U.S. v. Larry

• Decision Date: 25 June 1976
• Docket Number: No. 75-2331,75-2331
• Citation: 536 F.2d 1149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John William LARRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1149

536 F.2d 1149

42 A.L.R.Fed. 783

UNITED STATES of America, Plaintiff-Appellee, v. John William LARRY, Defendant-Appellant.

No. 75-2331.

United States Court of Appeals, Sixth Circuit.

Argued April 12, 1976.

Decided June 25, 1976.

Gershwin A. Drain, Federal Defender Office, F. Randall Karfonta, William L. Woodard, Detroit, Mich., for defendant-appellant.

Ralph B. Guy, Jr., U. S. Atty., Gordon S. Gold, Loren Keenan, Asst. U. S. Attys., Detroit, Mich., for plaintiff-appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges, and GREEN ^*, Senior District Judge.

GREEN, Senior District Judge.

Appellant was convicted by a jury upon a two-count indictment charging assault with intent to commit sodomy, 18 U.S.C. §§ 113(b) and 7, and commission of the substantive offense of sodomy, 18 U.S.C. §§ 13 and 7. The incident giving rise to those charges occurred at the Federal Correctional Institution at Milan, Michigan where appellant and the alleged victim, Gary Higginbotham, were both inmates. Appellant's conviction of the charges was at his second trial upon the indictment, the first trial having terminated upon the declaration of a mistrial after the jury had commenced its deliberations.

Appellant alleges two errors in the trial court which he asserts warrant reversal of the above conviction. The initial assignment of error is that the District Court denied appellant's Fifth Amendment right not to be subjected to double jeopardy by retrying him after an alleged premature declaration of mistrial at his first trial. The second assignment of error is that the trial court denied appellant's Sixth Amendment right to confront witnesses against him by allowing a government witness to invoke the privilege against self-incrimination as to matters the witness had disclosed at the previous trial.

Appellant was first brought to trial on December 3, 1974. After three days of testimony the case was adjourned until December 9, apparently for closing arguments and instructions to the jury. The jury commenced its deliberations at some time on December 9, the precise time not being clear from the record.

During the course of its deliberations on December 10, 1974 the jury propounded questions to the court regarding several collateral matters. The trial judge called the jury into open court for his responses. The record does not reflect the time at which that occurred, although it was prior to the noon recess. Appellant asserts that the jury had been in deliberations for approximately 31/2 hours at the time.

After responding to the questions presented by the jury, the court engaged the forelady in the following colloquy:

The Court: Now bearing those questions in mind I don't think that I have helped you much, if any, with the question you have asked because I feel satisfied that I am not permitted to any farther for fear of creating error. Is it your opinion, Madam Forelady, that you will be unable to reach a verdict?

The Forelady: Yes it is.

The Court: And that you are definitely at a deadlock?

The Forelady: Yes sir. We seem to be.

The Court: You seem to be?

The Forelady: Yes.

The Court: Do you think it would continue?

The Forelady: We haven't made any headway at all.

The Court: And has it been, whatever the situation, I don't want to know the numbers, has it been that way from the outset?

The Forelady: Yes, sir.

The Court: And hasn't changed.

The Forelady: No, sir.

The Court: Under the circumstances that here exist I do declare this to be a mistrial . . .

Prior to the commencement of the second trial in June, 1975 appellant moved for dismissal of the indictment on double jeopardy grounds. That motion was denied, and the court permitted the trial to go forward.

As in the first proceeding, the essence of the government's case at the second trial was that the appellant requested a visit from a fellow inmate named Higginbotham, and upon Higginbotham's arrival at appellant's cell the appellant assaulted him and forced him to submit to a sodomous act. As part of its proof against appellant the government presented expert medical testimony to the effect that an examination of Higginbotham shortly after the time of the alleged assault revealed certain rectal abrasions and fissures which had been caused by the introduction of some foreign object into the rectum.

