517 F.2d 1330 (2nd Cir. 1975), 752, United States ex rel. Rogers v. Lavallee

Docket Nº:752, Docket 74-2361.
Citation:517 F.2d 1330
Party Name:UNITED STATES ex rel. James W. ROGERS, Appellant, v. J. Edwin LaVALLEE, Warden, Clinton Correctional Facility, Dannemora, New York, Appellee.
Case Date:May 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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517 F.2d 1330 (2nd Cir. 1975)

UNITED STATES ex rel. James W. ROGERS, Appellant,

v.

J. Edwin LaVALLEE, Warden, Clinton Correctional Facility,

Dannemora, New York, Appellee.

No. 752, Docket 74-2361.

United States Court of Appeals, Second Circuit

May 15, 1975

Argued Feb. 28, 1975.

Lois R. Goodman, Projects for Prisoners' Rights, Syracuse, for appellant.

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Margery Evans Reifler, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellee.

Before LUMBARD and OAKES, Circuit Judges, and BARTELS, District Judge. [*]

OAKES, Circuit Judge:

This is a double jeopardy case, 1 arising out of a state court conviction for kidnapping. The appeal is from a denial of a writ of habeas corpus by the United States District Court for the Northern District of New York, Edmund Port, Judge. On appellant's previous appeal to this court from such a denial, United States ex rel. Rogers v. LaVallee, 463 F.2d 185 (2d Cir. 1972), he was remanded without prejudice for failure to exhaust state remedies, a failure which now has been cured. 2 The case essentially involves the problem whether an acquittal of a lesser included offense under one count necessarily bars a subsequent prosecution when the jury fails to agree on its verdict under another count in which the same lesser offense is also included. Put another way, the question is whether reprosecution after a mistrial following a hung jury on one count is permissible when, inconsistently but pursuant to an inconsistent and erroneous charge, there has been an acquittal on an earlier count of an element, here simple abduction, that is necessary to the later conviction, here kidnapping in the first degree. 3

Appellant was indicted on four counts relating to the abduction, sexual abuse and death of a 16-month-old child whose body was found in a garbage can in the back of a Brooklyn, New York, supermarket. The four counts were respectively (1) felony murder, that is, a murder in the course of a kidnapping; (2) first degree (intentional) murder; (3) kidnapping in the first degree, statutorily defined as abduction with 12 hours' restraint and intent to injure or to violate the victim sexually; and (4) kidnapping in the first degree, statutorily defined as abduction with death resulting. 4

After a 19-day trial in the Supreme Court, State of New York, County of Kings, the appellant was acquitted on the first three counts and the jury was unable to agree and a mistrial was granted as to the fourth count. The rub, so far as we are concerned, is that the trial judge charged kidnapping in the second degree, that is to say, simple abduction, 5 as a lesser included offense under

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both the third count of kidnapping in the first degree and the fourth count of kidnapping in the first degree. The charge was very explicit in this regard even if very erroneous since it should have permitted the jury to consider kidnapping in the second degree only if there were an acquittal on both counts of kidnapping in the first. It was adhered to in one subsequent explanation after the jury had been out for some time but not mentioned as being included under both the third and fourth counts in a subsequent explanation. However, the clerk interrogated the jury after its return of a verdict of not guilty on the third count as follows:

Court Clerk: That is the third count which charges kidnapping in the first degree. Now, still under the third count, has the jury considered kidnapping in the second degree?

Foreman: Not guilty.

Court Clerk: Now under the fourth count of the indictment which charges kidnapping in the first degree. What is the verdict?

Foreman: Deadlocked.

Court Clerk: Deadlocked. Cannot agree. Now, still under the fourth count as to kidnapping under the second degree?

Foreman: Deadlocked.

The clerk questioned the jury as to lesser included offenses under the third count as he did for all four counts in the way the court originally specifically charged the jury, and, in response to the jury's first request for explanation, again specifically charged the jury, i. e., to consider the lesser included offense of simple abduction if there were an acquittal under the third count. Unquestionably the jury was confused since it came back twice to ask for explanations of the charge the first time to ask for the court's "interpretation of Kidnapping 1 and Kidnapping 2," the second time to obtain a copy of the third and fourth counts of the indictment 6 and to have the court "again explain first degree kidnapping and second degree kidnapping and the variations."

Just as clearly the jury did acquit the appellant of the offense of kidnapping in the second degree in respect to the third count. The court clerk read the verdict back as recorded after the colloquy above quoted and the foreman agreed in answer to the question "and so say you all?" The jury was then told to return to deliberation and did so but was unable to reach an agreement on the fourth count. Thereupon without objection by the district attorney and no comment by defense counsel, the court found the disagreement, on that basis discharged the jury, and restored the fourth count of the indictment to the trial calendar.

Thereafter the appellant asserted his constitutional right against double jeopardy and moved in the Appellate Division, Second Department, for a writ of prohibition to prevent his retrial on the fourth count; this motion was denied as it was upon its renewal without prejudice at trial. Appellant was retried on the fourth count (abduction plus death) and found guilty of kidnapping in the first degree after a second trial by jury in the Supreme Court, County of Kings. He is presently confined pursuant to that conviction in Clinton Correctional Facility, Dannemora, New York, on a sentence of imprisonment of 20 years to life by Justice Gittleson. 7

It is elemental, of course, but at best only the start of our inquiry to note that "The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged

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offense." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). See United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (Harlan, J., for the plurality). 8 In this case where there was a jury trial, jeopardy attached when the jury was empaneled and sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (discharge of jury due to witness's absence, over defendant's objection). But see Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (where indictment defective, mistrial after jury sworn but before evidence presented did not bar retrial); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) (retrial permissible where previous trial judge declared mistrial for benefit of defendant to prevent testimony of prior crimes). It is established in any event that "a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence." United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896); Green v. United States, 355 U.S. at 188, 78 S.Ct. 221; Illinois v. Somerville, 410 U.S. at 467, 93 S.Ct. 1066. This is true even though the "acquittal may appear to be erroneous." Green v. United States, 355 U.S. at 188, 78 S.Ct. at 224; United States v. Ball, supra. See Peters v. Hobby, 349 U.S. 331, 344-45, 75 S.Ct. 790, 99 L.Ed. 1129 (1955).

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