Robert WALLACE, Petitioner-Appellee Cross-Appellant, v. Joseph H. HAVENER, Supt., Respondent-Appellant, Cross-Appellee.
Nos. 76-1028, 76-1047
United States Court of Appeals, Sixth Circuit.
Argued Oct. 15, 1976. Decided April 14, 1977.
556 F.2d 721
Consent “must be proved by ‘clear and positive testimony,’ Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and ‘must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion,’ Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).” United States v. Hearn, supra, 496 F.2d at 244. “[T]he mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the voluntariness of a subsequent consent. The Government has a heavy burden of proof in establishing that the consent was the voluntary act of the arrestee and that it was not the fruit of the illegal arrest.” United States v. Bazinet, 462 F.2d 982, 989-90 (8th Cir.), cert denied, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972); see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Manning v. Jarnigan, supra, 501 F.2d at 411-412.2
The fact that appellants were read their Miranda rights does not in and of itself show the voluntariness of the subsequent consent, for “[i]f Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Other factors which the district court held tended to show a voluntary consent are that aрpellants are of average education and intelligence; had not been formally detained nor subjected to prolonged questioning or any physical punishment, and; McCaleb‘s act of unlocking the suitcase. Factors tending to militate against a finding of voluntariness include an unconstitutional stop; an unconstitutional arrest; the detention of appellants in unfamiliar surroundings by three agents; the statement to McCaleb by agent Markonni that he either consent to the search or remain in detention, with his companions while a warrant was sought; thе fact McCaleb did no more than unlock the bag, as distinguished from the defendant in Schneckloth, who opened the trunk of his car for the officers, and; the fact that no oral acquiescence or written consent was given by McCaleb. This court concludes that such consent as was here involved was not shown by the government to have been “freely and voluntarily” given and that therefore, the conclusion of the district court to the contrary was clearly erroneous. See, United States v. Hearn, 496 F.2d 236 at 244.
Having concluded the above, we need not reach the additional question of trial error raised by appellant Page.
The judgment of the district court is reversed.
Robert Wallace, pro se.
G. Robert Hines, Cincinnati, Ohio (Court-appointed CJA), for appellant.
William J. Brown, Atty. Gen. of Ohio, Robert D. Doane, Simon B. Karas, Columbus, Ohio, for appellee.
Before PECK and ENGEL, Circuit Judges, and MILLER, Judge, United States Court of Customs and Patent Appeals.*
JOHN W. PECK, Circuit Judge, delivered the opinion of the Court, in which ENGEL,
* The Honorable Jack R. Miller, sitting by designation.
Petitioner Wallace was indicted by an Ohio grand jury for his alleged participation in an armed robbery of a Kroger‘s store in Cleveland, Ohio, on one сount of armed robbery, three counts of shooting with intent to kill, and one count of illegally possessing a firearm. At the first trial, the jury announced agreement (but the record does not disclose whether on guilty or not guilty) as to the counts of shooting with intent to kill and the count of illegally possessing a firearm (Counts 2 through 5), but it could not reach a verdict on the count of armed robbery (Count 1). The Ohio trial court judge declared mistrial. The trial judge also denied a request by defense counsel that the jury be instructed to sign the four verdicts they had reached. Petitioner was retried and was found guilty on all counts of the indictment.
After exhausting his state remedies, petitioner sought federal habeas corpus relief in the district court. One of the three grounds alleged was that petitioner‘s retrial on Counts 2 through 5 violated the Double Jeopardy Clause of the
We hold that the district court was correct in determining that petitioner was placed in double jeopardy by retrial on Counts 2 through 5, and affirm, the order of the district court, except for that portion which remanded the petitioner‘s case to the state court for resentencing on Count 1.
The principal issue, presented under respondent‘s cross-appeal, is whether the Ohio trial court judge in the first trial was guilty of an abuse of discretion amounting in present context to a constitutional deprivation in not accepting the jury verdicts on Counts 2 through 5. The test for determining whether there was such an abuse of discretion in ordering a mistrial, so that a retrial would constitute double jeopardy, was laid down in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):
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 a manifest necessity for the aсt, or the ends of public justice would otherwise be defeated.
Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), have reaffirmed the “manifest necessity” test.
In the present case, taking all the circumstances into consideration, we are directed to no problem at the first trial which would warrant a determination of manifest necessity to justify the discharge of the jury and the refusal to accept the verdicts that the jury had reached on Counts 2 through 5. Thus, the Ohio trial court judge abused his discretion by not accepting those jury verdicts, and the retrial of the petitioner on Counts 2 through 5 placed him in double jeoрardy.
