United States ex rel. Jackson v. Follette, No. 527

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: KAUFMAN, MANSFIELD and OAKES, Circuit
• Citation: 462 F.2d 1041
• Parties: UNITED STATES of America, ex rel. Nathan JACKSON, Petitioner-Appellant, v. Harold W. FOLLETTE, Warden, Green Haven Correctional Facility, Respondent-Appellee.
• Decision Date: 23 June 1972
• Docket Number: No. 527,Docket 71-2142.

462 F.2d 1041 (1972)

UNITED STATES of America, ex rel. Nathan JACKSON, Petitioner-Appellant,
v.
Harold W. FOLLETTE, Warden, Green Haven Correctional Facility, Respondent-Appellee.

No. 527, Docket 71-2142.

United States Court of Appeals, Second Circuit.

Submitted February 28, 1972.

Decided June 23, 1972.

462 F.2d 1042

Daniel G. Collins, New York City, for petitioner-appellant.

Samuel A. Hirshowitz, First Asst. Atty. Gen., Hillel Hoffman, Asst. Atty. Gen. (Louis K. Lefkowitz, Atty. Gen. of State of New York), for respondent-appellee.

Before KAUFMAN, MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Nathan Jackson, of Jackson v. Denno¹ fame, now raises a difficult as well as important claim of double jeopardy.² In this appeal from Judge Cannella's

462 F.2d 1043

denial of his application for a writ of habeas corpus under 28 U.S.C. § 2241 et seq., petitioner also seeks to overturn his conviction by a "blue-ribbon jury" under the now repealed law of April 7, 1938, ch. 552, § 749-aa, N.Y. Judiciary Law, McKinney's Consol.Laws, c. 30, § 749-aa (repealed 1965), on constitutional grounds

However much we might agree with the original dissent in Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947) (5-4 decision), that case did uphold the New York special jury as not in violation of the equal protection or due process clauses. Two recent attacks in this circuit on the "blue-ribbon jury" have failed. United States ex rel. Torres v. Mancusi, 427 F.2d 168 (2d Cir.), cert. denied, 400 U.S. 952, 91 S.Ct. 252, 27 L.Ed.2d 259 (1970); United States ex rel. Fein v. Deegan, 410 F.2d 13, 22 (2d Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969). We are not about to overrule both the Supreme Court and two previous panels of this court. See also Vanderwyde v. Denno, 113 F.Supp. 918 (S.D.N.Y.1953), aff'd per curiam, 210 F.2d 105 (2d Cir.), cert. denied, 347 U.S. 949, 74 S.Ct. 646, 98 L.Ed. 1096 (1954).

To comprehend the double jeopardy claim, the full saga of petitioner's odyssey through the courts must be recounted. Jackson was convicted of the murder of a police officer on the street after an armed robbery in a Brooklyn hotel and was sentenced to death by County Judge Barshay of Kings County on November 28, 1960. At the trial the jury was presented with evidence, and the court instructed it, on both "common law" or premeditated³ murder and felony murder, each of which was murder in the first degree under former N.Y. Penal Law §§ 1044(1), (2) (Penal Law of 1909) now substantially revised as N.Y.Penal Law §§ 125.25(1), (3) (McKinney's Consol.Laws, c. 40, 1967). Without objection by appellant⁴ the jury was also instructed that if it returned a verdict on one count it was to remain silent on the other. The conviction was for premeditated murder, and no verdict was rendered as to felony murder.

The conviction was affirmed by the New York Court of Appeals without opinion on July 7, 1961. 10 N.Y.2d 780, 212 N.Y.S.2d 621, 177 N.E.2d 59. A motion for reargument was denied on October 5, 1961, 10 N.Y.2d 885, 223 N.Y.S.2d 1027, 179 N.E.2d 717, but the remittitur was amended to show that the court had considered but rejected Jackson's arguments pertaining to the voluntariness of his confession. 10 N.Y.2d 816, 221 N.Y.S.2d 521, 178 N.E.2d 234. Certiorari was denied, 368 U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961), as were a stay of execution, 82 S.Ct. 541, 7 L.Ed.2d 766 (1962), and a further motion for reargument, 11 N.Y.2d 798, 227 N.Y.S.2d 1025, 181 N.E.2d 854.

Thereafter collateral attack by way of habeas corpus began. After defeats in the district court, 206 F.Supp. 759 (S.D. N.Y.1962), and in this court, 309 F.2d 573 (2d Cir. 1962), the landmark case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (5-4 decision), held unconstitutional the New York procedure permitting the jury to pass upon the voluntariness of a confession after hearing it read.⁵ In doing

462 F.2d 1044

so, the Court left it open to New York "to give Jackson a new trial if it so chooses," 378 U.S. at 395, 84 S.Ct. at 1790, but permitted the State in the alternative to furnish proof of the voluntariness of Jackson's confession in a hearing before the trial judge

The State elected to retry Jackson without the use of the disputed confession. On Jackson's motion, with the State's consent, the New York Court of Appeals amended its remittitur, vacated its judgment and remanded the case to the Supreme Court, Kings County, for a new trial. People v. Jackson, 15 N.Y.2d 851, 257 N.Y.S.2d 958, 205 N.E.2d 877 (1965).

