Walker v. Weldon

• Decision Date: 18 October 1984
• Docket Number: No. 83-8803,83-8803
• Citation: 744 F.2d 775
• Parties: Jerome WALKER, Petitioner-Appellant, v. John L. WELDON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 775

744 F.2d 775

Jerome WALKER, Petitioner-Appellant, v. John L. WELDON, Warden, Respondent-Appellee.

No. 83-8803.

United States Court of Appeals Eleventh Circuit.

Oct. 18, 1984.

James C. Bonner, Jr., Univ. of Georgia School of Law, Prisoner Legal Counseling Project, Athens, Ga., for petitioner-appellant.

Janice G. Hildenbrand, Mary Beth Westmoreland, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and CLARK, Circuit Judges, and ALLGOOD ^*, District Judge.

ALLGOOD, District Judge:

Appellant, Jerome Walker, was convicted after trial by jury in the Superior Court of Fulton County, Georgia for the offense of burglary and received a sentence of twenty years which he is now serving. Appellant's conviction was affirmed in the Court of Appeals of Georgia, Walker v. State, 156 Ga.App. 478, 274 S.E.2d 680 (1980). Walker initiated this habeas corpus action in the United States District Court for the Northern District of Georgia. On direct appeal and in the instant proceeding appellant contends that his right not to be placed twice in jeopardy for the same offense has been violated. ¹ The protection against double jeopardy provided for in the Fifth Amendment was made binding on the states by the adoption of the Fourteenth Amendment. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

After concluding that state remedies had been exhausted, the district court considered the merits of the petition for habeas corpus filed by the appellant. The only issue presented to the district court was appellant's contention that his retrial after a mistrial had been declared deprived him of his right to be protected against double jeopardy. The district court referred the petition to a magistrate. The magistrate appropriately concluded that no evidentiary hearing was necessary and proceeded to address the merits of the petition for habeas corpus based upon the state court record. The magistrate recommended that relief be denied. The recommendation was accepted by the district court and the petition for habeas corpus was denied. The district court, however, issued a certificate of probable cause and authorized appellant to proceed in forma pauperis.

After examining the record and considering the appropriate authorities, we agree with the trial judge, the Court of Appeals of Georgia and the United States District Court for the Northern District of Georgia and affirm the denial of habeas corpus.

A grand jury for Fulton County, Georgia indicted Walker for the offense of burglary. Walker's jury trial commenced on December 3, 1979. Walker's trial jury was selected and sworn at 12:10 p.m. on December 3, 1979. Court was recessed for lunch and reconvened at 1:10 p.m. The presentation of the evidence was completed at 4:00 p.m. on December 3rd and the jury was excused until 9:30 a.m. the following morning. Closing arguments were completed, the court's instructions to the jury were completed, and the case was submitted to the jury for its deliberation at 11:00 a.m. on December 4th.

The first of four notes was received by the court after the jury had been in deliberation for about an hour. This note was to the effect that the jury was deadlocked. At 12:00 noon on December 4th the court called the jury to the courtroom and recessed for lunch. At approximately 5:20 p.m. on December 4th the court received still another note from the jury reporting that it was deadlocked. The note received by the court at 5:20 p.m. on December 4th was signed by all twelve jurors and the court was advised that the jury was "hopelessly deadlocked." After receiving four notes from the jury, each of which reported deadlocked and particularly after receiving a note signed by all twelve jurors, the jury was brought into the courtroom and given an Allen charge. ²

The transcripts of the state proceedings reflect the following chronology. After deliberating approximately an hour on December 4th, the foreman of the jury sent the judge a note which read, "We are deadlocked at 6-6. Have you a suggestion?" After a lunch break the court recharged the jury on reasonable doubt and related principles; the jury resumed its deliberations at approximately 1:25 p.m. At 2:05 p.m. the foreman sent the court a second note: "We are hopelessly deadlocked at 7-5." At 3:10 p.m. the foreman sent the court a third note: "Judge Holt: We are absolutely deadlocked at 9-3 for acquittal. All have agreed they would not yield their convictions no matter how much time is spent in discussion." An hour later at 4:05 p.m. the foreman delivered to the trial judge the last of four notes: "Judge Holt: we are absolutely and hopelessly deadlocked. A unanimous decision is an impossibility." This note was signed by all twelve jurors. It was at this time that the trial judge gave the Allen charge to the jury and sent them back for further deliberations. After a short time, the court adjourned the jury for the night. The following morning, after the jury had deliberated for approximately an hour and twenty minutes, the trial court advised counsel that he intended to call the jury back to the courtroom and if they had not reached a verdict, declare a mistrial on his own motion. After deliberating for approximately an hour and a half on December 5th, the jury was returned to the courtroom. In response to the court's inquiry as to whether the jury had been able to reach a verdict, the foreman replied: "Your Honor, we have reached an absolute impasse." The court then inquired if it was the same as it was yesterday and the foreman replied in the affirmative and added, "We are unable to reach a conclusion." The court then stated, "I will now declare a mistrial."

Prior to the commencement of the second trial which resulted in appellant's conviction, defense counsel made a motion to dismiss on the grounds that the second prosecution would twice put the appellant in jeopardy. The denial of appellant's motion to dismiss on double jeopardy grounds is the issue now presented in this habeas action.

The law in this case was established in 1829 in the opinion authored by Mr. Justice Story speaking for the court in United States v. Perez, 9 Wheat, 579, 580, 6 L.Ed. 165:

The prisoner, Joseph Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court from giving any verdict upon the indictment, without the consent of the prisoner, or of the attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the judges were divided. The question therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they were charged, without the consent...