Ex parte Anderson, 1 Div. 722

• Decision Date: 10 January 1984
• Docket Number: 1 Div. 722
• Citation: 457 So.2d 435
• Parties: Ex parte Josephus ANDERSON. In re State of Alabama v. Josephus Anderson.
• Court: Alabama Court of Criminal Appeals

Page 435

457 So.2d 435

Ex parte Josephus ANDERSON.

In re State of Alabama v. Josephus Anderson.

1 Div. 722.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

Rehearing Denied Feb. 9, 1984.

William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, FOR WRIT OF CERTIORARI

BOWEN, Presiding Judge.

Through a petition for writ of mandamus filed in this Court, Josephus Anderson seeks to prevent his further prosecution and retrial for the capital murder of Birmingham Police Officer Albert Eugene Ballard. After a review of the issues raised, we deny the relief sought.

On the 29th of November, 1979, Officer Ballard was fatally shot while on duty in downtown Birmingham. Anderson was indicted that December. His motion for a change of venue was granted and his trial was transferred to Mobile County. There, he has been tried three times for the same offense. Each trial resulted in a mistrial because of the inability of the jury to reach a verdict. Now, the State seeks to try Anderson a fourth time.

At the conclusion of each trial, defense counsel filed a plea of former jeopardy or, in the alternative, a motion to dismiss. After the third trial, he also filed a motion for judgment of acquittal. Each plea and motion was denied. The jury's vote in each trial was stipulated to by defense counsel and the district attorney. In September of 1983, Anderson filed a petition for writ of mandamus in this Court seeking to terminate his further prosecution for the capital offense by requiring the trial judge to either sustain his plea of former jeopardy, grant his motion to dismiss, or grant his motion for judgment of acquittal.

In this mandamus proceeding, Anderson maintains that a fourth trial after three prior mistrials constitutes a denial of due process, violates traditional notions of fair play and substantial justice and results in an abandonment of the reasonable doubt standard. He also maintains that another trial would violate his Fifth and Fourteenth Amendment privileges against double jeopardy under the Constitution of the United States and Alabama Constitution Article I, Section 9.

I. THE FACTS

A. The First Trial

Anderson was first tried in March of 1981. The trial judge (Joseph M. Hocklander) declared a mistrial after the forewoman of the jury informed the judge that the jury was having difficulty and "might not even be able to get a verdict." Judge Hocklander encouraged the jury to continue deliberating to reach a verdict. He questioned the forewoman as to the benefit of further deliberation and then asked the other members of the jury what they thought ("Does anyone feel that further deliberation would be of benefit?"). He also inquired if any disagreed with the forewoman's answer.

Although we have only a portion of the record of Anderson's first trial before us, we find no specific objection in the record to the declaration of the mistrial. Indeed, although the record does not reflect why, there is an indication that defense counsel had earlier requested a mistrial.

"MR. CLARK: If they have not reached a verdict, do you intend to let them deliberate longer?

"THE COURT: No.

"MR. CLARK: Could we approach the bench just a second?

(Bench:)

"MR. CLARK: It's only actually been about four hours. It's a four-day trial.

"THE COURT: That's coming from the man who wanted the mistrial last night.

"MR. CLARK: That was denied.

"THE COURT: I considered it very seriously. Bring them in. I'll see what they have to say."

Although this is all the record shows on this matter, defense counsel maintains, and we have no reason to believe otherwise, that, when Judge Hocklander indicated that he was going to declare a mistrial, counsel "asked him if he would permit the jurors to deliberate further and he denied that request." When the mistrial was declared, the jury had deliberated for four hours after a four-day trial and stood ten for acquittal and two for conviction.

B. The Second Trial

Anderson's second trial was in November of 1981. The record shows that the trial judge (Telfair Mashburn) brought the jury into the courtroom "because it's obvious that you must be having problems arriving at a verdict since you've been out since twenty-five minutes till nine this morning." The judge encouraged the jurors to reach a unanimous verdict and gave a charge consistent in principle with Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Before the jury resumed deliberation, the foreman indicated "(t)hey want to stay here as late as possible to see could we come to a decision."

