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WILSON v. PATTON

June 30, 1982

Floyd WILSON, Jr.
v.
Ernest S. PATTON, et al.



The opinion of the court was delivered by: POLLAK

MEMORANDUM

Floyd Wilson, an inmate at Camp Hill Correctional Institution, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Mr. Wilson's petition challenged on double jeopardy grounds a conviction for robbery and other charges obtained in a retrial conducted after his first trial was terminated sua sponte by the trial judge, over Mr. Wilson's objection, when a prosecution witness inadvertently gave prejudicial testimony. The petition was referred to a Magistrate. Now before this court is the Magistrate's Report and Recommendation sustaining Mr. Wilson's constitutional claims and proposing that habeas corpus be granted. Respondents-the Superintendent of Camp Hill Correctional Institution and the Attorney General of Pennsylvania-have filed objections to the Report and Recommendation. *fn1"

 I conclude that habeas corpus should be denied. In my judgment, the Magistrate's very careful canvass of the state trial record subjects the trial court's decision to declare a mistrial to a stricter level of scrutiny than is warranted under the Supreme Court's most recent examination of this issue. See Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Since I have decided not to adopt the Report and Recommendation, a full explanation of my decision is in order.

 I.

 The narrative begins with the indictment of Mr. Wilson on charges of robbery, aggravated assault, recklessly endangering another, commission of a crime with a firearm and conspiracy. The indictment charged that Mr. Wilson, in concert with a co-defendant, had robbed a pharmacy on the evening of March 19, 1975. Petitioner's trial was commenced before a jury in March, 1976, in the Delaware County Court of Common Pleas with Judge John Diggins presiding. During the course of that trial, the robbery victim, testifying as a witness for the prosecution, referred to "mug shots" of the defendants which had been shown to him by police. Both petitioner and respondent agree that the witness's reference to "mug shots" was inadvertent and in no way attributable to the prosecutor. Following this remark, counsel for Mr. Wilson and counsel for his co-defendant both moved for a mistrial. During a conference in chambers, the co-defendant's motion was granted. The following colloquy ensued:

 
Mr. Weiss (counsel for Mr. Wilson): I have joined in Mr. Rohana's motion for a mistrial, but I would like Mr. Wilson to speak for himself.
 
The Court: Mr. Wilson?
 
Floyd Wilson, Jr.: I am not in agreement with the motion for mistrial. I am pretty sure we have a good jury here, and that precautionary instructions will cure the matter of what happened.
 
The Court: Well, what is your position, Mr. Weiss?
 
Mr. Weiss: I had originally joined in with Mr. Rohana's motion, but I must respect my client's wishes. We fully discussed it. And that's his position, as he advised me when we were having the short recess just previous.
 
The Court: Do you realize, Mr. Wilson, that the danger here is that no matter what we say precautionarily, this jury is almost bound to know that your pictures were in a police file, which indicates a former arrest or conviction; do you know that?
 
Floyd Wilson, Jr.: Yes, sir.
 
The Court: And you are willing to waive that danger? It really amounts to letting this jury know that you have a prior ...

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