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March 12, 1980

Rooks E. CRAWFORD, Plaintiff,
Peter J. FENTON, etc., et al., Defendants.

The opinion of the court was delivered by: LACEY

Petitioner in this habeas corpus action, 28 U.S.C. ยง 2254, was, with others, indicted by an Essex County Grand Jury for having allegedly conspired "to violate the narcotics laws of the State of New Jersey, contrary to the provisions of N.J.S.(A) 24:21-24." Trial began before a jury in the New Jersey Superior Court on March 13, 1978. On April 11, 1978, after court instructions, jury deliberations began; on April 15, 1978, the trial judge, over petitioner's objection, declared a mistrial.

Petitioner's subsequent motion to dismiss the indictment on double jeopardy grounds was denied, as were his applications to appeal that denial to the Appellate Division of Superior Court and the Supreme Court of New Jersey. He then filed this petition here.

 The petitioner is incarcerated in New Jersey State Prison and a detainer has been lodged against him, founded upon the aforesaid conspiracy charge. He faces retrial on the conspiracy indictment on or about March 17, 1980.

 The petitioner's sole constitutional claim here is that the proposed retrial would violate the Double Jeopardy Clause of the fifth amendment, applicable to the states through the fourteenth amendment. He advances two arguments in this regard: first, that the findings of the jury at the trial "amounted to a verdict of acquittal"; second, that there was no "manifest necessity" for the trial judge's declaration of a mistrial.

 Respondents' answer to the petition raises as defenses a failure to exhaust state court remedies and appropriateness of federal judicial abstention. At oral argument I held that neither defense possessed merit. *fn1" I shall now consider the remaining issue, the double jeopardy claim.

 A claim that manifest necessity was lacking for declaration of a mistrial over a defendant's objection can be evaluated only in terms of the particular facts of a case. See, e.g., Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7, 13 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973).

 The trial judge's instructions to the jury were presented on Tuesday, April 11, 1978. In addition to telling the jurors that they were to return a verdict of guilty or not guilty on the conspiracy charge, he directed them to make supplemental factual findings, with respect to specific questions, if they returned a guilty verdict. Dealing with the scope of the conspiracy, these questions asked the jury to ascertain and state whether the defendants found guilty had conspired to possess a controlled dangerous substance (CDS); had conspired to possess a CDS with intent to distribute it; or had conspired to distribute a CDS. The jury was also directed to state whether the CDS involved was heroin, or cocaine, or both; if cocaine, the jury was told to state the amount. 1 Tr. 38-39. *fn2" See, Verdict Sheet, Appendix A.

 Finding the jury's answers to the special interrogatories unsatisfactory, the trial judge, upon the jury's return to the courtroom, gave them the following instruction:

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 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.

 4 Tr. 21 (emphasis supplied). This directive was not immediately understood by all the jurors. The transcript shows that some "(voices)" said: "We don't understand." Id.

 The judge answered: "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." 4 Tr. 21-22. Counsel for one of the defendants promptly moved that the guilty verdict "be set aside as against the weight of the evidence." 4 Tr. 22. Petitioner's counsel joined in the motion, relying on the jury's finding that the conspiracy had involved neither cocaine nor heroin. 4 Tr. 22-23. The trial judge did not rule on these motions at this time.

 The jury soon returned with a "corrected verdict form." 4 Tr. 29. While the jury again found that the defendants had not conspired to possess, or to possess with intent to distribute, a CDS, it substituted "no" for "yes" in response to the question whether the defendants had conspired to distribute a CDS. 4 Tr. 29. Continuing in his refusal to accept the verdict, and without giving counsel an opportunity to state their positions, the judge gave the jury additional instructions and once again directed the jurors to determine which CDS was involved in the conspiracy and the scope of the conspiracy. 4 Tr. 29-32. *fn3"

 Shortly after resuming deliberations, 4 Tr. 33, the jury sent the following note to the court:

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 of heroin, and so forth. Therefore it would not be fair to answer that question. We would be guessing. Thank you. *fn4"
4 Tr. 35.
Advised of this note, counsel for a defendant moved for a directed verdict of acquittal, based upon the jury's expressed inability to determine which drug was involved in the conspiracy. 4 Tr. 35-36. Petitioner's counsel joined in this motion.
Again without ruling on the motions for directed verdict, the judge presented instructions to the jury. 4 Tr. 41-43. The jury was again told to decide whether the CDS which was the subject of the conspiracy was cocaine or heroin. *fn5" Petitioner's counsel objected unsuccessfully to the instruction and moved that a verdict of not guilty be entered on the petitioner's behalf. 4 Tr. 47. After the jury retired, counsel and the court discussed the pending motions. The trial judge, without ruling on the motions, then told defense counsel he "would favorably consider" a motion for a mistrial. 4 Tr. 59-60. Petitioner's counsel neither declined nor accepted the offer, requesting "some time to think about it." 4 Tr. 60.
Shortly thereafter the jury sent out two more notes. The first, received at 5:10 p.m., stated, "We would like to go home." 4 Tr. 60. The second note, received five minutes later, informed the court that "(t)here are a few people who would like to reverse their verdict of guilty to not guilty." Id. Before recalling the jury, the judge made some remarks to counsel concerning his earlier charge to the ...

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