Com. ex rel. Walton v. Aytch

• Decision Date: 05 March 1976
• Citation: 466 Pa. 172,352 A.2d 4
• Parties: COMMONWEALTH of Pennsylvania ex rel. George WALTON, Appellee, v. Louis AYTCH, Superintendent, Philadelphia County Prisons, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 4

352 A.2d 4

466 Pa. 172

COMMONWEALTH of Pennsylvania ex rel. George WALTON, Appellee, v. Louis AYTCH, Superintendent, Philadelphia County Prisons Appellant (two cases).

Supreme Court of Pennsylvania.

Argued Oct. 21, 1975.

Decided Jan. 29, 1976.

Rehearing Denied March 5, 1976.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellant.

Bashman, Deutsch & Bernstein, Stanley Bashman, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Philadelphia granting a petition for a writ of habeas corpus. ¹ The petition was filed following the Sua sponte declaration of a mistrial by the trial judge in Commonwealth v. Walton. The court granted the petition because it determined that any attempted retrial of George Walton, relator, would constitute a violation of his Fifth Amendment right against being put twice in jeopardy since the Sua sponte declaration of a mistrial was not justified by the circumstances and events surrounding it. We agree and therefore affirm. The pertinent facts are as follows:

Walton was brought to trial on November 27, 1974, on four counts of murder and one count of conspiracy. A jury panel of twelve jurors and two alternates was chosen on this day. The panel was then excused for Thanksgiving weekend without being sworn. Although trial was scheduled to continue on December 2, 1974, because of a motion for a continuance by the Commonwealth resulting from a last minute refusal of a witness, Leroy Brown, to testify, trial did not resume until December 3, 1974.

On December 3, 1974, defense counsel brought to the court's attention an article which had appeared in a newspaper in Philadelphia on December 2, 1974. The article stated that Brown had refused to testify and that the refusal was the reason the Commonwealth had sought a continuance. Defense counsel moved to discharge the jury but withdrew his motion and sought a precautionary instruction regarding the article. The trial judge gave the requested instruction and ascertained that no members of the panel had read the article. The jury was then sworn.

Later on the same day, the trial judge discovered another newspaper article which had been published on December 3, 1974. This article reported that the First Assistant District Attorney had accused Walton of convincing Brown not to testify. The trial court then decided to sequester the jury. The panel was questioned as to whether sequestration would constitute a hardship since the members of the panel, when originally selected, had been informed they would not be sequestered except during deliberations.

During the questioning, one juror indicated that the sequestration would be a hardship. That juror was excused and replaced by an alternate. Later in the day, another juror had to be excused and replaced by the other alternate due to hardship. Thus, at the adjournment of trial on December 3, 1974, the jury consisted of twelve jurors and no alternates.

At 11:00 p.m. on December 3, 1974, the trial judge received a phone call from a court officer. The court officer informed the judge that one of the jurors had been unsuccessful in acquiring a baby sitter for her children. After speaking with the juror, the judge determined that she was 'very, very distressed' and allowed her to attempt to reach certain neighbors to watch the children. The attempt was unsuccessful. After being informed of this, the judge allowed the juror to go home apparently without directing her to return on December 4, 1974. He did so without consulting either counsel involved.

On December 4, 1974, when the trial was to reconvene, the judge related the previous night's events and informed the parties that: 'We now have eleven jurors.' Defense counsel then informed the court that his client would not proceed with eleven jurors, that he was not motioning for a mistrial, and that the trial judge's actions had caused a mistrial.

Counsel for the Commonwealth then stated: (1) that defense counsel could consent to proceed with eleven jurors under Rule 1103 of the Pennsylvania Rules of Criminal Procedure; and, (2) that the juror allowed to go home the night before could be returned and an extensive colloquy could then be conducted. Defense counsel stated the juror was no longer part of the jury. The trial judge then stated that the juror had not been 'specifically discharged.' Counsel for the Commonwealth then expressed the opinion that sequestration was in the discretion of the trial judge and it would be up to the trial judge to determine if the juror could be returned. The judge then inquired whether the juror had returned from home and learned she had not. He then conducted a colloquy with Walton, who was allowed to consult counsel, as to whether he would proceed with eleven jurors. Walton refused to do so.

Counsel for the Commonwealth then requested the return of the juror to determine: (1) the precise nature of the previous night's crisis; and (2) the state of mind of the juror and whether she discussed the case with anyone. He then requested that following such an inquiry the court rule whether the juror could be returned to the jury and whether the sequestration should continue.

The trial judge then stated that he had no doubt a crisis had existed the previous night and that he had reservations about lifting the sequestration. Defense counsel then stated he objected to the return of the juror because she might become angry with him after the extensive questioning he would like to conduct if an attempt were made to return her to the jury panel. Further, defense counsel stated the juror was tainted. The trial jduge thereupon declared a mistrial formally.

The Commonwealth sought to retry Walton and he petitioned for a writ of habeas corpus. The Court of Common Pleas granted the petition.

The double jeopardy clause of the Fifth Amendment of the United States Constitution was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). There is no question that under the instant facts jeopardy had attached in the first trial, but the mere fact that jeopardy had previously attached and then terminated does not prohibit another prosecution following a Sua sponte declaration of a mistrial. Another trial is allowable where a court Sua sponte declares a mistrial without the defendant's consent and over his objection where 'manifest necessity' justifies the declaration of the mistrial. As stated by Mr. Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 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; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.'

United States v. Perez, supra at 580.

The United States Supreme Court and this Court have consistently adhered to this formulation. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974). But before determining whether the circumstances and events presented a situation of manifest necessity, it is necessary to determine when the mistrial occurred.

The Court of Common Pleas determined that, although the trial judge formally declared a mistrial on the morning of December 4, 1974, the mistrial actually occurred the night before when the juror was discharged. It thus examined the circumstances and events surrounding the decision to allow the juror to return home to determine if 'manifest necessity' existed. The Commonwealth argues that this was incorrect because the mistrial did not occur until the trial judge formally declared it on the morning of December 4, 1974. The Commonwealth reasons that this is so because: (1) the trial could have continued if defense counsel and the defendant had agreed to return the juror who had been allowed to return home; and, (2) the trial could have continued if defense counsel and the defendant had agreed to proceed with eleven jurors as allowed by Pa.R.Crim.P 1103. Moreover, reasons the Commonwealth, the refusal to proceed with less than twelve jurors and the objection to the return of the juror, who had returned home, was tantamount to a request for a mistrial.

First, the trial judge must have viewed his action of allowing the juror to return home as a discharge of the juror ² because had he viewed his action as merely excusing the one juror from sequestration, he could have returned the juror over the objection of defense counsel. Thus, since the juror was discharged when she was allowed to return home, the possibility of returning her did not exist.

Second, the Commonwealth misconceives the nature of Rule 1103. ³ The rule states that the defendant May agree to proceed with less than twelve...