Dunkerley v. Hogan ( 1978 )

MANSFIELD, Circuit Judge:

The central issue on this appeal from the denial by the District of Vermont, Albert W. Coffrin, Judge, of a writ of habeas corpus is whether the retrial of petitioner-appellant, following a state trial judge’s sua sponte declaration of a mistrial over petitioner’s objection would violate his Fifth Amendment right to be protected against double jeopardy. We hold that it would and reverse the denial of appellant’s petition.

The facts are simple and straightforward. On October 13, 1976, the trial of appellant for the first-degree murder of his stepfather began in the Orleans Superior Court, Vermont, before Judge Silvio Valente and a sequestered jury. It was undisputed that appellant had on April 6, 1976, shot and killed his stepfather. The defense was insanity or, in the alternative, diminished capacity arising out of family stress, appellant’s pathological dependence on his mother and other causes.

During the first two days of trial the jury heard three witnesses, the most important of whom was appellant’s mother, Sandra Downer. She first described the immediate circumstances of the shooting, which occurred in an isolated trailer-home in northern Vermont where three poverty-stricken unemployed people (mother, son and stepfather) lived during the winter in a state of semi-confinement and tension, with the stepfather evidencing a dislike for the stepson. On direct and cross-examination Mrs. Downer gave in detail a lengthy and sympathetic account of appellant’s background, beginning with his harrowing experiences as a child. According to his mother, appellant had frequently been brutally beaten and mistreated as a child by his real father, an alcoholic, with the result that appellant often suffered bleeding from the ears and hardness of hearing. She testified that her son had been withdrawn as a child, isolating himself from contact with other children. He had a chronic stutter, and had to be fed occasionally by his mother until he was nearly 12 years old. This situation did not improve with the mother’s second marriage, this time to another alcoholic, which resulted in a second divorce. In the meantime appellant got into trouble in his early teens, and was confined in state reformatories twice for a total of nearly two years. His mother married for a third time, but this marriage also proved to be an unhappy one, resulting in beating of the mother by her third husband, the eventual victim of the homicide, for which appellant was indicted and brought to trial.

The mother further testified that at her invitation and with her husband’s consent appellant moved in with the mother and stepfather. Fights between appellant and stepfather developed and on occasion appellant would evince peculiar expressions or mannerisms. The son, according to his mother’s testimony, suffered from “dreams and fantasies” and on the night of the homicide “didn't know what he was doing.” Shortly prior to the homicide the mother and stepfather had an argument in the trailer in appellant’s presence about allowing the mother to telephone her daughter, which ended with the mother stating that she and her son should go somewhere else where no one would tell her what to do. Shortly thereafter, the stepfather telephoned the police, reporting that he wanted appellant “out of the house.” The shooting occurred a few moments later.

On the morning of the third day of trial appellant was hospitalized with a 15% collapsed lung. Three doctors, including one appointed by the court, concurred in the view that hospitalization would be required for a period of from 7 to 10 days, a prognosis that turned out to be correct.¹ Confronted with this development, the trial judge asked for the views of counsel as to whether a mistrial should be declared. Appellant’s attorney strongly opposed a mistrial on the grounds that the delay and second trial would be an “enormous psychological hardship” on Dunkerley and his mother, and would subject him to double jeopardy. It was later disclosed that appellant was satisfied with the testimony that had been given by the mother and that “in the opinion of the defense the trial was going particularly well for the defendant.” Defense counsel suggested that in lieu of being subjected to repetition of the trauma already experienced his client would be prepared to waive presence at the trial during the period of hospitalization pursuant to Rule 43(b), Vt.Rules of Crim.Procedure.²

The defendant’s suggestion was vigorously opposed by the prosecutor who stated that “under no circumstances” would the State proceed without the defendant being present and suggested that the defendant’s absence in the hospital could not be treated as “voluntary” within the meaning of Rule 43(b)(1), Vt.Rules of Crim.Procedure, so that the trial could not proceed without him. Thereupon defendant’s counsel suggested as an alternative that the jury, with his client’s consent, be de-sequestered, which would permit it to go home, and that trial be suspended for the 7 to 10-day period during which the defendant would be confined to the hospital, following which trial could be resumed or the situation reviewed to determine whether a mistrial would be appropriate. The prosecutor, although refusing to move for a mistrial, took no position with respect to this proposal but suggested that the trial judge might declare a mistrial because “Jeopardy is not effected [sic] by the Court on its own motion declaring a mistrial.” ³ The defense, on the other hand, stated that “if he [Dunkerley] is able to come back 7 to 10 days that would not be an undue delay and our position is that he has been placed in jeopardy here and that any subsequent trial would be double jeopardy.”