Approximately one hour and forty-five minutes later the judge had the jury brought back into the courtroom and determined, by questioning the foreman, that there was "no possibility of your arriving at a verdict" and that they were "no closer than you were" before. Judge Mashburn then stated:

"If there's no objections, I'm going to discharge this jury and declare a mistrial in this case.

"All of you agree that you would be unable to arrive at a verdict if I kept you here any longer?

"(Jury indicated in the positive.)"

The record reflects no objection to the declaration of the mistrial. The jury had been deliberating for seven hours after a four-day trial. The vote was nine for acquittal and three for conviction.

C. The Third Trial

Anderson's third trial was in March of 1983. The trial judge (Mashburn) stated to the jury, "Now they tell me that you've reported that you are unable to arrive at a verdict?" The foreman replied, "That's correct" and, in response to further questioning, indicated that the jury was "hopelessly deadlocked". Judge Mashburn gave an "Allen" instruction and sent the jury back into the jury room. He then stated to defense counsel:

"THE COURT: I'm going to give them an hour or hour and a half and if they still say they are hopelessly deadlocked, I think I'm going to withdraw the case from them and declare a mistrial. What do you think about that Mr. Clark?

"MR. CLARK: Let's just wait and see. I don't know. That may be the only thing to do."

Defense counsel then requested a mistrial on the grounds that some lawbooks had been in the jury room during the jury's deliberation. After ascertaining that none of the jurors "looked at anything on that desk and none of you discussed anything on that desk in your deliberations", the judge denied the mistrial.

The jury had been deliberating for four and one-half hours after a five-day trial when the following occurred:

"THE COURT: Now you understand what I plan to do. Bring them out here and ask them if there's any possibility of them getting a verdict. Pointing out that it's not fair to the defendant or the State either not to have one but that if they are convinced they are not going to be able to reach a verdict no matter how long they stay back there then there's nothing I can do but discharge them.

"MR. CLARK (Defense Counsel): I think you will let them know that when you say it's not fair that none of us are mad at them. We all know they've been making a real effort. (emphasis added)

"THE COURT: I wasn't going to say anything about that. Just that it's not fair to the defendant and the State. I don't mean to these people, to the institution. Bring them on in.

(JURY PRESENT.)

"THE COURT: All right, Mr. Foreman, you still not able to reach a verdict?

"MR. FOREMAN: No, sir; we are not able to reach a verdict.

"THE COURT: And you don't think that you would be able to reach one if I kept you in there longer?

"MR. FOREMAN: I don't think we would be able to reach a verdict if you kept us longer.

"THE COURT: You know I'm faced with the proposition that it's not fair to the defendant and not fair to the State. When I say the State, I don't mean these two lawyers representing them. I mean the institution. To have the thing and not have it resolved. But as I explained to you this morning you've been a good jury and you've listened to the case patiently. I don't think the whole week I've observed one of you looking like you weren't wide awake and paying attention to what was going on and after all that's the necessary thing because if you are asleep or if you are stargazing you certainly can't be aware of what's going on. And do all of you feel that it's just a matter that you can't resolve no matter how long you stay back there.

"(Jury indicated in the positive.)

"THE COURT: All right, reluctantly, I'm going to discharge you and declare a mistrial."

The jury was split eight for acquittal and four for conviction.

This record contains no indication that the State intends to present any new evidence at Anderson's fourth trial.

In denying Anderson's plea of former jeopardy, Judge Mashburn expressed his firm belief in Anderson's guilt. This belief plays a significant role in our decision. In denying the motion after the second trial, he stated:

"I'm not going to turn loose a man that I feel (is guilty) from the evidence and I don't see how 9 people could come out of there after listening to that evidence for four days and say that man was not guilty. I will never be able to understand that."

....

"(I)f there was some doubt about his guilt in my mind, I might consider your motion, Mr. Clark. But since I'm convinced he is guilty from the evidence I heard, I'm going to deny your motion."

After the third trial another hearing was held on the double jeopardy issue. During that hearing Judge Mashburn stated:

"THE COURT: Well, let me say this. I tried the case twice, heard the evidence from beginning to end, believe I'm more familiar with it than either of these gentlemen and how any reasonable man could have any doubt as to the defendant's guilt on the evidence that the State brought here the two times I heard it tried is beyond my comprehension. We had a man, had the people from the savings and loan association that a man with a...