APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 80-0038)
Before Adams, Garth and Sloviter, Circuit Judges.
After three days of deliberation, the jury found defendant Rooks Edward Crawford guilty of conspiring to violate the narcotics laws of New Jersey. The state trial judge, however, believing that the jury's answers to special interrogatories were inconsistent with the guilty verdict, ordered the jury to continue its deliberations. After a day of further deliberation the jury, displaying confusion, asked to be released. The trial judge declared a mistrial over the defendants' objections, holding that there was a manifest necessity to do so.
On federal habeas review, the district court determined that the trial judge had abused his discretion in ruling that manifest necessity existed for the jury's discharge. The district court then held that the double jeopardy clause of the Fifth Amendment barred Crawford's retrial. Crawford v. Fenton, 490 F. Supp. 776 (D.N.J.1980). We disagree and reverse.
Rooks Edward Crawford was indicted on April 19, 1977 with conspiracy "to violate the provisions of the narcotics laws of the State of New Jersey, contrary to the provisions of N.J.S. 24:21-24."*fn1 On March 13, 1978, a jury trial for Crawford and his seven co-defendants began in the New Jersey Superior Court. The trial judge charged the jury on the morning of Tuesday, April 11, 1978. He requested that if the jury found any of the defendants guilty of conspiracy, it should answer supplemental questions concerning the scope of the conspiracy and the type and amount of controlled dangerous substance (CDS) involved.*fn2
In explaining the verdict form to the jury, the trial judge said:
All right. As to the first count, you will first indicate whether any of the defendants are guilty or not guilty; the N.G. stands for not guilty, the G stands for guilty.
If you find any one of these defendants guilty then you are going to have to answer the next series of questions as to the scope of the conspiracy, whether it had to do with possession of controlled dangerous substances. If the answer is yes, check yes, if the answer is no, check no.
Possession with intent to distribute. If the answer is yes, check yes, if no, check no. If the conspiracy involved distribution of controlled dangerous substances, check yes or no. That's only if you find any of the defendants guilty of the conspiracy.
If you don't, you need not go to the series three questions.
Then, if you find the defendant guilty of a conspiracy, you will have to answer the next group of questions, that is, whether they conspired to possess, possess with intent to distribute, or distribute heroin, yes or no, cocaine, yes or no. That's not been marked, you better correct this form. All right, we will have the form corrected, there will be a yes or no placed after cocaine.
Then if it's cocaine, you will indicate if it's less than one ounce, but at least 3.5 grams pure, free base, or less than one ounce (sic) or more than one ounce but less than 3.5 grams pure, free base.
The record does not disclose the judge's reason for presenting these interrogatories to the jury. Presumably they were introduced for sentencing purposes. See 5 NT at 12; State of New Jersey v. Wallace, No. 2825-76, slip op. at 5 (N.J.Super.Ct.Law Div.) (App. at 24). The punishment for violation of the conspiracy statute "may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor of conspiracy." N.J.Stat.Ann. § 24:21-24. Thus the length of the potential sentence would depend on whether the conspiracy only involved possession rather than possession with intent to distribute or distribution, and the amount and purity of the Schedule I or II narcotic drug involved.*fn3
On Friday afternoon, April 14, the jury returned its verdict. Crawford and two other defendants were found guilty of conspiracy, four defendants were acquitted, and the jury was unable to reach a verdict as to the eighth defendant. In answering the interrogatories, the jury found that the guilty defendants had conspired to distribute a controlled dangerous substance (CDS) but had not conspired either to possess, or to possess with intent to distribute a CDS. The jury answered "No" to the question of whether the drug was heroin, and "No" to the question of whether the drug was cocaine. One defense attorney eventually brought to the court's attention that there was a possible inconsistency between the general verdict of guilty and the answers to the special interrogatories. The judge agreed, ordered the jury back, and the following dialogue ensued:
THE COURT: I have your verdict form in which you indicate you have found three defendants guilty of conspiracy, then you go on to say, and I ask you this question, now you are to consider the controlled dangerous substance involved as well as the amount, and you say no heroin was involved and no cocaine.
Your verdict is in error. You are to go back and deliberate and determine for me whether that verdict is correct or not. You go back to your deliberations. Your verdict form will be sent back.
VOICES: We don't understand.
THE COURT: You don't understand what? All right. I will send the jury back. You send me such note as you see fit, ladies and gentlemen. Give me the verdict form.
