579 F.2d 141 (2nd Cir. 1978), 608, Dunkerley v. Hogan

Docket Nº:608, Docket 77-2138.
Citation:579 F.2d 141
Party Name:Scott David DUNKERLEY, Petitioner-Appellant, v. Cornelius HOGAN, in his official capacity as Commissioner of Corrections for the State of Vermont, and Richard Bashaw, in his official capacity as Superintendent of the St. Albans Correctional Center, Respondents-Appellees.
Case Date:June 05, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 141

579 F.2d 141 (2nd Cir. 1978)

Scott David DUNKERLEY, Petitioner-Appellant,


Cornelius HOGAN, in his official capacity as Commissioner of

Corrections for the State of Vermont, and Richard Bashaw, in

his official capacity as Superintendent of the St. Albans

Correctional Center, Respondents-Appellees.

No. 608, Docket 77-2138.

United States Court of Appeals, Second Circuit

June 5, 1978

Argued Jan. 17, 1978.

As Amended June 28, 1978.

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James L. Morse, Defender General, State of Vermont, Montpelier, Vt., for petitioner-appellant.

John C. Everett, Jr., St. Johnsbury, Vt. (Dale O. Gray, State's Atty., for Caledonia County, St. Johnsbury, Vt., of counsel), for respondents-appellees.

Before MOORE, SMITH and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

The central issue on this appeal from the denial by the District of Vermont, Albert W. Coffrin, Judge, of a writ of habeas corpus is whether the retrial of petitioner-appellant, following a state trial judge's Sua sponte declaration of a mistrial over petitioner's objection would violate his Fifth Amendment right to be protected against double jeopardy. We hold that it would and reverse the denial of appellant's petition.

The facts are simple and straightforward. On October 13, 1976, the trial of appellant for the first-degree murder of his stepfather began in the Orleans Superior Court, Vermont, before Judge Silvio Valente and a sequestered jury. It was undisputed that appellant had on April 6, 1976, shot and killed his stepfather. The defense was insanity or, in the alternative, diminished capacity arising out of family stress, appellant's pathological dependence on his mother and other causes.

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During the first two days of trial the jury heard three witnesses, the most important of whom was appellant's mother, Sandra Downer. She first described the immediate circumstances of the shooting, which occurred in an isolated trailer-home in northern Vermont where three poverty-stricken unemployed people (mother, son and stepfather) lived during the winter in a state of semi-confinement and tension, with the stepfather evidencing a dislike for the stepson. On direct and cross-examination Mrs. Downer gave in detail a lengthy and sympathetic account of appellant's background, beginning with his harrowing experiences as a child. According to his mother, appellant had frequently been brutally beaten and mistreated as a child by his real father, an alcoholic, with the result that appellant often suffered bleeding from the ears and hardness of hearing. She testified that her son had been withdrawn as a child, isolating himself from contact with other children. He had a chronic stutter, and had to be fed occasionally by his mother until he was nearly 12 years old. This situation did not improve with the mother's second marriage, this time to another alcoholic, which resulted in a second divorce. In the meantime appellant got into trouble in his early teens, and was confined in state reformatories twice for a total of nearly two years. His mother married for a third time, but this marriage also proved to be an unhappy one, resulting in beating of the mother by her third husband, the eventual victim of the homicide, for which appellant was indicted and brought to trial.

The mother further testified that at her invitation and with her husband's consent appellant moved in with the mother and stepfather. Fights between appellant and stepfather developed and on occasion appellant would evince peculiar expressions or mannerisms. The son, according to his mother's testimony, suffered from "dreams and fantasies" and on the night of the homicide "didn't know what he was doing." Shortly prior to the homicide the mother and stepfather had an argument in the trailer in appellant's presence about allowing the mother to telephone her daughter, which ended with the mother stating that she and her son should go somewhere else where no one would tell her what to do. Shortly thereafter, the stepfather telephoned the police, reporting that he wanted appellant "out of the house." The shooting occurred a few moments later.

