Jacobs v. Redman

• Decision Date: 19 February 1980
• Docket Number: No. 78-2557,78-2557
• Citation: 616 F.2d 1251
• Parties: Milton L. JACOBS, v. Supt. Walter REDMAN, Milton Lewis Jacobs, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1251

616 F.2d 1251

Milton L. JACOBS, v. Supt. Walter REDMAN Milton Lewis Jacobs, Appellant.

No. 78-2557.

United States Court of Appeals, Third Circuit.

Argued Nov. 15, 1979.

Decided Feb. 19, 1980.

John E. Babiarz, Jr. (argued), Francis J. Murphy, Morris, Nichols, Arsht, & Tunnel, Wilmington, Del., for appellant.

Francis A. Reardon (argued), Dept. of Justice, Wilmington, Del., for appellee.

Before HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

1. Milton Jacobs, a prisoner at the Delaware Correctional Center, appeals the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1976). The appellant, convicted in Delaware Superior Court and sentenced to thirty-five years in prison for his participation in the kidnap, armed robbery of a department store in Dover, Delaware, ¹ challenges his conviction on two grounds: that the trial court's refusal to ask certain questions on voir dire denied him an impartial jury; and that the evidence at his trial was insufficient to support his conviction. He also contends that his thirty-five year sentence deprives him of due process of law since it was five years longer than the sentence which he received pursuant to a prior conviction for the same crimes which was subsequently vacated on appeal. Although we are troubled by appellant's voir dire challenge, we affirm the denial of habeas corpus from his conviction because we do not find a constitutional violation. However, we agree with appellant that the thirty-five year sentence violates the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Accordingly, the order of the district court will be reversed in part. Pending the resentencing of Jacobs to a term of not more than thirty years, we will remand the cause to the district court. Upon resentencing, the writ is to be dismissed.

I

2. Milton Jacobs was originally convicted in Delaware Superior Court for his participation in an armed robbery and was sentenced to thirty years in prison. See Jacobs v. State, 358 A.2d 725, 727 (Del.1976). This conviction was reversed by the Delaware Supreme Court and remanded for a new trial. Jacobs v. State, 344 A.2d 385 (Del.1975) (table of decisions without published opinions). Jacobs was retried and was once again convicted. This time, however, he was sentenced to a prison term of thirty-five years. It is this second conviction and its thirty-five year sentence which provide the subject matter for appellant's habeas petition.

3. Prior to the second trial, appellant submitted a list of eighteen proposed questions to be asked on voir dire. The trial judge refused to ask twelve of the questions. One group of proposed questions concerned the prior experience of the potential jurors as victims of crimes. ² A second group inquired into the jurors' understanding of the nature of testimony by an accomplice and the willingness of the jurors to follow the court's instruction as to the weight to be given to accomplice testimony. A third group of questions asked whether the veniremen understood that the burden of proof was on the State and whether they would follow the court's instructions concerning the right of the defendant to remain silent. Finally, although the court asked whether any of the jurors were related to or were close friends of the victims of the crime, the court refused to ask whether the veniremen knew the victims. Jacobs v. State, 358 A.2d at 727-28.

4. At trial, the government's evidence centered upon the testimony of two of Jacobs' coconspirators. While one of the coconspirators, Ricky Upshur, was on the stand, the following examination took place:

Q. (by the prosecution) Rick, why didn't you testify in this case yesterday?

A. Because I'm at Delaware Correctional Center or in Delaware's Prison System, period, and people that testify against other people, they find it rather unhealthy upon their return.

Q. Did anybody ever threaten you?

A. Did anybody ever threaten me?

Q. Concerning your testimony.

A. You could say. What it amounts to is a snitch is not tolerated, he's dealt with in the prison system. My life is in danger as soon as I go back.

Q. Why do you say that? Who are you afraid of?

A. Right now the whole prison.

Q. Can you name one or two or any specific people that you are afraid of?

A. Yes. I am afraid right now I am afraid of David Keys and Milton Jacobs.

The appellant then took the stand in his own defense. He denied participation in the crime, testifying that he was at home playing gin rummy at the time the incident occurred.

