Halsey v. Clarke

• Decision Date: 14 January 1993
• Docket Number: No. CV89-L-506.,CV89-L-506.
• Parties: Ben M. HALSEY, Petitioner, v. Harold W. CLARKE, Respondent.
• Court: U.S. District Court — District of Nebraska

821 F. Supp. 1319

Ben M. HALSEY, Petitioner, v. Harold W. CLARKE, Respondent.

No. CV89-L-506.

United States District Court, D. Nebraska.

January 14, 1993.

Ben M. Halsey, pro se.

Douglas W. Hand, Lincoln, NE (Court-Appointed), for petitioner.

Robert M. Spire, Atty. Gen., Sharon M. Lindgren, Lincoln, NE, for respondent.

MEMORANDUM OF DECISION

URBOM, Senior District Judge.

By the report and recommendation dated December 9, 1992, United States Magistrate Judge David L. Piester recommended that the petition be denied. The petitioner objects to the finding of the magistrate judge on the petitioner's first claim asserting a violation of his right to be free from double jeopardy and to the magistrate judge's conclusion that the petitioner failed to exhaust his state court remedies with respect to his claim regarding his waiver of a jury trial.

As to petitioner's first claim, which has to do with double jeopardy, I think the magistrate judge has properly analyzed the matter. Contrary to the petitioner's view, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1989), does not provide relief to him. The holding in that case was that:

"The Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted."

Id. at 510, 110 S.Ct. at 2087.

To prove first degree assault, which was the subject of the petitioner's second trial, the state did not prove conduct which would constitute attempted first degree murder, which was the only offense for which he was tried at the first trial to a conclusion. As to all other charges, a mistrial was declared and the mistrial does not constitute the triggering of the double jeopardy clause.

As to the waiver of a jury trial, I agree with the petitioner that the magistrate judge was mistaken when he concluded in his December 9, 1992, report and recommendation that the issue had not been exhausted by presentation to the Supreme Court of Nebraska.

The magistrate judge in an earlier memorandum, filing 10, dated August 17, 1990, ruled that the petitioner had exhausted that issue before the Supreme Court of Nebraska, saying:

"It is true, as argued by the respondent, that the authority cited by the petitioner in his appellate brief to the Nebraska Supreme Court regarding the waiver of jury trial, is not federal authority. However, one of the cases relied upon, State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987)¹, clearly rests upon federal constitutional authority in discussing the right to jury trial and the requirements of a waiver of that right. For this reason, I find that the petitioner adequately presented his constitutional claim to the Nebraska Supreme Court regarding his sixth claim, the waiver of jury trial for the second trial."

That conclusion was correct. Not only did the petitioner's brief on appeal to the Supreme Court of Nebraska cite State v. Bishop, but it cited State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988), State v. Kaba, 217 Neb. 81, 349 N.W.2d 627 (1984), and Sutton v. State, 163 Neb. 524, 80 N.W.2d 475 (1957). State v. Bishop dealt directly with the Fourteenth Amendment of the Constitution of the United States regarding trial by jury. State v. Bishop is cited in State v. Zemunski, 230 Neb. at page 618. State v. Kaba and Sutton v. State do not appear to rely upon federal constitutional law, but deal with the question of a trial judge's discretion in permitting withdrawal of a valid waiver of a jury trial.

The Supreme Court of Nebraska had before it, not only two cases rooted in federal constitutional law, but the argument in the appellant's brief. In that brief's "Conclusion" the appellant's position was summed up this way:

"Ben Halsey was entitled by constitutional standards to a decision, win or lose, from the jury empaneled on April 25, 1988, and that right has been taken from him by the trial court." (Emphasis added).

Filing 5 at page 31. The Supreme Court of Nebraska did not find it necessary to deal with the issue in constitutional terms, because it noted that there never was a motion to withdraw the waiver of a jury trial, but, rather, the defendant moved for a mistrial upon the ground that his waiver of a jury was improvident and had been based upon a ruling on the State's motion in limine that had been made almost two months earlier. Nevertheless, the Supreme Court of Nebraska had before it the constitutional issue and had fair opportunity to resolve it, if it had thought it needed to do so. That is enough for exhaustion purposes.