At the second trial the prosecution again introduced evidence pertaining to felony as well as to premeditated murder. Appellant promptly objected on double jeopardy grounds and preserved his objections in all respects, objecting to all portions of the charge relating to felony murder as well.⁶ The charge was essentially as given at the first trial.

The rub is that the jury found Jackson guilty on the second trial of felony murder and remained silent on premeditated murder. He was accorded a hearing before that same jury and sentenced to death. This conviction and sentence were affirmed. People v. Jackson, 20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722 (1967), cert. denied, 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668 (1968). In rejecting Jackson's claim that he was subject to double jeopardy on the felony murder count and affirming the conviction unanimously, the New York Court of Appeals said that "this court . . has never directly decided whether felony murder and premeditated murder constitute a single offense or multiple offenses for the purposes of double jeopardy." 20 N.Y.2d at 451, 285 N.Y.S.2d at 18, 231 N.E.2d at 730. The court went on to say that in Jackson's case the jury was charged and directed to bring in a verdict as if they constituted a single offense. The Court of Appeals then held that, because the trial judge in the first trial said the jury could render a verdict on only one charge, "we cannot say that the jury's silence on the felony murder theory had the effect of acquitting Jackson of that theory . . . . Since the jury was instructed to render only one verdict, it had no reason to consider the felony murder charge once it found the defendant guilty of premeditated murder." Id. at 452, 285 N.Y.S.2d at 19, 231 N.E.2d at 730.

Governor Rockefeller commuted the sentence to life imprisonment before appellant brought his habeas corpus petition to the Southern District, which petition was denied in due course.

Appellant argues here, in line with the New York Court of Appeals' own suggestion that, because the original trial judge "instructed the jury that the order of consideration of the respective theories was entirely up to them," it was at least "possible that the jury considered felony murder first and acquitted him of that theory but under the single verdict charge the jury was not able to express an acquittal . . . ." Id. at 452, 285 N.Y.S.2d at 19, 231 N.E.2d at 730-731. More significantly, it is suggested here that there was exposure to jeopardy or to the "risk of conviction." See Fortas, J., dissenting in Cichos v. Indiana, 385 U.S. 76, 80-81, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966). See also Chief Justice Burger for the Court in Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970) ("The `twice put in jeopardy' language of the Constitution

462 F.2d 1045

thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the `same offense' for which he was initially tried")

Appellant relies on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), which held that, when a conviction for second degree murder is set aside, retrial for first degree murder is prohibited. This holding was based on two grounds: one, that the verdict of guilty of second degree murder is an "implicit acquittal," 355 U.S. at 190, 78 S.Ct. 221, on the charge of first degree murder;⁷ and two, that "the jury was dismissed without returning any express verdict on that charge and without Green's consent . . . even though it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so." 355 U.S. at 191, 78 S.Ct. at 225 (emphasis supplied). Appellant argues that, even if his conviction for premeditated murder were not an "implicit acquittal" of the charge of felony murder, his first jury was dismissed without his consent after having been given a "full opportunity to return a verdict" on that charge without any circumstances appearing that prevented it from doing so. This, of course, is the language of Mr. Justice Black in Green, utilized by Mr. Justice Fortas in his dissent to Cichos v. Indiana, supra. The majority in Cichos dismissed the writ as improvidently granted where the Indiana courts had permitted a retrial on counts of involuntary manslaughter and reckless homicide after conviction of the latter at the first trial was set aside on appeal.

Cichos, unlike our case, involved the same verdict on the retrial as on the first trial. The Court pointed out that under Indiana law the two crimes involved "proof of the same elements," 385 U.S. at 78, 87 S.Ct. 271, but with different penalties, and relied upon the Indiana practice — similar to New York's here — of instructing the jury to return a verdict on only one of the charges. 385 U. S. at 79-80, 87 S.Ct. 271. Interestingly, Mr. Justice Black, who wrote the Green opinion, concurred in the Court's opinion in Cichos. 385 U.S. at 80, 87 S.Ct. 271.

Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), denied the power of a state to retry an accused for murder after an earlier guilty verdict on the lesser-included offense of voluntary manslaughter had been set aside for trial error. The Court followed Green, saying, however, at 398 U.S. 326-327, 90 S.Ct. 1759 (emphasis supplied):

The

...