No. 89 January Term, 1975, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division - Criminal Section for the County of Philadelphia, at No. 759 September Term, 1970
Martin Heller, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., files an opinion in support of affirmance, in which Eagen, C. J., and O'Brien, J., join. Roberts, Nix and Manderino, JJ., filed separate opinions in support of reversal. Jones, former C. J., did not participate in the consideration or decision of this case.
The judgment of sentence is affirmed by an equally divided Court.
POMEROY, Justice, in support of affirmance.
Appellant Larry Potter has been tried three times for the murder of one Isaac Sinnamon during a June, 1970 attempt to rob the victim's neighborhood grocery store.*fn1 Each trial has resulted in Potter's conviction of murder in the first degree,*fn2 for which he was sentenced to a term of life imprisonment.
The central issue presented by this appeal is whether Potter's third trial for this offense was barred by the Double
Jeopardy Clause of the Constitution of the United States.*fn3 It is our view that it was not, and also that no reversible error occurred in the third trial. We would therefore affirm the judgment of sentence.
We must first consider whether the Double Jeopardy Clause is implicated in the proceedings that have been had in this case. The answer to this depends largely on the interests at stake in double jeopardy questions as those interests have been developed and explained by the case law.
A double jeopardy claim is most commonly raised when a mistrial has been declared over the objection of the defendant. In such cases, the constitutional permissibility of a new trial depends on whether there was "manifest necessity" for the declaration. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 166 (1824); see, e. g., Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). The "manifest necessity" standard exists because the defendant has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949). As Mr. Justice Harlan explained: "If that right to go to a particular tribunal is valued, it is because . . . the defendant
has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971) (plurality opinion).
This type of double jeopardy question, however, is not present in the case at bar. In appellant's second trial there was no declaration of a mistrial over appellant's objection; rather, appellant himself several times moved for a mistrial, and the motions were denied. It was later determined by the lower court en banc that a new trial was necessary because appellant's constitutional right to a fair trial, e. g., Commonwealth v. Thompson, 444 Pa. 312, 281 A.2d 856 (1971), had been transgressed. When a conviction is set aside because of trial error, as appellant's second conviction was, the usual rule, sometimes referred to as "the Ball principle," is that the Double Jeopardy Clause is not a bar to reprosecution. E. g., United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). See also Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth v. Scoleri, 415 Pa. 218, 344-46, 202 A.2d 521 (1964); Commonwealth ex rel. Patrick v. Banmiller, 398 Pa. 163, 164, 157 A.2d 214 (1960). Similarly, when a mistrial is granted at the defendant's request, there is usually no bar to reprosecution. See, e. g., Commonwealth v. Barille, 270 Pa. 388, 392-94, 113 A. 663 (1921).
To be sure, the Double Jeopardy Clause
"represents a constitutional policy of finality for the defendant's benefit in . . . criminal proceedings . . . [S]ociety's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in the enforcement of criminal laws." United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554, 27 L.Ed.2d at 553.
But the Ball principle is nevertheless well established. Thus it is that the Double Jeopardy Clause does not require that only one trial of a defendant be allowed, and that if that one trial contains error, the defendant may not again be tried. Among the explanations that have been proffered for this rule are that the new trial is part of one continuous "single criminal proceeding," United States v. Jorn, supra, 400 U.S., at 479, 91 S.Ct. 547, and that the double jeopardy bar does not arise until there is a sentence that is no longer subject to attack. See Commonwealth v. Melton, supra, 406 Pa. at 347, 178 A.2d 728. However that may be, societal interests militate against a literalistic reading of the Double Jeopardy Clause. As the Supreme Court of the United States has put it:
"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of the defendant to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451 (1964).
Reprosecution is not, however, permitted as a matter of course in any case in which a mistrial is ordered or a new trial granted at the behest of the defendant. We have noted the interests implicated by the double jeopardy prohibition, viz., the defendant's right to an adjudication by a particular tribunal, his right not to be burdened with the anxiety and expense of repeated trials, his right to a fair trial, and society's interest in the punishment of those properly found guilty. A double jeopardy claim cannot be properly disposed of by analyzing any one of these factors to the exclusion of others; a balancing of the interests at stake is essential.
