Neil E. Jokelson, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Nancy Wasser, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal from the order of the Court of Common Pleas of Philadelphia denying appellant's motion to quash indictments on double jeopardy grounds.*fn1
Appellant, Israel Santiago, was tried for the second time on charges of murder, rape, indecent assault and criminal conspiracy.*fn2 This trial ended when the court, over defense objection, declared a mistrial after approximately thirty hours of jury deliberation. Appellant argues that the Commonwealth should be barred from proceeding with a third trial because the declaration of a mistrial over appellant's objection was not based upon manifest necessity and, therefore, retrial would violate his constitutional guarantee against double jeopardy. We conclude that the trial court did not abuse its discretion in declaring a mistrial for manifest necessity and remand for trial.
The jury deliberated from 4:15 to 6:00 p. m. on Monday, December 11, 1978, and from 10:00 a. m. to 12:30 p. m. on
December 12 before informing the court that it was deadlocked. The court instructed the jury to continue its deliberations. At 2:10 p. m. that same day the jury asked a court officer to advise the court that it was ready to return a verdict. However, the jury did not return to the courtroom but instead instructed the court officer to inform the court that the jury was not in agreement. The court then instructed the jury to continue its deliberations. The jury retired for the night at 6:40 p. m. On both December 13 and December 14, the jury deliberated from 10:00 a. m. to 5:00 p. m. Then on Friday, December 15, at 9:30 a. m. one of the jurors was reported ill from exhaustion. This juror was discharged and, by agreement of counsel, deliberations continued with eleven jurors. At 3:00 p. m. that day, after discussion with counsel and despite defense objection, the court summoned the jury. The court inquired whether the jury had reached a verdict and, if not, whether with more time it could do so. The foreman answered that no verdict had been reached and that "[w]e have gotten the same verdict for the past few days without any change at all in the last two days." The court then asked the jury to return to the jury room to determine whether it was deadlocked. Twenty-three minutes later the jury returned and the following colloquy ensued:
"THE COURT: Has the jury come to any decision?
JURY FOREMAN: It has, your Honor.
THE COURT: I see. Can you state what it is they have agreed?
JURY FOREMAN: That the jury is deadlocked.
MR. JOKELSON: Your Honor, may I ask that the jury be polled with respect to ...