McNeal v. Hollowell

• Citation: 481 F.2d 1145
• Decision Date: 23 November 1973
• Docket Number: No. 73-1214.,73-1214.
• Parties: Tommy McNEAL, Petitioner-Appellant, v. William HOLLOWELL, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

481 F.2d 1145 (1973)

Tommy McNEAL, Petitioner-Appellant, v. William HOLLOWELL, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.

No. 73-1214.

United States Court of Appeals, Fifth Circuit.

July 13, 1973.

Rehearing and Rehearing Denied November 23, 1973.

David M. Lipman, Oxford, Miss., Johnnie E. Walls, Jr., Greenwood, Miss., for petitioner-appellant.

A. F. Summer, Atty. Gen., Edwin A. Snyder, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 23, 1973.

DYER, Circuit Judge:

This habeas corpus petition presents the single important question of whether McNeal's trial and conviction in a Mississippi state court was barred by an earlier jury trial on the same charge which was terminated, prior to a verdict and over McNeal's objection, by the prosecutor's successful request for a nolle prosequi. We conclude that the second trial violated the Fifth and Fourteenth Amendments' proscription against placing a person in jeopardy twice for the same offense. Accordingly we reverse.

When considering cases raising similar double jeopardy issues, the Supreme Court has consistently stated that it would be inappropriate to create a body of rigid and mechanical rules by which to judge the merits of the constitutional claim; instead the problem must be evaluated in terms of all the facts and circumstances of each individual case. Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425; United States v. Perez, 1824, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165. Consequently, we set out in detail the circumstances that gave rise to McNeal's petition.

I.

In March 1968, the manager of a Clarksdale, Mississippi, gas station was killed in a robbery attempt. Several days later, Louis Banks was apprehended as a suspect and he gave a complete account of what transpired at the gas station. Because of his cooperation and because he was believed to be a "lesser actor" in the murder, he was allowed to make a reduced bond, but, on July 11, 1968, he was indicted, along with McNeal and Roosevelt Ford, for the murder of the station attendant. The trials of the three defendants were severed and McNeal was tried first, initially on July 25, 1968.

In preparing for McNeal's trial, the prosecutor realized that he had two key witnesses. The first, David Luster, was not totally cooperative or consistent, but he had stated on several occasions that McNeal told him that he was the one who had shot the station attendant. The second key witness was Banks, whose retained counsel was Joseph Kellum. In his discussions with the prosecutor prior to and even early in the trial, Kellum indicated that his client would not invoke his Fifth Amendment privilege against self-incrimination.¹

McNeal was brought to trial on July 25, 1968, and a jury was impaneled and sworn. On the second day of trial, after thirteen witnesses had testified for the State, the prosecutor called Luster to the stand, planning to call Banks next as the State's last witness.

Luster's testimony on the stand was not what the prosecutor either wanted or expected. Instead of testifying that he heard Tommy McNeal, the defendant, say that he had killed the station attendant, Luster stated that Tommy McNeal, the defendant's uncle had told him that Tommy McNeal, the defendant, had said that he had killed the attendant. Following this surprise, the prosecutor made an extensive attempt to get Luster to recant this testimony, but Luster refused to change his story. With Tommy McNeal, the uncle, unavailable as a witness, the status of Banks as an already crucial witness was heightened.

Banks was then called to the stand as a witness. At this time McNeal's counsel, Harvey Ross, apparently obtained permission from the court to speak to Banks and his attorney, Kellum, in an anteroom off of the courtroom.² Following a vociferous, but unreported exchange Kellum returned to the courtroom and announced that he would not allow his client, Banks, to testify. Banks was then sworn and he stated that he would not testify, claiming his Fifth Amendment privilege.

