APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Action No. 78-0085)
Before Hunter, Weis and Garth, Circuit Judges.
1. Milton Jacobs, a prisoner at the Delaware Correctional Center, appeals the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1976). The appellant, convicted in Delaware Superior Court and sentenced to thirty-five years in prison for his participation in the kidnap, armed robbery of a department store in Dover, Delaware,*fn1 challenges his conviction on two grounds: that the trial court's refusal to ask certain questions on voir dire denied him an impartial jury; and that the evidence at his trial was insufficient to support his conviction. He also contends that his thirty-five year sentence deprives him of due process of law since it was five years longer than the sentence which he received pursuant to a prior conviction for the same crimes which was subsequently vacated on appeal. Although we are troubled by appellant's voir dire challenge, we affirm the denial of habeas corpus from his conviction because we do not find a constitutional violation. However, we agree with appellant that the thirty-five year sentence violates the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Accordingly, the order of the district court will be reversed in part. Pending the resentencing of Jacobs to a term of not more than thirty years, we will remand the cause to the district court. Upon resentencing, the writ is to be dismissed.
2. Milton Jacobs was originally convicted in Delaware Superior Court for his participation in an armed robbery and was sentenced to thirty years in prison. See Jacobs v. State, 358 A.2d 725, 727 (Del.1976). This conviction was reversed by the Delaware Supreme Court and remanded for a new trial. Jacobs v. State, 344 A.2d 385 (Del.1975) (table of decisions without published opinions). Jacobs was retried and was once again convicted. This time, however, he was sentenced to a prison term of thirty-five years. It is this second conviction and its thirty-five year sentence which provide the subject matter for appellant's habeas petition.
3. Prior to the second trial, appellant submitted a list of eighteen proposed questions to be asked on voir dire. The trial judge refused to ask twelve of the questions. One group of proposed questions concerned the prior experience of the potential jurors as victims of crimes.*fn2 A second group inquired into the jurors' understanding of the nature of testimony by an accomplice and the willingness of the jurors to follow the court's instruction as to the weight to be given to accomplice testimony. A third group of questions asked whether the veniremen understood that the burden of proof was on the State and whether they would follow the court's instructions concerning the right of the defendant to remain silent. Finally, although the court asked whether any of the jurors were related to or were close friends of the victims of the crime, the court refused to ask whether the veniremen knew the victims. Jacobs v. State, 358 A.2d at 727-28.
4. At trial, the government's evidence centered upon the testimony of two of Jacobs' coconspirators. While one of the coconspirators, Ricky Upshur, was on the stand, the following examination took place:
Q. (by the prosecution) Rick, why didn't you testify in this case yesterday?
A. Because I'm at Delaware Correctional Center or in Delaware's Prison System, period, and people that testify against other people, they find it rather unhealthy upon their return.
Q. Did anybody ever threaten you?
A. Did anybody ever threaten me?
Q. Concerning your testimony.
A. You could say. What it amounts to is a snitch is not tolerated, he's dealt with in the prison system. My life is in danger as soon as I go back.
Q. Why do you say that? Who are you ...