United States ex rel. Russo v. SUPERIOR COURT OF NJ, ETC.

• Decision Date: 24 July 1973
• Docket Number: No. 72-2154.,72-2154.
• Citation: 483 F.2d 7
• Parties: UNITED STATES ex rel. Joseph RUSSO, Appellant, v. SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, PASSAIC COUNTY, et al., Appellees.
• Court: U.S. Court of Appeals — Third Circuit

483 F.2d 7 (1973)

UNITED STATES ex rel. Joseph RUSSO, Appellant, v. SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, PASSAIC COUNTY, et al., Appellees.

No. 72-2154.

United States Court of Appeals, Third Circuit.

Argued April 30, 1973.

Decided July 24, 1973.

As Amended August 23, 1973.

Certiorari Denied November 12, 1973.

COPYRIGHT MATERIAL OMITTED

Donald Horowitz, Cummins, Cummins, Dunn, Horowitz, Rosener & Pashman; Hackensack, N. J., for appellant.

Joseph D. J. Gourley, Prosecutor, Paterson, N. J., for appellees, Gary H. Schlyen, Passaic, on brief.

Before HUNTER and WEIS, Circuit Judges, and NEWCOMER, District Judge.

Certiorari Denied November 12, 1973. See 94 S.Ct. 447.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from the denial of a writ of habeas corpus by the district court. Appellant Joseph Russo has been accused of committing first degree murder. His first trial ended in a mistrial over his objection.¹ He contends that for the state to retry him would violate the Fifth Amendment's prohibition against double jeopardy.

After his mistrial, appellant moved for a dismissal of the indictments against him. His motion was denied by the trial court. Leave to file an interlocutory appeal was denied by the Appellate Division of the New Jersey Superior Court, and the New Jersey Supreme Court declined to certify the case. Appellant then filed a petition for a writ of habeas corpus. An appeal to this court followed the denial of appellant's petition by the district court.²

A full factual exposition is necessary to an understanding of appellant's double jeopardy contention. Appellant has been charged with two murders at a party at his home. His trial on these charges began on December 3, 1971 and ended in a mistrial on December 18, 1971.

The state's principal witness testified that he had seen appellant shoot the victims. But the defense produced a witness who testified that in fact it was the state's witness who had killed the decedents. The state's witness had testified that appellant had fired at one of the victims from close range (two feet) while the defense witness claimed that the state's witness had shot from a distance of seven or eight feet.

The defense then produced a special agent of the Federal Bureau of Investigation. The agent stated that he was not able to find any powder residue on the clothing of the victims and that the presence of powder residue was related to the distance of the gun from the victim. He testified that six to eight feet was the maximum distance at which there could be powder residue on the clothing. That is, it was possible that if the weapon were fired from closer than eight feet, there could be no powder residue. But if it were fired from beyond six to eight feet, there definitely could be none.

"THE COURT: In other words, what you\'re saying is that if the gun was shot beyond six to eight feet, no matter how far beyond, it wouldn\'t show powder residue, but if it was shot between the gun barrel and the victim within — if the distance was less than eight feet there could be residue. Is that what you\'re saying?

"THE WITNESS: Yes, sir, it could. It could be closer, but he is asking me for the maximum distance and I would say eight feet would be the maximum distance at which you wouldn\'t find with any of those barrel lengths." Appellant\'s Appendix, 45a-46a.

The witness further testified that if the victims had been shot from close range, powder residue would have been left on the clothing.

"Question: How about residue from two to eighteen inches?

"Answer: Yes, sir.

"Question: Beyond that would there be any?

"Answer: Beyond there, out to probably three to four feet, you might have residue." Appellant\'s Appendix, 47a.

The testimony of the F.B.I. agent thus tended to support the testimony of the defense's witness. As so often happens, credibility was a key question for the jury.

After hearing testimony for nine days, the jury was charged on the morning of December 17, 1971. The jury began deliberating at 10:35 a.m. At 7:05 p.m., the court recalled the jury to give them a supplemental charge. At 8:20 p.m. the trial court again recalled the jury. The court instructed the jurors to retire and to determine among themselves whether they would be able to reach a verdict shortly. If they could not, they would have to spend the night in a motel. The jury returned to the jury room, and defense counsel objected that the court was "putting undue pressure on the jury at this point to arrive at a verdict."

