Mitchell v. Smith

• Decision Date: 03 October 1979
• Docket Number: No. 79 C 1957.,79 C 1957.
• Citation: 481 F. Supp. 22
• Parties: James MITCHELL, Petitioner, v. Harold SMITH, Warden, and Robert Abrams, Attorney General of the State of New York, Respondents.
• Court: U.S. District Court — Eastern District of New York

481 F. Supp. 22

James MITCHELL, Petitioner, v. Harold SMITH, Warden, and Robert Abrams, Attorney General of the State of New York, Respondents.

No. 79 C 1957.

United States District Court, E. D. New York.

October 3, 1979.

James Mitchell, pro se.

PLATT, District Judge.

Petitioner, James Mitchell, pro se, has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, petitioner was convicted of murder in the second degree and possession of a weapon in the second degree on March 31, 1977, in New York Supreme Court, Kings County. Subsequently, petitioner was sentenced to imprisonment for a term of twenty-five (25) years to life.

Petitioner appealed, and on May 21, 1979, the Appellate Division, Second Department, unanimously affirmed the conviction without opinion. Petitioner then applied to the Court of Appeals for leave to appeal, but his application was denied (by Wachtler, J.) on August 13, 1979. Concurrently petitioner applied to the Appellate Division, Third Department, for a writ of habeas corpus pursuant to C.P.L.R. 7002, subd. b para. 2. On January 25, 1979, the application was denied as being without merit, and on July 10, 1979, the Court of Appeals dismissed petitioner's motion for an extension of time within which to file a notice of appeal on the grounds that the Court did not have power to grant the relief requested in that civil proceeding.

Petitioner states five grounds in support of his present petition for a writ of habeas corpus. First, he asserts that the constitutional and statutory prohibition against double jeopardy should have prevented his re-trial and conviction on March 31, 1977, after an earlier trial on the same charge had ended in a mistrial on January 11, 1977. Specifically, the petitioner claims that the prosecutor asked the following series of cross-examination questions without a good faith basis therefor of a defense witness who had been called to give identification testimony:

Q. And the photographs were of the, basically, the upper part of the body, say from the chest up; do you remember that?

A. Yes.

Q. And do you remember Detective Strull asking you whether you can identify anybody in these photos?

A. Did I remember?

Q. Yes. Do you remember him asking you that question?

A. Yes.

Q. Now, Alice, isn't it a fact that you pointed to the picture of this defendant on that afternoon and said this is the individual who did the shooting?

A. No. I had never pointed out that that was him.

Q. Do you remember having a District Attorney come to the precinct and take a statement from you with a little with a stenographer and a little machine like that?

A. Yes.

Q. And the District Attorney asking you questions concerning the incident?

A. Yes.

Q. Didn't you tell that District Attorney that you had identified the photo of this defendant—

MR. COHEN defense counsel: Your Honor, may I approach the bench.

and that these questions required his attorney to move for a mistrial. Second, he asserts that "the Assistant District Attorney prosecuting the case committed reversible error in his opening statement to the jury." Third, he claims that it was error for the trial judge to have admitted evidence of petitioner's prior convictions. Fourth, he claims that the trial judge erred in permitting the introduction of unspecified "conversations concerning identification." Fifth, he asserts that the trial judge erred in admitting unspecified evidence in support of identification testimony by a prosecution witness. Petitioner's second through fifth grounds all relate to evidentiary rulings and will be dealt with together below.

The Fifth Amendment to the United States Constitution and New York C.P.L. § 40.20 (McKinney's 1971) provide that a person may not be twice prosecuted for the same offense.^* Subdivisions 2(a-f) of C.P.L. § 40.20 deal with the difficult issue of which acts may be said to constitute the "same offense", and are not directly applicable here since there is no dispute that petitioner's two trials involved the same offense. However, it is well established in the case law of New York that the constitutional and statutory immunity from double jeopardy is a personal right which may be waived. See, e. g., People v. LaRuffa, 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312 (1975); People v. Soules, 38 A.D.2d 637, 326 N.Y.S.2d 894 (3d Dept. 1971). Further, one of the most common ways for the double jeopardy immunity to be waived is the defendant's motion for or consent to a mistrial at the first trial. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Matter of Napoli v. Supreme Court, 40 A.D.2d 159, 161, 338 N.Y.S.2d 721 (1st Dept. 1972), aff'd 33 N.Y.2d 980, 353 N.Y.S.2d 740, 309 N.E.2d 137 (1974), cert. denied, 417 U.S. 947, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974).

The record in this case clearly indicates that petitioner's attorney at the first trial moved for a mistrial, Trial Transcript at 557, and that the trial judge granted the mistrial in response to that motion, Id. at 559-60. Petitioner argues before this Court, however, that the waiver rule stated above is inapplicable here because his mistrial motion was prompted by bad-faith questioning on the part of the prosecutor. That conduct, petitioner argues, presented his attorney with a "Hobson's choice": to either continue with a trial he believed to be tainted with prejudicial error and hope for a reversal on appeal, or to move for a mistrial and take his chances before a second jury. Such a choice was not really a choice, he argues, and it resulted in a mistrial motion that was involuntary and not made with the implicit recognition that it would waive petitioner's double jeopardy immunity. In support of this contention, petitioner cites United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), in which the Court purportedly held that prosecutorial "overreaching" resulting in a mistrial bars a retrial, and relies on the following statement by the Court (424 U.S. at 611, 96 S.Ct. at 1081):

"The Double Jeopardy Clause . . . bars retrials where `bad-faith conduct by judge or prosecutor,' United States v. Jorn, supra, 400 U.S. 470 at 485, 91 S.Ct. 547, at 557, 27 L.Ed.2d 543, threatens the `harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Downum v. United States, 372 U.S. 734 at 736 ,83 S.Ct. 1033, at 1034, 10 L.Ed.2d 100 . . .."

While the record does indicate that the trial judge granted the mistrial motion because of what he considered bad-faith cross-examination of a defense witness by the prosecutor, Trial Transcript at 559-63, this Court does not consider that fact dispositive under the circumstances presented here. The Supreme Court circumscribed its holding in Dinitz, supra, a...