Petition for Writ of Certiorari — Moore v. Cardwell

IN THE

SUPREME COURT OF THE UNITED STATES

October ‘v'erm, 1974

No.

ROBERT BRUCE MOORE, OR.,

Petitioner,

vs.

HAROLD CARDWELL, Warden,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LABER, LOVALLO & COLARICH,

Ltd.

By: Joseph A. Lovallo

131 E. Broadway

Tucson, Arizona 85701

Attorneys for

Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

ROBERT BRUCE MCORE, JUR.,

Petitioner,

vs.

HAROLD CARDWELL, Warden,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

yg Os Se a er

JURISDICTION. «.« +6 «© -«

QUESTIONS PRESENTED ...

STATEMENT OF THE CASE. .

REASONS FOR GRANTING WRIT.

CONCLUSION ae ee omer alee

AFFIDAVIT OF SERVICE . .

APPENDIX A ay Se a ee

APPENDIX B * « -;* «~ «6

APPENDIX C “Stee ae ae Mae

APPENDIX D . « - «&

APPENDIX E . ©¢ & 8 —¢

° 4

° 8

° 33

° 28a

- la-1l5a

16a-17a

‘ 18a

-19a-25a

-26a-27a

CITATIONS - - + « -

JURISDICTION. . . .

QUESTIONS PRESENTED. .

STATEMENT OF THE CASE .-

REASONS FOR GRANTING WRIT.

CONCLUSION ek oF eS

AFFIDAVIT OF SERVICE .

APPENDIX

APPENDIX

APPENDIX

APPENDIX

mo Oo Aa wD Pp

APPENDIX

- la-15a

nhtn

CITATIONS

Cases

Benton v. Maryland, 395 U.S.

74, 89 S. Ct. 2056 23 L.

Ed. 2d 707 (1969) .----eeeeeeeee 8, 2la

Downum v. United States, 372

U.S. 734, 83 S. CS. 1033, 4a

10 L.Ed.2d 100 (1963)-.......... 15, 2la

Draper v. Washington, 372 U.S.

487, 83 S. Ct. 774 9 L.Ed.2d

BGG T1GED)< ocr cccccccvseccdssineces 7a

Geri v. United States, 367 U.S.

364, SiS. Ct. i523, 6 L.Ed.26

SOL. CIGGL) oscncceseceosevacsssesss a4, 145

Green v. United States, 335 U.S.

354, i186, 18 S. Ct. 221i,

224 (1957 ce cc cccnccccsccccccscos Ave 35

Harris v. Wainwright, 399 F.2d

BLE 609056280646 OSSKOKK OR DEHE HR OREO OHS 8

Illinois v. Sommerville, 410

U.S. 458, 461 93 S. Ct. 1066,

Be batsmen Sao CES Po cdo vce suaaes* 16

Lynch v. Johnson, C.C.A. Cal.

C2967) £60 Fed SoG ccccssceovassevers 8

Palco v. Connecticut, 302 U.S.

319, 58 S. Ct. 149, 82 L.Ed.

ye Ly ¢ Se ra a ee 8

iii

“tations Cont'd - Page 2

State v. Burrell, 106 Ariz.

100, 471 P.2d 712 (1970) -+---++---- 6a

State v. Crowder, 103 Ariz. 264,

BOO Ped 29 LOGE) cc ve cctvscescnncsne 6a

State v. Fenton, 19 Ariz. App.

27%, 306 P.26 665 (1973) «cnccccccces 11

Townsend v. Spain, 372 U.S.

293, 309N, 6, 83 S. Ct.

FOS, OF Ue BGs 2S T7170 cc vcvvcvvvevscccess 13

United States v. Chase, 372 F.2d

S53 GROUECH CIiFCULE 1967). cccccsvcvecs 15

United States v. Goldstein,

479 F.2d 1061 (Second

Civeukt 1973) sosevevccevesevesverces 13

United States v. Jorn, 400 U.S.

470, 486, 91 S. Ct. 547, Atte 3

558, 27 LeBG. 543 covsvccvcccece se, 3A

United States v. Lansdown, 460

F.2d 164, 169 (Fourth

CASE LEFT E) cc cecccveccsvars 16, 24, 26

United States v. Perez, 9 Wheat oS, Ba

3739, 6 L.Ed. 165 (1824) coeeoeee rs Fr 14

United States ex rel Russc v.

Superior Court of New Jersey 12, 19

BEG. , GBS Fete fe Lf CEST S) cocce 24, 26

-iv-

Citations Cont'd - Page 3

United States v. Smith, 390

F.2d 420 (Fourth Circuit

1968) «ccesossecseces Steven een ewes 15

United States v. Superior

Court of New Jersey,

ie > i eS Bek yp | 15

United States ex rel Thomas v.

State of New Jersey, 472

F.2d 735, 737, 738 (Third

Circuit 1973) «ce. sesccesscscese a3

Wade v. Hunter, 336 U.S. 684,

69 S. Ct. 834, 93 L.Ed.2d

Pee Seweerbae cease se eas anew as i an

Wilson v. Phend, 417 F.2d 1179

GENERAL LEGAL PUBLICATIONS

ABA Project on Minimum Stan-

dards for Criminal Justice,

Trial by Jury, Sec. 54 (c)

DD. ASSGCLE7 ca ceccvesvestcsvsesece 17

77 Harvard L. Rev. 1272, 1274

Pe

JURISDICTION

Appellant, ROBERT BRUCE MOORE, JR.,

was charged by the State of Arizona ina

two count information with attempted mur-

der and armed robbery. He was tried for

those alleged offenses beginning September

1, 1970, in the Superior Court of Pima

County, Arizona. That trial consisting of

approximately 35 hours of evidence taking

spread over 12 days ended in a mistrial

declared sua sponte by the trial court.

Thereafter, Appellant moved to quash the

information on the grounds that he had

been once in jeopardy. This motion was

denied on October 14, 1970.

On November 16, 1970, Appellant

was retried on the same charges. He again

= to dismiss the information on the

grourds of double jeopardy, but this mo-

tion was also denied.

ROBERT BRUCE MOORE, JR., was

founc guilty of both cffenses on December

18, 1970. He was sentenced to the Ari-

zona State Prison for concurrent terms of

not less than 20 nor more than 30 years

on Count One and not less than 10 nor

a

more than 20 years on Count Two.

Appellant filed timely motions for

new trial and directed verdict of acquital

notwithstanding the verdict, which were

denied. These motions raised the same fe-

deral questions as presented here.

