478 F.2d 88 (5th Cir. 1973), 72-1325, Smith v. State of Mississippi

Docket Nº:72-1325.
Citation:478 F.2d 88
Party Name:Will Allen SMITH, Petitioner-Appellant, v. STATE OF MISSISSIPPI, Respondent-Appellee.
Case Date:May 07, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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478 F.2d 88 (5th Cir. 1973)

Will Allen SMITH, Petitioner-Appellant,


STATE OF MISSISSIPPI, Respondent-Appellee.

No. 72-1325.

United States Court of Appeals, Fifth Circuit.

May 7, 1973

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John W. Prewitt, Vicksburg, Miss., court-appointed, for petitioner-appellant.

A. F. Summer, Atty. Gen. of Miss., John M. Kinard, Sp. Asst. Atty. Gen., Timmie Hancock, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Presented by the appeal in this federal habeas corpus action is the single question whether petitioner Will Allen Smith is wrongfully incarcerated in the Mississippi State Penitentiary under the U. S. Constitution's Fourteenth Amendment due process clause by reason of violation of the Fifth Amendment's proscription against double jeopardy. The question arises because a mistrial was declared at Smith's first state court trial by reason of a trial juror's comment to a bailiff regarding a central issue of the defense prior to the receipt of any evidence.

We hold that no Fifth Amendment double jeopardy rights of Smith were violated, and accordingly affirm.


On July 19, 1965, the petitioner, Will Allen Smith, was brought to trial in the Circuit Court of Warren County, Mississippi under an indictment for murder. Jury selection was not finished at the end of the first day of the trial. Since Smith's primary defense was to be insanity the prospective jurors were questioned individually regarding their knowledge of the case and their views of that defense. Twelve jurors were seated and accepted by the court but not sworn when it adjourned for the night to reconvene the next day for the selection of an alternate juror. Under proper instruction of the trial judge, and in the charge of two bailiffs, the provisional jury was sequestered for the evening.

On the following morning one of the two bailiffs and one of the selected jurors were in the bathroom of the courthouse shaving prior to reporting to court. They had been acquainted for several years. The juror, John L. McKnight, told the bailiff, A. H. Koerper, in the form of a "passing comment", that from observing the defendant in the courtroom during the selection of

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the jury the previous day he was of the opinion that "the poor man was crazy" and "didn't know what he was doing." 1


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When Koerper saw one of the state's prosecutors upon the latter's arrival at the courthouse that morning, he told him of the bathroom incident with McKnight. Koerper made no disclosure as to the juror's statement to either the judge or defense counsel, despite a specific inquiry to him by defense counsel as to the jury's well-being.

Court was opened, the alternate juror was selected and the whole panel of twelve jurors and one alternate juror was sworn. Immediately thereafter and before any evidence was introduced, the state prosecutor moved for a mistrial stating his belief that the statement of juror McKnight to bailiff Koerper indicated that McKnight held an opinion which would preclude the state from receiving a fair trial.

The trial judge excused all of the jurors except juror McKnight from the courtroom and heard argument as to the state's motion. 2 At the hearing both Koerper and McKnight testified. They were in agreement that juror McKnight did not express any prejudgment as to the defendant's guilt or innocence during the bathroom conversation. 3 McKnight

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assured the trial judge that he had no prejudgment or fixed opinion as to the matter. 4 The trial judge granted the state's motion and declared a mistrial for reasons not articulated with precision. The judge appeared to treat juror McKnight's statement to Koerper as an expression of his opinion of the defendant's guilt or innocence, and to feel that since the juror had stated an opinion prior to final deliberation and without hearing testimony, the totality of these circumstances would militate against the state receiving a fair and impartial trial. 5


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Since these events took place near the end of the July term of court the case was continued to the next, the December term of the court. The petitioner was remanded to the county jail without bond to await trial.

When the December, 1965 term opened petitioner contended by plea in bar that he was being denied due process of law and being placed in jeopardy twice for the same offense in violation of his state and federal constitutional rights. The plea in bar was overruled after argument and Smith was then tried on the original indictment. The jury found him guilty of murder as charged with a recommendation of mercy and he was sentenced to imprisonment for life. On appeal the Mississippi Supreme Court affirmed the trial court as to the double jeopardy issue, but reversed the case on other grounds and remanded for a new trial. Smith v. State, 198 So.2d 220 (Miss.1967)

Smith was again in July, 1967 tried before a jury on the same charge, again found guilty and again sentenced to life imprisonment. On appeal the Mississippi Supreme Court again reversed the conviction on grounds other than the double jeopardy issue and again ordered a new trial. Smith v. State, 220 So.2d 313 (Miss.1969).

In March, 1970, petitioner was brought to trial for the fourth time, was again found guilty by a jury and again sentenced to a term of life imprisonment.

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On appeal the Mississippi Supreme Court affirmed the trial court and directed that Smith begin serving his sentence. Smith v. State, 245 So.2d 583 (Miss.1971). Petition for rehearing was denied by the Mississippi Supreme Court, as was a petition for leave to file a petition in the trial court for Writ of Error Coram Nobis. State remedies were exhausted at this point, as we explicate infra, Note 6.

Smith then applied to the court below for habeas corpus relief asserting denial by Mississippi courts of his federally guaranteed constitutional rights. The application was denied after hearing. From that denial the petitioner brought the instant appeal.


Petitioner contends there was no "manifest necessity" for the trial judge to declare a mistrial in the July 1965 proceedings and further that the ends of public justice would not have been otherwise defeated had he not so ruled. He asserts that absent such considerations the trial court erred in declaring a mistrial; jeopardy had attached; and that the subsequent trials were each in violation of his rights under the Fifth Amendment to the U. S. Constitution.

Mississippi counters that petitioner was not "put to trial" and did not otherwise suffer public humility by virtue of his presence in the courtroom pursuant to the aborted trial; that he was in no way prejudiced by the dismissal of the proceedings before testimony was presented; that in any event the trial judge acted within his discretion in declaring a mistrial when he concluded the state would not receive a fair and impartial trial because the juror McKnight had expressed an opinion as to the primary issue of the case prior to the reception of any testimony or evidence; and that jeopardy had not attached because there was no abuse of discretion by the trial judge in his effort to ensure a fair trial "designed to end in just judgment". Accordingly, says the respondent, the district court's denial of petitioner's application for writ of habeas corpus was...

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