During the cross-examination of a prosecution witness named Evans defense counsel attempted to pursue a line of inquiry relating to the witness' opinion as to the reason Mr. Higginbotham and appellant were together in appellant's cell, in the course of which counsel sought to have the witness testify as to a statement he had previously given to the F.B.I. in which Evans expressed a suspicion that Higginbotham was dealing in drugs at the institution. Evans stated that while he had an opinion he did not in fact know why the two men were together. The trial court then sustained an objection to further testimony on that subject by the witness and would not permit cross-examination based upon the statement, on the basis that the statement merely reflected "suspicion and belief, as opposed to knowledge".

Upon the trial court's sustaining of the prosecution's objections defense counsel then asked "Did you ever use marijuana in the institution?" That question was objected to. The jury was excused, and the court then advised the witness of his privilege against self-incrimination under the Fifth Amendment. Following such advice the question was again propounded, and the witness declined to answer "because it might incriminate me". Defense counsel then suggested to the court that the witness had waived his Fifth Amendment rights by testifying on the same subject at the first trial. The court rejected that contention on the basis that the witness had not been advised of his privilege at the first trial.

The initial question raised by this appeal is whether the declaration of a mistrial at appellant's first trial was improper so that reprosecution subjected appellant to double jeopardy within the meaning of the Fifth Amendment.

At the outset it should be noted that the effect of the Double Jeopardy Clause is to preserve a defendant's right to have his trial completed by a particular tribunal, Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), and to protect a defendant from the considerable burdens which are imposed by multiple prosecutions. Thus reprosecution is barred where "bad faith conduct by the judge or prosecutor" threatens "harassment of an accused by successive prosecutions or declarations of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). However, the prohibition against placing an individual twice in jeopardy for the same offense is not absolute, in that the Fifth Amendment does not require that each time a defendant is put on trial before a court of competent jurisdiction he must be set free should the trial fail to end in a final judgment. Wade v. Hunter, supra, 336 U.S. at p. 688, 69 S.Ct. 834. When, taking all circumstances into account, there is a " manifest necessity for the (mistrial) or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824), the court is invested with the authority to discharge the jury and the defendant may be re-tried consistent with the Fifth Amendment. Illinois v. Somerville, 410 U.S. 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Gori v. United States, supra, 367 U.S. at 364, 368, 81 S.Ct. 1523 (1961); Wade v. Hunter, supra, 336 U.S. at pp. 689-690, 69 S.Ct. 834.

The sole limitation on the authority of the court to determine that a mistrial is "manifestly necessary" is that the judge must exercise his "sound discretion" in determining that the ends of public justice would not be served by a continuation of the proceedings. United States v. Jorn, supra, 400 U.S. at p. 481, 91 S.Ct. 547; Gori v. United States, supra, 367 U.S. at p. 368, 81 S.Ct. 1523; United States v. Perez, supra, 9 Wheat. at p. 580, 6 L.Ed. 165.

Appellant does not deny the general rule that "manifest necessity" for the declaration of a mistrial may be found in the inability of a jury to reach a verdict. Appellant does maintain that in this instance the declaration of the mistrial was so premature that it must be considered to have been an abuse of the trial court's discretion. If a mistrial had been improperly declared appellant's retrial would have been violative of his Fifth Amendment right not to be subjected to double jeopardy.

Examination of the decisional authorities cited by both sides herein reflects the considerations which other reviewing courts have applied in determining this issue, but they do not provide a definitive precedential proposition to be applied in this case. In the final analysis, any question of the propriety of the exercise of judicial discretion is a factual matter which can only be determined on a case by case basis dependent upon the individual circumstances under review. The Supreme Court has stated that the determination as to whether a mistrial is to be declared hinges upon the taking into account of all circumstances, which "forbid(s) the mechanical application of an abstract formula". Wade v. Hunter, supra, 336 U.S. at p. 691, 69 S.Ct. at p. 838.

In this instance the presentation of evidence in appellant's initial trial was concluded within a three day span. It appears that the issue for the jury's consideration was a simple one was Mr. Higginbotham in fact assaulted by appellant at a time when they were alone in appellant's cell which would be controlled by the jury's decision on the credibility of the major witnesses. The jury was in deliberations over a two-day span, the net result of which was the propounding of questions to the court which...