Theodore A. Weston v. Peg Kernan, Warden

50 F.3d 633, 95 Cal. Daily Op. Serv. 1368, 95 Daily Journal DAR 2453, 1995 U.S. App. LEXIS 3534, 1995 WL 73733

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1995
• Docket: 94-15391
• Status: Published

Opinions

Opinion by Judge BEEZER; Dissent by Chief Judge WALLACE.

BEEZER, Circuit Judge:

Petitioner Theodore Weston filed a petition for a writ of habeas corpus challenging his May 1990 state court conviction of forcible oral copulation. He contends that his conviction was barred by the Double Jeopardy Clause because the state trial court ended his first trial by declaring a mistrial without his consent and in the absence of manifest necessity.

The district court granted his petition on February 9, 1994. The district court had jurisdiction pursuant to 28 U.S.C. § 2254 and we have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

I

Weston was charged with three counts of forcible oral copulation (Cal.Penal Code 288a(c)), one count of robbery (Cal.Penal Code § 212.5(b)), and kidnapping for the purpose of committing the offense (Cal.Penal Code § 667.8). He was also alleged to have a prior conviction for forcible oral copulation and two prior prison terms (Cal.Penal Code § 667.6(a) and § 667.5(b)).

Weston’s first state trial began in March 1990. After four days of trial, the state trial court declared a mistrial without prejudice. Weston then moved to enter a plea of once in jeopardy and to dismiss the information. The state trial court denied this motion and Weston’s petition for a writ of mandate to the California Court of Appeal on the double jeopardy claim was also denied.

Weston’s second trial resulted in a jury verdict of guilty on one count of forcible oral copulation. The jury could not reach a verdict on the other counts and the state trial court dismissed them upon a motion by the prosecution. In June 1990, Weston was sentenced to six years for forcible oral copulation, with a five year prior conviction enhancement, for a total sentence of 11 years.

Weston appealed this conviction to the California Court of Appeal arguing, inter alia, that the second trial placed him twice in jeopardy. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.

Weston then filed this habeas corpus action in October 1992. In January 1993, the district court ordered the State to show cause why a writ should not issue. After receiving responses from the parties, the district court granted the petition, ordering the State of California to release Weston from custody. The district court then granted the State’s motion for a stay of Weston’s release pending this appeal.

II

The circumstances surrounding the mistrial are as follows. During the rebuttal phase of the first trial, the prosecutor proposed to call two witnesses who would testify solely to the issue of the defendant’s address. The prosecutor represented that the witnesses were being called only for the purpose of relating statements made to them by Weston concerning where he resided. The first witness, Officer Miller, testified as follows:

Q. (By Cling, Prosecutor) Did you place Mr. Weston under arrest?

A. Yes, I did.

Q. For what?

A. For 470 which is a check fraud.

(R.T. 416.)

Defense counsel, Jeffrey Adachi, immediately objected and requested a mistrial. The state trial judge responded by striking the testimony and admonishing the prosecutor for transgressing the court’s order. The court took the motion for mistrial under advisement. The next witness, Barry Briden, testified that he was a parole officer and knew Weston because he maintained a parole file on him. At the end of this testimony and after excusing the jury, the attorneys and the judge further discussed the mistrial matter. Adachi stated that he was moving for a mistrial because of the extraneous, irrelevant and prejudicial nature of the police officer’s and parole agent’s testimony. He asked the court to declare a mistrial sua sponte. The Court responded that it would not declare a mistrial sua sponte because jeopardy would attach. The Court then asked Adachi whether he was moving for a mistrial to which Adachi responded “yes.”¹

The judge took the motion under advisement and the court adjourned for the day. The next morning, Weston filed a written motion requesting “that the court declare a mistrial ... on the grounds that the prosecutor, Peter Cling, by his misconduct, goaded the defense into seeking the instant motion for mistrial.” Weston sought the following relief:

Accordingly, the defense requests that this court declare a mistrial in this matter based on prosecutorial misconduct, and hold that a further retrial in this matter is barred by the Double Jeopardy Clause.

If the court decides not to declare a mistrial in this matter sua sponte, the defense respectfully requests that the Court give the jurors’ the attached cautionary instructions.

