Smith v. State of Mississippi
| Citation | 478 F.2d 88 |
| Decision Date | 07 May 1973 |
| Docket Number | No. 72-1325.,72-1325. |
| Parties | Will Allen SMITH, Petitioner-Appellant, v. STATE OF MISSISSIPPI, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
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.
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 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
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 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
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. 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 correct and is due to be affirmed.6
The respondent's contention that petitioner was not "put to trial" or was in no way prejudiced by the dismissal of the proceedings before testimony was presented has been decided adversely to it by the Supreme Court in Downum v. United States, 1963, 372 U.S. 734, 83 S. Ct. 1033, 10 L.Ed.2d 100, and recently reaffirmed in Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. In both cases the Supreme Court held that jeopardy attached when the first jury was selected and sworn. The mere introduction of evidence has no spontaneous effect on a defendant which can be said to automatically charge him with an appreciable degree of insecurity once he has made the preparations for trial and selected those of his peers who will determine his fate.
But the conclusion that jeopardy attached once the jury was selected and sworn simply begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. It is that examination in the context of this case with which we proceed.
Unquestionably society has strong interests in ensuring that its criminal laws are vigorously enforced so as to prevent the guilty from going free, and further, under a system of justice under law that both sides to a criminal prosecution in fact receive the fair trial to which each is entitled. There are equally important countervailing considerations that an accused be not harassed by a series of aborted criminal proceedings which necessarily entail financial, physical and psychological burdens of enormous dimensions and which give rise to danger that with enough opportunities the prosecution will convict the innocent. It is further necessary to prevent an unscrupulous prosecution from avoiding an unwanted judge or jury or the consequences of damaging testimony by precipitating a mistrial. Recognition of these competing interests prompted the Fifth Amendment's proscription that no person be subject for the same offense to be twice put in jeopardy of life or limb. This "fundamental ideal in our constitutional heritage" is fully applicable to the states through the Fourteenth Amendment and is to be applied retrospectively. Benton v. Maryland, 1969, 395 U.S. 784, 794-796, 89 S.Ct. 2056, 2062-2063, 23 L.Ed.2d 707, 715-717; North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. See also Ashe v. Swenson, 1970, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 1191, 25 L.Ed.2d 469, 472.
We turn to the relevant case law to examine how the Court has implemented these policies.
Early in its development of constitutional standards, ...
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