75 F.3d 881 (4th Cir. 1996), 95-2434, Gilliam v. Foster

Docket Nº:95-2434.
Citation:75 F.3d 881
Party Name:Darrell Wayland GILLIAM, Jr.; Pamela Owings; James Matthew Swain, Petitioners-Appellees, v. James Lee FOSTER, Sheriff of Newberry County; Charles M. Condon, Attorney General for the State of South Carolina; James W. Johnson, Jr., Circuit Court Judge of South Carolina, Respondents-Appellants.
Case Date:January 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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75 F.3d 881 (4th Cir. 1996)

Darrell Wayland GILLIAM, Jr.; Pamela Owings; James Matthew

Swain, Petitioners-Appellees,


James Lee FOSTER, Sheriff of Newberry County; Charles M.

Condon, Attorney General for the State of South Carolina;

James W. Johnson, Jr., Circuit Court Judge of South

Carolina, Respondents-Appellants.

No. 95-2434.

United States Court of Appeals, Fourth Circuit

January 29, 1996

Argued Sept. 26, 1995.

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Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1744-17AJ).

ARGUED: Donald John Zelenka, Assistant Deputy Attorney General, Columbia, South Carolina, for Appellants. Joy Scherffius Goodwin, Levy & Goodwin, Columbia, South Carolina, for Appellees. ON BRIEF: J. Christopher Mills, Fairey, Parise & Mills, Columbia, South Carolina, for Appellee Gilliam; Samuel M. Price, Jr., Newberry, South Carolina, for Appellee Owings.


Affirmed by published opinion. Judge WILKINS wrote the majority opinion in which Chief Judge ERVIN and Judges HALL, MURNAGHAN, HAMILTON, WILLIAMS, MICHAEL, and MOTZ joined; Judge WILKINSON wrote a dissenting opinion in which Judges RUSSELL, WIDENER, NIEMEYER, and LUTTIG joined; Judge NIEMEYER wrote a dissenting opinion in which Judge WIDENER joined; and Judge LUTTIG wrote a dissenting opinion in which Judges RUSSELL, WIDENER, WILKINSON, and NIEMEYER joined.


WILKINS, Circuit Judge:

Petitioners Darrell Wayland Gilliam, Jr., Pamela Owings, and James Matthew Swain brought this action pursuant to 28 U.S.C.A. § 2254 (West 1994). They maintain that because a state trial judge granted a mistrial over their objection and in the absence of manifest necessity during their first trial, subjecting them to a second criminal prosecution would violate their rights under the Double Jeopardy Clause of the United States Constitution.

The principal issue presented is whether the state trial judge exercised sound discretion in granting the prosecution's motion for a mistrial because the jury viewed certain photographs prior to their formal admission into evidence. These photographs had been authenticated properly, were relevant, were material, and were otherwise unobjectionable. Further, the witness who had authenticated the photographs was available to retake the witness stand to permit their formal introduction.

The district court granted the writ of habeas corpus. 1 The State 2 appeals, claiming that the second prosecution would not violate Petitioners' double jeopardy rights, and that in any event the district court should have abstained from granting habeas corpus relief under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). For the reasons set forth more fully below, the judgment of the district court is affirmed.


Although the facts underlying this appeal have been fully set forth in the decision of the district court, we include them here in

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some detail in order to facilitate a better understanding of our decision.

A. Background

The incidents giving rise to the criminal charges against Petitioners began on the afternoon of January 5, 1993, when Hope Icard physically attacked Christie Gilliam, Petitioner Gilliam's sister. A short time later that afternoon, this altercation led to a confrontation between family members of the two women at the residence of Icard's sister and brother-in-law, the Silvers. Petitioners arrived outside the Silvers' mobile home in Petitioner Gilliam's truck. Although the subsequent events are subject to some dispute, it is uncontested that gunshots were ultimately exchanged. From inside the mobile home, Ernest Silvers and his stepson discharged firearms. Petitioner Gilliam, who was outside the mobile home, was injured by this gunfire in the lower leg. Petitioner Swain was charged with murdering Ernest Silvers by shooting him in the chest with a rifle as Silvers stood in the front doorway of the mobile home. Petitioners Gilliam and Owings, who were unarmed, were charged with aiding and abetting Swain. In addition, Petitioners were charged with lynching in connection with Silvers' death; 3 Petitioner Swain was charged with assault with the intent to kill; and Petitioner Gilliam was charged with indecent exposure. This latter charge against Gilliam alleged that he had exposed himself to the occupants of the Silvers' mobile home while taunting them prior to the exchange of gunfire.