The jury came back to the courtroom at 8:45 p.m. The following dialogue occurred:

"THE COURT: Madam Forelady, I don\'t want you to give me any figures. I don\'t want you to make any statement whatsoever except to respond to my question as to whether you believe that if you stay for a short time here there is a reasonable possibility of you arriving at a unanimous verdict.

"MADAM FORELADY: Yes, your Honor. We need a little bit more time.

"THE COURT: A little bit more time.

Well, the Court will be very happy to make that available for you, but you must understand that you can have all the time that you need whether it is tonight or whether it would be tomorrow. Time is no problem. Those of us who are employed by the County are prepared, as a part of our responsibility, to give the full time to a jury and you folks should understand that you have the full time in order to arrive honestly, without sympathy, without prejudice, without fear, just having in mind what is a just result." Appellant\'s Appendix, 14a.

The jury returned to the jury room. At 9:50 p.m. they sent a note to the court indicating that at that time they were far from reaching a verdict. The court then decided to have the jury spend the night in a motel. These events prompted the defense counsel to move for a mistrial on the grounds that the jury was "hopelessly deadlocked." The state indicated it would object to any grant of a mistrial. The court did not specifically rule on the defense motion, but sent the jury to a motel.

The next morning the court sent the jury out to deliberate at 9:28 a.m. Minutes later, the jury sent a note to the judge requesting, among other things, the testimony of both the state's witness and the defense's witness as to the distance of the gun from the victims and the testimony of the F.B.I. agent about the relation of powder residue to distance.

The rest of the morning was devoted to assembling the portions of testimony requested by the jury. It is unclear whether the jury was deliberating from the time of its request until 11:30 a.m. when the portions of the record they had asked for were read to them by the court. The jury retired at 12:15 p.m. for lunch and to continue deliberating. At 2:25 p.m. the court called the jury back to the courtroom, where, as the record shows, the trial judge declared a mistrial without warning to or consultation with either the defense or the prosecution:³

"Madam Forelady, I want to ask you a question and I don\'t want any numbers from you. I would like to get a yes or no answer. Has the jury arrived at a unanimous verdict?

"THE FORELADY: Not yet, your Honor.

"THE COURT: Well, last night there was a question in the Court\'s mind after reviewing with counsel as to whether or not because of the long time that you spent here, whether it would be fair to let the jury continue to deliberate. I felt I wanted to have a full opportunity for you to review and to deliberate and, therefore, I arranged for you to have the unpleasantness of going to a motel, which you did, and since then you have had breakfast, you deliberated, you have had lunch, and I noticed as you walked out you seem to be walking out so very wearily and I appreciate very much all that you have done and I am satisfied that it would not be fair to the defendant, nor to the State if in your weariness you arrived at unanimity just for the sake of entering a verdict. I feel that this requires you to be alert and that the time has passed when there is a risk that your verdict would not really represent what you actually feel would be just.

"So that under the circumstances I am going to declare a mistrial and I won\'t impose upon you any longer than I have. I have imposed upon you because I felt that I had to because of the seriousness of the charge against the defendant that he was entitled to have judged by you and, under the circumstances, I am going to excuse you." Appellant\'s Appendix, 48a-49a.

Appellant objected to the granting of the mistrial in the judge's chambers after the jury had been dismissed. It is this declaration of a mistrial upon which appellant's double jeopardy contention is based.

Appellant has presented one other ground for relief. He alleges that the walls of the jury room in which the jury deliberated here were thin enough to permit outsiders to overhear conversations that occurred inside the room. As a result of this structural defect, he further alleges, it was common knowledge that the jury in his case was leaning towards acquittal. He claims that he is entitled to an evidentiary hearing as to whether the trial judge had this knowledge and whether he based his decision to declare a mistrial on it. The district court denied his request.

JURISDICTION

Although the state has not questioned our jurisdiction to hear this case, we feel that a brief jurisdictional statement is necessary. Appellant is presently released on $75,000 bail pursuant to Article I, par. 11 of the New Jersey Constitution and Rule 3:26, Revised Rules of Court of New Jersey. He presented his double jeopardy claim to the state courts so he has exhausted his state remedies.

The Supreme Court has recently held that a defendant released on his own recognizance is "in custody" within the meaning of 28 U.S.C. §§ 2241(c) (3), 2254(a). Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). The only difference between Hensley and our case is that Hensley...