Robert Wallace, Cross-Appellant v. Joseph H. Havener, Supt., Cross-Appellee

552 F.2d 721, 1977 U.S. App. LEXIS 13842

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 14, 1977
• Docket: 76-1028, 76-1047
• Status: Published

Opinions

JOHN W. PECK, Circuit Judge, delivered the opinion of the Court, in which ENGEL, Circuit Judge, joined. MILLER, Judge, (pp. 725-729) filed a separate opinion dissenting in part.

JOHN W. PECK, Circuit Judge.

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 count 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 Fifth Amendment, made applicable to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The district court held the double jeopardy claim to be meritorious and granted the writ. The district court vacated the judgment on Counts 2 through 5 but determined that the retrial and conviction on Count 1 did not place the petitioner in double jeopardy because the first jury had not been able to agree as to that count. The district court held that the other two claims of petitioner were without merit.

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 act, 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 jeopardy.

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 c’ertain 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 cases into the Fifth Amendment’s guarantee against double jeopardy, made applicable to the states by the Fourteenth Amendment, Ashe v. Swenson,, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), should not operate to provide the manifest necessity to discharge a jury without double jeopardy attaching in a retrial. Collateral estoppel may operate effectively to prevent a retrial, but such a bar would serve the ends of public justice and not result in the kind of manifest necessity and public injustice contemplated by United States v. Perez, supra, 22 U.S. (9 Wheat.) 579,. 6 L.Ed. 165 and United States v. Jorn, supra, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543.

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 tyhich 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 partial 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 petitioner 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 jufy 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 .\yhich purported to remand the case to the state court goes beyond the power of the district court and is therefore vacated. The judgment is otherwise affirmed.

1 . Petitioner does not argue, and we do not hold, that petitioner was placed in double jeopardy by his retrial on Count 1. An entry of a disputed verdict was made. Moreover, even if the jury had acquitted petitioner on the other counts, no basis is provided on this record for concluding that there could have been issues of ultimate fact that the state would have been estopped to dispute in a second trial which would have effectively prevented a retrial on Count 1. According to the petitioner, the only issue in common between Count, l.and Counts 2 through 5 that would have .qualified as. an issue of ultimate fact was petitioner’s presence at the scene of the crime. Had the jury concluded that the state had not established petitioner’s presence at the scene of the crime, there would have been no occasion for the jury to proceed further in the deliberations on the count of armed robbery.