Counsel for Crawford and the other defendants found guilty moved that the verdict be set aside as against the weight of the evidence, relying on the jury's answer that the conspiracy had involved neither heroin nor cocaine. (4 NT at 22). One defense counsel moved for a mistrial and requested that the verdicts be set aside on the ground that they were inconsistent. The trial judge never ruled on these motions.
The jury returned at four o'clock with a corrected verdict form. Its only "correction" was to change its answer from "Yes" to "No" as to whether the scope of the conspiracy related to distribution of a controlled dangerous substance (4 NT at 29). Thus, with this change made to the verdict form, the jury had then found certain defendants guilty of conspiring to violate the narcotics laws, but in defining the scope of that conspiracy had not found these defendants guilty of either possessing or possessing with intent to distribute or distributing a controlled dangerous substance. Since the jury had already found that the conspiracy did not involve possession, or possession with intent to distribute, its "corrected" finding created still another inconsistency. The judge then explained to the jury that the jury had to determine which law the defendants conspired to violate and the identity and quantity of the drug involved. The jury then retired.
The jury soon sent back a note indicating that it did not know whether the conspiracy concerned heroin or cocaine:
There has been no testimony as to what any of the codes were. It was not established whether or not pants was cocaine or heroin; coats was cocaine or heroin, and so forth. Therefore it would not be fair to answer that question. We would be guessing. Thank you.
(4 NT at 35).*fn5 Defense counsel then requested a directed verdict of acquittal. The state responded by asserting that the jury had determined that the conspiracy concerned a controlled substance but the jury did not know which substance was involved. The state then asked the court to rephrase the interrogatories so as to seek an answer as to the amount of the substance involved, but not its identity. (4 NT at 36-40).
The judge failed to heed either the prosecutor's or the defense attorneys' requests, but instead again instructed the jury that if the defendants were guilty, the jury had to find whether they conspired to possess, possess with intent to distribute, or to distribute a CDS, and whether the CDS was heroin or cocaine. (4 NT at 42-43). He then sent the jury back to deliberate.
The defendants' attorneys protested that the new charge directed the jury to arrive at a consistent guilty plea and did not ask the jury to consider whether the defendants were innocent. They claimed that the findings demonstrated that any conspiracy may have had nothing to do with a controlled substance and again asked for a directed verdict of acquittal. While the parties were debating one juror sent out a note stating that it would cause him a great hardship to attend jury deliberations on Saturday. At 5:10 p. m. the jury sent a note to the judge stating that the jurors wanted to go home. A few minutes later, a jury note revealed that a few jurors would reverse their guilty verdicts to not guilty. (4 NT at 60).
The trial judge then stated, that if asked, he would have charged the jury that if it did not find which substance was the subject of the conspiracy, it should find the defendants not guilty. (4 NT at 61). He did not so charge, however, because no defendant asked for such an instruction. Nor, thereafter did any of the defendants make such a request. Discussion among the judge and the lawyers continued. One defense attorney observing the jury's confusion, expressed fear that it would be intimidated into returning a guilty verdict. (4 NT at 64).*fn6 The trial court then ruled on motions for judgment of acquittal, denying them. (4 NT at 69). The trial judge indicated that he was considering declaring a mistrial if no one objected. Defense counsel expressed their preference that the jury be allowed to continue deliberations. The judge acceded to their request.
The jury then asked to "hear the testimony on the chemist" and "any testimony that would help determine what the codes would mean." (4 NT at 71). It was estimated that it would take at least four days to read this testimony. (4 NT at 74-75). While counsel were discussing when to have the testimony read to the jury, the jury sent out another note. This note read, "We did not consider questions 1 through 5 (of Appendix B) in our guilty verdict which could have changed our verdict to not guilty." (4 NT at 75.) The trial court took no action in response to this note. Thereafter, some testimony was read, but the jurors were soon excused so that they could eat dinner (at 8:30 p. m., the dinner having been delayed). After dinner, the jurors requested that they be allowed to go home:
We have been here 12 hours. A lot of us are very tired and cannot concentrate. We ask you to please let us go home. We would like to know what your comments are on our other notes we sent you earlier.
(4 NT at 82). At that stage, the judge stated his intention to discharge the jury. Defense counsel asked the court to allow the jury to press on. The court honored their request, excused the jurors, and asked them to return at nine o'clock the next morning (Saturday).
On Saturday morning the jury was again read testimony, until it expressed a desire not to hear any more (5 NT at 2). The jury withdrew, and the defense attorneys again argued for a judgment of acquittal. The jury then sent out another note:
Your Honor, after serious thought we feel we cannot continue with ...