B. Initial State Trial Proceedings

Petitioners' trial began in state court in late 1994. On the third day of trial, the prosecution presented the testimony of Officer Counts, a former special agent with the South Carolina Law Enforcement Division (SLED). Officer Counts had been present at the scene soon after the altercation and could testify about the investigation and identify photographs of the scene.

On cross-examination, defense counsel asked Officer Counts whether he had found blood outside the Silvers' mobile home. Officer Counts stated that he would like to look at the photographs of the scene to refresh his memory. The photographs to which Officer Counts referred were ones that had been taken either by Officer Counts or in his presence by another SLED agent; copies of these photographs had been provided to the defense prior to trial. Defense counsel showed a group of seven photographs (Set 1) to one of the prosecuting attorneys and then handed them to Officer Counts. The prosecuting attorney--believing that the photographs were being offered into evidence--said, "Without objection." The trial judge then inquired whether defense counsel was offering the photographs into evidence at that time, and defense counsel responded that he was using them only to refresh the officer's recollection. The prosecuting attorney noted that he had spoken prematurely. 4

After Officer Counts reviewed the photographs in Set 1, and defense counsel established that Officer Counts was familiar with the photographs because he was there when they were taken or actually had taken them, defense counsel inquired:

Q. Looking at those photographs were you able to refresh your recollection as to whether or not any blood was found on the scene?

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A. Yes, sir. There was a red substance. I am not a serologist, but there was a red substance that appeared to be blood found at the scene.

Q. And when blood is found on the scene, how [is it] typically marked in terms of when you find blood outside a trailer and it indicates blood, is it marked as part of your investigation? Do you mark the ground in some way to indicate that you found something?

A. Yes, sir. We would circle the area, surround it with crime scene tape, we would [put] a cone out or anything to keep somebody from walking and disturbing that.

Q. Based on those photographs that you had used to refresh your recollection, do you see such a photograph that would indicate that sighting of blood that was marked?

A. Yes, sir. I could.

Q. And if you could, hand us that. If you could, flip through and find the photograph or photographs that would indicate that.

A. Basically all of these [are] the same area where the blood was found. Just overall views of it.

Q. I hand you what has been marked as Defendant's exhibits 16, 8, 13, 12 and 14 [Photo Set 2]. Would it be your testimony that those [photographs] mark the finding of blood but just from different angles?

A. Yes, sir. I can't tell you that that substance is in fact blood. I am not a serologist, but I can tell you that these were photographs that myself or Agent Gainey of SLED took, and the substance resembles blood, and these five photographs depict the same area adjacent to the trailer where we found [the] substance that resembled blood.

J.A. 61-62 (emphasis added). At this point in the examination, defense counsel asked Officer Counts to approach a diagram of the scene prepared by the prosecution and, using the photographs, to mark on an overlay the location where what appeared to be blood was found. Officer Counts then marked the three places where red spots were observed, testifying, "This is basically where the blood was found, in this vicinity here to the left of the trailer, almost to the roadway." J.A. 63. In response to defense counsel's follow-up questions concerning the distance from the area where blood was found to the mobile home and the roadway, Officer Counts referred to the notes made by the serologist on the scene and testified that "there were three areas of blood in this location," that the distance between "these portions of blood here" was seven feet, and that the corner of the mobile home was 70 feet from the road with the blood depicted in the photographs being "right off the roadway in this area." J.A. 64.

During the remaining cross-examination of Officer Counts, two of the three groups of SLED photographs of the scene (Sets 2 and 3) were introduced into evidence by the defense without objection. The photographs referred to as Set 2 included Exhibits 8, 12, 13, 14, and 16. The photographs referred to as Set 1--Exhibits 9, 10, 11, 15, 17, 18, and 19--were not offered into evidence. 5

A description of these photographs and a comparison of the photographs included in Set 1 vis-a-vis those in Set 2 is instructive. The photographs in Set 2, with the exception of Exhibit 16, are identical in every material aspect and show the area outside the Silvers' mobile home. Each of these photographs was taken from near...

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