After further discussion, the state trial court ordered a mistrial without prejudice, finding that the cumulative error of the police officer’s and the parole agent’s testimony was prejudicial to the defendant. Immediately after the mistrial was ordered, Adachi interrupted the court, explaining that he wanted to confer with Weston before the court declared the mistrial without prejudice. The judge responded that he had granted a defense motion for mistrial and that he no longer had jurisdiction over the case.

When Adachi reiterated his objections, the state trial judge stated that he was granting the oral motion made by Adachi on the previous day. Adachi responded that he had moved for a mistrial on only one ground and that ground was denied by the court. The court responded, “Counsel, it was your motion last night. I made it crystal clear because you tried to lay the onus on the Court. If you want to have the record read back — In any event sit down now and be quiet, you will sit down and be quiet, Mr. Adachi. This Court has no further jurisdiction over this case.” (R.T. 440.)

III

A district court’s decision to grant or deny a petition for habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). Findings of fact by the state court are presumptively correct, 28 U.S.C. § 2254(d), and are reviewed under the clearly erroneous standard. Id.

IV

Weston contends that the state trial judge declared a mistrial without his consent and without “manifest necessity” that a mistrial be declared. The State argues that the mistrial was declared pursuant to Weston’s motion and that Weston consented to the mistrial. Alternatively, the State argues that manifest necessity required the mistrial.

Whether a defendant’s right not to be placed in double jeopardy has been violated is reviewed de novo. United States v. Lun, 944 F.2d 642, 644 (9th Cir.1991). Factual findings concerning the conduct of the prosecutor are reviewed for clear error. Id.

A

The Double Jeopardy Clause of the Fifth Amendment protects a person from being “twice put in jeopardy of life or limb” for the same offense. The Supreme Court has enumerated several purposes for this protection: (1) to ensure the finality of judgments in criminal cases; (2) to avoid compelling a defendant to live in a constant state of anxiety and insecurity attendant with successive prosecutions for the same offense; (3) to avoid giving the prosecution an unfair opportunity to retry the defendant using information gained from the first trial concerning the strengths and weaknesses of the State’s case; (4) to ensure that the defendant’s right to have his fate decided by the first jury empaneled is protected; and (5) to avoid the imposition of multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 127-29, 101 S.Ct. 426, 432-33, 66 L.Ed.2d 328 (1980); United States v. Crotwell, 896 F.2d 437 (10th Cir.1990). See also Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). For these reasons, upon declaration of a mistrial, retrial will only be permitted if the defendant consented to the mistrial or if the mistrial was caused by “manifest necessity.” Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Perez, 22 U.S. (Wheat. 9) 579, 580, 6 L.Ed. 165 (1824).

The critical question in Weston’s double jeopardy claim is whether he consented to a mistrial without prejudice. Our overriding concern “is that the defendant retain primary control over the course to be followed” after judicial or prosecutorial error. United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976).

The State argues that Weston’s initial oral motion for mistrial was unqualified and that even after the state trial court made clear that it would not grant a mistrial with prejudice, he persisted with the motion. The State further argues that while Weston did file a written motion for a mistrial with prejudice, he never expressly withdrew his oral motion or substituted the later motion for the prior one.

In contrast, Weston argues that he was seeking a mistrial with prejudice at all times. He states that the affirmative response to the state trial judge’s question, “All right, anyway you made a motion for mistrial, am I correct?” was at best equivocal. He argues that his written motion on the following day made clear that he was only seeking a mistrial with prejudice. Finally, he argues that even if the state trial court was under the impression that Weston had consented to a mistrial without prejudice, this misunderstanding should have been dispelled when counsel for Weston immediately objected and sought to speak to Weston before the judge discharged the jury.

We hold that Weston did not consent to the mistrial and that the state trial court erred in declaring the mistrial without prejudice over defense counsel’s repeated objections. A defendant’s consent to mistrial may be inferred “only where the circumstances positively indicate a defendant’s willingness to acquiesce in the mistrial order.” Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir.1991) (citation and internal quotes omitted). The circumstances of this case clearly indicate that the defendant did not acquiesce in the mistrial order.