With respect to the merits of the claim regarding waiver of the jury trial the argument of the petitioner is that he did not make a waiver knowingly and intelligently, because he did not know at the time of the waiver that the trial judge would reverse himself on a motion in limine, a ruling which had favored the defense at the first trial. I feel confident that the granting of a motion in limine and the judge's later reversing that decision does not mean that reliance upon the original ruling amounts to a waiver that is not knowingly and intelligently done. All decisions to waive a jury trial are based upon some uncertainties of what the evidence will be at a future trial. A defendant simply cannot insist that unless he knows what evidence will be received there can be no voluntary waiver.

Accordingly, I agree with the magistrate judge that the petition for writ of habeas corpus must be denied.

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

Pending before the court is the petition for writ of habeas corpus filed by Ben M. Halsey. For reasons discussed more fully below, I shall recommend the petition be denied.

BACKGROUND

Petitioner was arrested in connection with the beating of Ramona Vyhlidal and subsequently charged with attempted first degree murder and first degree assault. A jury trial on the charges commenced April 25, 1988, and the case was submitted to the jury at 2:30 p.m. on April 28, 1988. Five verdict forms were given to the jury, permitting them to find the defendant: (1) guilty of first degree assault, (2) not guilty of first degree assault, (3) guilty of attempted first degree murder, (4) guilty of attempted second degree murder, or (5) not guilty of attempted first or second degree murder.¹ Shortly after submission of the case, the jury requested that they be allowed to listen to tape-recorded testimony of certain witnesses. The prosecution objected to the request, and the trial court advised that the tape-recorded testimony would not be played back absent a stipulation of the parties.

At 5:10 p.m. on April 29, 1988, the jury foreman reported that the jurors were divided 10 to 2, that they had been split since the evening before, and that it did not appear further deliberations would result in any change. (Filing 7, Transcript of Proceedings April 28th and 29th at 8:2-9:3). The trial court gave the jury a mild version of an "Allen charge"² (Filing 7, Transcript of Proceedings April 28th and 29th at 7:6-9:21), and asked them to reconvene after a dinner break and reread the instructions aloud in "one final effort" to reach a unanimous verdict. Id. at 9:9.

After returning from dinner, the jury foreman asked the bailiff to inform the trial court that the jury had reached a unanimous verdict on "one" of the counts. State v. Halsey, 232 Neb. 658, 660, 441 N.W.2d 877 (1989). The trial court responded by asking the bailiff to inform the jury that "they needed to complete the other count." Id. The bailiff so informed the jury. It appears neither the defense nor the prosecution were present during this particular communication through the bailiff, but became aware of the communication sometime after trial.

At 8:45 the evening of April 29th, the jury was called to the courtroom and the foreman reported in open court that the jurors were divided 9 to 3 and he did not believe there was a reasonable possibility the jurors could reach a unanimous verdict. When asked by the court, no juror disputed the foreman's statement. (Filing 7, Transcript of Proceedings April 29th at 1:20-2:12). The court declared a mistrial due to the jury's inability to agree, and discharged the jury. (Filing 7, Transcript of Proceedings April 29th at 2:11-17).

Before the second trial began, petitioner's counsel filed a motion to dismiss the attempted first degree murder charge after having discovered that the jury had actually reached a unanimous verdict with respect to that charge. On June 8, 1988, a hearing was held on the motion. The jury foreman testified that although the jury was unable to reach agreement on the charges of attempted second degree murder or first degree assault, they did reach a unanimous verdict of "not guilty" on the charge of attempted first degree murder. (Filing 7, Transcript of Proceedings June 8th at 57:7-58:5; 65:13-22). Apparently, they did not return the "not guilty" verdict on the attempted first degree murder charge believing that they had to reach a unanimous verdict on all counts before returning a verdict on any single count. (Filing 7, Transcript of Proceedings June 8th at 62:12-20). At the end of the hearing, the judge entered a verdict of "not guilty" on the charge of attempted first degree murder, but reiterated that the jury had reached neither an acquittal nor a verdict of guilt with respect to the lesser-included offense of attempted second degree murder or the offense of first degree assault. (Filing 7, Transcript of Proceedings June 8th at 70:8-18).

In July, 1988, petitioner was retried on the charge of first degree assault.³ At the retrial, petitioner elected to waive a jury, and the case was tried to the bench.⁴ Petitioner was found guilty of first degree assault (Filing 7, Transcript of Proceedings September 21st at 299:20-300:1), and sentenced to incarceration for...