People v. Kirby

• Decision Date: 02 February 1982
• Citation: 112 Misc.2d 906,447 N.Y.S.2d 606
• Parties: The PEOPLE of the State of New York v. Timothy KIRBY and Freddie Franklin, Defendants.
• Court: New York Supreme Court

Page 606

447 N.Y.S.2d 606

112 Misc.2d 906

The PEOPLE of the State of New York v. Timothy KIRBY and Freddie Franklin, Defendants.

Supreme Court, Criminal Term New York County, Part 50.

Feb. 2, 1982.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, for the People; Nancy Ryan, Asst. Dist. Atty., New York City, of counsel.

Irving Perl, New York City, for defendant Franklin.

Hyman Dechter, Brooklyn, for defendant Kirby.

HAROLD J. ROTHWAX, Justice:

The issue to be resolved is whether, in the factual context of this case, the court may properly dismiss an indictment because, after two or more successive trials, juries have been unable to agree on a verdict.

The defendants herein move to dismiss the indictment, charging them with the crimes of murder in the second degree (Penal Law § 125.25, subd. 1) and attempted murder in the second degree (Penal Law § 110.00), arising from the death by shooting of one John Burwell and the shooting of one Robert Robinson on January 12, 1979, on the ground that continued prosecution would subject them to double jeopardy, would constitute cruel and unusual punishment, and would not be in the interests of justice. (U.S.Const.Amdts. V, VIII, XIV; CPL 210.40). The history of this prosecution began with the defendant Kirby's initial trial for these charges in March, 1980. The defendant Franklin had not then been apprehended. A mistrial was declared when the jury, after having been sequestered overnight and having deliberated for two days, stood ten to two for conviction but were, nonetheless, unable to agree upon a verdict. In October, 1980 Franklin was joined in the instant superceding indictment. This indictment has been submitted twice for verdict in February-March 1981 and again in October-November 1981. At the conclusion of the second trial, which lasted over a month, the jury stood evenly divided as to Kirby, and eight to four for acquittal as to Franklin, when the mistrial was declared. The third trial, which lasted five weeks, resulted in a vote of ten to two for conviction as to both defendants after a day and a half of deliberations, when a mistrial was again declared. In each instance the defendants concurred in the mistrial. This court has been informed by the justice who presided over the most recent trial that the prosecution's case was expertly presented and that in his opinion there is little likelihood that any jury would in the future reach unanimous agreement as to the charges. There is no assertion by the prosecutor that any new or additional evidence will be forthcoming should the matter be tried a fourth time. This court is familiar with the professional competence of the assistant district attorney who has represented the People before the grand juries and in the three previous trials. She is of the highest calibre both in the preparation and in the presentation of the prosecution's case. None of these trials was infected by error or confusion to which the juries' inability to agree might be attributed. The fatal flaw in the prosecution's case is, in the opinion of the justice who presided at the last trial, the credibility of the prosecution's principal witness, Robert Robinson, who is the confessed killer of a close friend of Kirby and who also, apparently, is the paramour of Kirby's girlfriend.

The People now move for a fourth trial as to the defendant Kirby and a third trial as to the defendant Franklin, pursuant to CPL § 310.60. The People argue that they have the statutory right to retry the indictment and that there is no constitutional impediment to a retrial upon the facts of this case.

The court rejects the defendants' Eighth Amendment claim, since reprosecution after the declaration of a mistrial is not punishment in any constitutional sense. (See, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 Nor is the court persuaded by the defendants' interest of justice argument since the crimes charged in the indictment are the most serious, the harm caused by the alleged acts is irredeemable, both defendants have long records of continued violence and there is not a scintilla of evidence that the prosecutions are motivated by bad faith or that the conduct of the trials has been unfair to the accused. In the absence of other aggravating circumstances, the failure of successive juries to agree on a verdict does not "clearly demonstrate" that an eventual conviction "would constitute or result in injustice" (CPL 210.40; see, People v. Zagarino, 74 A.D.2d 115, 427 N.Y.S.2d 40 [2d Dept. 1980]).