Upon timely appeal, the Arizona

Supreme Court examined the conviction and

found no abuse of discretion by the trial

judge in declaring a mistrial. A Motion

for Rehearing before the Arizona Supreme

Court was denied.

Thereafter, Appellant sought re-

lief in the Supreme Court of the United

States by Petition for Writ of Certiorari

to the Supreme Court of the State of Ari-

zona. That petition was denied on May 21,

1973.

On November 15, 1973, Appellant

filed a Petition for Writ of Habeas Corpus

in the United States District Court for

the District of Arizona. No response was

filed by the S_ate of Arizona. On Decem-

ber 18, 1973, the Honorable Walter E.

Craig denied Appellant's writ without an

Order to Show Cause or heaving.

Notice of Appeal and Application

3

for Certificate of Probable Cause were fil-

ed by Petitioner on January 2, 1974. A

Certificate of Probabe Cause was issued by

the Honorable Walter E. Craig, Judge of

the United States District Court, on Janu-

ary 8, 1974.

Timely appeal was filed witl. the

U. S. Court of Appeals for the Ninth Cir-

cuit on December 23, 1973 and the judgment

of the United States District Court was

affirmed on October 4, 1974.

The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Is the retrial of an accused whose

trial has been discontinued because the

jury was unable to agree always without the

constitional prohibition against double

jeopardy under the Fifth Amendment of the

Federal Constitution as made applicable tc

the States by the Fourteenth Amendment?

y Can summary discharge of a jury and

ordering of a mistrial ever be so caprici-

ous that a retrial amounts to a violation

of the Double Jeopardy Clause of the Fifth

Amendment of the Federal Constitution as

made applicable to the States by the Four-

teenth Amendment?

TATEMENT OF THE CASE

Petitioner, ROBERT BRUCE MOORE,

JR., was charged in a two count informa-

tion with attempted murder and armed rob-

bery. He was tried for those alleged of-

fenses beginning September 1, 1970, in the

Superior Court of Pima County, Arizona.

The trial consisted of approximately 35

hours of evidence taking spread over 12

days.

"ha

The case was submitted to the iury

at 3:55 p.m., On September 19, 1970. At

10:50 p.m. on that date, the jury was cal-

led into the courtroom. The Court ques-

tioned the jurors as to the possibility

of reaching a verdict within a reasonable

time. The jury indicated that day it

stood (8 to 4) eight to four and were or-

dered to continue deliberating.

On September 19, 1970, the jurors

reported they were (9 to 3) nine to three

and requested to hear the taped instruc-

tions, which request was granted. They

also asked the court to defirie some psy-

chological terms, but the court refused.

At approximately 3:00 p.m. that

day the court summoned the jurors into

the courtroom and delivered an Allen

charge. At 4:48 p.m., after approximate-

ly 12 hours of total deliberation, the

court again summoned the jury before it.

What follows is a reconstruction of the

proceedings (there having been no tran-

script) which was accepted by the court

below. !

1 There was no court reporter during

any of the court proceedings which took

place after the case was submitted to

the jury. At the October 14, 1970 hear-

ing on Petitioner's motion to quash the

information, his counsel related what

occurred in the courtroom after the jury

had begun its deliberations, including

what transpired at the time the jury

was discharged. The Arizona Supreme

Court accepted defense counsel's recita-

tion of the facts, which varied only

slightly from the account rendered by

the prosecution.

"The Court asked the jury, or

he asked the foreman to stand,

and he said, ‘Mr. Foreman, can

you give us any indication

about how the vote is going?'

"And the foreman said, ‘Your

Honor, we are still deadlocked

at eight to four.' And the

Court then asked the foreman,

‘What are your feelings with

reference to whether or not

you can reach a verdict?'

"And to the best of my recollec-

tion, the foreman said, ‘At this

time, Your Honor, the probability

in my opinion of reaching a

verdict is not very good.'

"So, the Court asked the jury

collectively:

‘Is there anyone here on the

jury that feels further deliber-

ation might have some results?'

"And a lady sitting in the front

row, I believe on the lower

Minute

left-hand side as you would be

looking at the jury, the first

lady on the left raised her

hand. And the Court acknow-

ledged her hand and she said:

'I feel that, with further de-

liberation we could reach a

verdict.'

"And almost instantaneously the

Court said, ‘Well, you are out-

numbered, and I am declaring a

mistrial, and this jury is now

-discharged.'"

Entry of September 19,1970, states:

"The Court questions the jurors

and states:

‘It appearing that there is

no s;easOnable probability that

the jurors can agree upon a ver-

dict, a mistrial is declared and

the jury is excused.'"

The District Court having denied

Appellant's Petition for Writ of Habeas

Corpus

without issuance of an Order to

ae

8

Show Cause, all of the allegations of fact

contained in the petition must be treated

as true. Lynch v. Johnson, C.C.A. Cal.

(1947) 160 F. 2d 950; Wilson v. Phend,

417 F. 22 1179; Harris v. Wainwright, 399

F. 2d 412.

REASONS FOR GRANTING WRIT

I

The prohibition against double

jeopardy found in the Fifth Amendment to

the United States Constitution is made

applicable to the states by Benton v.

Maryland,U395 74, 89 S. Ct. 2056, 23 L.

Ed. 2d 707 (1969). In that case the

Supreme Court overruled its earlier hold-

ing in Palco v. Connecticut, 302 U.S. 319,

58 S. Ct. 149, 82 L. Ed. 288 (1937) that

federal double jeopardy standards were not

applicable to state criminal proceedings.

Thus federal constitutional double jeo-

pardy principles are applicable to state

court trials such as Appellant Moore's

1970 trial.

Since 1924 the courts of the United

States have attempted to follow a “mani-

fest necessity" doctrine first enunciated

9

by Chief Justice Story in the now famous

case Of United States v. Perez, 9 Wheat

579, 6 L. Ed. 165 (1824). In that case

the Supreme Court attempted to delineate

certain paramters which might be used by

a trial court in the exercise of its dis-

cretion to declare a mistrial without

defendant's consent. While preserving

the government's right to re-prosecute,

the Supreme Court in that case stated:

"We think, that in all cases

of this nature, the law has

_ invested courts of jurisdic-

tion with the authority to

discharge a jury from giving

any verdict, whenever in

their ovinion, taking all

the circumstances into con-

sideration, there is a mani-

fest necessity for the act,

or the ends ot public justice

would otherwise be defeated.

