# James Walter Cherry v. Director, State Board of Corrections

> Court of Appeals for the Fifth Circuit · March 17, 1980 · 613 F.2d 1262

URL: https://www.frixlaw.com/law-library/cases/9466443

## Case

- **Full name:** James Walter CHERRY, Petitioner-Appellant, v. DIRECTOR, STATE BOARD OF CORRECTIONS, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 17, 1980
- **Citations:** 613 F.2d 1262; 1980 U.S. App. LEXIS 19591
- **Precedential status:** Published
- **Opinion:** Dissent by Vance
- **Judges:** Tuttle, Vance, Kravitch, Coleman, Brown, Ainsworth, Godbold, Clark, Roney, Gee, Tjoflat, Hill, Fay, Rubin, Johnson, Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

VANCE, Circuit Judge,
dissenting:
I respectfully dissent from the panel’s holding that the state trial judge was not justified by manifest necessity in declaring a mistrial. I believe that the Supreme Court’s decision in Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978), and other precedents require that we reject Cherry’s double jeopardy claim.
I.
The state trial judge properly decided not to compel the bereaved juror to remain through the trial, because that jury member would not have been able to consider the case fairly in his emotional distress. Cherry explicitly rejected the alternative of an eleven member jury. We do not know whether the trial judge formally discussed and assessed the possibility of a continuance. Cherry’s counsel had an opportunity — which he did not take — to' propose a continuance of the trial. Cherry’s counsel had an opportunity — which apparently he did not take — to object to the mistrial. 1 Yet the panel majority today assumes, in the absence of a record that the trial judge did not consider alternatives to a mistrial. Their unsupported assumption that this habeas petitioner met his burden of proof is a significant departure from settled law. The panel decision effectively requires that a convicted armed robber be freed on that evanescent basis.
Cherry and two accomplices, all armed and wearing masks, abducted their victim at gunpoint and ordered him into a stolen automobile as the victim left his job for the evening. They took him back to his place of employment and forced him to open its door and the safe. Cherry and his cohorts then bound their victim and stole over $11,-000. The prosecution produced overwhelming proof of Cherry’s guilt: the victim and two witnesses identified him; Cherry drove, the automobile and his fingerprints were found in it; and he and his wife were found carrying $1,230 in cash. His cellmate testified that Cherry subsequently offered him $2,000 to confess to Cherry’s crime. The second jury found Cherry guilty of armed robbery, and the trial judge sentenced him to life imprisonment.
*1269 II.
A “mistrial declared over the objection of the defendant” violates the double jeopardy provision of the fifth and fourteenth amendments unless it is required by “ ‘manifest necessity.’” Arizona v. Washington, 434 U.S. at 505 , 98 S.Ct. at 830 (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)). Accord, United States v. Aguiar, 610 F.2d 1296, 1301 (5th Cir. 1980). Manifest necessity does not mean absolute necessity that the judge declare a mistrial; “we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” Arizona v. Washington, 434 U.S. at 506 , 98 S.Ct. at 831 (footnote omitted). Accord, United States v. Starling, 571 F.2d 934, 937 (5th Cir. 1978).
The required high degree of necessity supported the trial judge’s action in this case. He learned during the trial that a juror’s mother had died, and he decided against compelling that juror to remain until the jury reached a verdict. He asked Cherry whether he would consent to trial by an eleven member jury, but Cherry refused that, alternative. He discussed the situation with Cherry’s counsel, but Cherry’s counsel apparently did not propose a continuance. 2
The majority opinion denies that manifest necessity existed apparently because the state judge did not specifically consider and reject alternative measures in his written order.
[W]e conclude that the trial judge’s action did not meet the high standard of “manifest necessity.” . . . Here, where the trial judge apparently did not canvass the alternatives such as continuance, it is clear that an inadequate concern for the rights of the accused to have his case tried once before the same tribunal was present.