See generally Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449 (1977). In some circumstances, a defendant's fair trial interests may have been so unjustifiably damaged at a trial that he should not be subjected to another trial even though it was at the defendant's own request that another trial was granted. Here the appellant contends that the conduct of the prosecution at his second trial presents such a case. But before discussing that contention, it is necessary to consider a subsidiary question posed by this case.
As we have noted, appellant's mistrial motions during the course of the second trial were denied, but were later deemed meritorious by the court en banc, with the result that a new trial was awarded. The question then arises whether the fact that a new trial was the result of a decision by a reviewing court rather than the declaration of a mistrial by the trial judge requires that the exceptions to the Ball principle cannot be considered. We think not; a distinction between granting a new trial at the urging of a defendant and ordering a mistrial at his request is without significance for double jeopardy purposes. Recent cases in the Supreme Court of the United States have emphasized that in the field of federal criminal practice the applicability of double jeopardy analysis is not dependent on nice procedural distinctions. Thus in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), wherein the district court had characterized its action as a "dismissal of the information," it was held that a claim of double jeopardy "does not turn on whether the District Court labels its action a 'dismissal' or a 'declaration of mistrial,'" and that "the order entered by the District Court was functionally indistinguishable from a declaration of mistrial." Id. at 30, 97 S.Ct. at 2146, 53 L.Ed.2d at 87. See also United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Although we are not here presented with the problems of characterization of trial rulings that existed in the cited cases, we think that a functional analysis of the type employed in those cases is
equally appropriate to the case at bar. Were the permissibility of reprosecution to be governed by a more relaxed standard where a verdict is set aside post-trial than where a mistrial is granted on motion during trial, trial judges might be led "to reject the most meritorious mistrial motion . . . and to require, instead, that the trial proceed to its conclusion despite a legitimate claim of seriously prejudicial error." United States v. Dinitz, 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275 (1976). Accordingly, we conclude both that we must consider appellant's claim that prosecutorial misconduct at his second trial barred reprosecution, and that in doing so we should apply the same standard that would determine whether or not a retrial would be barred after a mistrial had been granted at defendant's request.
Appellant contends that misconduct by the prosecution at his second trial should have barred reprosecution and thus a third conviction. It is urged that retrial should be barred (a) if the misconduct was motivated by an intent to force the defendant to move for a mistrial, and (b) if the misconduct was "reckless." For the reasons to be discussed in Part III of this opinion, we find that the former type of conduct did not occur. Our reasons for disagreement with the "recklessness" standard urged by appellant are the subject of this section.
In deciding whether the circumstances in this case are such that reprosecution should be barred because of prosecutorial misconduct, we are guided by decisions both of this Court and the Supreme Court of the United States. In several Pennsylvania decisions which preceded the date that the federal double jeopardy prohibition was made applicable to the states,*fn4 this Court established a standard under which
reprosecution would be barred although a mistrial was declared at a defendant's request. As restated in Commonwealth v. Wright, 439 Pa. 198, 201, 266 A.2d 651, 653 (1970):
"From our decisions in Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966) has developed the rule that a defendant who has moved for a mistrial in response to prosecutorial misconduct may be retried if the prosecution has not invited the mistrial in order to secure another, possibly more favorable opportunity to convict the accused.*fn* This is because society's interest in preventing the guilty from going unpunished out-weighs the risk of harassment and the burdens the defendant will incur in going through a second trial."
Subsequent decisions in the United States Supreme Court, which are binding on the states, express a similar view:
"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor,' United States v. Jorn, supra, at 485, 91 S.Ct. 547, 27 L.Ed.2d 543, threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Downum v. United States, 372 U.S. 734, 736,
[83 S.Ct. 1033] 10 L.Ed.2d 100, 102-03 (1963)."