The trial judge, after a 10-minute recess, announced that “the Court of its own motion is going to declare a mistrial,” to which the defendant’s attorney objected. The jury was called in, advised of the court’s action and discharged. The only reason given by the court for its action was a general statement that “in order to insure a fair trial for the defendant here, . the Court felt in the interest of justice that a mistrial should be declared.” Judge Va-lente also stated that he had taken into consideration the fact that it would not be a very lengthy trial and advised the jury “I don’t think I have any alternative to fairness to both the respondent and the State. I have to declare a mistrial.” No mention was made by the Court of the alternative of a continuance, which had been proposed by appellant’s counsel and not objected to by the prosecutor. Nor was any reason given for rejecting that alternative.'

Dunkerley next moved to dismiss the indictment against him on double jeopardy grounds, which was denied. When the Vermont Supreme Court denied him leave to file an interlocutory appeal, he filed a petition for habeas corpus in the Chittenden Superior Court, which was denied, then he appealed that decision to the Vermont Supreme Court, which affirmed the denial of the writ in an opinion dated June 7, 1977. In re Dunkerley, 376 A.2d 43 (Vt.S.Ct.1977). The Vermont Supreme Court held that the defendant’s absence from trial was not voluntary and that the trial court could not exercise its power under Vt.Rules Crim.Pro-cedure 43(b) to conduct the trial during his absence, but that, assuming the defendant could waive his constitutional right to be present, the trial court had acted within its discretion in refusing to continue without Dunkerley since the defense was insanity and “the jury’s observation and evaluation of him with respect to his mental condition” was a factor that might be taken into account by the jury. The court did not discuss the question of whether, in lieu of a mistrial, Judge Valente should have suspended trial for 7 to 10 days until Dunker-ley was released from the hospital and could be present.

Having exhausted his state remedies, Dunkerley then petitioned the federal district court for the District of Vermont for habeas corpus. On October 13, 1977, Judge Coffrin, dismissing the petition, concluded that since the trial judge had been made aware of all the circumstances, including the alternatives to a mistrial, and neither the prosecution nor a government witness was the chief cause of the interruption of the trial, the declaration of a mistrial was' not clearly erroneous or an abuse of discretion. He further held that Vt.R.Cr.P. 43(b)(1) merely allowed the court to continue with a trial in the defendant’s absence under certain circumstances and “does not give a defendant the right to have his trial proceed without him.” Finally, Judge Coff-rin concluded that the defendant’s right to waive confrontation of witnesses did not carry with it the right to insist on the trial proceeding without him. From this dismissal Dunkerley appeals.

DISCUSSION

The general principles by which we are governed, in determining whether retrial following declaration of a mistrial over a defendant’s objection would violate his Fifth Amendment right⁴ to be protected against double jeopardy, are well settled. Once jeopardy has attached, the defendant has a “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (quoted with approval by the Supreme Court in United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971), Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L. Ed.2d 717 (1978)). The purpose of the Double Jeopardy Clause is not merely to insure against harassment of an accused through repeated efforts by the Government to obtain a conviction after an acquittal, but also to protect the defendant against continued exposure to anxiety, embarrassment, expense and restrictions on his liberty that might be caused by aborting one trial to commence another.

“Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” (Footnotes omitted). Arizona v. Washington, 434 U.S. at 503, 98 S.Ct. at 829 (1978).

Against the defendant’s right to have his trial completed before a particular tribunal there must be balanced the public interest in insuring that the prosecutor be accorded one full opportunity to present his case against the accused and that both sides receive a fundamentally fair trial. Recognizing this, the Supreme Court, in an early landmark decision by Mr. Justice Story, held that a trial court may discharge a jury without precluding a new trial when, after “taking all of the circumstances into consideration” and exercising “sound discretion”, it determines “that there is a manifest necessity for the act [declaration of mistrial], or the ends of justice would otherwise be defeated.” United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824).

The types of situation that might constitute “manifest necessity” or defeat “the ends of justice” unless a mistrial is declared are obviously too many and varied to be catalogued or to permit establishment of precise formulas or rigid rules of thumb. A great deal of discretion must therefore be vested in the trial judge, who is usually best situated to determine the degree of necessity for the declaration of a mistrial when an unexpected event occurs during a trial. For these reasons “we accord the highest degree of respect to the trial judge’s evaluation,” Arizona v. Washington, 98 S.Ct. at 833 (1978).

On the other hand, from the outset the Supreme Court has cautioned that “the power [to declare a mistrial] ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes,” United States v. Perez, 9 Wheat. (22 U.S.) at 579. More recently, the Court has construed “manifest necessity” as meaning a “high degree” of necessity “before concluding that a mistrial is appropriate,” Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831 (1978), and has warned that

“[I]n view of the importance of the right [to have the trial concluded by a particular tribunal] and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.” (Footnote omitted). 98 S.Ct. at 830.

