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Diane L. Musser v. Rhoda A. Winstead

April 10, 2012

DIANE L. MUSSER, PETITIONER
v.
RHODA A. WINSTEAD, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Caputo)

MEMORANDUM

I. Introduction

Petitioner Diane L. Musser, a state inmate presently confined at the State Correctional Institution at Cambridge Springs, in Cambridge Springs, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus under the provisions of 28 U.S.C. § 2254. Doc. 1, Habeas Pet. Ms. Musser challenges her 2006 conviction in the Dauphin County Court of Common Pleas. For the reasons set forth herein, the Petition will be denied.

II. Background and Procedural History*fn1

On or about June 15, 2004, in response to complaints of drug activity at 512 South 15th Street, in Harrisburg, Pennsylvania, the Harrisburg City Police Vice Unit with the assistance of a confidential informant (CI), arranged a controlled drug buy from the residence. Doc. 12-3 at pp. 42-45. The CI entered the home and purchased from Ms. Mussesr two bags of what later tested positive as crack cocaine. Video surveillance taken shows the CI approaching, entering, and exiting the residence, and includes Ms. Musser peeking her head out the front door of the home as the CI left the home. Id. at pp. 42-43.

Based on the controlled buy, a search warrant was issued for the residence, Ms. Musser, and all other occupants inside the home. Id. The search warrant was executed the morning of June 17, 2004. Id.Ms. Musser, her mother, her son and co-defendant, Gary Boyd-Chisholm, and several other younger children were present when the police arrived. Id. The search of the home yielded cash, two small bags of cocaine, three corner bags of crack cocaine, one bag of loose cocaine, a razor blade, a paper plate with cocaine residue, and a nine millimeter handgun and ammunition. Id. at 44-45.

Both Ms. Musser and Gary Boyd-Chisholm were arrested and charged with Possession with Intent to Deliver a Controlled Substance in violation of 35 P.S. § 780-780-113(a)(30), Criminal Conspiracy in violation of 18 PA. CONS. STAT. ANN. § 903(a), and Unlawful Possession of Paraphernalia in violation of 35 P.S. § 780-113(a)(32) as a result of the raid on 512 South 15th Street residence. Id. at p. 54.

On April 20-22, 2005, a two day jury trial was held in the Court of Common Pleas of Dauphin County. Id. at p. 45. After approximately four hours of deliberation, the jury foreman informed the court that the jury was deadlocked. Id. at p. 50. The record of the declaration for the mistrial provides in part: The Court: Ladies and gentlemen, good afternoon. We received a note from your foreperson, [foreperson], that indicates, well, Judge Lewis, we are at a point where we absolutely cannot agree on any of the five counts for either of the two defendants, signed by [foreperson].

Ladies and gentlemen, I guess I need to inquire whether you, the jury, are hopelessly deadlocked, whether there is no possibility that, with further deliberations, you will reach a unanimous verdict on at least some of these charges. [Foreperson]?

The Foreperson: That is true.

The Court: You're hopelessly deadlocked?

The Foreperson: Yes.

The Court: Do you think further deliberations will be fruitful? The Foreperson: No. There is one person that has reservations and we have asked, and they said there is no way they are going to change.

The Court: Very well. And I need you to understand, ladies and gentlemen, that if you, a jury, cannot reach a verdict, then I would have to declare a mistrial.

The nickname for that is hung jury which means that the case gets tried all over again in front of a brand new jury at a later date. It doesn't disappear from the radar screen. That's just a drain on everyone's time. And, quite frankly, it is a drain on you in the sense that you are paying for it, so it is a drain on your tax dollars as well.

But with that in mind, is that still the feeling of the jury; that any further attempts at ...


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