Marshall v. Ohio (443 F. Supp. 2d 911, 2006)

MEMORANDUM OF OPINION AND ORDER

POLSTER, District Judge.

The above-captioned case is before the Court pursuant to the Report and Recommendation of Magistrate Judge William H. Baughman, Jr. (“R & R”) (ECF No. 68). Pending is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner Charles Marshall (“Marshall” or “Petitioner”). ECF No. 1 (“Petition”). The Magistrate Judge considered Marshall’s claims and recommended that the habeas petition be denied. Petitioner filed objections, ECF No. 71, and the State filed a response to the objections, ECF No. 76.

Given the somewhat convoluted procedural history of this case, the Court will outline those procedural developments that are relevant to the issues presented. On March 31, 1997, Marshall was indicted for one count of aggravated murder, with capital specifications, for causing the death of Rocco V. Buccieri, Jr., three counts of aggravated robbery, and three counts of kidnaping, all arising from the December 22, 1996 robbery of a Papa John’s Pizza shop in Garfield Heights, Ohio. ECF No. 52, Exs. 3-5 (Indictments). All counts included firearm specifications. Id. Exs. 3-5. Marshall entered a plea of not guilty to all charges. ECF No. 60 (“Traverse”) at 2.

I.

In September 1997, the case proceeded to trial before Judge Timothy McGinty. The jury found Marshall guilty of all counts and specifications. Id. Exhs. 31-32. During the trial, the State presented the testimony of Tony Haynes, a childhood friend of Marshall. Haynes testified that Marshall advised him that he was responsible for the December 22, 1996 robbery of Papa John’s, and that he had shot Buccieri three times. ECF No. 21* (Tr. at 596-600). After receiving this information, Haynes contacted Detective Mazzola and provided him with a statement detailing Marshall’s admission. ECF No. 27 (Tr. at 737, 744). The court allowed Haynes to read this statement, which was marked for identification purposes as State’s Exhibit 37, into the record. Id. (Tr. at 766, 807, 816-829).

On October 9, 1997, after the conclusion of the penalty phase of the trial, the jury recommended a sentence of death for the aggravated murder conviction. Id. Ex. 38. On October 10, 1997, the trial court orally pronounced a sentence of death upon finding that the aggravating factors that Marshall was found guilty of committing outweighed the mitigating factors beyond a reasonable doubt. ECF No. 28 (Tr. at 30). The trial court’s acceptance of the jury recommendation was never journalized. At some point after the trial judge orally-pronounced his sentence, he became aware that the jury was not instructed on the option of life without the possibility of parole. ECF No. 52, Ex. 68 at 2-3. As a result, Judge McGinty ordered a new sentencing hearing to be held before a newly impaneled jury, and recused himself from further proceedings in the case. Id. Ex. 68 at 3-5. The case was then re-assigned to Judge Carolyn Friedland. Id. Ex. 40.

In December 1997, Judge Friedland granted Marshall’s motion for a new trial and a second trial commenced on February 1, 2001. ECF No. 52, Ex. 88. During the course of the trial, the State presented evidence that, despite reasonable efforts, it was unable to procure the live testimony of Tony Haynes. ECF No. 59 (Tr. at 1219-1277). The State argued that Haynes’ pri- or trial testimony could be admitted into evidence pursuant to a hearsay exception which allows a declarant’s former testimony into evidence if, among other conditions, the declarant is “unavailable” to testify at trial. Id. (Tr. at 1278); see FED. R. EVID. 804. Judge Friedland ruled that the State did not establish unavailability, and precluded the State from introducing Haynes’ former testimony into the record. Id. (Tr. at 1297).

At the second trial, Tony Haynes’ brother, Richard, testified that Marshall admitted to him that he committed the robbery. ECF No. 50 (Tr. at 453). When Richard asked Marshall whether he committed the murder, Marshall did not respond. Id. at 454, 462.

On February 14, 2001, the State offered its exhibits. At this time, the prosecutor stated that State’s Exhibit 37 (Tony Haynes’ statement) was “withdrawn.” ECF No. k9 (Tr. at 1310). On February 14, immediately following the court’s instructions, the jury was excused to begin deliberations. On February 16, the following question was submitted by the jury: “We, the jury, have an exhibit in our possession that was referenced during the trial but never introduced as evidence. (Tony Haynes statement, State Exhibit 37.) Is this acceptable by the law?” ECF No. 59 (Tr. at 1542). After reading the question to counsel, Judge Friedland stated “[d]o I hear a motion from the defense?” Id. Defense counsel did not respond. The prosecutor indicated that he did not know how the statement found its way into the jury room to which Judge Friedland responded that the court “will be having a hearing on that.” Id. at 1542-43. Judge Friedland then declared a mistrial sua sponte on the basis of prosecuto-rial misconduct and stated that “[the court] will entertain motions. We will have a hearing in two weeks.” Id. at 1543. The record does not reflect that a hearing was held or that motions (or any response to the mistrial order) were filed.

On February 22, 2001, the trial court’s mistrial declaration was journalized. This journal entry omitted any reference to prosecutorial misconduct and stated that a mistrial was declared because Haynes’ out-of-court statement was “not properly before the jury.” ECF No. 52, Ex. 91. Judge Friedland then recused herself from the case. Id. Ex. 92. Also on February 22, 2001, the court granted the State’s application to appoint a special prosecutor to investigate the circumstances under which the jury obtained the inadmissible evidence. Id. Exhs. 149-50.

In March 2001, the case was re-assigned to Judge Cirigliano. Id. Ex. 96. Marshall filed a motion to dismiss all charges against him with prejudice on double jeopardy grounds, arguing that the prosecutor engaged in misconduct designed to provoke a mistrial. ECF No. 53, Ex. 157. A hearing was held, id. Ex. 187, and Judge Cirigliano denied the motion, ECF No. 52, Ex. 118. The judge stated:

[N]o evidence exists to support a conclusion that any prosecutor engaged in misconduct. In his report, the special prosecutor concluded that there was no direct evidence of prosecutorial misconduct in this case.

