607 F.2d 1081 (4th Cir. 1979), 79-6036, Harris v. Young

Docket Nº:79-6036.
Citation:607 F.2d 1081
Party Name:Terry Lee HARRIS, Appellant, v. R. A. YOUNG, Warden, Appellee.
Case Date:October 19, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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607 F.2d 1081 (4th Cir. 1979)

Terry Lee HARRIS, Appellant,


R. A. YOUNG, Warden, Appellee.

No. 79-6036.

United States Court of Appeals, Fourth Circuit

October 19, 1979

Argued May 7, 1979.

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Ralph S. Spritzer, University of Pennsylvania Law School, Philadelphia, Pa., for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and FIELD, Senior Circuit Judge.

HAYNSWORTH, Chief Judge:

Harris was tried twice for the murder of Joyce Hutchins. His first bench trial ended when the judge, Sua sponte, declared a mistrial because of noncompliance with his discovery orders. Harris was subsequently brought to trial before the same judge and found guilty. He then sought habeas relief claiming the second trial and conviction constituted double jeopardy. The district court denied relief and Harris appealed. We reverse, for we find the declaration of a mistrial was not supported by "manifest necessity" as required by the Fifth Amendment, and thus the second trial constituted double jeopardy.


Harris shot and killed Joyce Hutchins on December 19, 1971. He was promptly arrested and charged with her murder and with the use of an illegal firearm in the commission of a violent crime. After commitment to a mental hospital for examination, where Harris was found competent, his arraignment was scheduled for July 20, 1972.

On June 5, 1972, pursuant to the state rules of criminal procedure, 1 defense counsel sought the discovery and inspection of all tangible evidence to be introduced at trial. 2 On July 13, 1972, the court granted

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the defense motion and ordered the production of the evidence by noon on July 17, 1972. The court order was not fully honored by the Commonwealth, and certain evidence was not produced.

Harris was arraigned as scheduled on July 20, 1972. He pleaded not guilty, waived his right to a jury trial and the trial began. The Commonwealth's first five witnesses were presented in an orderly fashion, and they testified to some of the facts surrounding the murder. The murder weapon, a report of the medical examiner and autopsy, and photographs of the deceased were introduced without objection. The sixth witness was a Mr. Wymer, a police investigator. Wymer was shown two photographs which purported to represent bone fragments and blood which covered the floor of the room where Hutchins had been shot. Wymer said that the photographs were accurate representations of the murder scene and identified what he asserted were bone fragments and blood. Defense counsel objected that Wymer was not an expert on the subject and the objection was overruled. Counsel then stated:

Defense Counsel: I will further object to admitting the photographs into evidence in that the Commonwealth has failed to provide the defense with an opportunity to examine a copy of these prior to trial as ordered by the Court.

The Court: Is it your position at this time I wish you had informed the Court of this position before we started this case this morning. We're in the middle of a trial and we're here now having exhibits being introduced and you're now complaining about the fact that they have not satisfied a court order.

Defense Counsel: Your Honor, I can't anticipate what the Commonwealth will or will not introduce in evidence. He gave us statements here which had diagrams of the body. I assumed possibly this is all he intended to introduce through the expert. I can't anticipate what he plans to do.

The Court: What is your position at this time? Do you want this trial to go forward or do you want this trial to stop at this point?

Defense Counsel: Your Honor, I'm objecting to the introduction of those photographs on the basis that they have never been made available to defense counsel prior to trial and the introduction of same would violate Mr. Harris' constitutional rights.

The trial judge then ordered the prosecution and defense counsel to testify concerning compliance with the court's pretrial discovery order. Defense counsel testified that after he received no material by noon of July 17, as required by the order, he directed his legal assistant to communicate with the Commonwealth's Attorney. The Commonwealth's Attorney advised the employee that the material to be produced for inspection was available at the Prince William County Police Department. Defense counsel and his assistant proceeded there, but they were told the officer familiar with the matter was absent until July 19 and that no one present could be of help. Another call to the office of the Commonwealth's Attorney produced the advice that the documents would be made available there. When the men arrived at the office of the Commonwealth's Attorney, however, they were told the Bill of Particulars had been previously sent to them by mail. When nothing arrived in the mail on July 18, the following day, defense counsel sent the assistant back to the prosecutor's office to make copies of the answers to the defendant's pretrial motions. Defense counsel was provided with copies of the answers, but no reference to photographs appeared in the responses and no photographs were exhibited to counsel. Nothing arrived in the mail.

Following the testimony of both lawyers, the following colloquy took place:

The Court: There never has been filed in this Harris case answers to the Bill of Particulars. There's nothing in the official record.

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Commonwealth's Attorney: I think it's been filed. It may not be in the file.

The Court: I'll state this for the record. The Court on its own motion at this time declares a mistrial in this case and I state to you, (prosecution and defense counsel), you're officers of this Court and I find both of you derelict in your duties and responsibilities to this Court and the Court's order that I entered, I believe, on the 13th day of July.

I'll direct you at this time before you leave this court room, you are to sit down, both of you, and to go through this evidence and to examine it and reproduce any part and every part you desire to do so. Do you understand the order of this Court?

Defense Counsel: Yes, Your Honor.

The Court: This case will come on again on Term Day...

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