They are to exercise a sound

discretion on this subject;

and it is impossible to define

all the circumstances, which

10

would render it proper to

interfere. To be sure, the

power ought to be used with

the great caution under urgent

circumstances, and for very

plain or obvious cases; and,

in capital cases especially,

courts should be extremely

careful how they interfere

with any of the chances of

life, in favor of the pri-

soner. But, after all, they

have the right to order the

discharge; and the sincerity

which the public have for the

faithful, sound and conscien-

tious exercise of this dis-

cretion, rest, in this as in

all other cases, upon the

responsibility of the judges,

under their oaths of office."

Since 1824, the courts of the

United States have consistently held

that as a general rule a defendant may

be retried if in his first trial the

jury is unable to reach a unanimous

11

verdict. See generaliy, Annotation:

Double Jeopardy - Mistrial, 6 L. Ed. 2d

1510, 1517-1518. A genuine inability by

the jury to reach a verdict has been de-

termined to be a "manifest necessity"

under Perez, supra. Thus a mistrial may

be declared because a defendant's right

not to be subjected to jeopardy twice

for the same crime must be subordinated

to the public's interest in fair trials

and just judgments on the merits. See

Wade v. Hunter, 336 U. S. 684, 69 S. Ct.

834, 93 L. Ed. 2d 974 (1948).

. "Manifest necessity" must be pre-

sent, then, for a trial judge to declare

a mistrial and still preserve for the

State the right to prosecute a defendant.

In this regard, the trial court's dis-

cretion to declare a mistrial and dis-

miss the jury short of a verdict without

a defendant's consent? is necessarily

broad and is reviewed on appeal by the

abuse of discretion standard.*

lUnder Arizona law mere silence or

failure to object is not such a consent

“gs will constitute a waiver of a former

je rpardy plea. See State v. Fenton, 19

12

In defining standards for the ex-

ercise Of discretion by the trial courts

in cases similar to the one at bar, the

United States Supreme Court has continu-

ously adhered to the formulation of

Justice Story in United States v. Perez

supra. Beyond these generalized quide-

lines which the Court has emphasized,

each case turns on its own facts. See

Ariz. App. 274, 506 P. 2d 665 (1973). See

also United States ex rel Russo v. Super-

ior Court of New Jersey, etc. 483 F. 2d 7,

17 (1973) where the court disposes of the

claim that proper objection to discharge

should be made while the jury is in the

box. "While the better practice may be to

object as soon as counsel learns that a

mistrial is to be granted, ...(Citations

omitted) Appeliant's counsel was in a

difficult situation. He had no advance

warning or notice that a mistrial was to

be declared; ...Also to have objected in

front of the jury might have prejudiced

Appellant for tryin to “show up” the trial

judge, especially if some members of the

jury actually did want to go home despite

their civic obligation. In this situation,

we cannot penaiize Appellant for failing ©

object sooner."

2The question of whether or not "manifest

necessity” existed to justify the declar-

ation of a m strial and the discharge of

the jury short of a verdict and after

1s

See United States v. Goldstein, 479 F. 2d

1061 (Second Circuit 1973).

The Perez doctrine embraces two

components, "a defendant's valued right

to have his trial completed by a parti-

cular tribunal", and "the public's in-

terest in fair trials designed to end in

just judgments." See Wade v. Hunter,

supra; Illinois v. Sommerville, 410 U.S.

456, 461 93 S$. ¢t. 1066, 35 L. B64. 286

425 (1973).

The Supreme Court in Wade v. Hunter,

supra, specifically recognized that the

double jeopardy clause of the Fifth Amend-

ment safeguards the defendant's "valued

right to have his trial completed by a

particular tribunal", which "he might

believe to be favorably disposed to his

fate", United States v. Jorn, 400 U.S.

jeopardy has attached, is a mixed ques-

tion of law and fact which this court

can freely review. Eg. Townsend v. Spain,

372-0. 3. 293, 309 8. 6, BS Bo. CE. 743%

9 L. Ed. 2d 770, United States ex rel

Thomas v. State of New Jersey, 472 F. 2d

435, 737, 738 (Third Circuit 1973).

14

470, 486, 91 S. Ct. 547, 558, 27 L. Ed.

543. See also 77 Harvard L. Rev. 1272

1274 (1964).

The balancing of the competing

factors in any particular fact situation

requires a delicate exercise of discretion

by the trial court judge who is present

and thus most able to properly exercise

such discretion. Gori v. United States,

367 U.G. 364, 81 S. Ct. 1523, 6 L. Ed. 24

901 (1961).

The appellate courts must be cog-

nizant of the mandates of Perez and it is

incumbent on them to establish a meaning-

ful and rational parameter by which to

review the trial court's exercise of

discretion. The doctrine of "manifest

necessity" is the conclusionary tip of a

large iceberg of factual considerations.

Once it has been determined that manifest

necessity exists, the operative result

is to allow the trial judge to declare a

mistrial while preserving for the state

the right to continue to prosecute the

defendant in further proceedings. Thus

the procedure by which manifest necessity

15

is determined to exist and the process

by which appellate courts review the ex-

ercise of the trial court's discretion

must insure that a process of circular

reasoning is not used to justify a result.

United States v. Jorn, supra, represents

the latest in a line of cases which has

the practical effect of narrowing the dis-

cretion of the trial judge to declare a

mistrial. See, Downum v. United States,

372 U. S. 734, 83 S. Ct. 1033, 10 L. Ed.

2d 100 (1963); Gori v. United States,

supra; United States v. Smith, 390 F. 2d

420 (Fourt Circuit 1968); and United

States v. Chase, 372 F. 2d.453 (Fourth

Circuit 1967).

(EMPHASIS ADDED).

In an attempt to formulate stan-

dards to insure meaningful review and

yet allow each case to turn on its own

facts, the Third Circuit has set out some

minimum standards for the review of a

trial court's declaration of a mistrial

in cases where the jury has been unable

to reach a verdict. In United States v.

Superior Court of New Jersey, 483 F. 2d.

16

7, 14 (1973), the Third Circuit stated:

"..(W)e must at least look

at the possiblity of manipu-

lation inherent in the pro-

cedure complained of, the

alternatives available to

the trial judge at the time,

and the presence of some

important countervailing

interest of proper judicial

administration." (Citations

omitted).

The Court went on to say that even

in cases where there is no possibility of

manipulation or prejudice to a defendant

beyond that of undergoing another trial,

the double jeopardy clause will bar the

prosecution unless there is an important

countervailing interest of proper judi-

cial administration. Illinois v. Sommer-

ville, supra.