Although findings of fact or a statement of the trial court’s reasons for the declaration of a mistrial are not constitutionally mandated, the failure of the record to provide adequate support for the trial judge’s action may bar a retrial.

It is not enough that plausible reasons might conceivably exist for the trial judge’s action. If we are to review his exercise of discretion, to which deference should ordinarily be accorded, we must know the basis for that decision as “disclosed by the record,” including “argument of counsel prior to the judge’s ruling.” Id., 98 S.Ct. at 836.⁵ For instance, a retrial has been barred by the Double Jeopardy Clause where the record revealed that a mistrial was declared (1) to permit the Government to make further efforts to secure the presence of a key witness who had not been subpoenaed prior to commencement of trial, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); (2) because the trial judge believed that government witnesses had not been adequately warned of their Fifth Amendment rights, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); or (3) on the ground that there had been an implicit acquittal by a verdict rendered by the first jury on a related charge, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). On the other hand, the discretion of the trial court to declare a mistrial has been upheld where the record showed that (1) the first jury could not agree, United States v. Perez, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); (2) one of the jurors was found to be biased against a party after the commencement of trial, Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949); (3) there was misconduct or anticipated misconduct by the prosecutor at the first trial, Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), or by defense counsel, Arizona v. Washington, supra, which would render the first trial unfair; or (4) a fatal defect in the indictment would in any event require that a conviction be set aside, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

Turning to the present case, our task as a reviewing court is to determine first, whether the basis for the trial judge’s mistrial order in this case, which includes no explicit finding of manifest necessity, is adequately disclosed by the record; and secondly, we must determine whether the trial judge’s exercise of his discretion was sound. It is undisputed that jeopardy had attached once the jury was sworn and testimony was taken. Although a short trial was anticipated, a key witness, Mrs. Downturn is not subject to attack . . simply er, had testified at length under both direct and cross-examination. It is further beyond question that the defendant objected vigorously and repeatedly to the declaration of a mistrial, both before and after it was declared, expressly asserting his rights under the Double Jeopardy Clause and offering to waive his presence or to consent to a 7 to 10-day continuance until his anticipated return from hospitalization.

Neither the record nor the parties suggest any reason why the continuance proposal, with the jurors free to return home until resumption of trial, would not have been a feasible and practical solution to the problem. There is no evidence that the jury would thereby have been exposed to prejudicial publicity. Indeed, the record is silent as to whether the case received any publicity at all. The unlikelihood of prejudicial publicity would not be surprising, since Dunkerley conceded that he had killed his stepfather, and none of the persons or witnesses involved appear to have been public figures. The sole issue remaining to be tried was a narrow one, whether Dunk-erley possessed at the time of the homicide the requisite mental capacity.

Unlike the situation in Arizona v. Washington, supra, where the prosecutor repeatedly moved for and vigorously urged a mistrial based on defense counsel’s prejudicial statements to the jury, the State here did not object to a 7 to 10-day continuance and did not seek a mistrial. Nor did it, faced with the burden of proving “manifest necessity” in view of Dunkerley’s objections, offer evidence of any other factors militating against the continuance proposal, such as Vermont legal prohibitions, or proof that because of other commitments a 7 to 10-day continuance would work an undue hardship upon court, jury, counsel or the prosecutor. Indeed, the practice of granting such continuances because of unexpected developments during the course of a jury trial is commonplace in many jurisdictions.

Nor did the trial judge, in declaring a mistrial, suggest that the alternative of a short continuance would be unfeasible, unfair to the parties, violative of any state law or practice, or unreasonable under the circumstances.⁶ Judge Valente merely stated, after taking a short period to consider the alternatives proposed by the parties, that he was declaring a mistrial in fairness to the defendant. We recognize that where the record discloses plausible reasons supporting the declaration of a mistrial the trial judge may not be required to state his reasons. Arizona v. Washington, 434 U.S. at 512, 98 S.Ct. at 834. However, we “have an obligation to satisfy [ourselves] that, in the words of Mr. Justice Story, the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id.

We do not suggest that the trial judge in this case acted impetuously. Cf. United States v. Jorn, 400 U.S. 458, 91 S.Ct. 547, 27 L.Ed.2d 543 (1973). When the problem of petitioner’s illness arose, he conferred with counsel and gave each a fair opportunity to explain his situation with regard to how the trial should proceed. But the apparent availability of at least one alternative to a mistrial — adjourning the trial for 7 to 10 days — leads us to conclude that a mistrial was not a “manifest necessity.” In the absence of any record evidence or statement by the court indicating why a short continuance would have been unreasonable, unfair, or impractical, we decline to speculate as to factors that the trial judge might possibly have considered, such as the “freshness” of the evidence. On this record the declaration of a mistrial cannot properly be sustained, over appellant’s objection, as having been required by a “high degree” of necessity.⁷

We reverse and direct that the writ issue.

