Com. v. Santiago

• Decision Date: 27 January 1981
• Citation: 424 A.2d 870,492 Pa. 297
• Parties: COMMONWEALTH of Pennsylvania, v. Israel SANTIAGO, Appellant.
• Court: Pennsylvania Supreme Court

Page 870

424 A.2d 870

492 Pa. 297

COMMONWEALTH of Pennsylvania, v. Israel SANTIAGO, Appellant.

Supreme Court of Pennsylvania.

Submitted Oct. 23, 1980.

Decided Jan. 27, 1981.

[492 Pa. 299] Neil E. Jokelson, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Nancy Wasser, Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia denying appellant's motion to quash indictments on double jeopardy grounds. ¹

Appellant, Israel Santiago, was tried for the second time on charges of murder, rape, indecent assault and criminal conspiracy. ² This trial ended when the court, over defense objection, declared a mistrial after approximately thirty hours of jury deliberation. Appellant argues that the Commonwealth should be barred from proceeding with a third trial because the declaration of a mistrial over appellant's objection was not based upon manifest necessity and, therefore, retrial would violate his constitutional guarantee against double jeopardy. We conclude that the trial court did not abuse its discretion in declaring a mistrial for manifest necessity and remand for trial.

The jury deliberated from 4:15 to 6:00 p. m. on Monday, December 11, 1978, and from 10:00 a. m. to 12:30 p. m. on December 12 before informing the court that it was deadlocked. The court instructed the jury to continue its deliberations. At 2:10 p. m. that same day the jury asked a court officer to advise the court that it was ready to return a verdict. However, the jury did not return to the courtroom but instead instructed the court officer to inform the court that the jury was not in agreement. The court then instructed the jury to continue its deliberations. The jury retired for the night at 6:40 p. m. On both December 13 and December 14, the jury deliberated from 10:00 a. m. to 5:00 p. m. Then on Friday, December 15, at 9:30 a. m. one of the jurors was reported ill from exhaustion. This juror was discharged and, by agreement of counsel, deliberations continued with eleven jurors. At 3:00 p. m. that day, after discussion with counsel and despite defense objection, the court summoned the jury. The court inquired whether the jury had reached a verdict and, if not, whether with more time it could do so. The foreman answered that no verdict had been reached and that "(w)e have gotten the same verdict for the past few days without any change at all in the last two days." The court then asked the jury to return to the jury room to determine whether it was deadlocked. Twenty-three minutes later the jury returned and the following colloquy ensued:

"THE COURT: Has the jury come to any decision?

JURY FOREMAN: It has, your Honor.

THE COURT: I see. Can you state what it is they have agreed?

JURY FOREMAN: That the jury is deadlocked.

THE COURT: I see.

MR. JOKELSON: Your Honor, may I ask that the jury be polled with respect to the question of...

THE COURT: What question do you suggest should be asked?

MR. JOKELSON: Does each juror believe that in his or her own mind that this jury is deadlocked.

THE COURT: All right. I'll ask the Court Crier to conduct the poll of the jury, asking the question which was suggested by Mr. Jokelson, do you believe that the jury is deadlocked.

COURT CRIER: Very well. Mr. Foreman, please be seated.

(Whereupon, the jury was duly polled and all eleven answered in the affirmative to the above question.)

MR. JOKELSON: Your Honor, for the record, I'd ask that the Court read to the jury the American Bar Association standards on jury deliberation and what their duties are.

THE COURT: And your request is denied, for the reasons that I've stated outside the presence of the jury.

THE COURT: Ladies and gentlemen of the jury: I just ask you all generally, do you all find that the jury is deadlocked and so say you all?

JURY AS ONE VOICE: Yes."

At this point the court stated that there was manifest necessity for a mistrial and sua sponte declared one.