Nor is there any evidence which supports a conclusion that any prosecutor acted with an intent to cause a mistrial in this case. The special prosecutor accepted that the prosecutor’s aim was to secure a conviction. This report makes no conclusion, either directly or indirectly, that any prosecutor ... intended to cause or in any way force a mistrial in this matter. Absent a showing that the prosecutor’s conduct was intentionally calculated to cause a mistrial and absent any evidence of prosecutorial misconduct at all, the Double Jeopardy Clause of the Fifth Amendment is not triggered to bar a retrial in this matter.

Id. Ex. 118 at 3 (citations to the record omitted).

On October 31, 2003, Marshall filed the instant petition for a writ of habeas corpus, alleging the following claims: (1) the commencement of a third trial violates petitioner’s rights under the Double Jeopardy Clause of the Fifth Amendment; (2) the admission of a co-defendant’s out-of-court statement infringes petitioner’s rights under the Confrontation Clause of the Sixth Amendment; and (3) prosecuto-rial misconduct in providing the jury with inadmissible evidence was designed to cause a mistrial or unfairly obtain a conviction in violation of the Due Process Clause of the Fifth Amendment. Petition at 7-8. Marshall contemporaneously requested a stay of his state court proceedings pending this Court’s ruling on his habeas petition. ECF No. 53, Ex. 162. Judge Cirigliano granted the motion and Marshall’s state trial has been held in abeyance pending habeas review. ECF No 52. Ex. 135. Because Marshall does not object to the Magistrate Judge’s recommendations on claims 2 and 3, the Court will only address Marshall’s double jeopardy claim.

II.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, a petition for writ of habeas corpus filed by a state prisoner:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

Id. § 2254(d). In construing the second clause of subsection (d)(1), the U.S. Supreme Court has held that a state-court decision involves an unreasonable application of Supreme Court law if the state court: (1) identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case or (2) unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[T]he federal adjudication of double jeopardy claims raised on pre-trial petitions for habeas corpus is appropriate when those claims have been raised and rejected in the state trial court and under state law there is no right to interlocutory appeal.” Harpster v. Ohio, 128 F.3d 322, 325 (6th Cir.1997), Judge Cirigliano rejected Marshall’s pre-trial motion to dismiss the case on double jeopardy grounds and, under Ohio law, the denial of a motion to dismiss based on violation of the Double Jeopardy Clause is not a final appealable order. Id. at 326. Accordingly, the Court has jurisdiction to review Marshall’s habeas petition.

III.

“The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The policy underlying this provision

is that the State with all its resources and power should not he allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (citing Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). Embodied within this policy of finality is the accused’s “valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Cameron, 953 F.2d 240, 243 (6th Cir.1992). “The Double Jeopardy Clause, however, does not act as an absolute bar to re-prosecution in every case.” United States v. Gantley, 172 F.3d 422, 427 (6th Cir. 1999). In some circumstances, the defendant’s right to have his case resolved by a particular tribunal must “be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade, 336 U.S. at 689, 69 S.Ct. 834 (unforeseeable circumstances may render completion of a trial impossible). When a mistrial has been declared, a defendant may be retried if, and only if, there is a “manifest necessity” for a mistrial, or the defendant requests or consents to a mistrial. Pryor v. Bock, 261 F.Supp.2d 805, 808 (E.D.Mich. 2003); Cameron, 953 F.2d at 243.

Whether manifest necessity supports the trial court’s declaration of a mistrial is a mixed question of law and fact. Harpster, 128 F.3d at 327; see also Johnson v. Karnes, 198 F.3d 589, 593 (6th Cir.1999). Therefore, the Court must decide whether the state court grant of a mistrial involved an unreasonable application of clearly established Supreme Court law. Harpster. 128 F.3d at 327.

The U.S. Supreme Court first articulated the “manifest necessity” doctrine in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The Perez approach “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Instead, Perez prescribed a case-by-case approach, taking into account all the circumstances to determine whether there was a manifest (i.e., a “high degree” of) necessity for the mistrial declaration. Harpster, 128 F.3d at 328 (“The manifest necessity doctrine does not require us to find that the trial court had no alternative but to declare a mistrial.”); Cameron, 953 F.2d at 244 (manifest necessity analysis is fact-intensive); Perez, 22 U.S. at 580, 9 Wheat. 579 (the power to declare a mistrial “ought to be used with the greatest caution, under urgent circumstances, and for plain and obvious causes”).

The standard of review for a double jeopardy claim following a mistrial varies according to the issues involved. United States v. Stevens, 177 F.3d 579, 583 (6th Cir.1999). A trial judge’s decision to declare a mistrial based on her assessment of juror bias is entitled to great deference. Arizona v. Washington, 434 U.S. 497, 513-14, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

[The trial judge] has seen and heard the jurors during, their voir dire examination. [Sh]e is the judge most familiar with the evidence and the background of the case on trial.... In short, [s]he is far more “conversant with the factors relevant to the determination” than any reviewing court can possibly be.

Id. at 514, 98 S.Ct. 824. Accordingly, the determination that the jury has been biased by the introduction of inadmissible, prejudicial evidence is best left to the informed discretion of the trial judge. See Stevens, 177 F.3d at 583; Harpster, 128 F.3d at 328.