The panel majority assumes what we do not know. We do not have the trial transcript because Cherry did not produce it and the state no longer has it áfter sixteen years; 3 we only have the three page order of mistrial. The majority opinion bases its conclusions — that the trial judge did not canvass alternatives, that Cherry’s counsel did not have an opportunity to object, and that the trial judge did not act under manifest necessity — on the silence of the short mistrial order rather than on the contents of the full trial transcript. 4 The panel opin *1270 ion thereby concludes from the absence of evidence that Cherry has met his burden of proof, and presumes from a silent record that the state trial court did not correctly dispose of the case. This conclusion is erroneous. See Townsend v. Sain, 372 U.S. 293, 315 , 83 S.Ct. 745, 758 , 9 L.Ed.2d 770 (1963); 5 e. g., Arizona v. Washington, 434 U.S. at 516 , 98 S.Ct. at 836 .
The panel majority seems to require that a state judge specifically consider and reject alternatives to a mistrial, emphasizing that the “trial judge apparently did not canvass the alternatives such as [a] continuance.” 6 That requirement contradicts the Supreme Court’s holding in Washington that “[t]he state trial judge’s mistrial declaration is not subject to collateral attack in a federal court simply because he failed . to articulate on the record all the factors which informed the deliberate exercise of his discretion” — in this case, to state his reasons for rejecting alternative measures other than a mistrial. 434 U.S. at 517 , 98 S.Ct. at 836 (footnote omitted). 7 The panel decision today also conflicts with the recent fifth circuit decision in Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980):
Even though other trial judges might have used cautionary instructions or other measures short of a mistrial to correct prejudice to the jury, a judge need not expressly consider these alternatives to satisfy the fifth amendment.
Id. at 346 . 8 The majority’s requirement also ignores the context of this mistrial: the challenged trial occurred in 1963, and the trial judge had no reason to articulate and explicitly to reject alternatives to a mistrial. The state judge had every reason *1271 to know and to apply the venerable manifest necessity test, but no reason to foresee a new fifth circuit requirement imposed seventeen years later.
The state judge confronted a manifest necessity to do something. He apparently did consider compelling the bereaved juror to remain through the trial, and did consider proceeding with eleven jurors. 9 He may or may not have considered whether to continue the trial. That certainly was sufficient consideration of the alternatives to the mistrial ordered. See, e. g. United States v. Pridgeon, 462 F.2d 1094, 1095 (5th Cir. 1972); Jones v. Anderson, 404 F.Supp. 182, 188 (S.D.Ga.1974), aff’d, 522 F.2d 181 (5th Cir. 1975) (“ ‘manifest necessity’ required a mistrial” when “the trial judge . was presented with a situation of no realistic alternative to a mistrial as a result of . the petitioner’s insistence upon a twelve-person jury”).
III.
The Supreme Court in Washington required a “ ‘high degree’ ” of necessity that the trial judge take some action to ensure a fair trial, but also accorded “great deference” to the trial judge’s “‘sound discretion’ in declaring a mistrial.” Arizona v. Washington, 434 U.S. at 514 , 98 S.Ct. at 834-35 . Accord Grooms v. Wainwright, 610 F.2d at 346. 10 Some action was clearly necessary. If reasonable judges could differ about the precise form that such action should take, the trial judge acted within his sound discretion in rejecting alternatives and granting a mistrial, even though “[i]n a strict, literal sense, the mistrial [is] not ‘necessary.’ ” Arizona v. Washington, 434 U.S. at 511 , 98 S.Ct. at 833 . Accord Grooms v. Wainwright, 610 F.2d at 347. 11
I believe that the trial judge did not abuse his sound discretion in rejecting alternative measures and declaring a mistrial. Even if another judge or an appellate panel might have selected a less drastic alternative, a reasonable judge may have exercised sound discretion in ordering a mistrial. Grooms v. Wainwright, 610 F.2d at 347. See Arizona v. Washington, 434 U.S. at 512 , 98 S.Ct. at 834 ; United States v. Pridgeon, 462 F.2d at 1095 ; Jones v. Anderson, 404 F.Supp. at 187-88 . Although the trial judge did not expressly assess the alternative of a continuance, he considered other options and acted within his sound discretion under a high degree of necessity. See, e. g., United States v. Pridgeon, 462 F.2d at 1095 (failure to adopt an eleven member jury or other alternatives was not an abuse of sound discretion); Jones v. Anderson, 404 F.Supp. at 187 (failure to consider substituting a replacement juror when neither district attorney nor defense counsel advised the court of the option was not an abuse of sound discretion).