5. Following appellant's conviction and sentencing, he appealed, contending that he was denied due process of law by the refusal of the trial judge to allow certain voir dire questions to be asked of the jury, that he was entitled to acquittal on the evidence since he was convicted solely on the uncorroborated testimony of coconspirators, and finally, that he was denied due process of law because he was given a greater sentence on his second conviction than he had received upon his first. Jacobs v. State, 358 A.2d at 727. Although the Delaware Supreme Court upheld the conviction, it retained jurisdiction and remanded the case to the sentencing judge to allow him to supplement the record with reasons for having increased the sentence. Id. at 730.

6. On remand, the trial judge advanced the following reasons for the increased sentence.

Reference to the presentence reports will show that the sentence I imposed was recommended after both the first and second trials.

After presiding at the second trial (I did not preside at the first) I considered the recommendation fair and accordingly adopted it.

A comparison of the records of the two trials will reveal significant differences in them. The defendant testified at the second trial but not at the first. Also a witness at the second trial indicated that he was in fear of testifying against the defendant. This did not occur at the first trial.

I point out the above differences in the trials for the information of the Justices. I, of course, cannot state that had the evidence in the first trial been the same as that presented in the second that the first trial judge would have imposed the sentence I ultimately imposed.

If pressed for a reason for my imposing a longer sentence than the first trial judge I would have to simply cite general disagreement with his sentence.

The Supreme Court of Delaware affirmed the sentence.

7. Appellant then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976). The petition raises essentially the same contentions raised before the Supreme Court of Delaware although the second ground has been modified to allege a constitutional violation: that the conviction based on the uncorroborated testimony of accomplices denied petitioner due process of law due to the insufficiency of the evidence. The district court granted the State's motion for summary judgment and dismissed the complaint.

II

8. Appellant's contention that he was denied due process because of the insufficiency of the evidence supporting his conviction is easily resolved. There is ample evidence in the record to support petitioner's conviction. One accomplice testified to planning the crime with Jacobs, delivering him to the scene, and subsequently calling the scene to talk with Jacobs on the phone. He further testified to receiving his share of the crime's proceeds from Jacobs. Another accomplice testified to planning the crime with Jacobs, arriving at the scene and entering the scene with Jacobs. Upon this evidence it cannot be said that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

9. Appellant further argues that the evidence to support his conviction was constitutionally defective because it consisted entirely of the uncorroborated testimony of coconspirators. ³ This court has held, however, that "uncorroborated accomplice testimony may constitutionally provide the exclusive basis for a criminal conviction." United States v. DeLarosa, 450 F.2d 1057, 1060 (3d Cir.), cert. denied, 405 U.S. 927, 405 U.S. 957, 92 S.Ct. 978, 30 L.Ed.2d 800 (1971); see Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); DeCarlo v. United States, 422 F.2d 237, 240 (9th Cir. 1970). Accordingly, appellant's argument is without merit.

III

10. Appellant next contends that the failure of the trial judge to ask certain questions on voir dire denied him his Sixth Amendment right to a trial by an impartial jury, ⁴ as well as his right to due process of law. See Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

11. Appellant proposed to question the veniremen on their willingness to follow the Court's instructions as to the weight to be given accomplice testimony, the burden of proof, and the right of defendant to remain silent. He also proposed to ask the jurors if they "understood" or "agreed with" various propositions of law favorable to appellant's position. ⁵ The trial judge did not violate appellant's constitutional rights in excluding these questions. As this court stated in United States v. Wooton, 518 F.2d 943, 946 (3d Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975), while considering the failure of a federal trial court to inquire into the jurors acceptance of the reasonable doubt standard:

(A)ppellant confuses an inquiry as to whether one's personal convictions would preclude one from rendering an impartial verdict a proper function of voir dire with an inquiry as to whether one agreed with a rule of law. In the division of responsibilities between judge and jury, the jurors have no prerogative to question in the slightest degree the law...