United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276 (additional citations omitted). Similarly, in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), the Supreme Court stated:
"It follows under Dinitz that there [is] no double jeopardy barrier to [an accused's] retrial unless the judicial or prosecutorial error that prompted [a defendant's mistrial] motions was 'intended to provoke' the motions or was otherwise 'motivated by bad faith or undertaken to harass or prejudice' . . . Neither error [asserted by Lee] . . . was the product of the kind of overreaching outlined in Dinitz." Id. at 33, 97 S.Ct. at 2148, 53 L.Ed.2d at 89 (emphasis added).
Appellant would have us read the word "overreaching" as embracing not only deliberate prosecutorial misconduct, as defined in Dinitz, but also "recklessness" or "gross negligence" of the prosecuting attorney of such a nature as to deprive the defendant of a fair trial. We think that such a standard is unwarranted.
In the first place, appellant's view is not supported in the cases. Appellant's view does, however, find favor in the opinion announcing the decision of this Court in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90, 108 (1977).*fn5 There the term "prosecutorial overreaching" was defined as embracing not only intentional misconduct but also "gross negligence." It was argued that since the Supreme Court in Dinitz did not explicitly rule out the use of the "gross negligence" standard, such a standard was a proper one for measuring prosecutorial misconduct which, if found, would bar retrial. Id. 472 Pa. at 637 n. 36, 373 A.2d at 109 n. 39. But the federal cases cited in support of this proposition used "gross negligence" standards in dictum and are frail
reeds upon which to posit such a holding.*fn6 A subsequent decision of a federal court of appeals, United States v. Martin, 561 F.2d 135 (8th Cir. 1977), does hold that "gross negligence" amounts to the sort of "prosecutorial over-reaching" that bars a retrial. This decision, however, is not binding on this Court, nor do we find it persuasive.
The majority in Martin, citing Dinitz and Lee, supra, noted that prosecutorial conduct "motivated by bad faith or undertaken to harass or prejudice the [accused]," Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1082, 47 L.Ed.2d at 276,
would bar reprosecution upon a mistrial sought by the defendant. The court went on to hold, however, that the prosecutor's "gross negligence" in reading irrelevant and prejudicial grand jury testimony to the petit jury "can best be described as prosecutorial error undertaken to harass or prejudice the defendant -- prosecutorial overreaching." 561 F.2d at 140 (footnote omitted). Precisely how the court of appeals in Martin could equate even grossly negligent conduct with conduct "undertaken to harass or prejudice the defendant" is unclear; conduct which is undertaken with a particular end in view is not negligent conduct, it is intentional conduct. The Martin court also relied on its finding that the prosecutor's actions "gave appellant no choice except to move for a mistrial and subject himself to the ordeal of another trial." Id. at 141.
Both of the grounds of decision in Martin are highly suspect under the rationale of United States v. Dinitz, supra. In Dinitz the trial judge barred from the courtroom one of defendant's three lawyers after the attorney had violated, at least four times, the court's order prohibiting references in the opening address to the jury that were not based on admissible evidence. When the trial judge was later informed that defendant's two other counsel were not prepared to try the case, the judge outlined three options to defendant, one of which was to move for a mistrial. Defendant chose so to move, and the motion was granted. The court of appeals reasoned that it was judicial overreaction which had placed the defendant in a position where he had to move for a mistrial and could not "be said to have relinquished voluntarily his right to proceed to the first jury." United States v. Dinitz, 492 F.2d 53, 59 (5th Cir.), aff'd en banc, 504 F.2d 854 (5th Cir. 1974) (8-7 decision). Having found an involuntary "waiver," the court then applied the "manifest necessity" standard to determine whether the grant of defendant's mistrial motion should have barred reprosecution, and concluded that retrial was barred. The Supreme Court reversed:
"In such circumstances [as those presented in Dinitz ] the defendant generally does face a 'Hobson's choice' between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. [But] [t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course of conduct to be followed in the event of such error." 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267, 275.
Thus the Supreme Court in Dinitz drew a marked distinction between the defendant's own tactical choice (mistrial or reversal), and conduct by the prosecution or the judiciary which, regardless of what choice the defendant has made, independently bars reprosecution. That is to say, the critical question is not whether defendant was "forced" to seek a mistrial, but why he makes the decision he does. On this issue, the Dinitz Court was clear:
"Even accepting the appellate court's conclusion that the trial judge overreacted in expelling [the lawyer] from the courtroom, the court did not suggest, [defendant] does not contend, and the record does not show that the judge's action was motivated by bad faith or undertaken to harass or prejudice the [accused].