The majority opinion does not give any deference, much less “great deference,” to *1272 the trial judge’s decision. It assumes from a missing transcript that he did not assess alternatives and did not have manifest necessity. It overlooks the opportunity that the state judge gave, and Cherry’s counsel apparently did not take, to propose other measures such as a continuance. 12 It requires a mistrial to be absolutely necessary rather than being of a “ ‘high degree’ ” of necessity. It demands that the trial judge choose alternatives that a reasonable judge might reject.
The fact is that we do not have a trial transcript and cannot truthfully assert that the state trial judge did not consider mistrial alternatives and did not find manifest necessity. There was manifest necessity for the trial judge to take some action to ensure a fair trial. He did not abuse his sound discretion in reasonably deciding upon a mistrial, even if two appellate judges retrospectively would have decided differently. The state, as well as the petitioner, is entitled to fairness. See United States v. Pridgeon, 462 F.2d at 1095 .
. In his federal and state habeas corpus petitions, Cherry states by way of conclusion that he objected to the mistrial. In the paper that he filed in the district court captioned Petitioner’s Traverse, however, his version of the colloquy which occurred on the morning mistrial was granted was as follows:
Petitioner submits that his Counsel Pierre Howard did make an objection to the trial court’s dispersal of the jury, but not in any exact words in front of the jury. The Judge, without any forewarning at all, proceeded to disperse the jurors with instructions and direction to return to the Court at 9:30 the following morning, and at that time Mr. Howard rose to approach the bench and the following took place: The Court: “Mr. Howard, do you want to make a motion before the jury? Answer by Mr. Howard: “No your Honor, this is a matter of law.”
In his final order declaring mistrial the state judge noted that Cherry had not objected to the dispersal of the jury. Without a transcript of the proceedings we have no basis for concluding that the trial judge’s memorialization of the events is incorrect.
. Cherry’s state application for habeas corpus seems to recognize that he or his counsel had the opportunity to propose a continuance:
[T]he Honorable Judge Alverson had the jury retire to the jury room, whereupon, he called the State and defense counsel to the bench and informed them that the mother of one of the jurors had died and inquired as to whether or not the state and defense would agree to dismiss this jury member and continue on with the other eleven jurors.
After some discussion, the petitioner through his counsel, informed the Court that he desired to continue the trial with the twelve original jurors as prescribed by law.
His federal application for habeas relief is to the same effect.
. This circuit did not grant habeas corpus in a case in which the state lost the transcript notes of the petitioner’s guilty plea:
[I]t is still the petitioner’s burden in a habeas proceeding to demonstrate, at least prima facie, those facts that establish a constitutional violation. In deciding whether the petitioner’s testimony alone meets that burden, and whether the state violated its duty in not making a transcript available, all of the facts must be considered, including any delay by the petitioner in seeking relief and his opportunities for earlier applications.
But in the absence of even the petitioner’s specific recollection of his hearing and any independent evidence suggesting that he was deprived of his rights, the unavailability of a transcript six years after a guilty plea does not alone cast sufficient doubt on the fairness of that plea to warrant a further federal hearing or the granting of the requested relief.
Clayton v. Blackburn, 578 F.2d 117, 120 (5th Cir. 1978). See also Norvell v. Illinois, 373 U.S. 420, 424 , 83 S.Ct. 1366, 1368 , 10 L.Ed.2d 456 (1963) (fifteen years).
. It is equally likely that the trial judge listed alternatives to mistrial, received objections from Cherry and his counsel, and made an explicit finding of manifest necessity for a mistrial. The trial judge in fact did discuss the situation with Cherry’s counsel upon learning of the death of the juror’s mother. See note 2 supra. The state judge then deliberated overnight before ordering the mistrial.
. The Supreme Court said,. for example, in Townsend ,
[T]he district judge may, in the ordinary case in which there has been no articulation [of the relevant constitutional standard], properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . that there is reason to suspect that an incorrect standard was in fact applied.
