(D.C. Civil Action No. 1752-71) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before McLAUGHLIN, ROSENN and HUNTER, Circuit Judges
Thomas Gibson was convicted after his second trial in the criminal courts of Atlantic County, New Jersey of manslaughter in the knifing death of his wife Bessie. Gibson's first trial had ended in a mistrial over his objection when a key prosecution witness became ill during the trial and could not testify. After exhausting his state remedies, appellant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey seeking his release from prison primarily on the grounds of double jeopardy. This petition was denied without a hearing and we affirm.
A summary of the events surrounding the declaration of mistrial is appropriate. On October 23, 1969, indictments were returned against Gibson charging him with murder and atrocious assault and battery. His first trial began on April 13, 1970, and the prosecution presented several witnesses including Sergeant Tomasello of the Pleasantville Police Department, Detective Horner of the Atlantic City Police Department, and Moses Murray, the defendant's brother-in-law. Murray testified that there was an altercation between him and Gibson in the latter's apartment, that Gibson stabbed him on the steps outside the apartment, and that after he was stabbed he saw the defendant go back into the apartment where Bessie Gibson was later found dead. Sergeant Tomasello testified that on the night of the alleged murder, Gibson came to the Pleasantville police station and stated that he wanted to file a complaint against his wife because she had assaulted him with a knife. Tomasello also said that the defendant told him that "he took the knife from her and gave it back to her, and that she wasn't going to use the knife on him anymore..." Finally, Detective Horner's testimony is relevant because he referred to Murray as the "accused" at one point, and, although he later said that this was a mistake, appellant contends that this so-called "Freudian slip" had "a tremendous impact on the course of the trial." As a further indication that the state's case was going poorly, appellant's counsel says that the prosecutor approached him and offered to recommend a dismissal of the murder indictment in its entirety if Gibson would plead guilty to the charge of atrocious assault and battery against his wife. This offer was refused.
On the afternoon of April 15, 1970, the trial was recessed until the following morning because a key prosecution witness, Captain Wilson of the Atlantic City Police Department, was reported too ill to testify. Wilson had been in charge of the investigation, and he had obtained a signed confession from the defendant on the night of the murder which the prosecution wanted to enter into evidence. On the morning of April 16, 1970, the recess was extended until noon while the court attempted to ascertain the seriousness of Captain Wilson's illness. At 2:05 p.m. the prosecutor moved for a mistrial on the ground that Captain Wilson had suffered a coronary insufficiency and would be unable to testify for several weeks. The defense objected, arguing that the absence of one witness was not enough to justify a mistrial and indicating that in any event Chief Mortimer Nappen could introduce the confession. Defense counsel then moved for a continuance to obtain a written doctor's report and to allow him twenty-four hours to research the double jeopardy issue. The trial judge stated that he had talked by telephone with the attending physician, and was informed that Captain Wilson had contracted an intestinal grippe with acute coronary insufficiency and would be unable to testify for one to two weeks or more. After considerable discussion between the parties, the trial judge denied defendant's motions and granted the prosecutor's motion for a mistrial. Since Captain Wilson had been present on the first day of the trial, it is evident that he would have been available as a witness if he had not become ill.
Gibson's primary contention on this appeal is that the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969), barred his second trial under a murder indictment. In connection with this allegation, appellant also asserts that he could not be tried twice for the same crime because the second trial afforded the prosecution a more favorable opportunity to convict him. We disagree with both of these arguments.
The Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" was designed to prevent repeated prosecutions for the same offense and what is often the concomitant imposition of heavy personal strain on the defendant. United States v. Jorn, 400 U.S. 470, 479, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); Green v. United States, 355 U.S. 184, 187-188, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957). Jeopardy attaches when a criminal trial commences before either a judge or jury, and in the present case Gibson was clearly put in jeopardy when his first trial began on April 13, 1970. The double jeopardy rule is not a rigid one, however, and there are situations where retrials are constitutionally permissible even though the first jury was discharged without giving any verdict and without the defendant's consent. A common example of this is when a jury is discharged because it is unable to reach a verdict. Logan v. United States, 144 U.S. 263, 36 L. Ed. 429, 12 S. Ct. 617 (1892).
As was pointed out this term by the Supreme Court, Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425, 41 U.S.L.W. 4311 (U.S. 1973), the landmark decision construing the Double Jeopardy Clause in the context of a declaration of mistrial over a defendant's objection is United States v. Perez, 22 U.S. 579, 9 Wheat (22 U.S.) 579, 6 L. Ed. 165 (1824). In that case, the Court held that a defendant could be tried a second time after the judge, over the defendant's objection, excused a jury which had reported that it could not agree upon either acquittal or conviction. In his opinion, Mr. Justice Story expressed the following thoughts about what standards should determine whether or not a defendant can be reprosecuted when his first trial ends in a mistrial without his consent:
"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." Id. at 580. (Emphasis added).
This language from Perez has formed the basis of all later Supreme Court decisions on double jeopardy in situations where the defendant did not consent to a mistrial, and it was recently quoted with approval in Jorn v. United States, supra at ...