The Fourt Circuit in United States

v. Lansdown, 460 F. 2d 164, 169 (Fourth

Circuit 1972) stated that:

"An analysis of the cases

17

supporting the general rule

disclosces that the decision

to declare a mistrial in

cases Of apparent inability

to agree is not based solely

on the length of time the jury

has deliberated. While the

length of deliberations is a

relevant factor, a more impor-

tant consideration is whether

there is a possiblity that a

jury can reach a verdict with-

in a reasonable time. ‘The most

reliable sources to this infor-

mation is the jury itseif.

The conclusion that a jury is

unable to reach a verdict must

be supported by something in

addition to the trial court's

conclusion that the jury has

deliberated long enough.”

See also ABA Project con Minimum

Standards for Criminal Justice, Trial

by Jury, Sec. 54(c) (approved draft

1968) at pages 156-157.

18

POSSIBILITIES OF MANIPULATION AS

- A TEST TO BE APPLIED TO THE FACTS AND

CIRCUMSTANCES SURROUNDING THE DECLARATION

OF A MISTRIAL IN APPELLANT MOORE'S FIRST

TRIAL IN SEPTEMBER, 1970.

The concept of manipulation which

is proposed above has reference to the

delicate balance between the functions

of the court and jury and the rights of

several parties. The Court, under the

doctrine of "manifest necessity" is re-

quired to determine whether or not the

jury is, in fact, hopelessly deadlocked

and unable to reach a verdict on the is-

sue Of guilt. It is the province of the

jury to determine the issue of guilt or

innocence, and it is a defendant's right

to have a jury which he believes might

be favorably disposed to his cause to

continue to deliberate on his case.

United States v. Jorn, supra.

Where the jury is deadlocked -

the inescapable conclusion is that this

jury could not convict the defendant

and the defendant has a right to assume

that a significant number of the jurors

19

has sympathy for his cause. The trial

judge is in a position to deprive the

defendant of this favorable position by

an exercise of his discretion to declare

a mistrial and such manipulation is ex-

tremely difficult to detect on appeal.

As the Supreme Court stated in

Green v. United States, 335 U.S. 184, 188

78 S. Ct. 221, 224 (1957):

"This (jeopardy attaching after

the jury is sworn) prevents a

prosecutor or judge from subjec-

_ting a defendant to a second

prosecution by discontinuing the

trial when it appears the jury,

might not convict." (EMPHASIS

ADDED). Quoting from United

States ex rel Russo v. Superior Court of

New Jersey, supra, at p. 16.

The manner in which the trial court

judge arrived at his decision in the case

at bar, if affirmed, would promote a rule

which could easily lead to manipulation.

The Third Circuit alludes to this type

Of possibility in Russo, supra, at p. 16,

20

note 15, where it says:

"We cannot emphasize too

strongly that there is

nothing to lead us to sus-

pect that the trial judge

was guilty of such manipu-

lation. But the possibility

exists and is a factor which

we definitely must consider.

The alternatives are to allow

the discretion of the trial

judge to go unchecked or to

become embroiled in embar-

rassing inguiries into his

motives in each particular

case."

The facts and circumstances sur-

rounding the trial of the Appellant might

lend support to the existence of manipu-

lation. The crimes Appellant was alleg-

ed to have committed were somewhat grue-

some. Public feeling and antipathy were

at a high point; a heightened interest

and curiosity was directed toward the

trial of the Appellant by the press and

21

court personnel. The medium of public

attention and hostility could have pro-

vided a rich culture for possible mani-

pulation.

WAS. THE TRIAL JUDGE PRESENTED WITH

A SITUATION WHERE THE EXERCISE OF A SOUND

DISCRETION WOULD REQUIRE THE COURT TO

RESORT TO OTHER ALTERNATIVES RATHER THAN

THE DECLARATION OF A MISTRIAL?

Appellant, ROBERT BRUCE MOORE, JR.,

was charged in a two count information

with attempted murder and armed robbery.

He was tried for these alleged offenses

beginning September 1, 1970, in the Su-

perior Court of Pima County, Arizona.

The trial consisted of approximately 35

hours of evidence taking spread over 12

days. Extensive testimony from psycho-

logical experts was presented by both

the Appellant and the State of Arizona.

The case was submitted to the jury

at approximately 3:55 p.m. on September

18, 1970. At 10:50 p.m. on that date,

the jury was called into the courtoom.

The Court questioned the jurors as to

22

the possibility of reaching a verdict

within a reasonable time. The jury indi-

cated on that day it stood ( 8 to 4) eight

to four.

On September 19, 1970, the jurors

requested to hear the taped instructions,

which request was granted. They also

asked the Court to define some psycholo-

gical terms, but the Court refused. At

approximately 3:00 p.m. that day the Court

delivered an Allen charge, which told the

jury they could be leisurely in their

deliberations. At 4:48 p.m., after only

12 hours of total deliberation, the Court

again called the jury before it. What

follows is a reconstruction of the pro-

ceedings had therein. No transcript is

available since a court reporter was not

present during the following interchange

between Court and jury.?

3 ,

There was no court reporter during any

of the court proceedings which took place

after the cause was submitted to the jury.

At the October 14, 1970 hearing on peti-

tioner's motion to quash the information,

his counsel related what occurred in the

23

"The Court asked the jury, or

he asked the foreman to stand,

then he said, ‘Mr. Foreman, can

you give us an indication about

how the vote is going?'

And the foreman said, ‘Your

Honor, we are still deadlocked

at (8 to 4) eight to four.*

And the Court then asked the

foreman, he said, ‘What are

your feelings with reference

to whether or not you can reach

a verdict?'

And to the best of my recollec-

tion, the foreman said, ‘At this

time, Your Honor, the probability

in my opinion of reaching a ver-

dict is not very good.'

So the Court asked the jury col-

lectively: “Is there anyone

courtroom after the juryv had begun its

deliberation, including what transpired

at the time the jury was discharged. The

Arizona ig aere Court accepted defense

savesalonipesitghicy Pf ofhenéaatfounbicn

rendered by the prosecution.

23-1

here on the jury that feels

further deliberation might

have some results?’ And a

lady sitting in the front

row, I believe, on the lower

left-hand side as you would

be looking at the iury, the

first lady on the left, raised

her hand. And that Court ac-

knowledged her hand and she

said: ‘I feel that we could

reach a verdict.’

