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7th District: Retrial not barred under double jeopardy principles
TRACEY BLAIR
Legal News Reporter
Published: March 2, 2018
A Mahoning County prosecutor did not intentionally goad the defense into seeking a mistrial in a murder case, the 7th District Court of Appeals ruled recently.
Kimani Hodges was one of two defendants charged with the aggravated murder of Jason Fonseca.
The victim was shot multiple times in front of his home on Feb. 17, 2016.
During the joint jury trial, Noel Rios, the victim’s cousin, testified that he witnessed the daylight killing. Rios said he saw Hodges pull up in a car and speak to Fonseca. Hodges and his cousin “tussled” over a gun Hodges brandished, the victim fell and multiple shots were fired into him, according to Rios.
Rios also testified he saw the co-defendant, Angel Bell, in the passenger seat. Bell was Hodges’ girlfriend and the former girlfriend of the victim.
Hodges’ defense lawyer raised inconsistencies in Rios’ testimony vs. his statement to police.
Rios, a federal prisoner facing 15 years behind bars for an unrelated case, repeatedly testified he had nothing more to say and was not answering any more questions.
He also swore at the defense attorney “using a disturbing and strange suggestion,” and was committed to jail for contempt until he answered the questions, according to the opinion written by 7th District Judge Carol Ann Robb.
Hodges’ attorney moved to strike Rios’ testimony in its entirety and to instruct the jury to disregard his entire presence at trial. The defense counsel claimed a mistrial was required if the motion to strike was not granted.
Rios also did not respond to questions from Hodge’s co-defendant’s counsel.
The court recessed for more than one and a half hours after the witness again refused to answer questions on the stand.
The court granted Hodges’ motion to strike the testimony of the witness then announced that Bell had agreed to testify in Hodges’ case if they state would dismiss all charges against her with prejudice and release her immediately.
Hodges’ lawyer then moved for a mistrial, stating the case would have been presented to the jury in a different manner if the new evidence was available before trial.
The defense said he had no idea what Bell’s testimony would be because her prior statements to police denied any involvement and said Hodges was with her during the incident.
The trial court granted a mistrial on Hodges’ motion after the state declined to be heard on the motion.
The defense later filed a motion to dismiss on double jeopardy grounds.
The defense claimed the state’s failure to prepare Rios for trial resulted in his refusal to participate.
“He said he had no choice but to seek a mistrial due to the co-defendant becoming a key witness mid-trial without prior notice,” Judge Robb stated. “Appellant said the state should have sought Bell’s testimony prior to trial rather than during it. He claimed the exception to the retrial rule applied because his mistrial motion was precipitated by prosecutorial misconduct intentionally calculated to cause a mistrial.”
The state claimed it was surprised by Rios’ reaction at trial, adding that the defense may have caused the reaction by “badgering” the witness.
The prosecutor also claimed it entered a deal with “the non-shooter” after the eyewitness refused to continue with cross-examination.
Hodges appealed after the trial judge found there was no prosecutorial conduct that would amount to an intentional act of deception.
Hodges alleged the state sought a deal with his co-defendant after realizing they no longer had a case when the only eyewitness refused to cooperate.
The appellate panel disagreed.
“… There is no indication Bell would have turned against her boyfriend prior to trial,” Judge Robb stated in her opinion. “… The state believed Bell instructed her new boyfriend (Appellant) to shoot her former boyfriend (the victim). During trial, however, the state was faced with the situation of Bell being unable to confront her accuser and the defense moving to strike this key witness’s testimony in full.
“…The state was provided a new statement by Bell at trial (with conditions). As this new statement did not previously exist, the state did not fail to disclose evidence (let alone intentionally withhold evidence). The prosecutor was merely accepting and disclosing new evidence and new circumstances presented to the prosecution mid-trial; there was no indication of bad faith.
“.. The state did not gain material advantage from the mistrial itself. For instance, the state could have proceeded through the in-progress trial with Bell’s case dismissed and Bell as the state’s witness. However, because this situation would negatively affect Appellant’s defense, Appellant asked for and was granted a mistrial.”
Seventh District judges Gene Donofrio and Cheryl L. Waite concurred.
The case is cited State v. Hodges, 2018-Ohio-447.