1 , Appellant was returned to prison after 10 days of hospitalization. As Judge Coffrin later observed, “There is no indication that the disability was in any way induced by petitioner.”

2 . Rule 43(b)(1) of the Vt.Rules of Crim.Proce-dure in pertinent part provides:

. “(b) Continued Presence Not Required. The further progress of the trial to and including !the return of the verdict shall not be prevented whenever a defendant, initially present,

“(1) in noncapital cases, voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial.”

Although Dunkerley was charged with first degree murder, this is a noncapital crime in Vermont, the punishment for which is life imprisonment. 13 Vt.Stat.Ann. § 2303.

3 . This statement was clearly erroneous. Upon the improper sua sponte declaration of a mistrial by the trial judge, retrial is precluded by the Double Jeopardy Clause, United States v. Jora, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

4 . The double jeopardy provision of the Fifth Amendment, which provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb” applies to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

5 . In United States v. Grasso, 552 F.2d 46 (2d Cir. 1977), we held that “before a trial judge declares a mistrial, he must make explicit findings, preferably after a hearing, that there are no reasonable alternatives to mistrial.” Id. at 52. The Supreme Court’s decision in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), indicates that at least with respect to a state defendant seeking federal habeas, a “state trial judge’s mistrial declara-because he failed to find ‘manifest necessity’ in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.” Id., 98 S.Ct. at 836 (footnote omitted). Where “the record provides sufficient justification for the state court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.”

6 . Judge Moore’s dissent speculates that the trial judge may have opted for a mistrial rather than a continuance (which would have entailed de-sequestration of the jury) because sequestration is “generally favored in all serious criminal cases” in Vermont. Infra, p. 149. However, no Vermont statute or rule of practice prevented the trial judge in this case from de-sequestering the jury. Nor did the Vermont Supreme Court, possessed as it is of expertise in Vermont law, suggest that the trial judge’s action could be justified on such a basis.

On the contrary, it has stated that the “propriety of separation of juries in any given situation is not a matter specifically dealt with by our statutes. The governing rules have derived from practices developed by our courts over their long history.” State v. Brisson, 124 Vt. 211, 201 A.2d 881, 882 (1964).

The “governing rule” in a noncapital case such as this one would have prevented de-se-questration of the jury only if the defendant objected. State v. Anderson, 119 Vt. 355, 125 A.2d 827, 831 (1956), cited with approval in State v. Brisson, supra, 201 A.2d at 883. The record clearly shows that Dunkerley's counsel actually opposed sequestration of the jury from the outset of the trial. (Joint App. 7-9). The record also shows that neither party, nor the court, considered that any legal prohibition stood in the way of de-sequestration when that alternative was proposed by the defense. Therefore, de-sequestration was a course of action entirely available to the trial judge, and not an alternative that was either disfavored, or of questionable validity, because of Vermont law or practice.

7 . We disagree with our dissenting colleague’s characterization of the holding of this case. We do not decide that it is an abuse of discretion for a trial judge to declare a mistrial when a defendant’s “sudden illness require[s] a lengthy period of hospitalization.” No such lengthy period of hospitalization is at issue here. According to the record, the defendant was estimated to be absent for 7-10 days. This prognosis turned out to be correct. What we hold today is that we cannot approve the declaration of a mistrial when the record does not indicate that the mistrial was manifestly necessary, in light of the relatively brief interruption in the trial caused by the defendant’s illness, and the availability of another alternative to the mistrial declaration.

Although we do not reach the question of whether or under what circumstances it would be proper for a trial judge to declare a mistrial because of a defendant’s lengthy absence, the cases cited by Judge Moore in his dissent indicate some of the circumstances involving a defendant’s or juror’s incapacity that have necessitated a mistrial. See United States v. Potash, 118 F.2d 54 (2d Cir. 1941) (mistrial declared when juror became incapacitated after deliberations had begun); Gardes v. United States, 87 F. 172 (5th Cir. 1898) (mistrial declared after juror had become totally and permanently disabled); Featherston v. Mitchell, 418 F.2d 582 (5th Cir. 1969) (mistrial declared when trial court became aware that defendant might not be competent to stand trial, and ordered extended hospitalization and psychiatric observation); United States v. Stein, 140 F.Supp. 761 (S.D.N.Y.1956) (one defendant severed from trial when she required “major” operation and 3-4 month convalescence).

In all of these cases, the declaration of a mistrial was approved because circumstances occurred that rendered continuation of the trial infeasible, i. e., a “manifest necessity” justified aborting the trial. We consider our decision today to be consistent with these cases, as well as the other well-settled precedents applicable to cases of this kind. See pp. 145-147, supra.