And almost instantaneously

the Court said, ‘Well, you

are Outnumbered, and I am

declaring a mistrial, and

this jury is now discharged.'"

43n the opinion of the Supreme Cou:t of

Arizona, Appendix A, page 9a, the Court

acknowledges that during the 12 hours of

deliberation there was a novement in the

numerical division or the jury from (8 to

4) eight to four to (9 to 3) nine to

three.

24

The Sixth Circuit in United States

v. Lansdown, supra, states:

"The conclusion that a jury

is unable to reach a verdict

must be supported by something

in addition to the trial court's

conclusion that the jury has

deliberated long enough. (Foot-

note omitted) ."

Lansdown, supra, is instructive

and has application in this case for the

reason that its ratio decendi seems to

require that there be something in the

record which will justify the trial court's

exercise of discretion.

In Russo, supra, the Third Circuit

seems to build on Lansdown. In the latter

case the issue was whether fatigue of the

jury would be sufficient reason to dis-

charge. In that case the court at 483

F. 2d 7, p. 16 stated:

"Not Only was there no inquiry

as to the physical condition of

the jurors, there was no ques-

tioning them as to their progress

25

towards reaching a verdict.

Before the defendant loses

his Fifth Amendment right, we

think that the trial judge

must at least determine whether

the jury is approaching a ver-

dict.”

In the case at bar, the trial court

did attempt to determine whether the jury

was approaching a verdict. However, the

trial court failed to avail itself of the

opportunity to- (1) Send the jury back to

specifically deliberate the actual possi-

bility of reaching a verdict if further

deliberation were allowed; (2) Poll each

juror concerning the possibility of reach-

ing a verdict.

On the contrary, the trial court

chose to ignore the fact that one juror

did feel that a verdict was possible. It

would not have required a great expendi-

ture of legal resources or effort to have

investigated the possibility of a verdict

in the light of a statement made by one

juror that the possibility of a verdict

existed.

26

The issues presented to the jury in

the case at bar were complex. The trial

consumed 12 days and approximately 35 hours

of evidentiary presentation. Earlier on

the 19th of Septenber 1970, the day the

jury was discharged, the jurors had re-

quested to hear taped instructions and had

requested the Court to define some psycho-

logical terms. At 3:00 p.m. on the same

date the Court delivered an Alien charge.

One hour and forty-eight ninutes later the

jury was discharged It is not unexpec-

ted then, that the jury might still be un-

decided and yet be capable of reaching a

verdict, one hour and forty-eight ninutes

after the trial court had informed them,

via Allen instruction, that they could

leisurely deliberate until a verdict was

reached. (See Russo, supra, at p. 16.)

The language used by the Lansdown

court, supra, at 460 F 2d at 169 in its

appraisal of a trial judge's exercise of

discretion is apropos here:

carctevensnanene tener ge feta wees eee

was not ‘manifest necessity’

in this case for declaring a

27

mistrial when the district

court did so. The district

court, without considering

any Other factors, simply

concluded that avproximately

11 hours of deliberation, in

a case presenting a close ques-

tion of credibility, was long

enough. The district judge did

not seek the opinion of counsel

or the defendant; after having

told the jury that it could be

‘leisurely in its deliberations’,

he made no inquiry as to whether

the jury was about to reach a

verdict or thought that a ver-

dict was possible. Indeed, he

rejected statements from the

jury that it was on the verge

of a verdict and wished to con-

tinue. The jury was dismissed

at approximately i:00 p.m. The

jurors would have suffered little

additional hardship if required

to remain at least until the end

of the day. Under these circum-

stances, we believe that the

28

district court failed to

protect adequately the defen-

dant's right to have his case

decided by a particular tri-

bunal." (Footnotes omitted).

Finally, it should be noted that

upon the record, it would appear that the

trial court confused the jury's stance on

the issue of guilt or innocence with the

separate and distinct issue of whether or

not a verdict could be reached if more

time were allowed for deliberation. It has

been assumed throughout the Appellant's

post-conviction proceedings, that the jury

stood (11 to 1) eleven to one on the issue

of whether or not a deadlock existed. The

trial court may have been justified in ad-

dressing his query as to the possibility

of a verdict to the foreman in the first

instance; however, it should be noted that

_the foreman had not been specifically in-

structed to ascertain the jury's position

on this point. Thus, in a practical :

sense he was qualified only to give his

personal appraisal of the situation. His

response was couched in a personal, sub-

jective manner and his response to the

29

trial judge's question only referred to

probabilities.

"At this time, Your Honor, the

probability in ny opinion of

reaching a verdict is not very

good."

The equal and opposite point of

view expressed by another juror made the

score One to One on the issue of reaching

a verdict. The fact that no other juror

responded may be attributed to many un-

known and unascertainable factors; one of

which could be that the possible points

of view had already been expressed.

Speculation as to the jury's actual

position of, on either the issue of guilt

or the probability of reaching a verdict

is apt to be of little value at this point.

The fact remains that a reasonable possi-

bility of a verdict exists on the record,

and the trial court made no effort to

explore reasonable alternatives to a mis-

trial. If "manifest necessity" is to

mean anything as a standard this Court

should find “hat none existed in this case.

30

Appellant's valued right to a particular

rriburan’ was” taken away from him here.

WHY THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH DISTRICT

SHOULD BE REVERSED AND THE WRIT SHOULD

ISSUE:

The United States Supreme Court has

not yet dealt with the problems presented

in this case in a comprehensive manner as

have the Third and Fourth Circuits. Al-

though each case must be resolved on its

own facts, some standards for review of a

trial court's exercise in declaring a mis-

trial in fact situations similar to the

case at bar should be ennunciated.

Appellant contends that the trial

court should be required to make a record

and findings of fact upon which an appel-

late court can menaingfully review its ex-

ercise of discretion. The policy behind

the Fifth Amendment prohibition against

double jeopardy reflects a deep concern

and apprehension of the awesome power of

the government might be used to subject a

citizen to repeated prosecutions for the

same alleged offense.

31

Reprosecution increases the possibilities

of a miscarriage of justice. Not only

does a retrial expose a potentially inno-

cent defendant to a verdict of guilt, but

also exposes the defendant to the addition-

al ordeal involved in another criminal

trial with its attendant anxieties, in-

securities, embarrassment, and expenses.

Green v. United States, supra.

Where a mistrial is declared, the

defendant is often deprived of his right

to have his trial completed by a particu-

lar tribunal which he believes may be

favorably disposed to his fate. United

States v. Jorn, supra.