The court is, furthermore, constrained by precedent to agree with the prosecution that a new trial is not, in this context, prohibited by the double jeopardy clause. (Cf. Preston v. Blackledge, 332 F.Supp. 681 The double jeopardy clause of the Fifth Amendment to the United States Constitution, which is fully applicable to the states through the due process clause of the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 ) does, in certain instances, prohibit reprosecution even though the initial prosecution did not result in a verdict and no punishment has been imposed. (Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 Examples of prohibition against retrial in this context are where the trial court improperly declares a mistrial without the requisite high degree of necessity (People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134 Torres v. Justices of the Supreme Court, 82 A.D.2d 892, 440 N.Y.S.2d 294 ) or where the failure to submit the case to the jury is due to the prosecutor's error or malfeasance. (Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 In such cases, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal" without a constitutionally significant reason. (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 There are other contexts, however, where circumstances manifest to the trial court necessitate the termination of prosecution before its completion in order to preserve "the public's interest in fair trials designed to end in just judgments" (Wade v. Hunter, supra, at 689, 69 S.Ct. at 837; Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 ). Examples of "manifest necessity" for mistrial include obvious juror bias or other circumstances making a fair completion of the trial impossible (see, People v. Zagarino, supra; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 Downum v. United States, supra ), or reversal after conviction for trial error or other technical procedural defects having no bearing upon the factual guilt or innocence of the accused. (See, e.g., United States v. Scott, 437 U.S. 82, 92-93, 98 S.Ct. 2187, 2194-95, 57 L.Ed.2d 65 People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 Illinois v. Sommerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 cf. People v. Mayo, 48 N.Y.2d 245, 422 N.Y.S.2d 361, 397 N.E.2d 1166 Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 Declaration of a mistrial where, despite legally sufficient evidence, a jury is unable to agree upon a verdict after due deliberation and where it appears to the trial court after appropriate inquiry that continued deliberation would not result in unanimity, has been characterized as the "classic example" of manifest necessity. (United States v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165 Wade v. Hunter, supra; Arizona v. Washington, supra ; cf. Preston v. Blackledge, supra ; see, Annot. Propriety of Court's Dismissing Indictment ... After Successive Trials, 4 A.L.R. 4th 1274.)

It is important to note, in this context, that on each occasion when a mistrial was declared the jury had made earnest efforts to achieve a verdict, the trial court encouraged the jurors to agree if possible, and the mistrial was declared only after the court had ascertained that further deliberation would be futile and then only with the defendants' consent. (Cf. Webb v. Court of Common Pleas, 516 F.2d 1034 Carsey v. United States, 392 F.2d 810 Accordingly, there is no basis for dismissal under the double jeopardy clause.

Despite the assessment of the most recent of the experienced justices who presided over this case at trial, after hearing the testimony of witnesses first hand, that no jury would unanimously credit the testimony of the chief witness for the prosecution, the justice had no statutory basis for dismissing the indictment. It was not his function to "weigh the evidence or assess the credibility of witnesses" when called upon to judge the merits of a motion to dismiss (CPL 290.10, 70.10, subd. 1). The trial judge could do no more than determine whether "the evidence and the inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendantguilty beyond a reasonable doubt" if the jury were to credit the witnesses. (Burks v. United States, supra, 437 U.S. at 16, 98 S.Ct. at 2149-50 [cit. omit.].)

This case, accordingly, presents what appears to be an intractable problem. Despite diligent efforts by all participants in the litigation, the case has been submitted to three competent juries over a period of two years to no avail. Although the defendant Franklin has been tried only twice, the evidence against both defendants is substantially the same, and one third of the deliberating jurors have failed to find the evidence against Franklin persuasive beyond a reasonable doubt. The issue has thus become whether continued trials in the absence of any new evidence will serve the purposes of a fair and reasonable administration of the criminal laws.

Other courts, faced...