Watkins v. Kassulke, 95-5520

• Decision Date: 18 July 1996
• Docket Number: No. 95-5520,95-5520
• Citation: 90 F.3d 138
• Parties: Gwendolyn Kathy WATKINS, Petitioner-Appellant, v. Betty KASSULKE, Warden, Kentucky Correctional Institution for Women, Pewee Valley, Kentucky, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 138

90 F.3d 138

Gwendolyn Kathy WATKINS, Petitioner-Appellant, v. Betty KASSULKE, Warden, Kentucky Correctional Institution for Women, Pewee Valley, Kentucky, Respondent-Appellee.

No. 95-5520.

United States Court of Appeals Sixth Circuit.

Argued March 4, 1996.

Decided July 18, 1996.

Marguerite Neill Thomas, Asst. Public Advocate (argued and briefed), Department of Public Advocacy, Frankfort, KY, for Petitioner-Appellant.

Laura Early (briefed), Cindy Goldhill Schwartz (argued), Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.

Before: NORRIS, SILER, and GODBOLD ^*, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

Gwendolyn Watkins, a prisoner in the Kentucky penal system, appeals the district court's denial of her habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We agree with the district court that the consent of Watkins's counsel to a mistrial disposes of her double jeopardy argument and the related claim of ineffective assistance of counsel. Accordingly, we affirm the denial of habeas relief.

I. Facts

A Kentucky grand jury indicted Watkins in May of 1988 on three felony counts involving theft, bail-jumping, and repeat felony offender status. On February 8, 1989, Watkins' trial began. Following a hearing on pretrial motions, a jury of twelve was seated and sworn. As the judge dismissed the remainder of the juror pool, one of the seated jurors, Sheila White, informed the bailiff that she had a medical appointment scheduled for that afternoon. The judge asked the unselected jurors to return to the courtroom, at which point the following side-bar discussion occurred between the judge, the juror, prosecutor Joe Bouvier, and defense counsel Kathy Stein:

JUDGE: Uh, is it a doctor's appointment that you could do another time?

JUROR: Well see, I got hit and I have to have my leg checked before I can finish filling out my insurance papers.

JUDGE: You got hit in an automobile accident?

JUROR: I was hit by an automobile, yes.

JUDGE: If you'll have a seat back there, I'll need to talk to the attorneys. What's your number?

JUROR: 29.

JUDGE: Okay.

BOUVIER: May I see the records (inaudible) jurors?

STEIN: (inaudible)

JUDGE: Uh, it's obvious to the court that this juror would have to go ahead and complete the appointment that she's got and I'm gonna have to excuse her. This means that we'll have to, uh, go through the process of picking another juror. I think that, uh, I would, uh, the rules don't cover this situation, and what I propose to do, if it's agreeable with the Commonwealth and the defense is to call four jurors from the panel and, uh, give the defense two strikes and the commonwealth, one strike.

STEIN: That's acceptable.

JUDGE: Is that all right, Joe?

BOUVIER: Yes.

The court proceeded to dismiss White and to inform the remaining members of the jury pool of the procedure for replacing White. The court then asked whether any other jurors had problems that would prevent them from serving. At that point, another of the empaneled and sworn jurors, Doug Mayberry, informed the court that he had slept for only an hour and forty-five minutes the preceding evening. This revelation prompted the following side-bar discussion between the judge and the attorneys:

STEIN: Your Honor, I left out of my voir dire questions about does anybody have anything that would prevent them from ...

JUDGE: Yeah, I've never had this problem before. But uh, I sus, I think we're gonna have to dismiss this one if you all don't have any objections.

STEIN: Yeah, if, if he's ...

JUDGE: If he's not going to be able to ...

STEIN: Right.

JUDGE: Able to listen to it.

STEIN: What's his ...

JUDGE: So then, let's see we'll draw, uh, let's see I can draw six jurors, seven jurors and give Kathy three strikes and the commonwealth two strikes, if that's agreeable.

STEIN: That's agreeable.

BOUVIER: Sure.

The court then dismissed Mayberry and filled the remaining seat. The new panel, comprising ten members of the first sworn jury and the two replacement jurors, was sworn; and the trial proceeded. The jury returned a verdict of guilty on the felony bail-jumping and persistent felon counts but found that the prosecution had proved only misdemeanor theft, not the felony theft charged in the indictment. In March of 1989, Watkins received a sentence of ten years' imprisonment.

