Jones v. Anderson

• Citation: 404 F. Supp. 182
• Decision Date: 05 September 1974
• Docket Number: Civ. A. No. 174-63.
• Parties: Gary L. JONES v. William A. ANDERSON, Sheriff, Richmond County, et al.
• Court: U.S. District Court — Southern District of Georgia

404 F. Supp. 182

Gary L. JONES v. William A. ANDERSON, Sheriff, Richmond County, et al.

Civ. A. No. 174-63.

United States District Court, S. D. Georgia, Augusta Division.

September 5, 1974.

John Fleming, Augusta, Ga., for plaintiff.

Richard Allen, Dist. Atty., Augusta, Ga., for defendants.

ORDER

ALAIMO, District Judge.

In his petition for a writ of habeas corpus, petitioner seeks the reversal of state convictions in the Superior Court of Richmond County, Georgia, on the grounds that his retrial following a mistrial constituted double jeopardy barred by the Fifth and Fourteenth Amendments. He complains of his September 22, 1973, trial and conviction on charges of rape, aggravated assault, and armed robbery (two counts) which followed a mistrial on May 16, 1973, declared on the district attorney's motion over the petitioner's objection, when the trial judge found that one of the jurors had made a false statement on voir dire by failing to disclose his acquaintance with the prosecutrix and her husband.

Petitioner has exhausted available state remedies. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).

The Mistrial

Sometime prior to petitioner's first trial, the prosecutrix and her husband went to the house of the disqualified juror located approximately two blocks from their residence. The visit was occasioned by their daughter's report that the juror's son had made insulting remarks to her on the school bus concerning the incident which gave rise to the charges against the petitioner. The prosecutrix's husband described their fruitless efforts to get the juror to reprimand his son as "not a friendly conversation."

At the start of petitioner's first trial on May 16, 1973, the suspect juror did not, during voir dire examinations, acknowledge his acquaintance or encounter with prosecutrix and her husband. He failed to respond affirmatively to the following question by the defense counsel:

"Is there any one here potential jurors acquainted with either of those ladies or members of their family—stating the prosecutrix's and another person's names?"

He had also previously not responded to a general question by the district attorney—"Is there any reason I haven't mentioned that you would be uncomfortable trying to sit as a fair and impartial juror in the trial of this case?" Two fellow-members of the juror's panel answered the question affirmatively; one relating his acquaintance with the prosecutrix's family, and the other stating that a relative had recently been raped. On the individual voir dire of the juror, the record indicates that his answer to the question: "Do you know anything about this case?" was transcribed as "(Reply inaudible)." Neither attorney, however, objected to his sitting on the jury. The jury was then selected, sworn, and sent to lunch together.

Following the lunch recess and before the presentation of any evidence, but outside the presence of the jury, the district attorney informed the trial judge that one juror was apparently aware of the facts of the case. Following defense counsel's refusal to agree to a jury of eleven, the State moved for a mistrial. In support of the motion, the prosecutrix's husband related the details of the incident at the juror's house. After reviewing a recording of the voir dire and asking "Anything further," the court concluded, without further examining the suspect juror:

"The termination of this trial is necessary because of a false statement of a juror on voir dire which prevents a fair trial. Therefore, I will grant the motion for a mistrial made by the District Attorney."

Petitioner's counsel then objected to the mistrial without specifying any reason.

It is significant to note at this point that neither the district attorney nor defense counsel advised the court of the alternative, short of a mistrial, permitted by Georgia Code § 59-809:

"When a juror shall have been found competent as aforesaid, no other or further investigation before triors or otherwise shall be had, except upon newly-discovered evidence to disprove his answer or to show him incompetent as aforesaid, which may be heard by the judge at any time before any of the evidence on the main issue shall be submitted; and if the juror shall be proved incompetent, the judge may order him withdrawn from the jury and cause another juror to be selected in the manner provided in this Chapter."

Georgia Laws, 1855-56, p. 231; Georgia Code § 59-809 (1933). From the record of the arguments before the trial judge, it is clear that neither the attorneys nor the judge were familiar with this statute.¹

The Attachment of Jeopardy

In light of recent decisions by the Supreme Court, the Fifth Circuit Court of Appeals, and the Supreme Court of Georgia, there is no doubt that jeopardy attached at petitioner's first trial, on May 16, 1973, when the jury was selected and sworn. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Dinitz, 492 F.2d 53 (5th Cir. 1974); and Ferguson v. State, 219 Ga. 33, 35, 131 S.E.2d 538 (1963), cert. denied, 381 U.S. 905, 85 S.Ct. 1451, 14 L. Ed.2d 286 (1965).

The "Bias" Juror Cases

Petitioner argues principally that there was no manifest necessity in declaring a mistrial because (1) the incompetence of the juror was never clearly established; (2) his competence was, in fact, established by the record as a whole; and (3) even if the juror was not qualified, the court failed to utilize the alternative of substituting a replacement juror.

The issue before the Court involves only the question of whether the trial judge abused sound judicial discretion in declaring the mistrial over the petitioner's objection. As summarized recently in Illinois v. Somerville, 410 U. S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the determining factors are "whether the declaration of a mistrial was required by `manifest necessity' or the `ends of public justice.'" 410 U.S. at 468, 93 S.Ct. at 1072. Thus, a trial judge does not abuse sound judicial discretion, in declaring a mistrial over a defendant's objection, where "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), quoted approvingly in Illinois v. Somerville, 410 U.S. at 461, 93 S.Ct. 1066. See United States v. Moon, 491 F.2d 1047, 1049 (5th Cir. 1974), and Smith v. Mississippi, 478 F.2d 88, 94 (5th Cir. 1973), cert. denied, 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740 (1973).

In summarizing the "bias" juror cases, the Supreme Court has concluded that "a trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached ...." Illinois v. Somerville, 410 U. S. at 464, 93 S.Ct. at 1070. That Court has held a number of times that a mistrial, following the discovery of a juror's possible incompetence, does not bar retrial under the Double Jeopardy Clause. For example, in Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L. Ed. 968 (1891), the jury was dismissed over the defendant's objection because one juror had been acquainted with the defendant and was, therefore, probably prejudiced against the Government. The Court reasoned:

"There can be no condition of things in which the necessity for the exercise of this power to grant a mistrial is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused."

142 U.S. at 154, 12 S.Ct. at 172. See also, Thompson v. United States, 155 U. S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894). Similarly, on a claim of double jeopardy in Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973), the court found that a state trial judge's declaration of a mistrial was "not unreasonable" where a juror had made statements indicating a possible preconception as to the defendant's innocence prior to the presentation of any evidence.

Mr. Justice Black has succinctly summarized the standard generally applicable in "bias" juror cases:

"There have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial." (Emphasis added)

Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

Petitioner contends, however, that the trial judge erred in excluding the juror because the evidence did not affirmatively show the juror, in fact, had a particular bias or prejudice and because the record established his competence to serve as a juror. Petitioner misconstrues and confuses the law in cases where a juror is disqualified with cases where a convicted defendant assigns error on the court's failure to exclude an incompetent juror. In the latter cases, the trial court errs in failing to exclude a juror with a clearly fixed opinion, bias, or prejudice. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L. Ed.2d 751 (1961); and Willis v. State, 12 Ga. 444 (1853). In contrast, a trial judge properly exercises his discretion in excluding a juror and declaring a mistrial where a juror "might be biased against the Government or the defendant." Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837. See Simmons v. United States, supra; and Smith v. Mississippi, supra. Consequently, petitioner's arguments are inapposite. The controlling principle is whether, under all the circumstances, the trial judge could have reasonably determined that the...