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decided: January 29, 1976.



F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellant.

Bashman, Deutsch & Bernstein, Stanley Bashman, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Pomeroy, J., filed a dissenting opinion in which Nix, J., joins.

Author: Eagen

[ 466 Pa. Page 173]


This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Philadelphia granting a petition for a writ of habeas corpus.*fn1 The petition was

[ 466 Pa. Page 174]

    filed following the sua sponte declaration of a mistrial by the trial judge in Commonwealth v. Walton. The court granted the petition because it determined that any attempted retrial of George Walton, relator, would constitute a violation of his Fifth Amendment right against being put twice in jeopardy since the sua sponte declaration of a mistrial was not justified by the circumstances and events surrounding it. We agree and therefore affirm. The pertinent facts are as follows:

Walton was brought to trial on November 27, 1974, on four counts of murder and one count of conspiracy. A jury panel of twelve jurors and two alternates was chosen on this day. The panel was then excused for Thanksgiving weekend without being sworn. Although trial was scheduled to continue on December 2, 1974, because of a motion for a continuance by the Commonwealth resulting from a last minute refusal of a witness, Leroy Brown, to testify, trial did not resume until December 3, 1974.

On December 3, 1974, defense counsel brought to the court's attention an article which had appeared in a newspaper in Philadelphia on December 2, 1974. The article stated that Brown had refused to testify and that the refusal was the reason the Commonwealth had sought a continuance. Defense counsel moved to discharge the jury but withdrew his motion and sought a precautionary instruction regarding the article. The trial judge gave the requested instruction and ascertained that no members of the panel had read the article. The jury was then sworn.

Later on the same day, the trial judge discovered another newspaper article which had been published on December 3, 1974. This article reported that the First Assistant District Attorney had accused Walton of convincing Brown not to testify. The trial court then decided to sequester the jury. The panel was questioned as to whether sequestration would constitute a hardship since the members of the panel, when originally selected, had

[ 466 Pa. Page 175]

    been informed they would not be sequestered except during deliberations.

During the questioning, one juror indicated that the sequestration would be a hardship. That juror was excused and replaced by an alternate. Later in the day, another juror had to be excused and replaced by the other alternate due to hardship. Thus, at the adjournment of trial on December 3, 1974, the jury consisted of twelve jurors and no alternates.

At 11:00 p. m. on December 3, 1974, the trial judge received a phone call from a court officer. The court officer informed the judge that one of the jurors had been unsuccessful in acquiring a baby sitter for her children. After speaking with the juror, the judge determined that she was "very, very distressed" and allowed her to attempt to reach certain neighbors to watch the children. The attempt was unsuccessful. After being informed of this, the judge allowed the juror to go home apparently without directing her to return on December 4, 1974. He did so without consulting either counsel involved.

On December 4, 1974, when the trial was to reconvene, the judge related the previous night's events and informed the parties that: "We now have eleven jurors." Defense counsel then informed the court that his client would not proceed with eleven jurors, that he was not motioning for a mistrial, and that the trial judge's actions had caused a mistrial.

Counsel for the Commonwealth then stated: (1) that defense counsel could consent to proceed with eleven jurors under Rule 1103 of the Pennsylvania Rules of Criminal Procedure; and, (2) that the juror allowed to go home the night before could be returned and an extensive colloquy could then be conducted. Defense counsel stated the juror was no longer part of the jury. The trial judge then stated that the juror had not been "specifically discharged." Counsel for the Commonwealth then expressed the opinion that sequestration was in the discretion

[ 466 Pa. Page 176]

    of the trial judge and it would be up to the trial judge to determine if the juror could be returned. The judge then inquired whether the juror had returned from home and learned she had not. He then conducted a colloquy with Walton, who was allowed to consult counsel, as to whether he would proceed with eleven jurors. Walton refused to do so.

Counsel for the Commonwealth then requested the return of the juror to determine: (1) the precise nature of the previous night's crisis; and (2) the state of mind of the juror and whether she discussed the case with anyone. He then requested that following such an inquiry the court rule whether the juror could be returned to the jury and whether the sequestration should continue.

The trial judge then stated that he had no doubt a crisis had existed the previous night and that he had reservations about lifting the sequestration. Defense counsel then stated he objected to the return of the juror because she might become angry with him after the extensive questioning he would like to conduct if an attempt were made to return her to the jury panel. Further, defense counsel stated the juror was tainted. The trial judge thereupon declared a mistrial formally.

The Commonwealth sought to retry Walton and he petitioned for a writ of habeas corpus. The Court of Common Pleas granted the petition.

The double jeopardy clause of the Fifth Amendment of the United States Constitution was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). There is no question that under the instant facts jeopardy had attached in the first trial, but the mere fact that jeopardy had previously attached and then terminated does not prohibit another prosecution ...

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