372 U.S. at 315 , 83 S.Ct. at 758 (footnote omitted).
. The only apparent authority for the great weight that the majority gives the trial judge’s consideration or nonconsideration of alternative dispositions is Judge Tuttle’s opinion in United States v. Starling, 571 F.2d 934 (5th Cir. 1978):
We recognize that the Supreme Court recently implied that explicit consideration of alternatives is not constitutionally mandated where “the record [otherwise] provides sufficient justification” for the mistrial. Arizona v. Washington, [434] U.S. at 517, 98 S.Ct. [824] at 836. However, in light of the sparse record here, we are not precluded from considering this factor in our review of the district court’s exercise of discretion. Although not necessarily determinative, the failure to consider alternatives does indicate an inadequate concern for the severe consequences of ordering a mistrial without the accused’s consent.
571 F.2d at 941 n. 10. The court in Starling then held that the mistrial was not justified by manifest necessity. That decision did not require consideration of alternatives or elevate that factor as this majority decision does; to the extent it did, it seems to conflict with the principle of deference to trial judges’ evaluations expressed by the Supreme Court in Arizona v. Washington, 434 U.S. at 513 & n. 33, 98 S.Ct. at 834 & n. 33.
. Similarly, a trial judge is not required to make an explicit finding of manifest necessity:
The absence of an explicit finding of “manifest necessity” appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical, they required too much. .
Review of any trial court decision, is of course, facilitated by findings and by an explanation of the reasons supporting the decision. No matter how desirable such procedural assistance may be, it is not constitutionally mandated in a case such as this. . The basis for the trial judge’s mistrial order is adequately disclosed by the record, which includes the extensive argument of counsel prior to the judge’s ruling. The state trial judge’s mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find “manifest necessity” in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.
Arizona v. Washington, 434 U.S. at 516, 517 , 98 S.Ct. at 836 (footnotes omitted). Accord, Grooms v. Wainwright, 610 F.2d at 346.
. See also Illinois v. Somerville, 410 U.S. 458, 459 , 93 S.Ct. 1066, 1068 , 35 L.Ed.2d 425 (1973); e. g. Gori v. United States, 367 U.S. 364, 365 , 81 S.Ct. 1523, 1524 , 6 L.Ed.2d 901 (1961); Thompson v. United States, 155 U.S. 271, 273-74 , 15 S.Ct. 73, 74 , 39 L.Ed. 146 (1894); Simmons v. United States, 142 U.S. 148, 153-55 , 12 S.Ct. 171, 172-73 , 35 L.Ed. 968 (1891).
. The trial judge cannot be faulted for possibly not considering the option of an alternate juror. Georgia law at the time of the trial did not require selection and empanelling of alternate jurors, but simply permitted it upon the request of counsel in the discretion of the trial judge. Ga.Code Ann. § 59-901 (1965) (subsequently repealed for certain purposes). Cherry implicitly denied that an alternate juror had been selected or rejected that option in demanding trial by “the twelve original jurors.” Even if an alternate juror had been available, the trial judge reasonably could have rejected that option or could have failed to consider it. See, e. g. Jones v. Anderson, 404 F.Supp. at 187 .
. This circuit recently ruled in Grooms ,
Because the trial judge is familiar with the events at trial and the factors leading to the mistrial order, appellate courts should give the judge’s mistrial order the “highest degree of respect,” . and commit the mistrial decision to the judge’s “sound discretion.”
610 F.2d at 346. Accord, Smith v. Mississippi, 478 F.2d 88, 95 (5th Cir.), cert. denied, 414 U.S. 1113 , 94 S.Ct. 844 , 38 L.Ed.2d 740 (1973).
The trial judge’s disposition should be accorded “great deference” when the jury appears deadlocked and “special respect” when defendant’s counsel injects prejudice, but should be given “strictest scrutiny” when the prosecutor brings about the mistrial for tactical reasons. Arizona v. Washington, 434 U.S. at 508, 510 , 98 S.Ct. at 832, 833 .
. The fifth circuit recognized the trial judge’s discretion in Grooms:
Even though, acting independently, we might have chosen a corrective measure less drastic than a mistrial, on appeal we must defer, to the discretion of the trial judge.
610 F.2d at 347.
. See note 2 supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466443. Public record. Not legal advice.