It would not be unreasonable to

require trial courts when declaring a

mistrial, to employ the same procedural

precautions which are employed where a

quilty plea is taken pursuant to Rule 11

of Federal Rules of Criminal Procedure.

The defendant is subjected to the possi-

bilities of losing valuable rights, if

forced to undergo a new trial. It is not

unreasonable to require a trial judge to

explore all reasonable alternatives to

32

the declaration of a mistrial, and to

make such exploration a part of the re-

cord which can be reviewed meaningfully.

Unless specified findings of fact design-

ed to adequately exhaust all reasonable

alternatives to a mistrial are set out in

a record, an appellate court cannot do

‘Other than ratify a decision which night

have been incorrect or subject to manipu-

lation.

33

CONCLUSION

The Appellant urges that he has been

twice placed in jeopardy for the same

alleged crimes; That the trial court

dismissed the jury sua sponte without

sufficient legal cause; That such conduct

by a trial court has been held by the

United States Court of Appeals for the

Third and Fourth Circuits to be a vio-

lation of the Fifth Amendment prohibi-

tion against Double Jeopardy; That the

United Statc- Supreme Court should re-

solve the conflict within the Circuits

and set forth procedural guidelines to

be followed by the trial court to support

the dismissal of a jury sua sponte.

Respectfully submitted,

- Lovalio

31 E..Brgadway

Tucson, Arizona 85701

la

APPENDIX A

The STATE of Arizona, Appellee,

Vv.

Robert Bruce MOORE, Jr., Appellant.

No. 2270

Supreme Court of Arizona,

In Division

Nov. 22, 1972

Rehearing Denied Jan. 2, 1973.

Gary K. Nelson, Atty. Gen., by Jerry

C. Schmidt and William P. Dixon, Asst.

Attys. Gen., Phoenix, for appellee.

Laber, Morrow, Lovallo & Colarich, by

Joseph A. Lovallo, Tucson, for appellant

HOLOHAN, Justice:

The appellant was tried by jury and

convicted of the offenses of armed

robbery and attempted murder. He was

sentemced to confinement in the state

en

2a

.

prison, and he brings this appeal.

The first trial of appellant for the

above offenses resulted in a mistrial, and

it was at a second trial that the challen-

ged conviction was obtained. The appell-

ant does not urge that any reversible

error was committed in the course of the

second trial,. and ovr review of the record

satisfies us that there was no such error.

Appellant challenges his conviction on

the basis that he should not have been

tried a second time after the mistrial of

his first trial. Essentially two questions

are presented:

1. Does the absence of a court re-

porter at the time the events occur upon

which a mistrial is based deny a defendant

due process of law?

2. Does the record show any legally

sufficient reasons for the declaration of

a mistrial?

3a

The initial prosecution of appellant

began September 1, 1970 and lasted 12

days. The deliberation of the jury began

at about 4:00 p.m. the afternoon of

September 18, 1970, and it extended into

the following day. At the beginning of

the second day of deliberation the instru-

ctions were reread to the jury. Around

3:00 p.m. the second day the jury request-

ed definitions of the terms "insanity,"

"psychosis" and "psychotic neurosis."

Theses definitions were not given. In-

stead, the court ordered them to rely on

the evidence and the use of the terms in

the case. At approximately 4:50 p.m. of

the second day of deliberation the trial

judge called the jury back to the court-

room. The trial judge asked the foreman

if it would be possible to reach a ver-

dict. The foreman expressed the opinion

that-the jury probably could not reach a

4a

verdict. The jury was reportedly dead-

locked at eight to four. The trial judge

inquired of the panel whethe- they thought

a verdict could be reached, and only one

juror expressed the belief that further

deliberation would result in a verdict.

The trial judge thereafter declared a

mistrial.

The appellant argues that a retrial

constitutes double jeopardy which is pro-

hibited by the Fourteenth Amendment, cit-

ing Benton v. Maryland, 395 U.S. 784, 89

S. Ct. 2056, 23 L.Ed.2d 707 (1969).

Appellant recognizes that there are

situations in which a jury can be dismiss-

ed without jeopardy attaching, and one

of these occurs when the jury is unable

to reach a verdict. The discretion to

discharge the jury, appellant urges,may

be exercised only in extraordinary end

striking circumstances. Downum v. United

5a

States, 372 U.S. 734, 83 S. Ct. 1033, 10

L.Ed.2d 100 (1963).

{1] Appellant's threshold point is

that there is no record from which this

Court can review the question of whether

the trial judge abused his discretion in

the discharge of the jury. A court re-

porter was present throughout the trial,

and a transcript has been prepared and

filed, but the reporter was not present

at any session after the jury began its

deliberation. There is no stenographic

transcript of the proceedings of September

19, 1970, the second day of deliberation

and the day upon which the mistrial was

declared. From this fact the appellant

argues that there is no record, and he

must be discharged. We do not agree.

[2] The appellant was entitled to the

presence of a court reporter at all sess-

ions of the court. Rule 252, Rules of

6a

Criminal Procedure, 17 A.R.S. A court re-

porter had been instructed, but the appell-

ant did not request the presence of a re-

porter at any such session, and appellant

took part in such sessions without once

requesting a court reporter.

In State v. Crowder, 103 Ariz. 264,440

P.2d 29 (1968), we held that where no ob-

jection was made by the defendant to pro-

ceeding to trial without a reporter, he

waives his right to thereafter complain

that the proceedings were not reported.

The holding in Crowder was reaffirmed in

State v. Burrell, 106 Ariz. 100, 471 P.2d

712 (1970), and we held that the right

to have the proceedings taken down and

transcribed may be waived.

[3] Due process does not require a

stenographic transcript in every case.

Alternative methods of reporting trial

proceedings are permissible if they place

7a

before an appellate court an equivalent

report of the events at trial from which

the appellant's contensions arise. The

material before the state court must

constitute a record of sufficient com-

pleteness for adequate consideration of

the errors assigned. Draper v. Washing-

ton, 372 U.S. 487, 83 S. Ct. 774, 9 L.Ed.

2d 899 (1963).

Putting aside the fact of waiver of a

court reporter, we find that there is a

sufficient record before us which meets

the test of Draper, supra. The record

sent forward to us includes, among other

documents and exhibits, the minutes

taken by the cleik at all sessions of

the court including those after the jury

had begun its [de]liberation and includ-

ing the session at which the trial judge

ordered the mistrial. In addition,

there is a reporter's transcript of the

8a

argument and representations made by

counsel for appellant at the Motion to

Quash the inforamtion in this case. For

the purposes of reviewing this matter we

will accept the statements of counsel for

appellant made in the motion as true.

