Weston v. Kernan

• Decision Date: 24 February 1995
• Docket Number: No. 94-15391,94-15391
• Citation: 50 F.3d 633
• Parties: Theodore A. WESTON, Petitioner-Appellee, v. Peg KERNAN, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 633

50 F.3d 633

Theodore A. WESTON, Petitioner-Appellee, v. Peg KERNAN, Warden, Respondent-Appellant.

No. 94-15391.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 14, 1994.

Decided Feb. 24, 1995.

George F. Hindall III, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant.

Bruce E. Cohen, Berkeley, CA, for petitioner-appellee.

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

Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges.

Opinion by Judge BEEZER; Dissent by Chief Judge WALLACE.

BEEZER, Circuit Judge:

Petitioner Theodore Weston filed a petition for a writ of habeas corpus challenging his May 1990 state court conviction of forcible oral copulation. He contends that his conviction was barred by the Double Jeopardy Clause because the state trial court ended his first trial by declaring a mistrial without his consent and in the absence of manifest necessity.

The district court granted his petition on February 9, 1994. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 2254 and we have jurisdiction pursuant to 28 U.S.C. Sec. 2253. We affirm.

I

Weston was charged with three counts of forcible oral copulation (Cal.Penal Code 288a(c)), one count of robbery (Cal.Penal Code Sec. 212.5(b)), and kidnapping for the purpose of committing the offense (Cal.Penal Code Sec. 667.8). He was also alleged to have a prior conviction for forcible oral copulation and two prior prison terms (Cal.Penal Code Sec. 667.6(a) and Sec. 667.5(b)).

Weston's first state trial began in March 1990. After four days of trial, the state trial court declared a mistrial without prejudice. Weston then moved to enter a plea of once in jeopardy and to dismiss the information. The state trial court denied this motion and Weston's petition for a writ of mandate to the California Court of Appeal on the double jeopardy claim was also denied.

Weston's second trial resulted in a jury verdict of guilty on one count of forcible oral copulation. The jury could not reach a verdict on the other counts and the state trial court dismissed them upon a motion by the prosecution. In June 1990, Weston was sentenced to six years for forcible oral copulation, with a five year prior conviction enhancement, for a total sentence of 11 years.

Weston appealed this conviction to the California Court of Appeal arguing, inter alia, that the second trial placed him twice in jeopardy. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.

Weston then filed this habeas corpus action in October 1992. In January 1993, the district court ordered the State to show cause why a writ should not issue. After receiving responses from the parties, the district court granted the petition, ordering the State of California to release Weston from custody. The district court then granted the State's motion for a stay of Weston's release pending this appeal.

II

The circumstances surrounding the mistrial are as follows. During the rebuttal phase of the first trial, the prosecutor proposed to call two witnesses who would testify solely to the issue of the defendant's address. The prosecutor represented that the witnesses were being called only for the purpose of relating statements made to them by Weston concerning where he resided. The first witness, Officer Miller, testified as follows:

Q. (By Cling, Prosecutor) Did you place Mr. Weston under arrest?

A. Yes, I did.

Q. For what?

A. For 470 which is a check fraud.

(R.T. 416.)

Defense counsel, Jeffrey Adachi, immediately objected and requested a mistrial. The state trial judge responded by striking the testimony and admonishing the prosecutor for transgressing the court's order. The court took the motion for mistrial under advisement. The next witness, Barry Briden, testified that he was a parole officer and knew Weston because he maintained a parole file on him. At the end of this testimony and after excusing the jury, the attorneys and the judge further discussed the mistrial matter. Adachi stated that he was moving for a mistrial because of the extraneous, irrelevant and prejudicial nature of the police officer's and parole agent's testimony. He asked the court to declare a mistrial sua sponte. The Court responded that it would not declare a mistrial sua sponte because jeopardy would attach. The Court then asked Adachi whether he was moving for a mistrial to which Adachi responded "yes." ¹

The judge took the motion under advisement and the court adjourned for the day. The next morning, Weston filed a written motion requesting "that the court declare a mistrial ... on the grounds that the prosecutor, Peter Cling, by his misconduct, goaded the defense into seeking the instant motion for mistrial." Weston sought the following relief:

Accordingly, the defense requests that this court declare a mistrial in this matter based on prosecutorial misconduct, and hold that a further retrial in this matter is barred by the Double Jeopardy Clause.