Respondent argues that the manifest necessity to discharge the jury at the first trial because double jeopardy problems would arise on retrial stemmed from the possibility that, had the jury in the first trial acquitted petitioner on Counts 2 through 5, the state could have been collaterally estopped on certain ultimate facts in a retrial of petitioner on Count 1 and could thereby have been effectively prevented from securing a conviction. We reject that contention, which suggests a fact pattern de hors the record. The incorporation of the rule of collateral estoppel in criminal
There is no acceptable reason why the state should have a second opportunity to convince a jury of facts necessary to secure a conviction of a crime. Indeed, one of the purposes of the Double Jeopardy Clause is to prevent the state from having such a second chance. Ashe v. Swenson, supra, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. When the jury hands down a partial verdict, a final judgment is rendered on the counts upon which the jury has reached agreement. According to Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, “... when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Of course, an entry of a disputed verdict on the armed robbery count and a verdict of guilty on the other counts would not have prevented the retrial of the petitioner on the armed robbery charge. Selvester v. United States, 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029 (1898). Therefore, whether the jury was about to acquit or to convict petitioner on Counts 2 through 5 at the first trial, the Ohio trial court judge should have accepted the рartial verdict.1
The other two issues in this case arise under petitioner‘s appeal, and are whether in-court identifications of petitioner were so tainted and certain prosecutorial comments were so improper as to deny petitioner due process. Petitioner‘s claims on these issues are without merit.
In the second trial, petitioner‘s mother and wife testified that, when visiting petitioner at jail, they observed two of the four eyewitnesses at the robbery (cashiers at the Kroger‘s store) being shown photographs of the рetitioner by a police detective, who simultaneously advised the eyewitnesses that petitioner was guilty. The cashiers, however, denied ever having seen a photograph of petitioner, and on cross-examination petitioner‘s mother was not certain that the detective was showing a photograph of her son to the cashiers. The fact remains, however, that the in-court identifications of petitioner by at least two eyewitnesses to the robbery were untainted. As to the possibility of taint attaching to the testimony of the other two witnesses, see Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
Also in the second trial, the prosecutor told the jury in his closing argument to acquit the petitioner if he were innocent but to consider the position of an eyewitness and a policeman at the robbery, who were witnesses for the prosecution and who testified that petitioner was involved in the armed robbery of the Kroger‘s store. The prosecutor‘s comments did not render the trial fundamentally unfair.
That portion of the order of the district court which purported to remand Count 1.
MILLER, Judge, dissenting in part.
I cannot agree with the majority on the double jeopardy issue with respect to counts 2-5.
The court below held that the second trial on counts 2-5 violated petitioner‘s right not to be placed twice in jeopardy. It premised this holding on its determination that—
(a) the Ohio trial court judge abused his discretion in declaring a mistrial on all counts1 (rather than on only count 1), because there was “no manifest necessity” for doing so; and
(b) thеre was “no manifest necessity” for doing so “Since the trial judge could have accepted the four verdicts ... and was in fact requested to do so by the defendant.”
The record of the first trial that was before the court below and is now before this court does not contain the pleadings, evidence, argument of counsel, or charge to the jury, and consists only of those pages relating to proceedings after the case went to the jury.2 The court below merely directed that respondent-appellant submit “[a] copy of a рortion of the transcript of petitioner‘s first trial in which the jury announced its inability to return a verdict on all counts, and the court subsequently declared a mistrial.” (Emphasis added.) Obviously the Ohio trial court judge, who had all the circumstances before him, could have accepted the partial verdict, allowing the jury to enter its disagreement on count 1 and its verdicts on counts 2-5 (the jury had not indicated whether its agreement on counts 2-5 was for conviction or acquittal). However, without all the circumstances before them, the court below and the majоrity here have determined that the Ohio trial court judge “abused his discretion” by failing to accept the partial verdict, because there was “no manifest necessity” for not doing so; that there was “no manifest necessity” for not doing so, because he could have done so. What this really means is that the Ohio trial court judge had no discretion to refuse to accept such a partial verdict. The “manifest necessity” test does not go so far, and the cases cited by the majority3 do not support such a position.
A careful analysis of the cited cases discloses that the “manifest necessity” test is a guideline for trial judges, to be considered along with “the ends of public justice” in the exercise of their discretion to declare a mistrial rather than a rigid, mechanical formula by which the exercise of that discretion is to be reviewed. Thus, in Illinois v. Somerville, supra at 461, 93 S.Ct. at 1069, 35 L.Ed.2d at 429, the majority opinion quoted fully from United States v. Perez, supra, saying (emphasis supplied):
Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant‘s objection, constitutes double jeopardy within the meaning of the
“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 a 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; and, in capital cases especially, Courts
should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”5
The Court then said (id. at 462, 93 S.Ct. at 1069, 35 L.Ed.2d at 429-30):
This formulation, consistently adhered to by this Court in subsequent decisions, 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. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U.S. 684 [69 S.Ct. 834, 93 L.Ed. 974] (1949), the Court, in reaffirming this flexible standard, wrote:
“We are asked to adopt the Cornero [v. United States, 9 Cir., 48 F.2d 69,] rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez dеcision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take ‘all circumstances into account’ and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to
defendants or to the public interest.” Id., at 691 [69 S.Ct. at 838].
