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April 12, 1974

John R. CONNER, Petitioner,
Erskind DERAMUS, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania, Respondent

Sheridan, Chief Judge.

The opinion of the court was delivered by: SHERIDAN

John R. Conner, a state prisoner, has filed this petition for writ of habeas corpus contending that his conviction for arson was obtained in violation of his constitutional rights.

 After exhausting state remedies, petitioner filed this petition for writ of habeas corpus alleging that he was deprived of rights guaranteed by the federal constitution. A hearing was held on September 18, 1973, at which petitioner was present and testified and evidence was adduced with respect to the issues presented in the petition. The court, in ruling on petitioner's contentions, has made a careful study of the voluminous state record.


 Petitioner contends that Judge MacPhail of the Adams County Court improperly aborted his first trial by declaring a mistrial and therefore his subsequent reprosecution violated the fifth amendment prohibition of double jeopardy. The declaration of mistrial was made under these circumstances:

 Mrs. Hertzler, the fourth witness for the Commonwealth, in the course of her testimony on direct examination stated that the defendant was going back to prison, *fn1" thereby indicating to the jury that the defendant had a criminal record. Mr. Caldwell, defendant's attorney, objected at this point to Mrs. Hertzler's remark, argued it was prejudicial to the defendant, and asked the court to declare a mistrial, Tr. of Rec. in No. 2 May Term, 1967, p. 113 (1st trial). The court declared a ten minute recess and the District Attorney, defendant's counsel, and Judge MacPhail conducted an off-the-record conference in chambers. When the trial resumed, Judge MacPhail told the jury that a statement made by a witness was considered by the court prejudicial, that it was obligatory upon the court to take some action if the statement was so highly prejudicial that the defendant would not receive a fair trial, and that the court, therefore, was declaring a mistrial, Tr. of Rec. in No. 2 May Term, 1967, p. 114 (1st trial).

 Although the ruling is ambiguous as to whether Judge MacPhail ordered the mistrial sua sponte or in effect sustained defendant's motion for mistrial, the record supports the conclusion that both defense counsel and Judge MacPhail believed a mistrial should be declared due to the prejudicial statement and that, therefore, the court in declaring a mistrial sustained defense counsel's motion.

 Petitioner, at the habeas corpus hearing, testified that Mr. Caldwell told him upon returning from Judge MacPhail's chambers that the motion for a mistrial had been withdrawn and the trial would continue. Petitioner presented no evidence to support this contention. Although petitioner submitted voluminous material, including several affidavits, in support of his petition, there is no affidavit from Mr. Caldwell. Petitioner did not have Mr. Caldwell testify at the habeas corpus hearing. Hence, petitioner's testimony on this matter is nothing more than unsupported hearsay. There is nothing in the record to support this assertion; the motion for a mistrial was never withdrawn on the record. Defendant's consent to a mistrial need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial. United States v. Goldstein, 2 Cir. 1973, 479 F.2d 1061, 1067. The court finds, therefore, that Judge MacPhail, in declaring a mistrial, did so pursuant to defense counsel's motion.

 Furthermore, even if the court had declared a mistrial sua sponte, the record would support a finding that there was a "manifest necessity" to abort the trial. The test utilized in applying the fifth amendment prohibition of double jeopardy *fn2" to situations giving rise to mistrials was first stated in United States v. Perez, 1824, 22 U.S. 579, 9 Wheat. 579, 6 L. Ed. 165.

". . . 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 favor 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. . . ." 9 Wheat., at 580.

 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.


 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 ...

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