516 F.2d 1034 (3rd Cir. 1975), 74-1980, United States ex rel. Webb v. Court of Common Pleas of Philadelphia County

Docket Nº:74-1980.
Citation:516 F.2d 1034
Party Name:UNITED STATES of America ex rel. Keith WEBB, Appellant, v. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, the District Attorney of Philadelphia County.
Case Date:May 13, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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516 F.2d 1034 (3rd Cir. 1975)

UNITED STATES of America ex rel. Keith WEBB, Appellant,



Attorney of Philadelphia County.

No. 74-1980.

United States Court of Appeals, Third Circuit

May 13, 1975

Argued March 5, 1975.

As Amended June 9, 1975.

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Louis M. Natali, Jr., Camden, N. J., for appellant.

Bonnie Brigance Leadbetter, Asst. Dist. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, ROSENN and WEIS, Circuit Judges.


ADAMS, Circuit Judge.

This appeal from a denial of a writ of habeas corpus presents the question whether the constitutional command against exposing one to double jeopardy precludes the Commonwealth of Pennsylvania from again trying Keith Webb on the same charges emanating from a robbery. At either one or both of two previous trials on those charges, Webb asserts, the trial judges prematurely or improperly determined that the juries were unable to reach unanimous verdicts and declared mistrials, thereby depriving Webb of his constitutional right to secure a verdict from those specific juries.


A brief summary of the facts will provide sufficient background for the issue presently before the Court.

At approximately 11:00 P.M. on Sunday, November 26, 1972, several persons robbed a rectory and three clergymen who resided therein. Webb was charged with having participated in the robbery. His first trial on the allegations involving that incident began before a jury in the Court of Common Pleas in Philadelphia County on May 23, 1973. The presentation of the case continued until noon on June 3, 1973, at which time the jury began its deliberations. The jury deliberated for the remainder of the day on June 4th and all day June 5th. At the jurors' request certain testimony was re-read to them on June 5th. The jury recommenced their consideration of the case at 9:00 A.M. on June 6th.

At noon that day the trial judge summoned the jury back to the courtroom. The court asked the jurors whether they were close to a verdict; whether they felt that given additional time they would be able to reach a verdict; and whether they felt themselves hopelessly deadlocked. The judge specifically advised the panelists that his questions were addressed to each of them, and he received from each of them an affirmative indication that they agreed with the foreman's statement that they were not close to a verdict and were hopelessly deadlocked. The trial judge then, over the objection of Webb's counsel, declared a mistrial on the ground of a hung jury.

Webb was brought to trial a second time on the same charges on September 19, 1973, again before a jury in Philadelphia Common Pleas Court. At the second trial Webb was identified as one of the robbers by two of the clergymen who had been in the rectory during the robbery. Webb, on the other hand, presented testimony that he had spent the evening in question eating dinner and watching television until 11:00 P.M. at the apartment of friends. He had then, he claimed, crossed the hall to his own apartment, where he stayed with his wife and children, for the remainder of the night.

The second trial lasted from September 19th to September 25th. On the latter date the trial judge charged the jury,

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and that body commenced deliberations at 10:37 A.M. At 2:13 P.M. the panel interrupted its discussions in order to obtain additional instructions and a re-reading of certain testimony. The jury was excused from the courtroom at 2:35 P.M. in order to continue its deliberations.

At 5:43 P.M. the judge on his own initiative, without receiving a request from counsel or from the jury, asked the jury to return to the courtroom. The jury had deliberated for approximately six and one-half hours. 1 The following is the entire colloquy which then took place between the court and the foreman of the jury:

The Court: Mr. Foreman, is there any hope of arriving at a verdict?

The Foreman: I don't believe so, sir.

The Court: Do you believe that further deliberation might be fruitful?

The Foreman: No, I do not.

The Court: Do you feel that your positions are so adamant that you couldn't possibly arrive at a unanimous verdict? Is that what you're telling me?

The Foreman: Yes, sir, I do believe that.

The Court: All right. I discharge you from further consideration of the case. You may report to the jury room tomorrow morning.