The first exchange between the state trial judge and defense counsel may have been ambiguous because Weston did not explicitly limit his request to a mistrial with prejudice. While we could view this request for a mistrial as unqualified, the written motion on the following day made clear that Weston only desired a mistrial if jeopardy would attach.² If the state trial judge would not declare a mistrial with prejudice, Weston requested that the trial continue and that cautionary instructions be read to the jury. Even if we were to view the two motions as separate and distinct, one for a mistrial without prejudice and one for a mistrial with prejudice, the state trial judge wholly failed to determine whether the later written motion superseded and effectively revoked the earlier request. See, e.g., Lovinger v. Circuit Court, 845 F.2d 739, 744 (7th Cir.) (holding that previously made mistrial motion did not constitute consent to a mistrial declared later on other grounds), cert. denied, 488 U.S. 851, 109 S.Ct. 136, 102 L.Ed.2d 108 (1988); United States v. Mastrangelo, 662 F.2d 946, 950 (2d Cir.1981) (defendant may withdraw motion for mistrial, even if withdrawal is not explicit), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982).

Moreover, defense counsel’s immediate and repeated objections demonstrate that Weston did not consent to the mistrial. This is not a case where a defendant impliedly consented to the mistrial because he had the opportunity to object to a mistrial declared sua sponte but failed to do so. See United States v. Smith, 621 F.2d 350, 351-52 (9th Cir.1980) (defense counsel’s failure to object to mistrial amounted to implied consent), cert. denied, 449 U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 818 (1981); United States v. Bates, 917 F.2d 388, 393 (9th Cir.1990) (no consent when defendant has no opportunity to object to a mistrial declared sua sponte by the state trial judge). Quite the contrary, Weston’s counsel strenuously objected to the mistrial. The state trial court’s declaration of a mistrial over these objections deprived Weston of his right to retain primary control over the course of the proceedings. See Dinitz, 424 U.S. at 609, 96 S.Ct. at 1080.

Because Weston’s written motion requested only that the judge declare a mistrial sua sponte and defense counsel immediately objected to the mistrial order, the state trial court was required to obtain Weston’s consent to the mistrial in the manner that it was declared. The court could have easily accomplished this clarification by allowing defense counsel to confer with Weston before he discharged the jury. See e.g., United States v. Huang, 960 F.2d 1128, 1133 (2d Cir.1992) (after stating that it would not grant mistrial with prejudice, court gave defendants opportunity to withdraw their motion for mistrial); United States v. Miller, 742 F.2d 1279, 1284 (11th Cir.1984) (to ensure no double jeopardy problem after declaration of mistrial, judge obtained written waiver by defendant of any double jeopardy claim), cert. denied, 469 U.S. 1216, 105 S.Ct. 1194, 84 L.Ed.2d 340 (1985).

The mistrial declaration without Weston’s clear acquiescence, deprived Weston of an opportunity to decide whether he wanted to allow the first jury empaneled decide his fate. See Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982) (“one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed by the first jury empaneled to try him”). We hold that Weston did not consent to the mistrial.

B

The question whether the mistrial was declared due to “manifest necessity” remains. The Supreme Court says that manifest necessity exists “when the ends of public justice would not be served by a continuation of the proceedings.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). We must weigh the protections afforded by the Double Jeopardy Clause against society’s interest in determining guilt or innocence, Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), and we afford the state trial court discretion in evaluating the circumstances before it in deciding whether to declare a mistrial. United States v. Bates, 917 F.2d 388, 394 (9th Cir.1990).³ The State bears the heavy burden of demonstrating the “high degree” of necessity required for a declaration of mistrial without the defendant’s consent. Arizona v. Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31.

In Bates, we established standards to be used in determining whether the state trial court properly exercised its discretion. First, “[w]hen an error certain to result in reversal occurs,” manifest necessity is apparent. Bates, 917 F.2d at 395. If such an error exists, double jeopardy will not attach to a declaration of mistrial. It is highly unlikely that the error in this case would have resulted in a reversal of Weston’s conviction. The State agrees and does not argue for a finding of manifest necessity on this ground.

Second, if it is uncertain that reversal would have resulted, four factors should be considered in determining whether the state trial court properly exercised its discretion. These factors are (1) whether the state trial court heard the position of the parties with regard to a mistrial; (2) whether it considered alternatives to granting a mistrial; (3) whether it acted deliberately and not abruptly; and (4) whether it determined the defendant would benefit from a mistrial. Bates, 917 F.2d at 395-96.