With both of his key witnesses unable or unwilling to substantiate the State's case, the prosecutor immediately requested that the case against McNeal be "nolle prosequied." McNeal's counsel objected, requesting a conclusion of the trial on the merits or, if the State had no further proof, a directed verdict of acquittal. The court thereupon granted the prosecutor's motion and discharged the jury, stating that the prosecutor "has found out after getting into it that he is unable to make out his case."³

A few days after the nolle prosequi in the McNeal case, Banks was placed on trial for murder. According to the same prosecutor's later testimony, he intentionally offered little evidence in this case because he knew that the court would direct a verdict of not guilty, which would have the effect of granting Banks immunity.⁴ McNeal was quickly re-indicted and came to trial again in February 1969 at the next term of court. This trial culminated in his conviction, which was affirmed on appeal. McNeal subsequently exhausted his State post-conviction remedies and filed his federal habeas corpus petition. Following a full evidentiary hearing, the district court concluded that any necessity for a nolle prosequi in the first trial was precipitated by McNeal's counsel's last-minute conference with Banks and his attorney. Consequently, the habeas petition was denied. McNeal v. Collier, D.C., 353 F.Supp. 485.

II.

McNeal's argument in condensed form is that there was no improper conduct by his counsel at the first trial and that the state trial judge abused its discretion by granting a nolle prosequi long after the jury had been impaneled and substantial evidence had been offered. The State responds that no judicial or prosecutorial misconduct has been shown to have occurred and that the district court's finding that a manifest necessity for the nolle prosequi existed because Banks' Fifth Amendment claim was solicited by McNeal's counsel is not clearly erroneous. We thus face the seemingly uncomplicated task of applying the law on double jeopardy to the facts before us.

III.

The law regarding double jeopardy has recently been carefully reviewed and explained by the Supreme Court in Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, and by this Court in Smith v. Mississippi, 5 Cir.1973, 478 F.2d 88. Therefore, with reference to these two cases we refrain from treating in extenso all of the principles and policies inherent in the theory of double jeopardy and instead direct our attention to the particular factors which have a bearing on the resolution of the issue before us.

The Fifth Amendment's proscription against placing a person in jeopardy twice for the same offense has been applied to the states through the Due Process Clause of the Fourteenth Amendment and this application must be made retroactively. Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; see Price v. Georgia, 1970, 398 U.S. 323, 331 n. 9, 90 S.Ct. 1757, 26 L.Ed.2d 300; Ashe v. Swenson, 1970, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 25 L.Ed.2d 469; Waller v. Florida, 1970, 397 U.S. 387, 391 n. 2, 90 S.Ct. 1184, 25 L.Ed.2d 435; North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Galloway v. Beto, 5 Cir.1970, 421 F.2d 284, cert. denied, 400 U.S. 912, 91 S.Ct. 137, 27 L.Ed.2d 151.

Because "the prohibition is not against being twice punished, but against being twice put in jeopardy," United States v. Ball, 1896, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300, it is necessary to determine when jeopardy attaches in a jury trial. In Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, the Supreme Court recognized that this occurs when the jury is impaneled and sworn, thus vesting the defendant with the valued right to have his trial completed before that tribunal and that jury. See Wade v. Hunter, 1949, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974.

This "valued right" is not absolute, however, and the determination that jeopardy has attached is the first step on the road to a decision on the double jeopardy question, and not the last. When, as in this case, jeopardy has attached, and only then, the inquiry shifts to the trial judge who, in his sound discretion, must consider all the circumstances to determine whether there is a manifest necessity to dismiss the jury without a verdict or whether the ends of public justice would otherwise be defeated. United States v. Perez, 1824, 22 U.S. 579, 580, 9 Wheat. 579, 580, 6 L.Ed. 165.

The problem of moving from the general formulation in Perez to the facts of an individual case is complicated by the absence of any rigid rules, which makes categorization of earlier cases extremely difficult. See Wade, supra 336 U.S. at 691, 69 S.Ct. 834. The Supreme Court in Somerville, while continuing to reject a rigid classification, did distill a general approach from the previously decided cases and recognized at least two lines of precedent.

The first generalization is that a trial judge correctly declares a mistrial⁵ when, in his discretion, "an impartial verdict cannot be reached, or ... a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial." Somerville, supra 93 S.Ct. at 1070, 35 L.Ed.2d at 431.⁶ The fatally defective indictment in Somerville fell into this class, as would the potentially prejudiced juror in Smith.⁷

Our case simply does not even remotely resemble the cases relied on in Somerville, or those which have since followed it. The first state trial below contained no hint of prejudice that would have impeded the attainment of an impartial jury verdict; similarly no procedural error has been called to our attention...