With respect to United States v. Jorn, supra, the following portion of the majority opinion in Illinois v. Somerville, supra at 469-70, 93 S.Ct. at 1073, 35 L.Ed.2d 435, indicates that what the Court did not hold in Jorn was more important than what it held on the particular facts of that case:
Given the established standard of discretion set forth in Perez, Gori, and Hunter, we cannot say that the declaration of a mistrial [in Illinois v. Somerville] was not required by “manifest necessity” or the “ends of public justice.”
Our decision in Jorn, relied upon by the court below and respondent, does not support the opposite conclusion. While it is possible to excise various portions of the plurality opinion to support the result reached below [see note 4, supra], divorcing the language from the facts of the case serves only to distort its holdings. That opinion [Jorn] dealt with action by a trial judge that can fairly be described as erratic. The Court held that the lack of apparent harm to the defendant from the declaration of a mistrial did nоt itself justify the mistrial, and concluded that there was no “manifest necessity” for the mistrial, as opposed to less drastic alternatives. The Court emphasized that the absence of any manifest need for the mistrial had deprived the defendant of his right to proceed before the first jury, but it did not hold that that right may never be forced to yield, as in this case, to “the public‘s interest in fair trials designed to end in just judgments.” The Court‘s opinion in Jorn is replete with approving references to Wade v. Hunter, supra ...6
Not only is the majority‘s position unsupported by the cases it cites, but it is contrary to the “manifest necessity” test on which it relies. As set forth in United States v. Perez, supra, repeated in Wade v. Hunter, supra, and quoted in Illinois v. Somerville, supra, all cirсumstances of the trial must be taken into account. That was not done by the court below, which, as pointed out above, ordered a grossly incomplete record for review. That has not been done by the majority, which relies on the same incomplete record.
The majority‘s position is contrary to the Supreme Court‘s admonition in Illinois v. Somerville, supra at 462, 93 S.Ct. at 1069, 35 L.Ed.2d at 429, against—
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.
and in Wade v. Hunter, supra at 691, 69 S.Ct. at 838, 93 L.Ed. at 979 against—
the mechanical application of an abstract formula.
The majority‘s statement that—
There is no acceptable reason why the state should have a second opportunity to convince a jury of facts necessary to secure a conviction of a crime.7
is contrary to the clear position of the Supreme Court set forth in Wade v. Hunter, supra at 689, 69 S.Ct. at 837, 93 L.Ed. at 978, and in Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, 904 (1961). In Wade v. Hunter, a majority of the Court declared:
There may be unforeseeable circumstances that arise during a trial making its
completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law tо protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.
In Gori v. United States, a majority of the Court said:
Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant‘s consent and even over his objection, and he may be retried consistently with the
Fifth Amendment . ... It is also clear that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial аnd to require another panel to try the defendant if the ends of justice will be best served ...,” Brock v. North Carolina, 344 U.S. 424, 427 [73 S.Ct. 349, 350, 97 L.Ed. 456, 459], and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. [Footnote omitted.]
Accord, United States v. Goldstein, 479 F.2d 1061 (CA 2), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973).
Erroneous Application of “Manifest Necessity” Test
The majority says:
taking all the circumstances into consideration, we are directed to no problem at the first trial which would warrant a determination of manifest necessity to justify the discharge of the jury and the refusal to accept the verdicts that the jury had reached on Counts 2 through 5. Thus, the Ohio trial court judge abused his discretion
The fatal defect in this statement is that, unlike the situation before the Ohio trial court judge, “all the circumstances” have
In citing Ashe v. Swenson, supra, which reaffirmed that the doctrine of collateral estoppel is a requirement of due process and held that it is a part of the
The conclusion to be drawn from the foregoing is that a reviewing court should follow the Suprеme Court‘s admonition against application of a rigid, mechanical formula, such as “no manifest necessity,” and against “sharp surveillance” of the exercise of a trial judge‘s discretion to declare a mistrial. Even more so should that admonition be followed when, as here, the reviewing court does not have before it a complete record showing all of the circumstances that were before the trial judge.
The order of the district court that the judgment of conviction on counts 2-5 be vacated should be overruled.
Notes
The trial court denied the defendant‘s request to receive a partial verdict on some of the counts. This is discretionary with the court and did not result in any prejudice to the defendant. See Jackson v. State of Ohio (1883), 39 Ohio St. 37.
Wallace‘s motion for delayed appeal to the Ohio Supreme Court was denied.The cited section 643 merely states that where a case is submitted to a jury on more than one count, proper practice would require that the verdict respond to the issues made on each of such counts; and Jackson is cited for the statement in the above-quoted headnote.While the court may, it is not bound to receive a verdict which finds the defendant guilty on one count, without any finding as to the other counts, and, as a general rule, where such verdict is tendered, the court should require the jury to deliberate further, so as to be able to respond to each count.