Double Jeopardy Arguments Involving Inconsistent Verdicts

In State v. Lovejoy, 79 Ohio St. 3d 440, 1997 Ohio 371, 683 N.E.2d 1112 (Ohio 1997), the defendant was charged with, inter alia, aggravated murder with prior calculation and design and aggravated murder committed during the course of a felony, pursuant to OHIO REV. CODE ANN. 2903.01(A) and (B) (1999). At the first trial, the defendant was acquitted of aggravated murder with prior calculation and its Lios of murder and involuntary manslaughter. Id. at 1114. The jury was unable to reach a verdict as to the felony murder, the aggravated robbery (as the underlying felony) and the kidnaping charge. Id. The court declared a mistrial and the defendant made a motion to dismiss on the felony murder charge based on collateral estoppel and double jeopardy which the court denied. Id. The appellate court reversed the denial and the case was appealed to the state's Supreme Court. The Lovejoy court went through a lengthy analysis of case authority which it believed established a policy rejecting double jeopardy arguments in cases involving inconsistent verdicts and hung juries. Id. at 1115, citing Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356 (1932). The case was reversed with the court holding that collateral estoppel and double jeopardy do not apply "where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count." Lovejoy, 683 N.E.2d at 1119. the court reasoned that the case involved a two-track situation whereby the jury was to consider different theories of aggravated murder and their lesser included offenses. Id. at 1118. To find that collateral estoppel applies because the wording of the lesser included offenses of "murder" was the same in each count is to ignore the simple realities of the way the case went to the jury. Once the jury decided that prior calculation and design was not proven by the state, it could be considered logical for the jury to acquit the defendant of all charges in the track of Count one as the flow of the verdict forms guided in that direction. The jury consistently hung on all charged offenses in the track of Count Two, which involved the issue of robbery and its lesser included offenses. However, speculation as to why the jury failed to reach a verdict on the felony murder count only demonstrates the difficulty with trying to analyze a jury's decision . . . . It is best to just "accept the jury's collective judgment" so as to preserve the sanctity of the jury process . . . The Lovejoy court was split with three Justices dissenting. the dissent criticized the majority's distinction that collateral estoppel does not apply to separate counts and noted that case law does not support the majority's opinion. Id. at 1121-22 (Cook, J., dissenting). Recognizing prior Ohio Supreme Court decisions, the dissent also noted the court's adoption of "collateral estoppel as applicable to bar retrial of mistried counts in criminal cases involving partial verdicts of acquittal." Id. at 1122. Allowing a second jury to reconsider the very issue upon which the defendant has prevailed serves no valuable function. To the contrary, it implicates concerns about the injustice of exposing a defendant to repeated risks of conviction for the same conduct, and to the ordeal of multiple trials, that lie at the heart of the double jeopardy clause. Id. quoting United States v. Bailin, 977 F.2d 270, 277 (7th Cir. 1992) (citations omitted). However, after closely examining the record, the dissent determined that Lovejoy had not borne his burden of demonstrating (1) that the jury had finally determined the issue of identity -- whether Lovejoy was a person involved in the robbery, or (2) intent -- that he acted with purpose in committing the robbery and thus the resulting felony murder.