Baker v. Metcalfe

Decision Date09 January 1981
Docket NumberNo. 80-1626,80-1626
Citation633 F.2d 1198
PartiesDarrett Bernard BAKER et al., Petitioners-Appellees, v. Honorable Don METCALFE, Judge, Criminal District Court, etc., Respondent- Appellant. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Charles J. Baldree, Federal Appellate Section, Dallas, Tex., for respondent-appellant.

Frank Jackson, Dallas, Tex., for petitioners-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before AINSWORTH, Circuit Judge, KUNZIG, Judge *, and RANDALL, Circuit Judge.

AINSWORTH, Circuit Judge.

In this habeas corpus proceeding the issue is whether certain actions of the Dallas County, Texas, Assistant District Attorney constitute prosecutorial overreaching sufficient to bar, on double jeopardy grounds, the retrial of defendants whose first prosecution ended in a mistrial. Petitioners-appellees, Baker and Humphrey, were tried along with two other defendants, Bowie and Freeman, in Texas state court, but the proceedings against the defendants terminated when the state trial judge, Judge Metcalfe, declared a mistrial. Baker and Humphrey then filed Special Pleas of Double Jeopardy in the Texas trial court which were denied. Judge Metcalfe set a new trial date for petitioners. After seeking relief in the state appellate court, Baker and Humphrey filed this Petition for Writ of Habeas Corpus and for a Stay of State Court Proceedings in federal district court, pursuant to 28 U.S.C. §§ 2241 and 2254. The district court granted the writ and respondents-appellants, Judge Metcalfe and Texas Attorney General Mark White, appealed. We reverse.

I. FACTS

Baker, Humphrey, Bowie and Freeman were indicted for the January 6, 1979, rape of complainant. Joint trial of the four defendants began on October 10, 1979. The Dallas County Assistant District Attorney called the complainant to testify and, after her testimony was given, rested his case.

The jury was then dismissed for the day, and the court directed the prosecutor to give the defense attorneys all the information he had concerning the whereabouts of Phyllis Johnson, 1 a person known by the defense to be an eyewitness to the January 6, 1979, incident. The Assistant District Attorney stated that he knew only what the complainant's testimony disclosed about Johnson's address. As the facts were later developed, Johnson had moved to another address in Dallas, and an investigator on the staff of the Dallas County District Attorney's office who was aware of the court's directive to the prosecutor also knew Johnson's new address.

At the trial the next day defendant Freeman's counsel called Freeman and other witnesses to the stand in his defense. Rec., vol. 2 at 17. Baker and Humphrey's attorney called one witness, Larry Black-Washington. After counsel for all the defendants had rested, the State closed without presenting any rebuttal testimony. The attorneys for Freeman and Bowie then closed. Plaintiff's Ex. 2 at 3. Counsel for petitioners Baker and Humphrey asked to approach the bench, and a conference among all attorneys concerning the jury charges ensued. During the conference, counsel for Baker and Humphrey stated his intention to close immediately after the conference. The Assistant District Attorney then stated that he wished to reopen the case to call another witness. When the trial resumed, Baker and Humphrey's counsel did close, and the prosecutor asked to reopen. Over defense objection, the prosecutor called Phyllis Johnson to the stand to corroborate the complainant's testimony. After Johnson testified and was thoroughly cross-examined by defense counsel, Plaintiff's Ex. 6 at 171-212, all defendants moved for a mistrial which Judge Metcalfe granted. Thereafter, on December 14, 1979, Judge Metcalfe overruled Baker and Humphrey's Special Pleas of Double Jeopardy, and set their new trial for January 14, 1980. Baker and Humphrey then filed their federal habeas petition. The federal district court stayed the state proceedings and ultimately granted their writ.

