State v. Lamont Needum

State of Ohio, Plaintiff-Appellant v. Lamont Needum, Defendant-Appellee

No. 99AP-1371

00-LW-3088 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

June 29, 2000

APPEAL from the Franklin County Court of Common Pleas

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant.

Joseph D. Reed, for appellee.

OPINION

TYACK J.

On August 29, 1999, a Franklin County grand jury returned a four-count indictment against Lamont E. Needum. The indictment alleged that, on or about May 10, 1994, Mr. Needum committed aggravated robbery, robbery, kidnapping and unlawful possession of a dangerous ordnance. At the time of the indictment, Mr. Needum was incarcerated in the United States Penitentiary Allenwood in Pennsylvania, and was not scheduled to be released from federal custody until September 14, 2036; however, he was due to be resentenced following his partially-successful federal appeal. In United States v Needum (C.A.6, 1999), 174 F.3d 762, the Sixth Circuit Court of Appeals vacated, inter alia, Mr. Needum's conviction for using a firearm to rob an undercover federal agent after selling the agent "crack" cocaine. The related federal and state charges resulted from Mr. Needum's purported involvement with a group of drug dealers which dubbed itself the "Short North Posse."

Due to the necessary delays in transporting a federal prisoner to state court, Lamont Needum was not arraigned on the state charges until September 3, 1999.

Defense counsel filed a motion seeking dismissal of the state charges because of the delay between the alleged offense and the date of indictment. Counsel later filed a second motion to dismiss based upon a theory that Mr. Needum had previously been placed in jeopardy for the offenses alleged.

On three of the four counts, the trial court denied the motion to dismiss on double jeopardy grounds; however, the court sustained the motion as to the unlawful possession of a dangerous ordnance charge. In dismissing the dangerous ordnance charge on double jeopardy grounds, the trial court implicitly concluded that it was the "same offense" as the firearm offense which was reversed by the federal appellate court. As to all of the counts, the trial court sustained the other motion to dismiss in toto, agreeing with defense counsel that an unjustifiable delay had occurred.

The state has pursued a direct appeal of the dismissal of the charges, assigning two errors for our consideration:

FIRST ASSIGNMENT OF ERROR

The trial court erred in dismissing the dangerous ordnance charge on double jeopardy grounds, when that charge did not satisfy the same elements test and when the dual sovereignty doctrine applied.

SECOND ASSIGNMENT OF ERROR

The trial court erred in dismissing the entire indictment on "unjustifiable delay" grounds, when defendant failed to demonstrate that any actual prejudice had occurred and when the delay was justifiable.

At the hearing on the motions to dismiss, the parties entered into the following stipulations:

1. Lamont Needum was indicted in federal Case Number CR2-95-044(13) on March 23, 1995, on seven (7) separate counts including Count 97, carrying or using a firearm during and in relation to a drug trafficking offense or a crime of violence in violation of 18 USC §924(c).

2. Robbery is defined as a crime of violence for purposes of 18 USC §924(c).

3. Count 97 alleged that on or about May 10, 1994, Lamont Needum used a firearm during or in relation to a drug trafficking offense which took place immediately before the alleged robbery of A.T.F. [Bureau of Alcohol, Tobacco and Firearms] agent Rodney Russell.

4. On November 8, 1995, Lamont Needum was convicted by a federal jury of Counts 1, 47, 92, 96, 97, 102 and 103 of the indictment which was the result of an investigation undertaken by local and federal law enforcement agents.

5. On April 16, 1999, the United States Court of Appeals vacated Lamont Needum's conviction[s] on Counts 1, 97 and 103 of the indictment but affirmed his conviction[s] on Counts 47, 92, 96 and 102 of the indictment and rescinded [sic] the case for resentencing by the federal court.

6. Between April 16, 1999 and April 29, 1999, AUSA [Assistant United States Attorney] Salvadore [sic] Dominguez, the prosecutor in the federal trial, contacted County Prosecutor David DeVillers and asked him to have the County review the case for possible prosecution.

7. No new evidence has come to light between the federal prosecution and the instant state prosecution.

8. The state prosecution would not have been undertaken but for the actions of the U.S. Court of Appeals in vacating the Defendant's conviction on count 97 of the indictment.