Marshall argues that the mistrial declaration was not supported by manifest necessity. He argues that the trial judge failed to consider less drastic alternatives, such as instructing the jury to disregard the statement, interviewing the jury to determine which jurors, if any, reviewed the statement, or allowing the jury to reach a verdict and, if necessary, declaring a mistrial only if the court believed that the verdict was tainted by the statement. Traverse at 12; see also Objections at 4. Indeed, the record reflects that Judge Friedland failed to discuss less drastic options to granting a mistrial, and did not hold a hearing to ascertain how many jurors saw the statement, or the extent to which those jurors examined the statement. However, the situation faced by the trial judge is not one which presented “obvious and adequate alternatives” to aborting the trial, see Glover v. McMackin, 950 F.2d 1236, 1242 (6th Cir.1991), or one in which a simple corrective instruction would have sufficiently protected against juror bias. See Harpster, 128 F.3d at 330 (amount of prejudice that could have resulted was miniscule); United States v. Reesor, 10 Fed.Appx. 297, 304 (6th Cir. 2001) (unpublished) (mistrial is appropriate where “erroneously admitted evidence is of an exceptionally prejudicial character, such that its withdrawal from consideration by the jury cannot be expected to remove the harm”). “In determining whether to grant a mistrial, a court’s ‘primary concern’ should be ‘fairness to the defendant.’ ” United States v. Lott, No. 96-6700, 1998 WL 384611 at *2 (6th Cir. June 19, 1998) (unpublished) (mistrial must be ordered where improperly admitted evidence is so prejudicial that the jury cannot be trusted to disregard it).

In the present action, the trial judge acted rationally and responsibly in granting a mistrial. In fact. Marshall concedes that Judge Friedland “had no choice but to declare a mistrial sua sponte ” due to the alleged government misconduct, Traverse at 14, and states that “[t]he evidentiary value of the [statement] was devastating to Marshall,” Objections at 17. With respect to the murder charge, Tony Haynes’ statement is qualitatively different from any of the testimony presented at the second trial. None of the eyewitnesses who were present at Papa John’s on the night of the robbery actually observed the shooting. Although Detective Mazzola testified that Marshall’s accomplice, Robert Martin, implicated Marshall as the shooter, ECF No. 58 (Tr. at 592, 610), a jury would place minimal weight on a statement of a co-defendant pointing a finger at his accomplice. Finally, the testimony of Tony Haynes’ brother, Richard, is not anywhere near the caliber of Tony’s statement. Richard testified that Marshall only admitted to committing the robbery. ECF No. 50 (Tr. at 453). When Richard asked Marshall whether he committed the murder. Marshall did not respond. Id. at 454, 462. Tony, on the other hand, spells out in much detail Marshall’s admission that he shot the victim three times. See ECF No. 27 (Tr. at 818-19). The statement even describes the specific manner in which the shooting occurred. See id. No juror could have been expected to put Haynes’ statement out of his/her mind. In Marshall’s own words, the statement was “devastating.” In light of the extremely prejudicial nature of Tony Haynes’ statement, the Court finds that Judge Friedland exercised sound discretion in determining that the ends of public justice would be defeated by a continuation of the proceedings. See Jorn, 400 U.S. at 485, 91 S.Ct. 547.

In addition, according to the Special Prosecutor’s report, the statement was first noticed by a juror on February 15, 2001. ECF No. 17, Ex. A (Report of Special Prosecutor (“SP Report”) at 4). The juror raised a question about the presence of this statement among the exhibits. Id. Rather than immediately communicating the discovery of this statement to the court, the jury continued to deliberate for the remainder of the afternoon. Id. The jury did not present the court with its question until the following day. Id. Had Judge Friedland questioned the jurors, she would have uncovered these circumstances which further support a finding of manifest necessity. Proceeding with deliberations after discovering inadmissible and extremely prejudicial evidence rendered the impact of the statement more severe, and the risk of taint more troubling. Under these circumstances, a curative instruction would have been inadequate to remove the risk of taint. Accordingly, the trial court’s grant of a mistrial wás supported by manifest necessity.

Furthermore, the Court finds that Marshall impliedly consented to a mistrial. “Consent to a mistrial order should only be implied where the circumstances positively indicate a defendant’s willingness to acquiesce in the order.” Jones v. Hogg, 732 F.2d 53, 57 (6th Cir. 1984). Consent may • not be inferred “merely because a defendant did not object to the declaration of a mistrial.” Gantley, 172 F.3d at 429. Instead, “a defendant’s failure to object to a mistrial implies consent thereto only if the sum of the surrounding circumstances positively indicates this silence was tantamount to consent.” Id.

In Glover v. McMackin, a panel of the Sixth Circuit concluded that the defendant did not acquiesce in the trial court’s grant of a mistrial which was declared sua sponte during defense counsel’s cross-examination of a rape victim. During counsel’s attempt to attack the credibility of the witness, a number of objections were raised by the government and several sidebars were held by the trial court. Glover, 950 F.2d at 1238. At one point, the prosecutor claimed that counsel was trying to badger the witness. In response, the trial judge swiftly declared a mistrial, stating that he would not put up with counsel’s conduct, and dismissed the jury. On habe-as review, the Sixth Circuit rejected the argument that the defendant’s failure to object constituted consent to the mistrial. The court held that “[t]he summary nature of the trial court’s actions, a swift declaration followed by the immediate dismissal of the jury and adjournment of the court, rendered an objection both unlikely and meaningless.” Id. at 1240.

In United States v. Gantley, the defendant testified at trial that be passed a polygraph test, in direct violation of the trial court’s order excluding evidence of the test results. The trial judge declared a mistrial and then held an off-the-record conference with counsel at which time the prosecutor suggested an alternative to aborting the trial (which the judge considered and rejected) and defense counsel raised an additional concern that the court’s reaction to the defendant’s testimony in the presence of the jury may have been prejudicial. Gantley, 172 F.3d at 425-27. After the trial court went back on the record, he asked counsel if there was “anything else.” Id. at 426. Counsel said no. Given the totality of the circumstances, the Sixth Circuit held that the defendant’s failure to object implied consent to the mistrial.