The first and third of these factors may be considered together in this case. The state trial court heard argument from both parties concerning the propriety of a mistrial and deliberated over the issue overnight. The next day the judge again heard argument from the parties and considered Weston’s written motion before declaring the mistrial. The record demonstrates that the state trial judge acted deliberately in determining that a mistrial was required. However, the judge acted abruptly by cutting off Adaehi’s objections and refusing to allow him to confer with Weston before he discharged the jury.

The state trial court did not properly consider alternatives to a mistrial and did not determine that the mistrial would be in the defendant’s best interests. When the improper questioning occurred, the state trial court immediately struck the offending testimony from the record and admonished the jury to disregard it. The court gave little thought to the beneficial impact of this action on the jury or to the curative value of limiting instructions on any prejudice resulting from the improper testimony. Weston requested this exact form of relief in the event that the state trial court declined to grant a mistrial with prejudice. The error in this ease was such that curative instructions may well have eradicated any juror prejudice. We conclude that the state trial court did not adequately consider these alternatives.

The state trial judge also did not properly consider whether the mistrial would benefit Weston. In ruling that the statements were prejudicial, the state trial court did not consider whether the prejudicial impact of the statements would be outweighed by the harm caused to Weston by allowing the prosecution a second trial opportunity. Weston contends that the first trial was going very well for him at the time the mistrial was declared. He also contends that the state improved its case in the second trial by finding new evidence, by finding a new witness and by calling an important defense witness as its own.

Weighing these four factors in light of the error that occurred in this case, we conclude that manifest necessity did not exist and declaration of the mistrial over Weston’s objection and without his consent was unwarranted.

V

We conclude that Weston’s second trial was barred by the Double Jeopardy Clause of the Fifth Amendment. Questions presented concerning Weston’s second trial are moot.

AFFIRMED.

1 . The exact exchange is as follows:

Adachi: In any event, my position is that the court to [sic] declare a mistrial on its own motion due to—

Court: No, it is your motion, I don't make a motion. It is your motion, you want me to rule on your motion; Is that clear?

Adachi: Well, I am first asking the court to declare a mistrial.

Court: The court never declares a mistrial then you've got double jeopardy.

Adachi: That's right.

Court: Well, I am not declaring any mistrial because I don’t have — don’t try and trick courts into that.

Adachi: I am not trying to trick you.

Court: I don't declare mistrials. You can make a motion for a mistrial, I may grant the motion. That I may do in which case there is no jeopardy attached. If I say it is a mistrial because of something that happens then it is double jeopardy, the defendant can't be charged. I think you know very well I don’t intend to do that.

Adachi: Yes, but under certain circumstances, if the prosecution makes the error we are not at fault. I think it is proper for the defense to ask the court on its own motion to, I know what the court is going to do.

Court: In forty years I never heard of it but there is a lot of stuff I never heard of in my lifetime. All right, anyway you made a motion for mistrial, am I correct?

Adachi: Yes.

(R.T. 424-26.)

2 . The fact that Weston requested the judge to declare a mistrial sua sponte, so that jeopardy would attach, does not indicate that Weston did or would consent to a mistrial without prejudice. See United States v. Huang, 960 F.2d 1128, 1134 (2d Cir.1992) (no consent to a mistrial without prejudice when the defendants had moved only for a mistrial with prejudice); Corey v. District Court of Vermont, Unit # 1, Rutland Cir., 917 F.2d 88, 91 (2d Cir.1990) (no consent where defendant insisted that if mistrial was declared double jeopardy should attach and later requested that trial judge reconsider his decision to declare a mistrial). The proper inquiry is limited to consideration of whether Weston consented to or acquiesced in the mistrial that was in fact declared by the state trial judge.

3 . The level of deference to be afforded a trial court’s decision to declare a mistrial varies with the circumstances of each case. We accord a trial court's decision to declare a mistrial on the basis of juror bias "the highest degree of respect” and deference. Arizona v. Washington, 434 U.S. at 510, 98 S.Ct. at 832-33. However, Washington cautions that reviewing courts have the obligation to ensure that a trial court exercised “sound discretion” in declaring a mistrial. Id. at 511, 98 S.Ct. at 833. The trial 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.” Id. (quoting United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971)).