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September 28, 1973

Claude Lorenzo CORBITT et al.

Ditter, District Judge.

The opinion of the court was delivered by: DITTER

DITTER, District Judge.

The defendants were convicted of bank robbery. Their post-trial motions raise questions of double jeopardy, jury selection, jury contamination, and the propriety of their being identified. *fn1"

 On February 23, 1971, the Exton Branch of the Southeast National Bank was robbed by at least six men. Just as the robbery began, two surveillance cameras were activated and, as a result, literally hundreds of pictures were taken of the men who were inside the bank. These pictures, which were introduced into the evidence, showed the various robbers in many different positions as they moved around the room, changing the camera angles on their faces and bodies. The defendants in this case, Claude Lorenzo Corbitt, Harry Mims, and Darrell Jackson, were arrested in each other's company on May 27, 1971, and first brought to trial on November 2 through 5, 1971, but the jury was unable to reach a verdict. An attempt to start the retrial on January 18, 1972, was aborted at the defendants' request because the notes of testimony from the November proceeding were not yet completed. A second trial was held on April 11 through 18, 1972. Again the jury was hopelessly deadlocked and a mistrial declared. Finally, the third jury reached a verdict of guilty as to all three on all counts after a trial on July 24 through 31, 1972.

 I. Double Jeopardy

 All defendants claim that their first trial was prematurely terminated and that consequently their second and third trials violated the Fifth Amendment by placing them in double jeopardy. The prohibition in the Fifth Amendment to which they point was designed to prevent repeated prosecutions for the same offense and the concomitant imposition of a heavy drain on the defendant's resources. The defendants cite in support of their argument United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). In that case, the trial judge suddenly halted the proceedings believing his action was necessary to protect the interests of a witness whom he felt had not been given sufficient warnings as to his Constitutional rights.

 In sustaining a plea of double jeopardy to an attempted second trial of the defendant, the Supreme Court emphasized the trial judge had acted so abruptly and without considering the alternatives available, that it was apparent he had made no effort to exercise sound discretion. Having failed to take all of the circumstances into account, there was no basis for his concluding a manifest necessity for the declaration of a mistrial existed.

 As Judge Hunter has recently observed in United States ex rel. Gibson v. Ziegele, 479 F.2d 773 (3rd Cir. 1973) at 776, "[The] landmark decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection is United States v. Perez, 22 U.S. (9 Wheat) 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. . . . " Id. at 580."

 In the instant case, the details show that a manifest necessity was in fact present as to both occasions when mistrials were declared.

 While the arrangements were being explained to the jury, the foreman, Mr. Tufts, asked to speak with me and stated that he did not think the jury could reach a decision (N.T. Nov. 5, 1971, p. 70). It had then deliberated for more than four hours (N.T. Nov. 5, 1971, p. 74). Upon the request of defense counsel, I talked to the foreman in their presence, the presence of the defendants having been waived. After being informed that he was not to state any numerical division, Mr. Tufts said, ". . . we have been at the same point for a considerable amount of time and we have deliberated and we are still at the same point." (N.T. Nov. 5, 1971, p. 75). When it was suggested that other approaches be given consideration, he replied, "the approaches that you mentioned we have employed. And, you know, each defendant, each witness, reaching the same impasse each time and this is why I made the statement. The decision to inform you that we had reached this impasse is one of, you know, not my decision alone but the members of the jury." (N.T. Nov. 5, 1971, p. 76). Mr. Tufts did not think further deliberation the next day would help. He also stated that they were hopelessly deadlocked and could not agree on any of the issues, counts, or defendants (N.T. Nov. 5, 1971, p. 77). The full jury confirmed his opinion (N.T. Nov. 5, 1971, p. 78). I believed the jurors and regretfully declared a mistrial.

 After consultation with their clients, the defense attorneys objected to my having ended the proceedings. *fn2" The defendants now argue that the solution to the problem was additional instructions, such as those permitted by United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969), cert. den. sub nom. Panaccione v. United States, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969). However, such instructions had already been given in the main body of the charge (Nov. 5, 1971, pp. 5-6) *fn3" and counsel did not ask that they be repeated. Rather, they urged me to declare a mistrial.

 The facts of the April, 1972, trial show even more strongly the justification for the granting of a mistrial. At that proceeding the jury received the case at 11:35 A.M. (N.T. p. 6-69). *fn5" At about 6:00 P.M. the jury reported, "We are hopelessly deadlocked. We took a poll and it comes out 11 to 1 on every defendant and every count with no chance of change." (N.T. p. 6-75). To give the jurors a chance to relax and review their problems, they were sent to dinner. Once again, around 9:30 P.M. they sent a note, "We, the jury, are still deadlocked. We cannot change our verdict. It still stands at 11 to 1." (N.T. p. 6-77). In open court, I asked the jury whether any of them felt any good purpose would be served if additional time for deliberation was afforded to them. There was no response. Stating he was acting on behalf of his client, each attorney for each defendant moved for a mistrial (N.T. p. 6-77-8). Based on the length of time the jury had been considering the matter, the nature of the case, the notes from the jury, and the motions made by counsel, I was satisfied that manifest necessity for a mistrial existed. It is the granting of their own motions which is now assigned by the defendants as error. They do not argue that the jury was not hopelessly deadlocked. Rather they contend that it was error to retry them since there had been no expressed or implied acquiescence on their part to my declaring a mistrial and no absolute necessity to do so. *fn6" In view of the contradiction between their positions and the record, these assertions are frivolous.

 As additional support for their contention that the second and third trials were illegal, defendants cite two state cases, Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964), and Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). Neither is applicable here. The former dealt with the limiting effect of Pennsylvania's Constitution on retrials for ...

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