The record does not reflect that the trial judge at any time solicited or received the views of any members of the jury other than the foreman regarding the progress of their deliberations or the prospects for a unanimous verdict within a reasonable time. Webb's counsel promptly objected to the declaration of a mistrial. The court, however, discharged the jury. The entire proceedings from the jury's return to the courtroom to the adjournment of the court, including the noting of defendant's objection and an interchange between the crier and the court regarding future service by the jurors, consumed only seven minutes.


Following the second mistrial Webb moved to dismiss the indictment on double jeopardy grounds. 2 The court of common pleas denied the motion, but ordered the district attorney "to review the case to make a determination whether its evidence warrants further prosecution, in view of the inability of two prior juries to reach a unanimous verdict."

By the time the district attorney indicated his intention to re-try Webb, the period for requesting a certificate for an interlocutory appeal from the decision of the common pleas court had elapsed. 3 Webb, however, sought a writ of prohibition from the Pennsylvania Supreme Court on the ground of double jeopardy. The writ was denied without an opinion. Webb proceeded to petition the district court for a writ of habeas corpus so as to prevent the Commonwealth from re-trying him on those charges. The district court denied the request, again without an opinion. Webb then appealed to this Court.

It is not an engaging task for a federal court to intrude upon the criminal proceedings of a state court through grants of habeas corpus to persons held in custody by the state. However, where federal constitutional rights are imperiled, there is a federal interest in the case which outweighs our concern as considerable as that concern may be for comity with the states. 4 Therefore,

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when a state prisoner properly demonstrates to a federal court that the state proceedings have denied him or are about to deny him certain federal constitutional rights, the federal court has the power to grant the writ.

The Commonwealth has not either in the district court or before this Court contested that Webb has exhausted his presently available state remedies. Nor has the Commonwealth asserted that it would be premature for the federal courts to adjudicate Webb's double jeopardy claim at this time. However, we address the question here in order to clarify the relationship of this case to our recent decision in Moore v. DeYoung. 5

In Moore we held that the district court had acted prematurely in granting habeas, prior to the completion of the state criminal proceedings, to a state prisoner who asserted that the State had denied him his constitutional right to a speedy trial. The state trial court in Moore had, on Moore's motion, dismissed the charges, but the appellate division of the superior court reversed with respect to two of the three charges, concluding that in the absence of a showing of actual prejudice to the defendant in the preparation of his case, the indictments should not be dismissed. 6 The trial court then, after a further evidentiary hearing, held there had been an insufficient showing of actual prejudice and refused to dismiss the charges. Moore then requested, but was denied, interlocutory review by the superior court and the state supreme court. Those proceedings, we held, did not constitute exhaustion, and Moore had not demonstrated "exceptional circumstances" justifying the award of the writ in the absence of exhaustion.

Under the circumstances of this case, however, Webb has exhausted the available state remedies. He has done all that could reasonably be expected of him to afford the state courts, before he is subjected to the trauma of an additional trial, "an opportunity to consider on the merits his constitutional claim" 7 that the double jeopardy provision barred his re-trial. There is no state procedure available to him at this time by which he could seek vindication of the right asserted in the district court. In this case, unlike Moore, denial of pretrial habeas relief would effectively deny the petitioner one of the important protections the Constitution arguably grants him. Concededly, if Webb were convicted on re-trial, the state courts might, on appeal, recognize the validity of his double jeopardy claim. However, as more fully discussed below, 8 one of the principal purposes of the double jeopardy clause is to spare the accused the rigors incident to the subsequent trial itself. Thus even if acquitted at the later trial, or if the conviction resulting from that trial were overturned on appeal, the accused would already have been subjected to a great personal strain which, if the additional trial offended the double jeopardy provision, the state may not constitutionally impose on the accused. 9 Because of the nature of the constitutional right Webb asserts, no post-conviction relief, either state or federal, is capable of vindicating that interest.

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In Moore, on the other hand, defendant's right to a speedy trial would vitiate a subsequent conviction only if the prejudice resulting from the pretrial delay outweighed any justification for the delay. 10 Thus Moore's...

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