The present case does not present the precipitous mistrial declaration ordered in Glover nor the deliberate consultation with counsel displayed in Gantley. However, the totality of the circumstances demonstrate that Marshall’s failure to object, either orally or in writing, to the mistrial declaration was tantamount to consent. Marshall argues that he did not have an opportunity to object to the mistrial declaration, and the trial judge “did not allow [him] to argue his position on the ruling.” Traverse at 12. This argument is without merit. After Judge Friedland informed counsel that the jury was in possession of Tony Haynes’ statement, the prosecutor commented that he did not know how the statement was submitted to the jury. The judge responded to this remark. There is no reason that defense counsel could not have similarly voiced his concerns by objecting to the grant of a mistrial. It is important to note, as petitioner duly brings to our attention, that Judge Fried-land’s initial request for motions from the defense came before her mistrial declaration. See Objections at 10. Therefore, any non-response to this query cannot be construed as a failure to object to a mistrial order. Still, Marshall had an opportunity to respond once the mistrial was declared. Unlike the situation in Glover, Judge Friedland did not suddenly grant a mistrial in the middle of a heated cross-examination. After consulting with fellow judges, see SP Report at 5, Judge Fried-land convened the parties, advised them of the problem and informed them that she would be “entertain[ing] motions.” Although the judge did not affirmatively ask the parties how they wished to proceed, counsel for Marshall failed to voice an objection to the mistrial, either by oral statement or written submission to the court, despite having the opportunity to do so. The record reflects that the jury was not dismissed at the time the mistrial was declared. Counsel could have suggested other options, such as conducting an inquiry of the jurors, and counsel could have requested the opportunity to submit a written memorandum before Judge Fried-land dismissed the jury. After examining the totality of the circumstances, the Court concludes that Marshall tacitly consented to Judge Friedland’s declaration of a mistrial.

Defense counsel argues that the Magistrate Judge did not consider, in making his recommendation, the time required for counsel to consult with the defendant and to evaluate options prior to making an informed decision. Objections at 8. Where a defendant is faced with the choice of giving up his first jury or continuing with a trial tainted by prejudicial error, the important consideration, for double jeopardy purposes, is that he retain “primary control” over the course to be followed. United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). However, “[njeither party has a right to have his case decided by a jury which may be minted by bias; in these circumstances, ‘the public’s interest in fair trials designed to end in just judgements’ must prevail over the defendant’s ‘valued right’ to have his trial concluded before the first jury impaneled.” Arizona v. Washington, 434 U.S. 497, 515, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

Finally, Marshall has not shown that the government was responsible for submitting the inadmissible evidence to the jury, nor has he shown that any misconduct was intended to provoke a mistrial. Although there was strong circumstantial evidence that the prosecutor caused the statement to be submitted to the jury, the results of the Special Prosecutor’s investigation were inconclusive. Marshall’s claim that the prosecutor improperly submitted the statement to the jury because the State “needed an edge” as the case was not going as well as the State would have hoped is mere speculation. See Objections at 10. The Special Prosecutor found no direct evidence of misconduct, and the grand jury did not return an indictment against the prosecutor. Prosecutorial misconduct is not a bar to retrial unless the misconduct is “intended to and does precipitate a successful motion for mistrial by the defendant.” United States v. Oseni, 996 F.2d 186, 188 (7th Cir.1993); United States v. Colvin, 138 Fed.Appx. 816, 820 (6th Cir.2005) (unpublished). Marshall repeatedly claims that the prosecutor intended to obtain a conviction by impermissible means. Objections at 14-15. Even were this true, this is not the intent required to bar re-prosecution. Oseni, 996 F.2d at 188 (“The only relevant intent is intent to terminate the trial, not intent to prevail at this trial by impermissible means.”); Oregon v. Kennedy, 456 U.S. 667, 676-77, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (discussing rationale underlying the heightened intent requirement).

IV.

The Court recognizes that Marshall waited over two years for his jury to be impaneled, and then had a mistrial declared after the entire case had been tried and submitted to the jury for a verdict. Marshall argues that the second trial was going well on the homicide charge. In fact, the investigation revealed that the jury was leaning heavily in favor of an acquittal on the murder charge (by as much as an 11 to 1 margin) at the time the mistrial was declared. SP Report at 16. “The judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Though recognizing the hardship placed upon Marshall as a result of the mistrial, the Court must also consider society’s interest in fair trials and the enforcement of criminal laws, an interest which is all the more significant in capital cases. In this case, the Court finds that the defendant’s valued right to have his case resolved by a particular tribunal must “be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)

Accordingly, the Court ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 68). The habeas petition (ECF No. 1) is hereby DENIED.

IT IS SO ORDERED.

REPORT & RECOMMENDATION

BAUGHMAN, United States Magistrate Judge.

I. Introduction

Before the Court is Charles Marshall’s petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Respondent the State of Ohio, proceeding through the Prosecuting Attorney of Cuyahoga County, opposes the petition.

Marshall is currently incarcerated at the Lebanon Correctional Institution after two trials on charges of one count of aggravated murder with two capital specifications, three counts of aggravated robbery with firearm specifications, and three counts of kidnapping with firearm specifications, which resulted in mistrials. State proceedings for a third trial on the same charges have been stayed pending adjudication of this petition.

II. Facts

The following statement of facts was prepared for the presiding judge of the Cuyahoga County Common Pleas Court by the special prosecutor appointed by that court to investigate the facts and circumstances surrounding the declaration of a mistrial in Marshall’s second trial:

Charles Marshall was indicted in a capital murder case arising out of the events of the evening of December 22, 1996. On that night, two men entered the Papa John’s Pizza shop in Garfield Heights to commit a robbery; the robbery escalated to murder when one of the two men shot and killed store manager Rocco Buccieri. Charles Marshall, along with co-defendant Robert Martin, was charged with the murder of Buccieri and other, related offenses in January 1997, after Martin and Marshall were arrested and charged with several additional offenses arising out of a similar robbery attempt at a Long John Silver restaurant in Maple Heights.