II. JURISDICTION

The State challenges the federal court's jurisdiction to entertain this habeas corpus petition and contends that petitioners Baker and Humphrey have had a full and fair adjudication in Texas state court of their constitutional plea of double jeopardy. 2 Therefore, under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), federal habeas corpus relief is not available. However, Stone v. Powell was concerned with federal habeas review of "a judicially created remedy (the exclusionary rule) rather than a personal constitutional right." 428 U.S. at 495 n.37, 96 S.Ct. at 3053 n.37. The Supreme Court has observed, "a state prisoner can win a federal writ of habeas corpus only upon a showing that the State participated in the denial of a fundamental right protected by the Fourteenth Amendment." Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). The right not "to be twice put in jeopardy of life and limb" is a fundamental right applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). Accordingly, habeas review is proper. 3

III. STANDARD OF REVIEW

This case involves both the general standard of review that appellate courts must exercise in federal habeas petitions and the particular legal standards by which we determine whether the double jeopardy clause bars retrial of petitioners Baker and Humphrey.

It is settled that findings of fact by the district court in federal habeas corpus cases will not be set aside unless clearly erroneous. Wade v. Mayo, 334 U.S. 672, 683-84, 68 S.Ct. 1270, 1276, 92 L.Ed. 1647 (1948); United States v. Cruz, 581 F.2d 535, 541 (5th Cir. 1978), and cases cited therein. See Fed.R.Civ.P. 52(a); 5A Moore's Federal Practice P 52.03(1) (2d ed.1980). However, it is equally settled that conclusions of law are not binding on appellate courts and that we are free to substitute our judgment for the district court's on the law. Horn v. C. L. Osborn Contracting Co., 591 F.2d 318, 320 (5th Cir. 1979); 5A Moore's Federal Practice P 52.03(2) (2d ed.1980). Mixed questions of law and fact, likewise, are not protected by the clearly erroneous rule. 9 Wright & Miller, Federal Practice and Procedure § 2589 at 753-54 (1971); see Backar v. Western States Producing Co., 547 F.2d 876, 884 (5th Cir. 1977). Since violation of the double jeopardy clause is a question of law, United States v. Nickerson, 211 F.2d 909, 912 (7th Cir. 1954), we are not bound by the clearly erroneous standard.

Next we turn to the appropriate legal standards to apply in determining whether the double jeopardy clause bars reprosecution after a mistrial has been declared at defendants' request. For over 150 years, United States v. Perez has stood for the legal principle that in most situations the purposes of the double jeopardy clause are not threatened by retrial after the granting of a mistrial. 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824). Where the motion for mistrial is made by the defense, double jeopardy will bar reprosecution only in an extremely narrow set of circumstances. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. That a mistrial is merely necessary to avoid the consequences of judicial or prosecutorial error is not enough to bar reprosecution. Id. at 485, 91 S.Ct. at 557. The misconduct of the judge or prosecutor must be in bad faith, id.; United States v. Wright, 622 F.2d 792, 795 (5th Cir. 1980), and it must be intentional, or grossly negligent, United States v. Luttrell, 609 F.2d 1190, 1191 (5th Cir. 1980); United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976). In addition, the bad faith prosecutorial (or judicial) overreaching must seriously prejudice the defendant. United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976).

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, (400 U.S.) at 485, 91 S.Ct. 547 at 557, 27 L.Ed.2d 543, threatens the "(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States, 372 U.S. (734) at 736, 83 S.Ct. 1033 at 1034 (10 L.Ed.2d 100).

424 U.S. at 611, 96 S.Ct. at 1081. See United States v. Opager, 616 F.2d 231, 234 (5th Cir. 1980). Applying these standards to the instant case, the double jeopardy clause would bar Baker and Humphrey's reprosecution only if the state judge or prosecutor were guilty of bad faith, intentional, or grossly negligent misconduct which seriously prejudiced petitioners in their state trial.

IV. THE MERITS

The federal district court based its grant of the writ, first, on the Assistant District Attorney's "springing this material, second witness (Phyllis Johnson) on (petitioners) after they had chosen to remain silent" by reopening the case for additional evidence, 489 F.Supp. 930, 932, and, second, on the Assistant District Attorney's failure to disclose the whereabouts of Phyllis Johnson after the court directed him to do so.

A. Reopening

Article 36.02 of the Texas Code of Criminal Procedure provides as follows:

The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.

(Vernon 1966). The district court and Baker and Humphrey's counsel construe article 36.02 to require a showing of necessity before a case is reopened. However, whether or not to reopen is peculiarly left to the discretion of the trial judge, although...

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