Cherry v. Director, State Bd. of Corrections

• Citation: 635 F.2d 414
• Decision Date: 27 January 1981
• Docket Number: No. 79-1525,79-1525
• Parties: James Walter CHERRY, Petitioner-Appellant, v. DIRECTOR, STATE BOARD OF CORRECTIONS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 414

635 F.2d 414

James Walter CHERRY, Petitioner-Appellant, v. DIRECTOR, STATE BOARD OF CORRECTIONS, Respondent-Appellee.

No. 79-1525.

United States Court of Appeals,

Fifth Circuit.

Jan. 27, 1981.

J. Michael Lamberth, Atlanta, Ga., (Court-appointed), for petitioner-appellant.

John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges. ^*

VANCE, Circuit Judge:

James Walter Cherry was convicted of robbery in the superior court of Fulton County, Georgia on November 6, 1963 and was sentenced to life imprisonment. On March 17, 1978 Cherry petitioned the district court for writ of habeas corpus alleging among other grounds that his retrial following a mistrial unconstitutionally placed him twice in jeopardy for the same offense. The district court denied relief but a panel of this court reversed. 613 F.2d 1262 (5th Cir. 1980). On consideration by the court en banc we affirm the district court's denial of habeas corpus relief.

I. THE TRIAL AND REVIEW

Armed and wearing a mask, Cherry and two accomplices abducted William Strickland at gunpoint and ordered him into a stolen automobile as Strickland left his job for the evening. They took him back to his place of employment and forced him to open its door and safe. They then stole over $11,000 in cash and left Strickland tied up by the safe. Although he could not positively identify Cherry's face because of the ski mask Strickland made a positive identification of his shoes and voice and testified that Cherry's build and facial shape were identical to that of one of the robbers. An eyewitness positively identified Cherry as a passenger in the stolen getaway vehicle. Cherry's fingerprints were found in the getaway car when it was located abandoned an hour later. At the time of Cherry's subsequent arrest he and his wife were carrying $1,230 in cash. After his arrest he offered his cellmate $2,000 to "take the rap" and described to the cellmate how the robbery occurred.

During Cherry's first trial in October 1963 the trial judge received information that a juror's mother had just died. ¹ The judge had the jury retire to the jury room, called counsel to the bench and informed them of the development. He inquired as to whether the state and defense would agree to dismiss that juror and continue with eleven. After some discussion ² Cherry's counsel informed the court that he desired to continue the trial with the original twelve jurors as prescribed by law. The judge then proceeded to disperse the jurors with the instructions given in a capital case and directed them to return to court at 9:30 o'clock the following morning. During the overnight recess the court confirmed that the juror's mother had in fact died. He excused the juror from further participation in the case and on the next morning when court reconvened he declared a mistrial. ³ His written order is set out as an appendix to this opinion.

When he was retried in November 1963, Cherry was convicted of armed robbery on the basis of overwhelming evidence. He appealed to the Supreme Court of Georgia which held that he had not sufficiently presented the issue of double jeopardy to require review. It rejected Cherry's various other contentions and affirmed his conviction. Cherry v. State, 220 Ga. 695, 141 S.E.2d 412 (1965). Ten years later in a state habeas corpus petition Cherry raised only the double jeopardy issue. The trial court denied the writ and the state supreme court denied a certificate of probable cause.

Cherry currently is incarcerated in Texas under a life sentence for a state conviction there. Georgia has lodged a detainer for his challenged sentence to commence upon his release by Texas. See Braden v. Thirtieth Judicial Circuit Court, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 1126-27, 35 L.Ed.2d 443 (1973).

Cherry filed this federal habeas petition in 1978 challenging his conviction on the basis of double jeopardy and claiming errors involving a police officer's testimony, prosecutorial misconduct, the disqualification of jurors, and the state's failure to disclose a plea bargain with his cellmate in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The district court found against Cherry on the merits of each of his contentions except for the Giglio issue which it declined to consider, finding that Cherry had purposefully bypassed his available state remedy.

Cherry produced no transcript of the proceedings leading up to the mistrial in his first case. When his petition was filed in district court, the magistrate issued a routine order directing respondent to file a transcript. Six weeks later the magistrate issued a second order specifically requiring that the transcript of the October 1963 proceedings which ended in a mistrial be furnished. Because of the passage of fifteen years, deaths and changes in personnel, neither a transcript nor the court reporter's notes could be located. When the case reached the district judge, he issued a further order requiring that an exhaustive search be conducted. The search was accomplished but produced no results. At this point respondent urged that the petition be dismissed under Rule 9(a) of the Rules Governing § 2254 Cases because the lapse of time obviously had prejudiced his ability to comply with the court's directive. ⁴ Cherry conceded that a diligent search had been made. Countering respondent's assertion of prejudice he urged that the absence of a transcript not be held against respondent alleging "the only pertinent part of the record relating to the mistrial is transcribed within the trial court's Order of Mistrial."

We adopt that portion of the panel decision which holds that because Cherry had not exhausted his state remedies as to the Giglio issue it was not necessary to consider the bypass question. The panel majority also correctly concluded that this court is not foreclosed from considering Cherry's double jeopardy claim since the district court reached the merits of an exhausted claim in this mixed petition, Galtieri v. Wainwright, 582 F.2d 348, 362 (5th Cir. 1978) (en banc). We have also considered the other contentions presented by Cherry's petition which were not considered by the panel and find that they present no reversible error.

II. MISTRIAL ORDER

Cherry relies on an application of the constitutional principle that the Supreme Court explicated over 150 years ago in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824),

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ....

Absent prosecutorial or judicial overreaching, a defendant's motion or consent to mistrial ordinarily is assumed to remove any barrier to reprosecution. Where, as here, the mistrial does not result from defendant's motion, the Perez doctrine of manifest necessity controls. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1078-80, 47 L.Ed.2d 267 (1976).

At the critical moment during Cherry's first trial there was a manifest necessity that the trial judge do something. Common experience teaches that the sudden death of a juror's parent would so emotionally incapacitate the juror as to make his uninterrupted service impractical. It is unlikely that he could continue to serve in a manner that would insure a fair trial to either party. The question on which our attention focuses, therefore, is not that the trial judge took some action, but on the nature of the specific action and the manner in which such action was taken.

The necessity for some action does not automatically justify the granting of a mistrial. United States v. Jorn and Illinois v. Somerville, 410 U.S. 458, 469-70, 93 S.Ct. 1066, 1072-73, 35 L.Ed.2d 425 (1973), demonstrate that before granting a mistrial it is incumbent on the trial judge to consider available alternatives. The circumstances in the case before us are in marked contrast with those in Jorn, however, where the trial judge abruptly declared a mistrial without discussion with the attorneys so that witnesses in the case might consult counsel.

(I)t seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial.

United States v. Jorn, 400 U.S. at 487, 91 S.Ct. at 558. Here, the action of the trial court was not abrupt, but was taken only after inquiry and overnight deliberation, after at least some consultation with counsel during which Cherry's counsel rejected one available alternative, and after Cherry's counsel was afforded but declined the opportunity to make a motion. The present situation does not involve any prosecutorial or judicial overreaching. Cherry's particular contention is that the trial judge erred in selecting the alternative of a mistrial.

Recent amplification of the controlling principles is found in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54...