The Papa John’s and the Long John Silver cases against Marshall and Martin were originally assigned to Judge Timothy McGinty. Judge McGinty presided over the Long John Silver robbery trial of Charles Marshall, and also the Papa John’s capital murder trial of Charles Marshall. At the conclusion of the capital murder trial, Marshall was convicted and sentenced to death. Judge McGinty thereafter vacated the death penalty on the grounds that the jury had not been instructed on the sentencing option of life without parole.

After vacating the sentence, Judge McGinty, who had previously sentenced Marshall on his conviction in the Long John Silver robbery ease, recused himself and the Marshall case was reassigned to Judge Carolyn Friedland. Judge Friedland vacated the jury verdict of guilty on the homicide charge and, in the fall of 1998, impaneled a new jury. During jury selection, the prosecution took an appeal of pre-trial rulings made by Judge Friedland to suppress certain evidence, including the in-court identifications by eye-witnesses, Rule 404(B) evidence relating to the Long John Silver robbery, and the statement by co-defendant Robert Martin. The Court of Appeals reversed Judge Fried-land on these pre-trial rulings and remanded the case.

In January 2001, jury selection resumed and a jury was seated. Opening statements were given on February 2, 2001. During his opening statement, Assistant County Prosecutor Ed Walsh mentioned several prosecution witnesses by name, including Tony Haynes, who the prosecution expected to testify regarding a conversation that he (Tony Haynes) had with Charles Marshall.

Tony Haynes had given a written statement to the police and had testified as a prosecution witness in Marshall’s trial before Judge McGinty. The substance of Haynes’ written statement to the police and direct testimony in the trial before Judge McGinty was that Charles Marshall had told Haynes that he (Marshall) had robbed Papa John’s along with an accomplice (Martin) and that he (Marshall) was the shooter.

During the trial before Judge Fried-land, the prosecution called 25 witnesses, and read the prior testimony (from the trial before Judge McGinty) of a deceased witness into the record. The prosecution also played the videotaped statement of co-defendant Robert Martin, who confessed to involvement in the robbery, but implicated Charles Marshall as the shooter. The defense called one witness. Tony Haynes did not testify-

Tony Haynes did not testify at the trial before Judge Friedland because the prosecution, which had been in contact with Tony Haynes during the trial and had expected him to appear, was unable to produce him as a live witness. When the prosecution realized that it could not produce Tony Haynes, the prosecution asked that Tony Haynes’ prior testimony from the trial before Judge McGinty be read into the record.

On Tuesday, February 13, 2001, Judge Friedland held a hearing outside the presence of the jury to determine whether Tony Haynes’ prior testimony would be admitted. At the conclusion of the hearing, Judge Friedland ruled that the prosecution had not made a sufficient showing of unavailability and ruled that the prior testimony was not admissible.

On the morning of Wednesday, February 14, 2001, the parties argued regarding the admissibility of exhibits. Assistant County Prosecutor Walsh handled this task for the prosecution. During this process, Assistant County Prosecutor Walsh stated that Tony Haynes’ prior written statement (State’s Exhibit # 37) was “withdrawn.”

Closing arguments were delivered immediately after the arguments regarding the exhibits. Judge Friedland then charged the jury, and submitted the case to it late in the afternoon.

Upon completing her charge, Judge Friedland instructed the attorneys to assemble the exhibits for submission to the jury. The exhibits were then carried by Detective Paul Mazzola and defense attorney Bill McGinty to the door outside the jury room in three boxes belonging to the prosecution — boxes which the prosecution had used to carry its exhibits to and from the court room each day. The bailiff then placed the boxes in the jury room.

The jury did not deliberate on Wednesday and instead immediately proceeded to the hotel where they were sequestered. The jury did not examine any exhibits on Wednesday afternoon before retiring to the hotel. The boxes containing the exhibits were locked in the jury room overnight.

The jury deliberated all day on Thursday, February 15, 2001, during which time the jury closely examined the contents of one box of exhibits. During this process, a juror noticed the Tony Haynes statement (State’s Exhibit # 37) and raised a question regarding its presence among the exhibits. The jury did not immediately communicate with the court upon the discovery of the Tony Haynes statement. Instead, the jury continued to deliberate for the remainder of Thursday afternoon.

On the morning of February 16, 2001, the jury foreman delivered a note to the bailiff, reading, “Question: we, the jury, have an exhibit in our possession that was referenced during the trial but was never introduced as evidence. (Tony Haynes statement, State Exhibit 37). Is this acceptable by law?” The note was given to the bailiff along with the Tony Haynes statement, which bore a red State’s exhibit sticker, numbered 37. The bailiff delivered the note and State’s Exhibit # 37 to Judge Friedland.

Judge Friedland recognized State’s Exhibit # 37 as the prior statement of Tony Haynes given to Garfield Heights Police Detective Paul Mazzola. As noted above, the statement was largely consistent with Haynes’ prior testimony in the trial before Judge McGinty and was damaging to the defense. After consulting with fellow judges, Judge Friedland took the bench and declared a mistrial, based on “prosecutorial misconduct.”

After the mistrial was declared, court reporter Jeff Ragazzo proceeded to the jury room and collected certain items, including the non-clothing exhibits and verdict sheets, which had been partially completed by the jury. During this process, Mr. Ragazzo found two additional written statements of prosecution witnesses William Lain and Richard Haynes, both of whom had testified during the trial before Judge Friedland. These statement bore red State’s Exhibit stickers 12-A and 39 respectively. Neither of these statements had been admitted as evidence; both were identified by Assistant County Prosecutor Walsh during the arguments over the admissibility of exhibits as statements which were “to go with the record.”

On Tuesday, February 20, 2001, Judge Friedland, her bailiff, court reporter Jeff Ragazzo, and an Assistant County Prosecutor who had no involvement in the case re-entered the jury room which had been locked since the mistrial. They collected the bulkier clothing items, a drawing and an aerial photograph, all of which had been left inside the jury room since the mistrial was declared.

