Com. v. Shaffer
Decision Date | 20 March 1972 |
Docket Number | 67,No. 67,Nos. 68,No. 68,68,s. 68 |
Citation | 447 Pa. 91,288 A.2d 727 |
Parties | , 77 A.L.R.3d 1124 COMMONWEALTH of Pennsylvania v. John A. SHAFFER, Appellant (at). Appeal of Frank J. CRUTCHLEY, at |
Court | Pennsylvania Supreme Court |
David E. Auerbach, Asst. Public Defender, Media, for appellants.
Stephen J. McEwen, Jr., Dist. Atty., Vram Nedurian, Jr., Asst. Dist. Atty., Media, for appellee.
Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
On October 23, 1968, the residences of Edith N. Caroll and Wilhelmina Madden in Delaware County were broken into and ransacked. In each instance various pieces of valuable jewelry were stolen. Subsequently, Frank J. Crutchley, Joseph E. Shaffer, Michael P. Dougherty and John A. Shaffer were arrested and chrged with committing these burglaries. The four were later jointly indicted in bills charging burglary of the two residences, larceny and receiving stolen goods, conspiracy and possession of burglary tools.
On June 30, 1969, Crutchley, Dougherty and Joseph E. Shaffer were brought to trial on the indictments before a jury (John A. Shaffer was then unavailable) and during the trial, the court on its own motion, and over defendants' objection, declared a mistrial. 1
The defendants brought to trial initially were retried on the same indictments on October 6th, and in this trial John A. Shaffer was joined as a defendant. The defendants were convicted by the jury of all charges except that of possession of burglary tools, to which the court sustained demurrers at the close of the Commonwealth's evidence. Following the denial of post trial motions, prison sentences were imposed. Crutchley and John A. Shaffer filed appeals in the Superior Court and the judgments were affirmed without opinion, 218 Pa.Super. 830, 852, 279 A.2d 311. We granted allocatur.
The only issue in connection with this appeal requiring discussion is whether or not Crutchley's rights under the Fifth Amendment Double Jeopardy Clause, as applied to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), were violated when he was forced to trial for the second time for the same offense. The question evolves to this: Under what circumstances is retrial precluded when the initial trial is aborted prior to verdict without the defendant's consent and over his objection?
In answering this question, we look for guidance to the line of cases which had developed in the United States Supreme Court. The benchmark decision in this area is United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824), wherein the following language was employed:
Mr. Justice Story for the majority therein developed the manifest necessity doctrine which in certain cases allows the trial judge to declare a mistrial without jeopardy attaching. Since 1824, the Supreme Court has consistently expanded on this theme. The classic example of properly declaring a mistrial without jeopardy attaching is where the jury is unable to agree. United States v. Perez, supra; Keerl v. Montana, 213 U.S. 135, 53 L.Ed. 734, 29 S.Ct. 469 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892). The Court has also held that tactical problems of an army in the field justified the withdrawal of a court martial proceeding and the commencement of another. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). It also ruled that discovery by the judge during a trial that a member of the jury was biased pro or con was sufficient to warrant the jury's discharge. Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891). See also, Commonwealth v. Ferguson, Pa., 285 A.2d 189 (1971); Commonwealth v. Richbourg, 442 Pa. 147, 275 A.2d 345 (1971).
Although the Court has expanded on the manifest necessity concept, it has refused to develop any categories or hard and fast rules, rather the Court has consistently evaluated the problems on a case by case basis. But, the Court has been very strict in its application of the principle as can be seen from the following language:
'The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances,' to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963).
Moreover, the Court went on to note:
'We resolve any doubt 'in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion ". Id. at 738, 83 S.Ct. at 1035--1036.
Thus, over the years the extent of the Court's guidance has to be found from general statements of policy.
In 1961, the Court seemingly broke with past precedent and in a five to four decision started to develop a new theory upon which to examine abuse of discretion. In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Court, although speaking in terms of manifest necessity, bottomed its decision on whether the trial judge was acting 'in the sole interest of the defendant.'
In Gori, the defendant was brought to trial, and early in the proceedings, the trial judge on his own motion declared a mistrial because he felt that questions by the district attorney might convey to the jury knowledge of other crimes on the part of the defendant. Mr. Justice Frankfurter, apparently recognizing that this came close to an 'abuse of discretion,' chose to base his decision on the fact that the judge's sole interest was to protect the defendant, thus it was not double jeopardy.
The majority's decision that this was not double jeopardy immediately came under attack from four members of the Court in a dissent. The dissent noted that this was the first time that the Court had held that there was no double jeopardy when the defendant did not request the mistrial or consent to it and said that where it is the prosecutor's fault for the mistrial, double jeopardy attaches. 2
The latest pronouncement of the Court on the subject is found in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).
Jorn was a case wherein the United States Government charged the defendant with wilfully assisting in the preparation of fraudulent income tax returns. The jury was empanelled and the prosecutor called a taxpayer to the witness stand who the defendant had allegedly aided. The judge then warned the witness of his constitutional rights against self incrimination and the witness expressed a willingness to testify; however, the judge refused to allow the witness to testify because he did not believe the witness was adequately warned of constitutional rights by the Internal Revenue Service before pretrial questioning, and on his own motion declared a mistrial. The United States Supreme Court ruled that retrial under these circumstances was constitutionally prohibited.
Mr. Justice Harlan, speaking for the plurality of the Court recognized the following mandate as the guiding principle when considering the possibility of a mistrial:
The Court, after setting the stage for the opinion with the above quote, went on to discuss the doctrine of 'manifest necessity' as developed in United States v. Perez, supra. The relevant portion of the Jorn opinion for our purposes came in Mr. Justice Harlan's discussion of the balance between the 'manifest necessity' standard and the defendant's right to finalize his case once the jury is empanelled. The Court stated:
'For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a Sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, and the dispute...
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