Blockburger v. United States (1932), 284 U.S. 299. In this context, "the Double Jeopardy Clause does no more than prevent the sentencing court form prescribing greater punishment than the legislature intended." Missouri v. Hunter (1983), 459 U.S. 359, 365. Under Blockburger, the Double Jeopardy Clause thus provides the States with the ability to grant either greater or lesser protections against multiple punishments than does the United States Constitution. If a State so desires, it can prohibit multiple punishments even where offenses are not nested one in the other as greater and lesser-included offenses. On the other hand, if a State so desires, it can expand multiple punishments to even include the administration of multiple punishment for both the greater offense and the lesser-included offense. See, State v. Rance (1999), 85 Ohio St.3d 632. 2 State v. Whitfield, 124 Ohio S. 3d 319, 2010-Ohio-2, at par. 12. 5
What Blockburger does, however, is to establish a default standard - where a State is silent as to its intention, the Blockburger test applies and multiple punishments are limited to those offenses are included within one another as greater and lesser offenses. See, Rance, 85 Ohio St.3d at 635. 1. The Language of R.C. 2941.25 In light of Blockburger, an analysis of the issue of multiple punishment within a State must turn to the laws of that State. In Ohio, the General Assembly has chosen not to simply rely upon the Blockburger default standard of only prohibiting punishment for greater and lesserincluded offenses. Rance, 85 Ohio St.3d at 639. Rather, the General Assembly has specifically addressed the issue of multiple punishments via the enactment of R.C. 2941.25: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. 2. The Purpose of R.C. 2941.25: To Establish a Broader Protection from Multiple Punishments in Ohio than is Mandated by Blockburger. The General Assembly's purpose in enacting R.C. 2941.25 was to ensure that the Blockburger test not be applied in Ohio with respect to multiple punishment. State v. Baer (1981), 67 Ohio St.2d 220, 226: If the General Assembly, by the enactment of R.C. 2941.25, had not intended to prohibit more than one conviction and sentence in cases other than where the offenses are the same for purposes of double jeopardy, there could be no purpose in the enactment of the statute. Clearly, the 6
General Assembly intended to extend the prohibition against multiple convictions and sentences beyond the concept of double jeopardy, by providing in R.C. 2941.25(A) that: "Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." (Emphasis added.) We construe the word "may" as used in R.C. 2941.25(A), to have the meaning of "shall," thus giving it the interpretation most favorable to the defendant. Accord, State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625 at par. 22 (no requirement that "elements of compared offenses must exactly align in order to be allied offenses of similar import under R.C. 2941.25(A)."). This intention to expand the protection against multiple punishment was evinced in the legislative history of R.C. 2941.25: This section provides that when an accused's conduct can be construed to amount to two or more offenses of similar import, he may be charged with all such offenses but may be convicted of only one. If his conduct constitutes two or more dissimilar offenses, or two or more offenses of the same or similar kind but committed at different times or with a separate "ill will" as to each, then he may be charged with and convicted of all such offenses. 109'h General Assembly, Ohio Legislative Service Commission, Summary of Am. Sub. H.B. 511 at 69 (emphasis added). In the Technical Committee's opinion, where the same conduct by the defendant technically amounts to two or more related offenses, he should be guilty of only one offense. Ohio Legislative Service Commission, Proposed Ohio Criniinal Code, Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedure, March 1971, at 308. 3. Mr. Calhoun Had Already Been Punished for the Offenses Alleged in CR 490330 At the time it dismissed CR 490330, the trial court, by virtue of the sentence imposed in CR 497811, had already punished Mr. Calhoun with respect to each of the charges alleged in CR 7
490330. With respect to Count One in CR 490330, the offense of attempted murder had already been part of the equation that caused the aggravated murder charge in CR 497811 to be deatheligible, and thus a sentencing had already taken place with respect to that offense conduct. This is similar to Dixon, where the offense conduct that constituted cocaine possession had already been the subject of punishment as contempt of court. With respect to Count Two in CR 490330, the offense of felonious assault is an allied offense of attempted murder. State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147. Thus, the aforementioned punishment for attempted murder precluded the punishment for felonious assault. With respect to Count Three, the weapons under disability charge, it was incumbent upon the State to show the trial court, or at least present an argument, that Mr. Calhoun's alleged possession of a weapon in CR 490330 was not part of the continuing course of conduct that the State, by virtue of the mass murder specification, had proven in CR 497811 - a course of conduct that began with the attempted murder alleged in CR 490330 and continued through the murder alleged in CR 497811. Where a defendant, while under the same disability, possesses the same weapon under a continuing course of conduct, multiple weapons-under-disability charges are allied. State v. Haslam, Monroe App. No. 08 MO 3, 2009-Ohio-1663, at pars. 58 ff. Here, the State sat silently at the hearing and offered the trial court no guidance in this regard. Confronted with these considerations of allied offenses, the trial court properly declined to allow a case to proceed to trial where it would be unable to convict3 the defendant, even if the verdicts were guilty. See also, State v. Bush, 76 Ohio St.3d 613, 615, 1996-Ohio-8 (interpreting Crim. R. 48).4 3 See n. 2, supra, and accompanying text. 4 "Trialjudges are at the front lines of the administration ofjustice in our judicial system, dealing with the realities and practicalities of managing a caseload and responding to the rights and the 8
affirmed. CONCLUSION For these reasons, the decision of the Eighth District Court of Appeals should be Respectfully submitted, / V^ J(^IIN T. MARTIN, ESQ., No. 0 Assistant Public Defender 206 06 SERVICE A copy of the foregoing Appellee's Merit Brief was served upon William D. Mason, County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, via U.S. mail, on this 27"' day of July, 2010. T. MARTIN, ESQ. interests of the prosecution, the accused, and the victims. A court has the `inherent power to regulate the practice before it and protect the integrity of its proceedings."' 9