State v. Tanner , 90 Ohio App. 3d 761 ( 1993 )

Thus far, the Supreme Court of Ohio has not clearly explained how the Double Jeopardy Clause set forth in the Ohio Constitution compares with the Double Jeopardy Clause in theFifth Amendment to the Constitution of the United States. Therefore, I do not agree that any prosecution which satisfies the Fifth Amendment to the Constitution of the United States automatically complies with Section 10, Article I, of the Ohio Constitution. However, I do not believe that the Supreme Court of Ohio will interpret Section 10, Article I in such a way as to bar retrial of an accused whose conviction has been reversed because of error in the trial court.

Having made that observation, I next turn to the problems still flowing from the blunder of the three-judge panel who conducted the first trial. The original trial judges, in rejecting the aggravated murder charge dependent upon a finding of prior calculation and design, apparently by mistake fastened on the wrong lesser-included offense. They jumped past a conviction for murder and found Tanner guilty of the lesser-included offense of involuntary manslaughter. I do not believe that they consciously rejected a purpose to kill in making this jump or they would have found Tanner "not guilty" of aggravated murder on the other theories set forth in the indictment, all of which still require a purpose to kill.

When the convictions came up on appeal originally, the panel assigned acknowledged the conflict between the original verdicts and ordered a new trial. Upon remand, for reasons which are not apparent, both the offense of involuntary manslaughter and the offense of aggravated murder were submitted to the trier of fact — this time a jury. Why the prosecution did not seek to dismiss the separate involuntary manslaughter charge and simply prosecute the aggravated murder, which already has involuntary manslaughter as a lesser-included offense, is somewhat of a mystery. Certainly, the case could have been simplified at all stages if dismissal had been sought.

I do not view the jury verdicts at the second trial as inconsistent, since the jury did not consciously reject "purpose to kill" in finding Tanner guilty of involuntary manslaughter. Instead, the jury convicted Tanner of everything it could.

The more difficult question is whether the original acquittal of murder through an apparent oversight by the original three-judge panel establishes collateral estoppel as to subsequent findings which are dependent upon a finding of purpose to kill. In a situation where a subsequent trial is involved, collateral estoppel would normally apply. However, in Tanner's situation, I feel bound by the law of the case. The previous panel of this court did not apply collateral estoppel and vacate only the aggravated murder conviction. Instead, the panel vacated both convictions and ordered a new trial as to each. If our written opinions are to merit any respect, we should attempt at least to be consistent in our rulings in a given case. Therefore, I do not apply collateral estoppel here.

With the difference between my thinking and that of Judge Petree hopefully being clear, I also would overrule the first four assignments of error.

As to the fifth assignment of error, the medical testimony as to cause of death was murky. The stab wounds were in and of themselves nonlethal. For some reason not clearly ascertainable via an autopsy, McBride died at about the time he fought with Tanner and the other young man who also stabbed him. It is unclear whether he was literally scared to death, or his heart developed arrhythmias as a result of the assaults and/or stress, or for some other reason his heart apparently stopped while he was being stabbed. Given the facts before the jury and applying the legal standard set forth in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, the fifth assignment of error is properly overruled.

As to the sixth assignment of error, I agree with Judge Petree's opinion.

As a result, I agree that all six assignments of error should be overruled and the judgment of the trial court should be affirmed.