"Under these circumstances we hold that the Court of Appeals erred in finding that the retrial violated [defendant's] constitutional right not to be twice put in jeopardy." 424 U.S. at 611-12, 96 S.Ct. at 1082, 47 L.Ed.2d at 276 (footnote omitted).
In the case before us, appellant's argument takes us too close to the slippery characterization of defendant's having been "forced" to move for a mistrial. Moreover, we do not agree with the contention that the phrase "undertaken to harass or prejudice the [accused]," id., at 611, 96 S.Ct. at 1082, includes the concept of "grossly negligent" conduct simply because it fails to exclude that idea. The Court in Dinitz took care to define in comprehensive fashion that phrase: "'[h]arassment of an accused by successive prosecutions or [a] declaration of a mistrial so as to afford the Page 266} prosecution a more favorable opportunity to convict ' the defendant." Id., quoting Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100, 102-03 (1963) (Douglas, J.) (emphasis added). Accord, Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2148, 53 L.Ed.2d 80, 89 (1977) ("it follows under Dinitz that there [is] no double jeopardy barrier to . . . retrial unless the judicial or prosecutorial error that prompted [defendant's mistrial] motion was 'intended to provoke' the motion or was otherwise 'motivated by bad faith or undertaken to harass or prejudice . . .') (Powell, J.); United States v. Jorn, 400 U.S. 470, 485 n.12, 91 S.Ct. 547, 556, 27 L.Ed.2d 543, 556 n.12 (1971) ("judicial or prosecutorial impropriety designed to avoid an acquittal") (plurality opinion) (Harlan, J.); Commonwealth v. Wright, 439 Pa. 198, 201, 266 A.2d 651, 653 (1970) ("prosecutorial misconduct [that] invited the mistrial in order to secure another, possibly more favorable opportunity to convict the accused."). In short, we agree with the dissenting judge in Martin, supra, that "it is clear that Dinitz requires bad faith harassment intended to goad the defendant into requesting a mistrial before reprosecution will be barred." 561 F.2d at 142 n.1 (Henley, J., dissenting).
We believe that the same conclusion is reached when the interests implicated by the Double Jeopardy Clause are considered. Only when a deprivation of defendant's right to continue a trial before a particular tribunal is accomplished without his choice and no "manifest necessity" for so doing is present, or when that deprivation is caused by misconduct designed to force the defendant to seek a mistrial, is the defendant so unjustifiably deprived of his right to the first jury's decision that society's interest in the punishment of those properly found guilty must give way to a discharge of the accused. When this deprivation is not the evident purpose of the prosecution, it is the defendant's and society's interest in a fair trial that is primarily affected, and the remedy of a new trial, while it does of course affect the defendant's interest in the first jury's decision, is necessary and sufficient to vindicate both the citizen's interest in a fair
trial and the societal interest in bringing those properly found guilty to punishment.*fn7
In sum, the public interest in convicting those guilty of crimes is too important an interest to be subordinated to a concept of a prosecuting attorney's negligence, even though it be labeled "gross"; defendants are adequately protected by the sanction of complete discharge which is imposed when the government's agent acts with the intent to abort the trial.*fn8 Accordingly, we believe that retrial should be barred when there is found to have been prosecutorial misconduct "intended to provoke mistrial requests," Dinitz, supra, at 611, 96 S.Ct. 1075, that is to say, when the prosecuting lawyer, judged by an objective standard, must be deemed to have been substantially certain that a mistrial would be declared as a result of his questions to witnesses or other conduct at trial.
We turn to the application of this standard to the facts of the case. To resolve the question whether the Commonwealth had a right to try Potter a third time, we must direct our attention to the conduct of the second trial, and assess the degree of impropriety and of prejudice to the defendant's right to a fair trial which was involved in the alleged misconduct of the prosecutor during that second
proceeding. This requires close attention to the sequence of events and the exact language used by the parties and the trial court.