The Kentucky Court of Appeals affirmed the conviction in April of 1990, and the Kentucky Supreme Court denied discretionary review. In August of 1991, Watkins began her state post-conviction proceedings by filing a motion with the trial court to vacate its judgment on the basis of double jeopardy and ineffective assistance of counsel. According to Watkins, the dismissal of the two sworn jurors amounted to a de facto mistrial that was the product of neither "manifest necessity" nor consent by Watkins. She argued that because jeopardy attached when her first jury was seated and sworn, the de facto mistrial precluded further efforts to prosecute her for the offenses charged in the indictment. As a corollary, she argued that her attorney's failure to object to the resumption of the trial on the basis of the Double Jeopardy Clause constituted ineffective assistance.

The trial court held an evidentiary hearing, and Watkins' trial attorney testified that she had consented to the dismissal of jurors White and Mayberry as a matter of trial strategy. She stated that she had planned to present a complicated defense that would require an attentive jury and that she did not want jurors who would be either preoccupied with a missed doctor's appointment or too tired to follow her arguments. In October of 1991, the trial court held that jeopardy had not attached until the swearing of the final jury panel, as the seating of the two final jurors was merely an extension of the original selection process. The court also credited the testimony of Watkins' attorney as to the reasons for her decision to allow the dismissal of the two jurors. The Kentucky Court of Appeals affirmed the denial of the motion to vacate in June of 1992, adopting the opinion of the trial court as its own; and the Kentucky Supreme Court denied discretionary review.

Watkins then sought federal habeas relief in April of 1994. In March of 1995, the district court denied her petition, holding that although jeopardy had attached when the original jury panel was seated and sworn, the consent of Watkins' attorney to the dismissal of jurors White and Mayberry as a matter of trial strategy constituted consent to the de facto mistrial that was binding on Watkins. Consequently, the district court reasoned, the Double Jeopardy Clause posed no bar to the subsequent trial and conviction of Watkins. The district court also rejected the ineffective assistance of counsel argument, finding that Watkins' attorney had acted reasonably. This appeal followed.

II. Double Jeopardy

We review the district court's double jeopardy ruling de novo. United States v. WRW Corp., 986 F.2d 138, 140 (6th Cir.1993). The analytic framework is simple enough. Jeopardy attaches when the original panel is seated and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empaneled and sworn alternates, is barred unless (1) there is a "manifest necessity" for a mistrial or (2) the defendant either requests or consents to a mistrial. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Cameron, 953 F.2d 240, 243 (6th Cir.1992).

While the trial court did not formally declare a mistrial, we agree with the parties that what occurred in Watkins' trial should be treated as a mistrial for purposes of analyzing the double jeopardy question. The original jury did not hear the case through to a verdict, and this fact is the defining characteristic of a mistrial. The government does not argue that there was "manifest necessity" for the mistrial, and the record demonstrates that no mistrial was requested. The issue, then, is whether Watkins consented to the impromptu juror replacement procedure.

The thrust of Watkins' appeal is that her rights to trial by her chosen jury and to freedom from successive prosecutions are "personal" and, therefore, cannot be waived by counsel unless Watkins knowingly, intelligently, and voluntarily authorizes counsel to waive those rights. Cf. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983) (recognizing that criminal defendant "has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal"). Watkins bases this argument primarily on two cases.

The first opinion is United States v. Rich, 589 F.2d 1025 (10th Cir.1978), where the Court of Appeals for the Tenth Circuit announced that an attorney lacks authority to waive double jeopardy rights on behalf of a client absent an intentional relinquishment of those rights by the defendant. "Inasmuch as this right is anchored to the United States Constitution, it cannot be waived by one other [than] the accused." Id. at 1032. Watkins argues that this circuit should follow that approach to constitutional rights.

This language from Rich is unpersuasive for a number of reasons. As an initial matter, it is plainly dictum. The key facts in Rich were that in an unplanned and informal discussion at the courthouse, the trial judge announced to defense counsel his intention to grant a sua sponte discharge of the jury. Defense counsel responded by protesting vigorously and declaring that he would raise any available objections, specifically mentioning double jeopardy. Id. The discussion of counsel's authority to waive a client's rights was wholly gratuitous, since counsel did not waive any of his...