Gilliam v. Foster
| Decision Date | 28 July 1995 |
| Docket Number | No. 95-2334,95-2334 |
| Citation | 61 F.3d 1070 |
| Parties | Wayland GILLIAM, Jr., James Matthew Swain and Pamela Owings, Petitioners--Appellants, v. James Lee FOSTER, Sheriff of Newberry County, Charles M. Condon, Attorney General of South Carolina, and James W. Johnson, Jr., Circuit Court Judge of South Carolina, Respondents--Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
On July 11, 1995, Petitioners presented an emergency motion to a panel of this court, seeking relief from an order of the district court denying their request to temporarily enjoin state criminal proceedings against them scheduled to begin Monday, July 17, 1995. Petitioners claim that the trial will violate their constitutional right not to be twice placed in jeopardy for the same offense. The panel heard oral arguments of counsel on Saturday, July 15, on an expedited basis. Following a conference at the close of the hearing, the panel denied Petitioners' request for relief--Judges Wilkinson and Luttig voting to deny and Judge Wilkins voting to grant. On the morning of July 17, Petitioners requested en banc reconsideration and a poll of the entire court was requested. Chief Judge Ervin and Judges Hall, Murnaghan, Wilkins, Hamilton, Williams, Michael, and Motz voted in favor of en banc consideration and of granting the requested temporary relief. Judges Russell, Widener, Wilkinson, Niemeyer, and Luttig voted against en banc consideration and granting the requested temporary relief. Accordingly, the poll of the court for en banc consideration has carried and the motion for relief from the decision of the district court denying the temporary restraining order is granted.
Therefore, a temporary restraining order enjoining the state criminal proceedings until the district court rules on the merits of the habeas petition is hereby issued. As expeditiously as possible, the district court is directed to receive such evidence and take such testimony as necessary and to rule on the merits of Petitioners' habeas petition.
It is highly regrettable that this court is compelled to temporarily enjoin a state criminal proceeding that began on July 17, 1995. It is even more regrettable that we must act while that proceeding is in progress. Of course, the temporary stay should have been granted days ago by the district court or by a panel of this court after hearing the arguments of counsel last Saturday, July 15, 1995. Because the district court and the panel erred in failing to issue a temporary stay, we must act in a manner that undeniably causes disruption in the state proceeding. But, the issuance of a stay is the only means available to protect Petitioners' constitutional right, and under the present circumstances, the vindication of Petitioners' basic constitutional right far outweighs the temporary suspension of the state proceeding. Any temporary disruption of the state proceedings will be quickly remedied by an expedited hearing in the district court at which time it will have the opportunity to address on the merits for the first time the issues presented.
Although the relief sought is appropriate in only the most limited circumstances, the present situation is firmly encompassed within those narrow circumstances. First, it cannot be seriously disputed that the ongoing state criminal proceedings violate Petitioners' constitutional right not to be placed twice in jeopardy for the same offense. The substantive double jeopardy question presented is whether the state trial judge in an earlier state criminal trial exercised sound discretion in finding that manifest necessity existed for a mistrial. The undisputed facts demonstrate that the state trial judge acted without any rational justification in granting a mistrial. Second, given that Petitioners have asserted a strong double jeopardy claim, the only means by which their right not to be put to the burden, anxiety, and expense of enduring a second trial may be protected is to stay the state criminal proceedings until the district court may rule on the merits of Petitioners' habeas petition. Finally, the federalism concerns expressed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), do not counsel against the grant of relief under these circumstances.
Petitioners were prosecuted in November 1994 on state charges; the State represents that the charges included murder (Petitioner Swain) and aiding and abetting (Petitioners Gilliam and Owings). It appears that there was no significant question concerning Petitioners' participation in the events; rather, the trial was focused on the issue of whether the actions leading to the victim's death had been taken in self-defense or had been provoked.
On the third day of trial, the State presented the testimony of Officer Counts of the South Carolina Law Enforcement Division. Officer Counts had been present at the scene soon after the shooting and could identify photographs of the scene and testify concerning the immediate investigation. On cross-examination, defense counsel asked Officer Counts whether there had been blood found at the scene. Officer Counts stated that he would have to look at photographs taken by a police photographer to refresh his memory. Defense counsel showed a group of photographs to the prosecuting attorney (Set 1) 1 and then handed them to the witness; as had other photographs (described as Sets 2 and 3), the photographs in Set 1 had been provided to the defense prior to trial. The prosecuting attorney--believing that the photographs were being offered into evidence--stated, "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.
Officer Counts subsequently testified from the photographs. He explained what they depicted and identified the position of various objects shown in the photographs. Officer Counts identified three locations on the ground where investigators had located what they believed to be drops of blood and had marked the location with yellow tape; he also marked on a diagram of the scene (which had been prepared by the prosecution and was already admitted into evidence) where the drops of blood were found. During the remaining testimony by Officer Counts, two other groups of photographs of the scene (Sets 2 and 3) were introduced into evidence by the defense without objection.
Following Officer Counts' testimony, the state trial judge recessed the proceedings for lunch, instructing the jury to leave all of the photographs and evidence that had been published while Officer Counts was testifying in the courtroom. During the lunch break, the court reporter discovered that the photographs in Set 1--which had not been introduced into evidence--had been placed on the jury rail in the stack along with the photographs in Sets 2 and 3--which had been properly introduced into evidence. Concerned that the jury may have been exposed to evidence that was not properly admitted, the trial judge brought this to the attention of counsel.
Although not citing any prejudice that may have resulted from the jury's viewing of the photographs, the prosecution immediately moved for a mistrial, blaming defense counsel for the error. The defense strenuously objected. It disagreed with the prosecuting attorney's suggestion that defense counsel had been responsible for placing the unadmitted photographs where the jury could view them. Moreover, defense counsel argued that a mistrial was completely unnecessary. Importantly, defense counsel offered to "recall [Officer Counts] and move [the photographs] into evidence," explaining that Officer Counts had already identified the photographs and had testified about them. Further, defense counsel stressed that even if the jury actually saw the photographs, there was no prejudice.
The state trial judge called the foreman of the jury to the courtroom and asked him whether, as far as he knew, the jury had looked at all of the photographs that had been in the stack on the jury rail before lunch. The foreman stated that as far as he knew, they had. The defense requested that the trial judge ask additional questions to ensure that the jury had in fact seen the unadmitted photographs, noting that it was entirely possible that the photographs had been placed in the stack on the railing during the lunch break since defense counsel recollected that they had been left in the witness box when the court recessed. The state trial judge, however, refused to do so and declared a mistrial over defense objection. The state trial judge stated that he had no choice but to grant a mistrial because the photographs had not been admitted, were not identified, and had not been testified to.
Defense counsel requested that the state trial judge ask the court reporter to read back Officer Counts' testimony because he, in fact, had identified the photographs and testified using them. Again, however, the state trial judge summarily declined to do so. At no point did the state trial judge indicate any awareness that possible double jeopardy concerns were implicated by the grant of a mistrial. And, neither the prosecution nor the state trial judge indicated that the photographs were in any way prejudicial to the State or the defense. 2
Thereafter, when a subsequent prosecution was brought, Petitioners moved the state trial judge to dismiss the charges against them on double jeopardy grounds, arguing that manifest necessity had not existed for the grant of the mistrial over their objections. The state trial judge denied the request, ruling that...
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