At two points in Potter's second trial the trial judge seriously considered granting a defense motion for a mistrial. The first point came during the Commonwealth's case in chief when the prosecutor was questioning Detective Thompson, the officer who had arrested first one Emmett Vinson and then, after Vinson implicated Potter, the appellant himself. The relevant portions of the trial transcript are summarized or quoted in the margin.*fn9
The second incident occurred during the cross-examination of the defendant's character witness, his pastor, the Reverend Mr. Smalls. In brief, the prosecutor asked the witness whether he had spoken to Emmett Vinson about the appellant's reputation. The trial judge sustained the defense counsel's objection to this question*fn10 and cautioned the prosecutor. The relevant portions of this colloquy between court and counsel and of Mr. Smalls' cross-examination are reproduced in the margin.*fn11
It is undisputed, of course, that a reference to the juvenile record of a defendant is improper in this jurisdiction.*fn12 It was on this ground alone that the conviction resulting from the second trial was set aside.*fn13 But as the quoted excerpts
from the record show, the trial judge's rulings on the objections were narrow; we cannot conclude that the prosecutor at any point violated a specific, direct order of court as to either the proper form or the permissible subject matter of his questions.
This is not to say that the prosecuting attorney was not at fault in the form or substance of some of the questions put to the witness. There is no doubt that the cross-examination of a character witness must be carefully limited to minimize the real possibility of prejudice to the defendant. See Commonwealth v. Jenkins, 413 Pa. 606, 198 A.2d 497 (1964); Commonwealth v. Selkow, 206 Pa. Super. 273, 212 A.2d 919 (1965).*fn14 The chalk line that must be walked in interrogating such a witness as to the grounds of his knowledge is a narrow one. See III J. Wigmore, Evidence, § 998, at 912 (Chadbourn rev. 1970). It was, as the court en banc held, overstepped in the case at bar.
That some of the questions put to the character witness by the prosecutor were improper for the reasons discussed
above means at least that the trial court correctly sustained the defense counsel's objections once the questions had been asked. Neither this conclusion, however, nor the trial court's later ruling that the questions were sufficiently prejudicial to the defendant to require a new trial warrants a conclusion that the Commonwealth forfeited its right to retry the appellant thereafter. To the contrary, the events that led up to the defendant's mistrial motion, as disclosed by the record, do not support a finding of intentional misconduct or bad faith by the prosecutor. The record amply supports the specific finding of the trial judge, in ruling on Potter's motion to dismiss the charges before the third trial, that the prosecutor at the second trial had not intended to procure a mistrial. Indeed, there was no apparent reason why the prosecution would wish another trial before a different jury; as the court en banc noted in granting Potter's motion for a third trial, the Commonwealth's evidence in the case was overwhelming. Thus there was no bar to a third trial.
Since there was in our view no prohibition to retrial in this case, the errors appellant assigns arising from his third trial must be considered. Of the multiple assignments of error, only one appears from the record to merit discussion.*fn15
A key defense witness, Irene Williamson, who had been an eyewitness of the killing with which Potter had been charged, testified that Potter was not involved. The Commonwealth called as a rebuttal witness William Stevens, Esquire, who was the assistant district attorney in charge of the first trial. He testified that during the trial Mrs.
Williamson had, in a conversation with him, positively identified Potter as the one who shot Isaac Sinnamon; that to his knowledge she had never positively identified any suspect during the investigation; and that as a result of her responses to further questions asked by Stevens, he told her that he did not expect to need her as a witness in the case and that she could go home. Stevens further testified that Mrs. Williamson continued to appear at the trial every day, and that some days later, Martin Heller, Esquire, Potter's counsel, approached him and asked Mrs. Williamson to repeat to Stevens what she had just told Heller. Mrs. Williamson then stated that Larry Potter was not involved. Stevens' direct testimony concluded as follows:
"BY MR. GELMAN [assistant district attorney]:
Q. Tell us what happened after Mrs. Williamson stated in your presence and Mr. Heller's presence that Mr. ...