On February 22, 2001, Cuyahoga County Prosecutor William Mason filed an application to appoint the undersigned as Special Prosecutor “to determine the circumstances under which State’s Exhibit # 37 was obtained by the jury.” That application was granted by Judge Richard A. MeMonagle on the same date.

The special prosecutor then commenced an investigation that, among other things, involved interviewing all the relevant persons, including all the jurors, and reviewing “the complete trial transcript, exhibit lists, documents from the prosecutor’s files, portions of the defense files, and miscellaneous items maintained by court reporters.” Beyond the interviews, five persons were asked to take polygraph tests conducted by the F.B.I., and all but one person asked to take a polygraph test did so.

At the conclusion of the investigation, the results were presented to the grand jury which did not vote to indict anyone.

In submitting his final report, the special prosecutor noted that everyone interviewed denied submitting the documents to the jury, having a motive to submit the documents to the jury, or having any knowledge of how the documents came to be in the jury’s possession.

However, despite the lack of a “smoking gun,” the special prosecutor did state that his investigation made it “possible to make a number of relevant factual findings with a high degree of certainty.” After reviewing the physical evidence, the interviews and the polygraph examinations, the special prosecutor concluded that all except assistant county prosecutor Walsh could be “excluded as a potential perpetrator of an intentional act involving the submission of the Tony Haynes statement to the jury.”

While Walsh “vehemently denie[d] he engaged in any wrongdoing,” the special prosecutor found that “there is evidence that makes it difficult to credit this denial.” Specifically, the special prosecutor noted that Walsh handled the Tony Haynes statement “more than anyone else,” had the opportunity to put it in the box of things going to the jury, was the only one who failed the F.B.I. polygraph test, and made statements “difficult to reconcile with complete innocence on his part.”

In that regard, the special prosecutor reported the following:

Mr. Walsh stated that while he had done nothing wrong and had no knowledge of how the statement got before the jury, he might be willing to say that he had done something with the Tony Haynes statement if it could be guaranteed that the state could re-try Mr. Marshall.

While acknowledging that the foregoing statement might reflect a “noble” motive of bringing a killer to justice, the special prosecutor also found the statement “troubling” and susceptible of multiple interpretations. He determined' that “[i]t is either an admission of past misconduct, or a statement of willingness to engage in future misconduct.”

Nonetheless, the special prosecutor ultimately concluded that “this evidence is not sufficient to sustain a criminal charge against Mr. Walsh.” The grand jury agreed, and no indictment was returned against Walsh in this matter.

The state moved to reinstate the original verdict of the first trial, arguing that the second trial judge had lacked the authority to vacate the original trial judge’s order denying Marshall’s motion for a new trial. Following a hearing, Judge Cirigli-ano, the third judge assigned to this case, denied the state’s motion.

For his part, Marshall moved to dismiss the charges against him with prejudice on the basis that the double jeopardy provisions of the Fifth and Fourteenth Amendments to the United States Constitution barred a retrial. Marshall argued that under the rule promulgated by the United States Supreme Court in Oregon v. Kenne-dyr, “if there is proven to be misconduct by the prosecutor, done in a purposeful manner, the State will be barred from retrying the case.”

In response, the state asserted that the correct statement of the rule in Kennedy was that mere prosecutorial misconduct leading to a mistrial is not sufficient to trigger the double jeopardy bar to retrial. Citing the Seventh Circuit case of United States v. Oseni, the state maintained that a mistrial caused by prosecuto-rial misconduct will not preclude a retrial unless the prosecutorial misconduct was specifically intended to abort the trial. Accordingly, the state argued that the correct rule, as stated by Oseni, was “unless [a prosecutor] is trying to abort the trial, his misconduct will not bar a retrial. It doesn’t even matter that he is acting improperly, provided his aim is to get a conviction.”

Again following a hearing, Judge Cirig-liano denied Marshall’s motion in a written opinion that was specifically based on both Kennedy and Oseni. The trial judge stated the applicable federal law to be that “unless it can be shown that the prosecutor’s specific intent was to abort the trial, prosecutorial misconduct, if any, will not bar a retrial for the same offense.”

The state court found initially that the special prosecutor’s report disclosed “no direct evidence of prosecutorial misconduct” in this case. Further, the state court found that there was no “evidence that supports the conclusion that any prosecutor acted with an intent to cause a mistrial in this case,” and the special prosecutor’s report “makes no conclusion, either directly or indirectly, that any prosecutor intended to cause or in any way force a mistrial in this matter.”

Therefore, the court concluded, “[a]b-sent a showing that the prosecutor’s conduct was intentionally calculated to cause a mistrial,” the double jeopardy provision of the Constitution was not triggered and Marshall’s motion to dismiss was denied.

Marshall now seeks habeas relief on three grounds:

1. The commencement of a third trial violates Petitioner’s Fifth Amendment rights against Double Jeopardy;

2. The admission into evidence of co-defendant Ralph Martin’s out-of-court video statement given to the Garfield Heights Police Department violates Petitioner’s Sixth Amendment rights to be confronted with witnesses against him;

3. The actions of state trial counsel were designed to cause a mistrial or illegally and unfairly convict a person with inadmissible evidence violating Petitioner’s Fifth Amendment rights to due process of law.

In response, the state argues:

1. In respect of ground one of the petition, the trial court’s dismissal of Marshall’s motion to dismiss was not contrary to, nor an unreasonable application of clearly established federal law in Kennedy and Oseni which is applicable to this case;

2. As to ground two, the admissibility of any evidence at a future trial is not a proper matter for a habeas petition, but rather is, in essence, “a pretrial motion in limine;”

3. Concerning ground three, the state court’s decision that there was no intent on the part of the prosecutor to cause a mistrial was not contrary to or an unreasonable application of clearly established federal law.

III. Analysis

A. Timeliness and availability of the writ

The state court denied Marshall’s motion to dismiss on grounds of double jeopardy in a written opinion on January 15, 2003. Marshall filed the present petition on October 31, 2003.

