stands as a command to trial judges not to foreclose the defendant's right to have his trial completed until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings, a defendant's valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public's interest in fair trials designed to end in just judgments. United States v. Jorn, supra.
In its most recent decision involving double jeopardy, Illinois v. Somerville, 1973, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425, the Supreme Court held that a trial judge has a broad discretion to determine what factual situations merit a mistrial and allow a defendant to be reprosecuted. In reviewing a trial court's declaration of a mistrial, the court must look at the possibility of manipulation inherent in the procedure complained of, the alternatives available to the trial judge at the time, and the presence of some important countervailing interest of proper judicial administration. Illinois v. Somerville, supra; United States ex rel. Russo v. Superior Court of New Jersey, Law Division, Passaic County, 3 Cir. 1973, 483 F.2d 7; United States ex rel. Gibson v. Ziegele, 3 Cir. 1973, 479 F.2d 773.
It was very prejudicial to the defendant for the jury to know that he had a criminal record. Defendant's decision not to testify at any of his trials, thereby thwarting any attempt to get his criminal record introduced for impeachment purposes, may have been motivated, at least in part, by a desire to prevent the prosecution from informing the jury that he had a criminal record, realizing that such a revelation could be very prejudicial to his case. Defense counsel's motion for a mistrial indicates that he viewed Mrs. Hertzler's statement to be very prejudicial to the defendant. The witness' statement could have been grounds for reversal of any conviction obtained at the trial. A trial judge correctly declares a mistrial when, in his discretion, an impartial verdict cannot be reached. McNeal v. Hollowell, 5 Cir. 1973, 481 F.2d 1145, 1150. As the Supreme Court stated in Illinois v. Somerville, supra: "But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice." 410 U.S. at 471, 93 S. Ct. at 1074. Likewise, in the instant case, defendant's right to have his trial completed by a particular tribunal must be subordinated to the public's interest in fair trials designed to end in just verdicts. Thus the record supports a finding that there was a "manifest necessity" for a mistrial.
Moreover, since the court has concluded that a mistrial was declared in response to defense counsel's motion, and that the motion was not withdrawn as evidenced by the record, petitioner's testimony notwithstanding, the declaration of mistrial did not bar reprosecution. Where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial removes any barrier to reprosecution, even if defendant's motion is necessitated by prosecutorial or judicial error, United States v. Jorn, 400 U.S. at 485, 91 S. Ct. 547.
Therefore, for the reasons stated above, the court concludes that in the circumstances of this case, petitioner's reprosecution did not violate the double jeopardy provision of the fifth amendment.
II. IDENTIFICATION TESTIMONY: PHOTOGRAPHIC DISPLAY AND LINEUP
Harry Noll, an important identification witness for the prosecution, testified that he saw petitioner at the fire and overheard him say "Let the son-of-a-bitch burn." Petitioner claims that it was error to admit this identification testimony for the following reasons: (1) identifications from the photographic display and at the lineup were made without the presence of counsel, and hence violated his sixth and fourteenth amendment rights; and (2) the lineup was so unduly suggestive and conclusive to irreparable mistaken identification that he was denied due process of law.
Noll first identified petitioner by selecting his picture from a photographic display, consisting of several pictures of different persons, shown him by Officer Regan of the Pennsylvania State Police. The exact date on which Noll made this photo identification was not established, but it is clear that it occurred during the police investigation of the fire and before petitioner's arrest. The fire occurred on October 11, 1966. On January 23, 1967, petitioner was arrested. On January 31, 1967, Noll identified petitioner at a lineup. A preliminary hearing was held on February 1, 1967, and petitioner was indicted on April 24, 1967.
The sixth amendment does not guarantee an accused the right to have counsel present when the government conducts a photographic display, containing a picture of the accused, for the purpose of allowing witnesses to attempt an identification of the offender. United States v. Ash, 1973, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619. Thus, Noll's initial identification of petitioner from pictures exhibited to him by Officer Regan did not violate any constitutional guarantee.
Noll subsequently identified petitioner at a post-arrest, pre-indictment lineup without notice to and in the absence of petitioner's counsel. In United States v. Wade, 1967, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, the Supreme Court held that a post-indictment lineup was a critical prosecutive stage at which an accused was entitled to the presence of counsel. At the same time, the Court held in Gilbert v. California, 1967, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, that the admission of in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.
In Stovall v. Denno, 1967, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, the Court held that the constitutional rules established in Wade and Gilbert were not retroactive and had prospective application only -- i.e., established a right to counsel at post-indictment lineups for an accused in all instances occurring after June 12, 1967, the date Wade, Gilbert and Stovall were decided. Since petitioner's lineup took place on January 31, 1967, the right to counsel established in Wade has no application in this case.
Stovall v. Denno, 388 U.S. at 296-301, 87 S. Ct. 1967; Coleman v. Alabama, 1970, 399 U.S. 1, 3, 90 S. Ct. 1999, 26 L. Ed. 2d 387; Foster v. California, 1969, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402; United States v. Beard, M.D. Pa. 1971, 329 F. Supp. 1172, 1173.
There remains the question of whether petitioner, although not entitled to the application of Wade and Gilbert, is entitled to relief on his claim that in any event the lineup conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon conviction independent of any right to counsel claim. Stovall v. Denno, supra. A claimed violation of due process of law in the conduct of a confrontation depends on "the totality of the circumstances surrounding it." Stovall v. Denno, 388 U.S. at 302, 87 S. Ct. at 1972. In Simmons v. United States, 1968, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, in a case where witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Supreme Court restated the governing test:
"[We] hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S. Ct. at 971.
Thus, an in-court identification is inadmissible only if the lineup is unnecessarily suggestive -- i.e., there is a very substantial likelihood of misidentification -- and from the totality of the circumstances the suggestive out-of-court identification results in a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 1972, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401. Thus, the test utilized to determine whether an in-court identification is admissible is: (1) whether the confrontation procedure was unnecessarily suggestive; and, if so, (2) whether under the "totality of the circumstances" the identification was reliable even though the confrontation procedure was suggestive. In Neil the Supreme Court, in holding that a rape victim's in-court identification and her testimony pertaining to her station-house showup identification were admissible, even though the station-house showup may have been suggestive, stated:
"Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification. ' Simmons v. United States, supra, 390 U.S., at 384, [88 S. Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster [ Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402]. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.