***

10. Lamont Needum is currently awaiting resentencing by the Federal District Court on Counts 47, 92, 96 and 102. His presentence report recommends a sentence of 327 months (27.2 years) on these remaining counts. [Defendant's Exhibit A.]

The state of Ohio also placed in evidence a copy of the federal indictment charging Mr. Needum with the referenced offenses and a copy of a portion of the opinion of the Sixth Circuit Court of Appeals which found the evidence in federal court to have been insufficient to sustain a conviction for using a firearm in conjunction with a drug sale.

In its first assignment of error, the state contends that the trial court erred in dismissing the dangerous ordnance count on double jeopardy grounds. Stated generally, the double jeopardy protections afforded by the United States and Ohio Constitutions guard persons against both successive prosecutions and cumulative punishments for the "same offense." State v. Moss (1982), 69 Ohio St.2d 515, 518.

The state advances two theories in support of its proposition that double jeopardy should not bar prosecution on the dangerous ordnance charge in state court. First, the federal and state charges did not satisfy the "same elements" test and, therefore, were separate and distinct offenses. In the alternative, the state contends that even if the offenses were identical, the "dual sovereignty" doctrine allowed the subsequent state prosecution.

The state first directs our attention to the recent ruling of the Supreme Court of Ohio in State v. Rance (1999), 85 Ohio St.3d 632, paragraph three of the syllabus, which discussed the United States Supreme Court's decision in Blockburger v. United States (1932), 284 U.S. 299:

In Ohio it is unnecessary to resort to the Blockburger test in determining whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional provisions against double jeopardy. Instead R.C. 2941.25's two-step test answers the constitutional and state statutory inquiries. The statute manifests the General Assembly's intent to permit, in appropriate cases, cumulative punishments for the same conduct. (Garrett v. United States [1985], 471 U.S. 773 ***; Albernaz v. United States [1981], 450 U.S. 333 ***; State v. Bickerstaff [1984], 10 Ohio St.3d 62 *** approved and followed.)

As expressly stated in Rance, "This case does not involve the successive-prosecution branch of the Double Jeopardy Clause." Id. at 634. Instead, Rance speaks only to the "cumulative punishments" branch of the Double Jeopardy Clause in relation to R.C. 2941.25, Ohio's "allied offenses" statute. It is not directly on point and, thus, provides little guidance in assessing whether double jeopardy principles bar prosecution here.

Instead, Blockburger, supra, itself controls here, speaking directly to the issue of whether two offenses are "the same" for double jeopardy purposes. The test set forth in Blockburger asks whether each offense requires proof of an element that the other does not.

As indicated above in stipulations (1) and (3), count 97 of the federal indictment alleged that appellant "knowingly used and/or carried a firearm, during and in relation to a drug trafficking crime." The state indictment alleged that appellant violated R.C. 2923.17, unlawful possession of a dangerous ordnance. That statute generally prohibits, inter alia, carrying or using a weapon. The indictment specified that appellant knowingly carried or used an "automatic firearm."

Comparing the elements of the federal and state charges, the two offenses do not constitute the "same offense" for double jeopardy purposes since each requires proof of at least one element that the other does not. Specifically, count 97 required proof that appellant committed the offense "during and in relation to a drug trafficking crime." In its reversal of count 97, the federal appellate court stated:

To be during and in relation to the drug trafficking crime, "the Government must prove that the firearm furthered the purpose or effect of the crime and that its presence of involvement was not the result of coincidence." United States v. Riascos-Suarez, 73 F.3d 616, 623 (6t h Cir.) ***. The government contends that enticing [agent] Russell to return to buy more drugs is enough to make the use of the firearm for robbery a use during and in relation to the drug sale. We disagree. Attracting a person with the allure of a drug sale and then robbing the person is not enough to qualify as use of a firearm in relation to a drug sale. Here, despite the temporal proximity of the drug sale to the robbery, the firearm was used in relation to the latter, not the former. Section 924(c)(1) also applies to the use of a firearm in relation to "a crime of violence," but the government did not charge Needum with robbery here.

United States v. Needum, supra, at 780. [Citation omitted; emphasis added.]

In contrast, the state dangerous ordnance charge, as indicted required proof that the firearm at issue was an "auto...