[4] For many years it has been recog-

nized that a defendant may be retricd after

a trial judge had, without the defendant's

consent, discharged a jury unable to agree

on a verdict. United States v. Perez, 9

Wheat. 579, 6 L.Ed. 16 5 (1824). This

position has been reaffirmed in Wade v.

Hunter, 336 U.S. 684, 69 S. Ct. 834, 93

L.Ed. 974 (1949), and United States v.

Jorn, 400 U.S. 470, 91 S. Ct. 547,. 27

L.Ed.2d 543 (1971).

Disagreement by the jury is not the on-

ly cause for mistrial as pointed out in

Gori v. United States, 367 U.S. 364,,81

9a

S. Ct. 1523, 6 L.Ed.2d 901 (1961), the

Court said:

"Where, for reasons deemed

compelling by the trial judge,

who is best situated intelli-

gently to make such a decision

the ends of substantial jus-

tice cannot be attained with-

out the defendant's consent

and even over his objection,

and he may be retried con-

sistently with the Fifth

Amendment."

[Citing cases] 367 U.S. at 368,

81S. Ct. at 1526, 6 L.Ed.2d

at 904.

[5] The issue resolves itself into

whether under all the circumstances the

trial judge acted in the exercise of

sound discretion by declaring a mistrial.

If he did, there is no double jeopardy

10a

and the defendant was properly tried. If

he did not, the defendant should not have

been retried.

16] Appellant additionally urges that

there has not been compliance with Rule

303, Rules of Criminal Procedure, in

that the entry which showed the jury was

being discharged did not reflect a suffi-

cient showing of the reason for the dis-

charge. Therefore, there is no way to

determine whether the trial judge exer-

cised sound discretion.

The minutes reflect:

"4:48 p.m. Deft., counsel

and jury present.

"The court questions the

jurors and states:

"It appearing that there

is no reasonable probability

that the jurors can agree up-

on a verdict, a mistrial is

lla

declared, and the jury is

excused.

"Mr. Weiss moves that the

trial not be reset on the

calendar until after the trial

in Case #A-17578 [.]

"Mr. Colarich moves for a

directed verdict of acquittal

on the ground that with the

evidence, the length of deli-

beration, and the giving of the

Allen instruction, there is a

reasonable doubt of the guilt

of the Deft., and

"IT IS ORDERED that the

Motion is denied.

"As to the new trial date,

"Mr. Colarich argues to the

Court.

"IT IS ORDERED that the trial

l2a

r chis action be set to follow

the trial in Case #A-17578, with-

out prejudice to the right of the

Deft. to file any motion for

continuation.

"Deft. is remanded to the

custody of the Sheriff."

Rule 303 must be read in connection

with Rule 302, Rules of Criminal

Procedure which provides:

"Rule 302. Discharge of

jurors.

"A. After the jurors have

retired to consider their verdict

the Court shall discharge them

when:

"1. Their verdict has been

recorded.

"2. A necessity exists for

their discharge.

"3. Upon expiration of such

io |

13a

tine as the court deems proper it

appears that there is no reason-

able probability that the jurors

can agree upon a verdict.

"B. The court may in any

event discharge the jurors from

the action if the county attorney

and the defendant consent to such

discharge."

There is no magic formula reguired

by Rules 302 and 303. The trial court

correctly set forth the reasons for dis-

charge of the jury as being that provided

for in 302, subsec. A, par. 3. Nothing

more was required.

[7] The record presented shows that

the jury had been given the case fr over

24 hours. While appellant argues that

only some nine hours of deliberation time

had been used, it must be granted that

each juror had had many hours additional

14a

for individual reflection and consider-

ation. Despite the length of time involv-

ed, the jury remained divided at either 8

to 4 or 9 to 3, depending upon which re-

collection is accepted.

A 9-3 division after 24 hours of

deliberation, the statement of the foreman

that agreement by the jury was unlikely

and agreement by all but one juror that

further deliberation would not be fruitful

constituted a sufficient basis for declar-

ation of a mistriai.

A trial judge is often presented with

a dilemma in situations involving long

deliberation by juries. If he insists

on prolonging the deliberation after the

jurors have expressed the feeling that

they cannot reach a verdict, the trial

judge may then be accused of trying to

coerce a verdict. In the case at issue,

the trial court is alleged to have de-

15a

clared the mistrial too soon. From our

review of the material presented, it app-

ears thatthe jury was deadlocked. Hence,

the trial judge exercised sound discretion

in declaring a mistrial and setting the

matter for another trial.

The judgment and sentence of the app-

ellant are affirmed.

HAYS, C.J., and CAMERON, V. C. J.,

concur.

l6a

APPENDIX B

SUPREME COURT

STATE OF ARIZONA

PHOENIX

85007

January 4, 1973

THE STATE OF ARIZONA, )

) Supreme Court

Appellee, ) No. 2270

)

Vv. ) Pima County

) No. A-17509

ROBERT BRUCE MOORE, JR.,)

)

Appellant. )

)

The following action was taken by the

Supreme Court of the State of Arizona on

January 2, 1973 in regard to the above-

entitled cause:

"ORDERED: Motion for Rehearing -

DENIED."

Certified copy of Order Affirming

Judgment and Sentence issued this date.

CLIFFORD H. WARD, Clerk

By Mary Ann Hopkins

Deputy Clerk

17a

TO:

Joseph A. Lovallo, Esq., Laber, Morrow &

Lovallo, 131 East Broadway, Tucson 85701

Hon. Gary K. Nelson, Attorney General,

159 State Capitol, Phoenix 85007

Dennis W. DeConcini, Pima County Attorney

131 West Congress, Tucson 85701

Robert Bruce Moore, Jr., Arizona State

Prison, Box B, Florence 85232

West Publishing Company, 50 Kellogg Blvd.,

St. Paul, Minnesota 55102

18a

”

APPENDIX C

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

May 21, 1973

John P. Frank, Esq.

Lewis & Roca

100 West Washington St.

Phoenix, Ariz. 85003

RE: MOORE v. ARIZONA,

No. 72-1335.

Dear Sir:

The Court today denied the petition

for a writ of certiorari in the above-

entitled case.

Very truly yours,

MICHAEL RODAK, JR., Clerk

By

/s/ Helen Taylor

Helen Taylor, (Mrs.)

Assistant Clerk

William 3. Schafer, III, Esq.