It is well settled that when, without defense consent, a jury is discharged for failure to reach a verdict, retrial is permissible if the discharge was manifestly necessary. Arizona v. Washington, 434 U.S. 497, 509-10, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978); Commonwealth v. Sullivan, 484 Pa. 130, 133, 398 A.2d 978, 979 (1979); Commonwealth v. Bartolomucci, 468 Pa. 338, 345, 362 A.2d 234, 238 (1976). Appellant advances three arguments in support of his contention that the trial court erred in finding manifest necessity: (1) the court improperly summoned the jury to inquire whether it had reached a verdict; (2) the court improperly denied appellant's request for a jury charge pursuant to Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971) prior to declaring a mistrial; (3) the court improperly considered the inconvenience to the jury which would be caused by deliberations and sequestration over an upcoming weekend. We are satisfied that none of the alleged errors constitutes an abuse of judicial discretion which will bar retrial.

I. COURT JURY COLLOQUY

We reject appellant's contention that a trial judge may not summon the jury and raise the issue of jury deadlock sua sponte. Such action cannot, as appellant argues, be regarded as inherently coercing the jury to declare itself deadlocked. See United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir. 1975); Commonwealth v. Story, --- Pa.Super. ----, 410 A.2d 1251 (1980); Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979). Nor was there any actual coercion employed here. When the court first summoned the jury it conducted the following simple and straightforward colloquy:

"THE COURT: Have you reached a verdict?

JURY FOREMAN: We have not, your Honor.

THE COURT: I see. If you were given more time for deliberation, in your opinion, do you feel that you could reach a verdict?

JURY FOREMAN: We have gotten the same verdict for the past two days without any change at all in the last two days.

THE COURT: I see. I don't want to conduct any further discussion with you but I will ask you and the other jurors to return to the jury room only for the purpose of determining whether you all are of the same opinion that the jury is deadlocked or not and then I'll ask you to come right back.

JURY FOREMAN: Yes, your Honor.

THE COURT: You can take as much time as you want to let us know whether the jury is deadlocked or not.

JURY FOREMAN: Yes, sir."

Although the colloquy specifically inquired as to whether the jury was deadlocked, it did not, as appellant argues, suggest how the jury should respond. After the jury returned and the foreman reported the jury to be deadlocked, the jurors were individually polled and also questioned as a whole. The jurors unequivocally stated that they were deadlocked, and the foreman's own statement indicates that the jury had been deadlocked for the previous two days. Nothing in the record indicates that the court's action in summoning the jury compelled the jury to declare itself deadlocked. The trial court followed "preferable practice (which) demands that the trial court ... ask each juror if he or she agrees that a hopeless deadlock which could not be resolved by further deliberations exists." Commonwealth v. Bartolomucci, 468 Pa. at 348 n.5, 362 A.2d at 239 n.5. Given the statements of the foreman and the responses of the individual jurors, the trial judge was justified in discharging the jury. See Standard 15-5.4(c) of the American Bar Association Standards Relating to the Administration of Criminal Justice, Trial by Jury (2d ed. Approved Draft 1978) infra at 6, note 3.

II. SPENCER JURY CHARGE

After the jurors individually stated that they were deadlocked, defense counsel requested a jury charge pursuant to the ABA Standards Relating to Trial by Jury which this Court commended in Commonwealth v. Spencer, 442 Pa. at 337-38, 275 A.2d at 304-05, as guidelines for courts to follow when juries are deadlocked. ³ The trial court refused defense counsel's request on the ground that a Spencer charge would be unduly coercive at that point in the jury's deliberations and that Spencer did not require, but only advised, that these standards be used.

Whether to give a Spencer charge is a matter for the exercise of the trial court's sound discretion. On this record we do not find that discretion to have been abused. The trial court may properly consider whether an instruction of further deliberations might have a coercive effect upon the verdict. See Arizona v. Washington, supra; Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978). Here, the trial court concluded that

"at this point of deliberations, (a Spencer charge) could be interpreted as some kind of a mandate or coercion on the part...