If the court decides not to declare a mistrial in this matter sua sponte, the defense respectfully requests that the Court give the jurors' the attached cautionary instructions.

After further discussion, the state trial court ordered a mistrial without prejudice, finding that the cumulative error of the police officer's and the parole agent's testimony was prejudicial to the defendant. Immediately after the mistrial was ordered, Adachi interrupted the court, explaining that he wanted to confer with Weston before the court declared the mistrial without prejudice. The judge responded that he had granted a defense motion for mistrial and that he no longer had jurisdiction over the case.

When Adachi reiterated his objections, the state trial judge stated that he was granting the oral motion made by Adachi on the previous day. Adachi responded that he had moved for a mistrial on only one ground and that ground was denied by the court. The court responded, "Counsel, it was your motion last night. I made it crystal clear because you tried to lay the onus on the Court. If you want to have the record read back--In any event sit down now and be quiet, you will sit down and be quiet, Mr. Adachi. This Court has no further jurisdiction over this case." (R.T. 440.)

III

A district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). Findings of fact by the state court are presumptively correct, 28 U.S.C. Sec. 2254(d), and are reviewed under the clearly erroneous standard. Id.

IV

Weston contends that the state trial judge declared a mistrial without his consent and without "manifest necessity" that a mistrial be declared. The State argues that the mistrial was declared pursuant to Weston's motion and that Weston consented to the mistrial. Alternatively, the State argues that manifest necessity required the mistrial.

Whether a defendant's right not to be placed in double jeopardy has been violated is reviewed de novo. United States v. Lun, 944 F.2d 642, 644 (9th Cir.1991). Factual findings concerning the conduct of the prosecutor are reviewed for clear error. Id.

A

The Double Jeopardy Clause of the Fifth Amendment protects a person from being "twice put in jeopardy of life or limb" for the same offense. The Supreme Court has enumerated several purposes for this protection: (1) to ensure the finality of judgments in criminal cases; (2) to avoid compelling a defendant to live in a constant state of anxiety and insecurity attendant with successive prosecutions for the same offense; (3) to avoid giving the prosecution an unfair opportunity to retry the defendant using information gained from the first trial concerning the strengths and weaknesses of the State's case; (4) to ensure that the defendant's right to have his fate decided by the first jury empaneled is protected; and (5) to avoid the imposition of multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 127-29, 101 S.Ct. 426, 432-33, 66 L.Ed.2d 328 (1980); United States v. Crotwell, 896 F.2d 437 (10th Cir.1990). See also Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). For these reasons, upon declaration of a mistrial, retrial will only be permitted if the defendant consented to the mistrial or if the mistrial was caused by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Perez, 22 U.S. (Wheat. 9) 579, 580, 6 L.Ed. 165 (1824).

The critical question in Weston's double jeopardy claim is whether he consented to a mistrial without prejudice. Our overriding concern "is that the defendant retain primary control over the course to be followed" after judicial or prosecutorial error. United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976).

The State argues that Weston's initial oral motion for mistrial was unqualified and that even after the state trial court made clear that it would not grant a mistrial with prejudice, he persisted with the motion. The State further argues that while Weston did file a written motion for a mistrial with prejudice, he never expressly withdrew his oral motion or substituted the later motion for the prior one.

In contrast, Weston argues that he was seeking a mistrial with prejudice at all times. He states that the affirmative response to the state trial judge's question, "All right, anyway you made a motion for mistrial, am I correct?" was at best equivocal. He argues that his written motion on the following day made clear that he was only seeking a mistrial with prejudice. Finally, he argues that even if the state trial court was under the impression that Weston had consented to a mistrial without prejudice, this misunderstanding should have been dispelled when counsel for Weston immediately...