decided: July 12, 1982.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
ANTHONY MURRY, APPELLANT
No. 80-3-702, Appeal from the July 28, 1980 Order of the Court of Common Pleas of Philadelphia County, Denying Appellant's Motion to Dismiss the Bills of Indictment Numbers 1415-1419, August Term, 1979, on grounds of Double Jeopardy.
Vincent J. Ziccardi, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a dissenting opinion in which O'Brien, C. J., and Roberts, J., join.
[ 498 Pa. Page 505]
OPINION OF THE COURT
This is an appeal from an order of the Honorable Paul Ribner of the Court of Common Pleas of Philadelphia, denying the motion of appellant, Anthony Murry,*fn1 for dismissal on double jeopardy grounds, of charges of murder, robbery, conspiracy, and possession of an instrument of crime. We affirm.*fn2
[ 498 Pa. Page 506]
Appellant had been tried for these offenses before a jury; which began its deliberations at 11:29 A.M. on March 27, 1980.*fn3 The jury deliberated throughout the day, at one point returning to the courtroom for clarification of the different degrees of murder. The jurors retired for the evening, and, after resuming deliberations on the morning of March 28, 1980, returned to the courtroom at 12:12 P.M. to inform the court that they had failed to reach agreement upon a verdict. The foreman indicated, however, that an agreement might be attainable if the court would explain whether all four bills of information required identical verdicts. After requested explanation was given, the jury resumed deliberations at 12:35 P.M. The jury reentered the courtroom at 2:52 P.M. and delivered the following written message to the court:
Your Honor, this jury cannot reach a unanimous decision on any of the four bills of information. After much deliberation, the jury feels that there is no possible way we will be able to reach any unanimous decisions on any of the four listed bills of information.
Notes of Testimony at 12.14 (emphasis supplied). The court responded that the jury had not yet deliberated for an undue amount of time, and, at 2:59 P.M., dispatched the jury to once again try to reach agreement on a verdict. At 3:45 P.M. the jury again returned to the courtroom and delivered to the court a second note:
[ 498 Pa. Page 507]
Your Honor, it is the unanimous opinion and decision of this jury that the information as presented by both defense counsel and the Assistant District Attorney is insufficient. Therefore, we are unable to reach any unanimous Page 507} decision on any of the four bills of information as presented.
This jury has deliberated! Each member of this jury has been given maximum opportunities to express his/her individual opinions with utmost respect. We are still and will continue to be at an impasse.
Notes of Testimony at 12.17-12.18 (emphasis supplied). The court inquired of each juror individually whether he or she agreed that there was a hopeless deadlock, and each answered in the affirmative. Appellant's counsel then requested that the jury be instructed that, if the jurors found the information insufficient, they should find appellant not guilty. Judge Smith expressed his view that no further instructions were required, in light of the jury's note, and denied appellant's request. The judge reluctantly granted a mistrial on his own motion.
Appellant now claims that retrial would violate his right against twice being placed in jeopardy because the trial court failed to question the jury on the meaning of the last note it sent to the court. Without such questioning, appellant appears to argue, no manifest necessity justified the sua sponte declaration of a mistrial and double jeopardy thus bars a new trial. This contention is utterly meritless, however, because the jury's statement clearly shows that it was hopelessly deadlocked. The mistrial declaration was, therefore, manifestly necessary.
[ 498 Pa. Page 508]
It is well-settled that the grant of a mistrial must be manifestly necessary in order to avoid the bar of double jeopardy on retrial. Arizona v. Washington, 434 U.S. 497, 509-10, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978); Commonwealth v. Santiago, 492 Pa. 297, 301, 424 A.2d 870, 872 (1981); Commonwealth v. Sullivan, 484 Pa. 130, 133, 398 A.2d 978, 979 (1979); Commonwealth v. Bartolomucci, 468 Pa. 338, 345, 362 A.2d 234, 238 (1976). Our cases leave no doubt however, that manifest necessity justifies discharge of a jury, when it appears that there is no reasonable probability of agreement on a verdict. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Wade Page 508} v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234; Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973). See also, Commonwealth v. Santiago, 492 Pa. at 303, 424 A.2d at 872; Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Standard 15-5.4(c) of the American Bar Association Standards Relating to the Administration of Criminal Justice, Trial by Jury (2d ed. Approved Draft 1978).
Under the instant circumstances, the jury's written and oral statements to the court admit of no reasonable interpretation other than that the jury was at an impasse, hopelessly deadlocked and unable to reach a verdict. The jury in this case deliberated for more than six hours on March 27, 1980, and then for a like amount of time the following day. The jurors sent the judge a note stating that they believed that there was no possibility that they would reach a unanimous verdict on any bill of information. After another forty-six minutes of deliberation, upon instructions from the trial court, the jurors again emphatically told the court that a unanimous decision could not be reached.
Conscious of the fact that the juror's notes were written by laymen and viewing the notes in the context of the entire proceedings, we find it clear that the jury's reference to the information presented by both sides being "insufficient" is simply a further explanation that the jurors were, in fact, "at an impasse."*fn4 The terms of the jury's notes do nothing to refute the trial court's conclusion that a unanimous verdict was not possible. The court's communications with the jury, including the individual inquiries made of every
[ 498 Pa. Page 509]
juror, left the court with every reason to believe that further deliberations would have been futile. The court, therefore, quite properly discharged the jury. The discharge having been required by manifest necessity, a new trial is not barred.
Accordingly, the order of the lower court is affirmed.
FLAHERTY, Justice, dissenting.
Appellant's sole contention is that the jury's second written message to the court was susceptible to an interpretation that the jury unanimously possessed reasonable doubt as to appellant's guilt, and that it was error to have granted a mistrial without first clarifying the jury's intended meaning. Specifically, the jury's statement that "it is the unanimous opinion and decision of this jury that the information as presented by both defense counsel and the Assistant District Attorney is insufficient" entitled appellant to the requested instruction that a verdict of not guilty should be entered if the jury unanimously agreed that the Commonwealth presented insufficient evidence to prove guilt beyond a reasonable doubt.*fn1
I believe that the trial court properly denied the requested instruction, but that the declaration of a mistrial was not warranted. Although appellant merely argues that the pronouncement of the jury, expressed in the second written message to the court, is susceptible to the interpretation that the jurors unanimously regarded appellant as not guilty, it is clear that the message can be interpreted in no other way than to indicate that appellant was found not guilty. The jury's statement that "it is the unanimous opinion and
[ 498 Pa. Page 510]
Fifth Amendment rights were he again to be placed in jeopardy by once more being tried upon the same charges.