The Sixth Circuit has held in Harpster v. Ohio that a federal habeas petition is “appropriate when those [double jeopardy] claims have been raised and rejected in the state trial court and under state law there is no right to interlocutory appeal.” The Harpster court further concluded that, under Ohio law, “the overruling of a motion to dismiss on the grounds of double jeopardy is not a final appealable order.”

Accordingly, Marshall’s petition is an appropriate one for habeas relief and has been timely filed within the one-year statute of limitations created by 28 U.S.C. § 2244(d)(1)(D).

B. The trial court’s denial of Marshall’s motion to dismiss for double jeopardy was neither contrary to nor an unreasonable application of clearly established federal law.

1. Applicable law — habeas review

28 U.S.C. § 2254(d)(1) provides that an application for a writ of habeas corpus filed by a person in custody pursuant to a judgment of a state court shall not be granted unless the state judgment was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.

As construed by the Supreme Court in Williams v. Taylor:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

The Williams Court emphasized that the proper inquiry for the “unreasonable application” analysis is whether the state court decision was “objectively unreasonable” and not simply erroneous or incorrect.

The Sixth Circuit has held that the decision by a state court to grant a mistrial on the basis of manifest necessity presents a mixed question of law and fact to the federal habeas court. As such, while basic, primary facts found by the state court are presumed to be correct while no such presumption is accorded mixed questions of law and fact.

2. Applicable law — mistrial for manifest necessity

In United States v. Perez, the Supreme Court first formulated the test for determining whether a mistrial should be declared for manifest necessity:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes....

In subsequent decisions, the Supreme Court has “further explained and developed the contours of the ‘manifest necessity’ doctrine.”

In United States v. Jorn, the Court emphasized that the manifest necessity doctrine is not appropriate for “rules based on categories of circumstances which will permit or preclude retrial.” As the Court stated in Illinois v. Somerville, this absence of a fixed set of circumstances for determining manifest necessity is required by “the varying and often unique circumstances arising in a criminal trial.”

Consequently, as noted by the Supreme Court in Arizona v. Washington, a finding of manifest necessity does not require a determination that the trial court had no other alternative but to declare a mistrial:

[T]he key word “necessity” cannot be interpreted literally; instead ... we assume that there are degrees of necessity and we require a “high degree” of necessity before concluding that a mistrial is appropriate.

In that regard, the Washington Court explained that finding whether the requisite “high degree” of necessity exists in a particular case involves applications of a continuum analysis:

[T]he strictest scrutiny [of the trial court’s decision] is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.

In contrast, however, the Court continued, “along the spectrum of trial problems which may warrant a mistrial,” the situation where the trial judge declares a mistrial when confronted with evidence of possible juror bias, “falls into an area where the trial judge’s determination is entitled to special respect.”

As can be discerned from the Washington analysis, the question of whether a defendant may be retried after a mistrial declared for “manifest necessity” involves a second question of whether the prosecutor was the cause of that mistrial.

In Oregon v. Kennedy, the Supreme Court considered the situation where the defendant moves for and receives a mistrial due to some action by the prosecutor. Normally, as the Oregon Court observed, the defendant’s own motion for a mistrial would obviate any inquiry into “manifest necessity,” and the Double Jeopardy Clause would be no bar to a retrial. However, the Oregon Court, citing United States v. Dinitz, noted that:

The Double Jeopardy Clause does protect a defendant against government actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.

Consequently, Oregon established the rule that:

Prosecutorial misconduct that might be viewed as harassment or overreaching, even if sufficient to justify as mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.... Only where the government conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial....

It must be emphasized that the rule stated in Oregon arose in the context of the defendant moving for a mistrial. However, the plain reasoning of Oregon concerning a defendant’s right to invoke the Double Jeopardy Clause when the mistrial was provoked by the prosecution seems fully applicable where the defendant has asserted that the mistrial was declared without his consent and was caused by prosecutorial misconduct.

Accordingly, the initial inquiry is whether the state court unreasonably applied the clearly established federal law concerning “manifest necessity” for declaring a mistrial. If it reasonably applied such law, the next issue is whether the state court reasonably applied the clearly established federal law of Oregon to determine that the prosecutor did not intentionally provoke the trial judge to declare the mistrial.

3. The defendant gave implied consent to the declaration of a mistrial, or, alternatively, the state trial judge reasonably applied clearly established federal law to find “manifest necessity” for declaring a mistrial.

a. The defendant here gave implied consent to the declaration of a mistrial.

Although not asserted by the state, a careful review of the facts establish that Marshall gave implied consent to the declaration of a mistrial. In that case, there is no need to consider if the decision is founded on “manifest necessity” or, just as important, there is no need to consider if the rule in Washington was properly applied, since the protection of the Double Jeopardy Clause cannot be invoked by a defendant who has agreed to the declaration of the mistrial.

Because the issue of implied consent was not argued by the state, and was only briefly addressed by Marshall in a short preemptive argument in his traverse, it is important to briefly restate some relevant facts as they apply to this issue.

The decision to declare the mistrial was made by Judge Friedland on February 16, 2001 after receiving a note from the jury indicating that they had in the jury room the Tony Haynes statement referenced at trial but never admitted into evidence. The special prosecutor’s report notes that prior to assuming the bench to inform counsel of the note and present her decision as to how to respond to the situation, Judge Friedland consulted with fellow judges of the Cuyahoga County Common Pleas Court.

After that consultation, Judge Friedland read the jury note aloud to counsel for the state and the defendant outside of the presence of the jury. Immediately after reading the jury’s note, and observing that Tony Haynes’ statement was “referenced three times during the trial, and the Court made specific rulings with regard to this statement,” Judge Friedland asked, “Do I hear a motion from the defense?”

