(D.C. Civil Action No. 1304-72) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before: HUNTER and WEIS, Circuit Judges, and NEWCOMER, District Judge.
This is an appeal from the denial of a writ of habeas corpus by the district court. Appellant Joseph Russo has been accused of committing first degree murder. His first trial ended in a mistrial over his objection.*fn1 He contends that for the state to retry him would violate the Fifth Amendment's prohibition against double jeopardy.
After his mistrial, appellant moved for a dismissal of the indictments against him. His motion was denied by the trial court. Leave to file an interlocutory appeal was denied by the Appellate Division of the New Jersey Superior Court, and the New Jersey Supreme Court declined to certify the case. Appellant then filed a petition for a writ of habeas corpus. An appeal to this court followed the denial of appellant's petition by the district court.*fn2
A full factual exposition is necessary to an understanding of appellant's double jeopardy contention. Appellant has been charged with two murders at a party at his home. His trial on these charges began on December 3, 1971 and ended in a mistrial on December 18, 1971.
The state's principal witness testified that he had seen appellant shoot the victims. But the defense produced a witness who testified that in fact it was the state's witness who had killed the decedents. The state's witness had testified that appellant had fired at one of the victims from close range (two feet) while the defense witness claimed that the state's witness had shot from a distance of seven or eight feet.
The defense then produced a special agent of the Federal Bureau of Investigation. The agent stated that he was not able to find any powder residue on the clothing of the victims and that the presence of powder residue was related to the distance of the gun from the victim. He testified that six to eight feet was the maximum distance at which there could be powder residue on the clothing. That is, it was possible that if the weapon were fired from closer than eight feet, there could be no powder residue. But if it were fired from beyond six to eight feet, there definitely could be none.
"THE COURT: In other words, what you're saying is that if the gun was shot beyond six to eight feet, no matter how far beyond, it wouldn't show powder residue, but if it was shot between the gun barrel and the victim within - if the distance was less than eight feet there could be residue. Is that what you're saying?
"THE WITNESS: Yes, sir, it could. It could be closer, but he is asking me for the maximum distance and I would say eight feet would be the maximum distance at which you wouldn't find with any of those barrel lengths." Appellant's Appendix, 45a-46a.
The witness further testified that if the victims had been shot from close range, powder residue would have been left on the clothing.
"Question: How about residue from two to eighteen inches?
"Question: Beyond that would there be any?
"Answer: Beyond there, out to probably three to four feet, you might have residue." Appellant's Appendix, 47a.
The testimony of the F.B.I. agent thus tended to support the testimony of the defense's witness. As so often happens, credibility was a key question for the jury.
After hearing testimony for nine days, the jury was charged on the morning of December 17, 1971. The jury began deliberating at 10:35 a.m. At 7:05 p.m., the court recalled the jury to give them a supplemental charge. At 8:20 p.m. the trial court again recalled the jury. The court instructed the jurors to retire and to determine among themselves whether they would be able to reach a verdict shortly. If they could not, they would have to spend the night in a motel. The jury returned to the jury room, and defense counsel objected that the court was "putting undue pressure on the jury at this point to arrive at a verdict."
The jury came back to the courtroom at 8:45 p.m. The following dialogue occurred:
"THE COURT: Madam Forelady, I don't want you to give me any figures. I don't want you to make any statement whatsoever except to respond to my question as to whether you believe that if you stay for a short time here there is a ...