Chief Counsel - Crim. Div

Office of the Attorney General

159 Capitol Bldg.

Phoenix, Ariz. 85007

19a

FILED: DEC. 18, 1973 - United States

District Court for the District of Arizona

By Deputy Clerk.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT BRUCE MOORE, UR., )

)

Petitioner, YNo. Civ-73-724

)

vs. ) Phx WEC

)

HAROLD CARDWELL, etc.,

ORDER

Respondent. )

)

Petitioner, an inmate at the Arizona

State Prison, seeks habeas corpus relief

pursuant to 28 U.S.C. §2254.

Petitioner was charged with armed

robbery and attempted murder, Following

a trial that lasted twelve days the evi-

dence was submitted to the jury. MTwenty-

Four hours after receiving the case, and

after twelve hours of deliberation, the

judge called the jury back into the court-

room. The judge asked the jury foreman

APPENDIX D

20a

if it would be possible to reach a verdict.

The foreman stated that the probability of

reaching a verdict was not very good. The

judge then asked the jury collectively

whether anyone felt further deliberation

might bring about a verdict. Only one

juror felt that a verdict could be reach-

ed. The judge then sua sponte declared

a mistrial and discharged the jury.

Petitioner now contends, as he did in

his state court appeal, that the subse-

quent retrial violated the double jeopardy

provisions of the United States Constitu-

tion. United States v. Perez, 22 U.S.

579 (1824), set the standard to be

followed in determining whether a mis-

trial precludes further prosecution of

the defendant. The Court stated:

"We think, that in all cases of

this nature [where jury was disch-

arged after being unable to agree],

2l-a

the law has invested courts of justice

with the authority to discharge a jury

from giving any verdict, whenever, in

their opinion, taking all the circum-

stances into consideration, there is a

manifest necessity for the act, or the

ends of public justice would otherwise

be defeated." Id. at 579 (Emphasis added)

This standard was applied to the

states in 1969. Benton v. Maryland,

395 U.S. 784 (1969)

The issue in the present case is

whether the trial judge was warranted

in finding that the jury was unable to

agree, thereby bringing into play the

doctrine of “manifest necessity". As

was stated in Downum v. U.S., 372 U.S.

734, 737 (1963); "Each case must turn

on its facts."

It was not an abuse of discretion for

the trial judge in the present case to

22a

declare a mistrial after polling the jurors

and finding that eleven felt a verdict

could not be reached, even after further

deliberations. Defendant cites Cornero v.

U.S., 48 F.2d 69 (9th Cir. 1931), for an

indication of the Ninth Circuit's position

on this issue. The case itself arose

when the trial judge declared a mistrial

when the prosecuting attorney stated that

he could not proceed due to the absence

of certain witnesses, hardly a factual

Situation to support the defendant's

position in the present action. In fact,

the Court, in backgrounding the law of

double jeopardy recognized the discretion

of the trial judge in declaring a mistrial

when a jury is unable to agree on a ver-

dict.

"[SJound discretion...is that

discretion of the trial court involv-

ed in the determination of when and

23a

after how long a delibertaion of

the jury should be discharged,

for the reason that the accused

is entitled to have the jury given

a reasonable time to arrive at a

verdict before a mistrial should

be declared and the jury discharged".

Id. at 72.

In U.S. v. Berniker, 439 F.2d 686 (9th

Cir. 1971), the Court upheld the trial

judge's action in declaring a mistrial

when "the jury expressed its inability

to reach a verdict..."

U.S. v. Lansdown, 460 F.2d 164 (4th

Cir. 1972), is also purported by the

defendant to be identical to the present

case, however, it, too, if factually dis-

tinguishable. The trial judge in Lans-

down declared a mistrial sua sponte

based solely on his conclusion that the

jury had deliberated long enough. The

24a

The judge rejected statements from the

jury that it was on the verge of a ver-

dict and wished to continue. The appeals

court stated:

"While the length of deliberation

is relevant factor, the more impor-

tant consideration is whether

there is a possibility that the

jury can reach a verdict within a

reasonable time."

In the present case the Court was in-

formed that the jury was still divided

numerically as it had been the previous

night, that the foreman felt a verdict

was not probable, and that eleven jurors

felt further deliberations would reap

no results. The trial judge was not

abusing his discretion in considering

these findings and declaring a mistrial.

IT IS ORDERED that the petition for a

writ of habeas corpus be denied.

25a

DATED this 13th day of December, 1973.

s/ Walter FE. Craig

United States Distri t Judge

26a

FILED: October 4, 1974 - U.S. Court of

Appeals - Clerk

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT BRUCE MOORE, JR.

Petitioner-Appellant, No. 74-1327

MEMORANDUM

HAROLD CARDWELL, Warden.

)

)

)

)

vs. )

)

)

)

Respondent-Appellee. )

)

Appeal from the United States District

Court - District of Arizona

Before: CARTER and HUFSTEDLER, Circuit

Judges, and SCHNACKE,* District Judge.

The granting of a mistrial ina

criminal case without the consent of the

defendant when the jury is unable to

reach a verdict, exercised in the sound

discr@'ion of the trial court, does not

consitute double jeopardy. United States,

APPENDIX E

27a

v. Perez, 22 U.S. (9 Wheat.) 579;

Logan v. United States, 144 U.S. 263,

298 (1892).

There was no abuse of that discretion

below.

Judgment affirmed.

* Hon. Robert H. Schancke, United States

District Judge, Northern District of

California, sitting by designation.

DECLARATION OF SERVICE

I, the undersigned, being first

duly sworn, declare:

I am a citizen of the United States

and a resident of the County of Pima, State

of Arizona. I am over the age of eighteen

years and not a party to the within entitled

action.

My business address is 131 East Broad-

way, Tucson, Arizona, 85701.

On November 8, 1974 I served the with-

in Petition for Writ of Certiorari on the

Respondent in said action by placing a true

copy thereof enclosed in a sealed envelope

with postage thereon fully prepaid, in the

United States Mail at Tucson, Arizona, ad-

dressed as follows:

The Hon. N. Warner Lee

Attorney General, State

of Arizona

159 State Capitol Bldg.

PHOENIX, Arizona 85007

and

The Hon. William Saxbe

Attorney General of the

United States

29a

Washington, D. C.

The Solicitor General

Washington, D. C.

J. A. LOVALLO

Subscribed and sworn to

before me this 8th day

Of November 1974.

My Commission espires:

3-24-78

PPS ip ay