112 Misc. 2d 906 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
The issue to be resolved is whether, in the factual context of this case, the court may properly dismiss an indictment because, after two or more successive trials, juries have been unable to agree on a verdict.
The defendants herein move to dismiss the indictment, charging them with the crimes of murder in the second degree (Penal Law, § 125.25, subd 1) and attempted murder in the second degree (Penal Law, §110.00), arising from the death by the shooting of one John Burwell and the shooting of one Robert Robinson on January 12, 1979, on the ground that continued prosecution would subject them to double jeopardy, would constitute cruel and unusual punishment, and would not be in the interest of justice. (US Const, 5th, 8th, 14th Arndts; CPL 210.40.) The history of this prosecution began with the defendant Kirby’s initial trial for these charges in March, 1980. The defendant Franklin had not then been apprehended. A mistrial was
The People now move for a fourth trial as to the defendant Kirby and a third trial as to the defendant Franklin, pursuant to GPL 310.60. The People argue that they have the statutory right to retry the indictment and that there is no constitutional impediment to a retrial upon the facts of this case.
The court rejects the defendants’ Eighth Amendment claim, since reprosecution after the declaration of a mis
The court is, furthermore, constrained by precedent to agree with the prosecution that a new trial is not, in this context, prohibited by the double jeopardy clause. (Cf. Preston v Blackledge, 332 F Supp 681.) The double jeopardy clause of the Fifth Amendment to the United States Constitution, which is fully applicable to the States through the due process clause of the Fourteenth Amendment {Benton v Maryland, 395 US 784) does, in certain instances, prohibit reprosecution even though the initial prosecution did not result in a verdict and no punishment has been imposed. (Price v Georgia, 398 US 323.) Examples of prohibition against retrial in this context are where the trial court improperly declares a mistrial without the requisite high degree of necessity (People v Michael, 48 NY2d 1; Matter of Torres v Justices of Supreme Ct. of State of N. Y., 82 AD2d 892) or where the failure to submit the case to the jury is due to the prosecutor’s error or malfeasance. (Downum v United States, 372 US 734, 736; United States v Dinitz, 424 US 600, 611.) In such cases, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal” without a constitutionally significant reason. (Wade v Hunter, 336 US 684, 689.) There are other contexts, however, where circumstances manifest to the trial court necessitate the termination of prosecution before its completion in order to preserve “the public’s interest in fair trials designed to end in just judgments” (Wade v Hunter, supra, at p 689; Arizona v Washington, 434 US 497). Examples of “manifest neces
It is important to note, in this context, that on each occasion when a mistrial was declared the jury had made earnest efforts to achieve a verdict, the trial court encouraged the jurors to agree if possible, and the mistrial was declared only after the court had ascertained that further deliberation would be futile and then only with the defendants’ consent. (Cf. United States ex rel. Webb v Court of Common Pleas of Philadelphia County, 516 F2d 1034; Carsey v United States, 392 F2d 810.) Accordingly, there is no basis for dismissal under the double jeopardy clause.
Despite the assessment of the most recent of the experienced Justices who presided over this case at trial, after hearing the testimony of witnesses first hand, that no jury would unanimously credit the testimony of the chief witness for the prosecution, the Justice had no statutory basis for dismissing the indictment. It was not his function to “weigh the evidence or assess the credibility of witnesses” when called upon to judge the merits of a motion to dismiss (CPL 290.10, 70.10, subd 1). The Trial Judge could do no more than determine whether “the evidence and inferences
This case, accordingly, presents what appears to be an intractable problem. Despite diligent efforts by all participants in the litigation, the case has been submitted to three competent juries over a period of two years to no avail. Although the defendant Franklin has been tried only twice, the evidence against both defendants is substantially the same, and one third of the deliberating jurors have failed to find the evidence against Franklin persuasive beyond a reasonable doubt. The issue has thus become whether continued trials in the absence of any new evidence will serve the purposes of a fair and reasonable administration of the criminal laws.
Other courts, faced with similarly intractable cases, have recognized limits to the number of attempts that may be made to convict an accused, despite the existence of manifest necessity in the termination of each previous prosecution. In United States v Castellanos (478 F2d 749, 753, n 4) the United States Court of Appeals acknowledged, in principle, that successive prosecutions, although permissible within the strictures of double jeopardy, might constitute “‘trial by attrition’” in violation of the due process clause, of the Fourteenth Amendment. In Preston v Blackledge (332 F Supp 681, 686-687, supra) the court observed that a fifth trial, after four previous trials had resulted in hung juries, enhanced the possibility that even though innocent, the accused may be found guilty. In United States v Ingram (412 F Supp 384, 386) the court reasoned, apart from double jeopardy principles, that a third trial after two previous jury disagreements, in the absence of new evidence, would amount to a disregard of the reasonable doubt standard. (See, also, Green v United States, 355 US 184, 187-188.)
There is no other reported case in this jurisdiction, to this court’s knowledge, where dismissal has been sought exclusively upon the ground that two or more successive juries have failed to reach a verdict upon substantially the same evidence. (Cf. People v Schmetterer, 50 NYS2d 297,
The court recognizes, of course, the difference in evidentiary standards, and the functional difference, between the grand and petit jury. Nonetheless, the fundamental considerations of fairness to the accused and of the reasonable utilization of judicial resources are similar in both contexts. As the Supreme Court noted in Green v United States (355 US 184, 187-188, supra) an “idea * * * deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be 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
Implicit in the Supreme Court’s holdings on double jeopardy cases is the recognition of discretion in the trial court to dismiss an indictment where it appears that further prosecution would be futile. (Green v United States, supra, at p 187; Wade v Hunter, 336 US 684, 689, supra.) Since it is the public’s interest in fair trials and just verdicts that is served when a trial is aborted and reprosecution is permitted under the standards of the double jeopardy clause (Wade v Hunter, supra, at p 689), courts also must have the discretion, as in the case of Grand Jury presentations, to prohibit further prosecution where it appears that a just verdict, or any verdict, is unattainable. This authority was explicitly recognized by the Supreme Court of Tennessee in State v Witt (572 SW2d 913 [Tenn]), where the trial court dismissed an indictment after three previous trials had resulted in divided juries, despite sufficient evidence competently presented. The court held (p 917), apart from constitutional principles, that “trial judges have the inherent authority to terminate a prosecution in the exercise of a sound judicial discretion, where, as here, repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries and where it appears that at future trials substantially the same evidence will be presented and that the probability of continued hung juries is great.”
This opinion is not to be construed as fixing the permissible or impermissible number of mistrials caused by deadlocked juries. The relevant principles must be applied on an ad hoc basis. The court is not announcing a per se rule or applying a formula mechanically. The sound judicial discretion of a Trial Judge to terminate a criminal prosecution is a power that ought to be used with the utmost caution and then only where the circumstances clearly justify such action.
This court, in the absence of contrary authority within its jurisdiction, adopts the reasoning of the Tennessee Supreme Court in Witt (supra). Based upon the results of the three previous prosecutions in this matter, and upon the considered judgment of the Justice before whom this case was most recently tried, and upon this court’s evaluation of the improbability of a unanimous verdict in future trials, the indictment herein is dismissed.