On the morning of the third day of trial appellant was hospitalized with a 15% Collapsed lung. Three doctors, including one appointed by the court, concurred in the view that hospitalization would be required for a period of from 7 to 10 days, a prognosis that turned out to be correct. 1 Confronted with this development, the trial judge asked for the views of counsel as to whether a mistrial should be declared. Appellant's attorney strongly opposed a mistrial on the grounds that the delay and second trial would be an "enormous psychological hardship" on Dunkerley and his mother, and would subject him to double jeopardy. It was later disclosed that appellant was satisfied with the testimony that had been given by the mother and that "in the opinion of the defense the trial was going particularly well for the defendant." Defense counsel suggested that in lieu of being subjected to repetition of the trauma already experienced his client would be prepared to waive presence at the trial during the period of hospitalization pursuant to Rule 43(b), Vt.Rules of Crim.Procedure. 2

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The defendant's suggestion was vigorously opposed by the prosecutor who stated that "under no circumstances" would the State proceed without the defendant being present and suggested that the defendant's absence in the hospital could not be treated as "voluntary" within the meaning of Rule 43(b) (1), Vt.Rules of Crim.Procedure, so that the trial could not proceed without him. Thereupon defendant's counsel suggested as an alternative that the jury, with his client's consent, be de-sequestered, which would permit it to go home, and that trial be suspended for the 7 to 10-day period during which the defendant would be confined to the hospital, following which trial could be resumed or the situation reviewed to determine whether a mistrial would be appropriate. The prosecutor, although refusing to move for a mistrial, took no position with respect to this proposal but suggested that the trial judge might declare a mistrial because "Jeopardy is not effected (sic) by the Court on its own motion declaring a mistrial." 3 The defense, on the other hand, stated that "if he (Dunkerley) is able to come back 7 to 10 days that would not be an undue delay and our position is that he has been placed in jeopardy here and that any subsequent trial would be double jeopardy."

The trial judge, after a 10-minute recess, announced that "the Court of its own motion is going to declare a mistrial," to which the defendant's attorney objected. The jury was called in, advised of the court's action and discharged. The only reason given by the court for its action was a general statement that "in order to insure a fair trial for the defendant here, . . . the Court felt in the interest of justice that a mistrial should be declared." Judge Valente also stated that he had taken into consideration the fact that it would not be a very lengthy trial and advised the jury "I don't think I have any alternative to fairness to both the respondent and the State. I have to declare a mistrial." No mention was made by the Court of the alternative of a continuance, which had been proposed by appellant's counsel and not objected to by the prosecutor. Nor was any reason given for rejecting that alternative.

Dunkerley next moved to dismiss the indictment against him on double jeopardy grounds, which was denied. When the Vermont Supreme Court denied him leave to file an interlocutory appeal, he filed a petition for habeas corpus in the Chittenden Superior Court, which was denied, then he appealed that decision to the Vermont Supreme Court, which affirmed the denial of the writ in an opinion dated June 7, 1977. In re Dunkerley, 376 A.2d 43 (Vt.S.Ct.1977). The Vermont Supreme Court held that the defendant's absence from trial was not voluntary and that the trial court could not exercise its power under Vt.Rules Crim.Procedure 43(b) to conduct the trial during his absence, but that, assuming the defendant could waive his constitutional right to be present, the trial court had acted within its discretion in refusing to continue without Dunkerley since the defense was insanity and "the jury's observation and evaluation of him with respect to his mental condition" was a factor that might be taken into account by the jury. The court did not discuss the question of whether, in lieu of a mistrial, Judge Valente should have suspended trial for 7 to 10 days until Dunkerley was released from the hospital and could be present.

Having exhausted his state remedies, Dunkerley then petitioned the federal district court for the District of Vermont for habeas corpus. On October 13, 1977, Judge Coffrin, dismissing the petition, concluded that since the trial judge had been made aware of all the circumstances, including the alternatives to a mistrial, and neither the prosecution nor a government witness was the chief cause of the interruption of the trial, the declaration of a mistrial was

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not clearly erroneous or an abuse of discretion. He further held that Vt.R.Cr.P. 43(b)(1) merely allowed the court to continue with a trial in the defendant's absence under certain circumstances and "does not give a defendant the right to have his trial proceed without him." Finally, Judge Coffrin concluded that the defendant's right to waive confrontation of witnesses did not carry with it the right to insist on the trial proceeding without him. From this dismissal Dunkerley appeals.


The general principles by which we are governed, in determining whether retrial following declaration of a mistrial over a defendant's objection would violate...

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