The record indicates that Assistant Prosecutor Walsh spoke then, stating, “I don’t know how that got in there, Judge.” Judge Friedland responded, “Well, we will be having a hearing on that. I’m declaring a mistrial, and I will entertain motions. We will have a hearing in two weeks.”

Only at that point does one of Marshall’s attorneys speak, simply saying, “Thank you, your honor.” Judge Friedland con-eludes the hearing by saying, “All right. Prosecutorial misconduct is the reason for the mistrial.” A journal entry noting that a mistrial was declared because “out of court statements of Tony Haynes (State’s Exhibit 37) not properly before the jury,” was filed on February 23, 2001.

Initially, in determining if the trial judge unreasonably applied the “manifest necessity” test in federal law, the court must consider if the defendant objected to the grant of a mistrial. As noted by the Supreme Court in Washington, the burden on the prosecutor to demonstrate “manifest necessity” attaches only for “any mistrial declared over the objection of the defendant.” In the analogous situation of a mistrial being granted at the behest of the defendant, the Supreme Court in Oregon stated, “quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the ‘manifest necessity’ standard has no place in the application of the Double Jeopardy Clause.”

Marshall admits that “[a]t the time Trial Judge 2 [Judge Friedland] declared a mistrial the Defendant and his counsel did not object to the mistrial, but there was not an opportunity to do so.”

In fact, as evidenced by the transcript of the proceedings in open court when the mistrial was declared, Judge Friedland, prior to making any pronouncement, directly asked defense counsel if they wished to offer any motions and later announced, contemporaneously with her declaration of a mistrial, that she would “entertain motions.” Defense counsel was silent both times. Defense counsel spoke to thank the court.

The applicable federal law as to when and how a defendant may consent to the declaration of a mistrial indicates that “[c]onsent should not be assessed by the mechanical application of an absolute rule, but rather by an analysis informed by the weighty considerations inherent in criminal jeopardy.” Consent may be implied “only where the circumstances positively indicate a defendant’s willingness to acquiesce in the [mistrial] order.” Further, “a defendant’s failure to object to a mistrial implies consent thereto only if the sum of the surrounding circumstances positively indicate the silence was tantamount to acceptance.”

In Glover, the Sixth Circuit concluded that the defendant did not impliedly consent to the mistrial where the defendant had no opportunity to object and the trial court’s actions were of a “summary nature,” rendering “any objection both unlikely and meaningless.” By contrast, the Court in Gantley, found implied consent where the judge had an extensive discussion with counsel concerning a mistrial and potential alternatives prior to dismissing the jury. The trial judge further twice asked defense counsel if there was “anything else” he wished to offer, and counsel failed to object to the proposed grant of mistrial.

Here, the record provides a significant basis for concluding that Marshall did consent to the declaration of the mistrial. Contrary to Marshall’s unsupported assertion in his traverse that Judge Friedland “made an emotional decision to declare a mistrial the moment she was made aware of the statement reaching the jury,” the facts establish that the trial judge did not fail to act “rationally, responsibly or deliberately” in proceeding to declare the mistrial.

As previously noted, the special prosecutor’s report found that the trial judge initially consulted with other judges upon receiving the note from the jury, and the record shows that the trial judge twice solicited motions in open court from counsel before journalizing the decision for a mistrial. In this respect, the present case differs significantly from those cases where the decision to declare a mistrial was made on the spur of the moment within a heated courtroom exchange. It also differs from cases where the trial judge put direct pressure on counsel to “make the decision [to accept or oppose the mistrial] at that very moment.”

Instead, the present matter closely resembles the implied consent found by the District Judge in Pryor v. Bock. In Pryor, the federal court in a habeas matter concluded that the habeas petitioner had given implied consent to the state court’s sua sponte declaration of a mistrial in his state felony trial for assault for intent to commit murder.

Pryor involved the situation where a crucial state witness — the police officer who was first on the scene to interview the victim of the assault of which Pryor was charged — did not appear pursuant to summons to testify at trial. The trial judge stated he was inclined to grant a mistrial and order the officer jailed for contempt. The following colloquy then occurred:

Mr. Filip [counsel for Pryor]: Your Honor, I have to — are you declaring a mistrial?

The Court: Yes, sir.

Mr. Filip: I would have to, on behalf of Mr. Pryor, then, ask for dismissal of the charges because this is the fault of the prosecution....

[The prosecutor then stated that he had “done what is required under the court rules” as far as subpoenaing the witness.]

Mr. Reid [counsel for another defendant]: Is the Court going to rule in regards to defense counsel’s motion for dismissal?

The Court: No. I better deny that, through no fault of the prosecution in this person not being here.

The federal habeas court concluded that:

In contrast to defense counsel in Glover, Petitioner’s attorney had ample opportunity to voice an objection to the mistrial. Although the trial court sua sponte declared the mistrial, the Court finds that because Petitioner had the opportunity to object to the mistrial, but failed to do so, and insisted that the trial could not proceed fairly without the missing witness, Petitioner retained primary control over the course to be followed.

Similarly, in the present case, Marshall’s counsel had “primary control over the course to be followed” in his trial. They knew, once the trial judge had read the jury note, the basis for any potential mistrial. They were at a hearing convened outside the hearing of the jury where they could speak openly. They knew the jury had not been discharged. Further, they were directly asked if, on the facts as presented, there was “any motion from the defense?” They were further put on notice that the trial judge was seeking motions on the decision to declare a mistrial.

It should also be noted that the District Judge in Pryor was “disturbed by the trial court’s failure to consider alternatives to granting a mistrial.” However, because the mistrial was given Pryor’s implied consent, it was not necessary to consider what effect the absence of alternatives might have on a finding of manifest necessity.

Accordingly, as the Sixth Circuit stated in Gantley:

Sixth Circuit precedent does permit us to find that Gantley impliedly consented to the declaration of a mistrial, even if Gantley’s “positive indication” of consent was in the form of silence. Further, we believe that the totality of the circumstances in this case justifies the conclusion that Gantley d