Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-1997

Love v. Morton
Precedential or Non-Precedential:

Docket 96-5783




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Recommended Citation
"Love v. Morton" (1997). 1997 Decisions. Paper 95.
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Filed May 5, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5783

HAROLD LOVE

v.

WILLIS MORTON, Administrator-NJSP;
PETER VERNIERO,* Attorney General,

Appellants.

Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 95-cv-06309)

Argued: Tuesday, March 25, 1997

Before: SLOVITER, Chief Judge, STAPLETON and
ALDISERT, Circuit Judges.

(Filed May 5, 1997)

Jack J. Lipari (argued)
Jeffrey S. Blitz
OFFICE OF PROSECUTOR OF
ATLANTIC COUNTY
1470 19th Avenue
P.O. Box 2002
Mays Landing, NJ 08330

ATTORNEYS FOR APPELLANTS




_________________________________________________________________
*[Pursuant to Rule 43(c) of F.R.A.P.]
Stephen M. Latimer (argued)
LOUGHLIN & LATIMER
9 Kansas Street
Hackensack, NJ 07601

ATTORNEY FOR APPELLEE

OPINION OF THE COURT

ALDISERT, Circuit Judge

This appeal by the State of New Jersey from a judgment
of the district court granting Harold Love's 28 U.S.C. § 2254
petition for writ of habeas corpus requires us to decide
whether the court properly ruled that Petitioner had been
placed in former jeopardy prior to his trial and conviction
for robbery in state court.

Love defended in two state court trials on charges of
robbery and armed robbery. At the close of testimony on
the first day of his first trial, the trial judge declared a
mistrial for personal reasons. The next day, a second trial
began before another judge and a second jury. The new
trial judge denied Love's motion to dismiss the indictment
on grounds of double jeopardy. Following his conviction
and sentencing, Love unsuccessfully appealed to the state
appellate court on the double jeopardy issue. State v. Love,

, 

(App. Div. 1995) (per
curiam). Love then filed a habeas corpus petition in district
court. After conducting an evidentiary hearing, the district
court ruled that Love's first trial was terminated without his
consent and without manifest necessity. The court granted
Love's petition on the basis of double jeopardy. Love v.
Morton, 

(D.N.J. 1996). The State of New
Jersey has appealed.

At stake here are protections assured by the Double
Jeopardy Clause of the Fifth Amendment, which provides:
"[N]or shall any person be subject for the same offence to
be twice put in jeopardy of life or limb . . . ." As the
Supreme Court teaches:

                    2
The constitutional protection against "double
jeopardy" was designed to protect an individual from
being subjected to the hazards of trial and possible
conviction more than once for an alleged offense. In his
Commentaries, which greatly influenced the generation
that adopted the Constitution, Blackstone recorded:

". . . the plea of auterfoits acquit, or a former
acquittal, is grounded on this universal maxim of the
common law of England, that no man is to be
brought into jeopardy of his life more than once for
the same offence."

Green v. United States, 

, 187 (1957) (citing 4
William Blackstone, Commentaries 335).

The Double Jeopardy Clause not only ensures the finality
of criminal judgments, but also protects a defendant's
"valued right to have his trial completed by a particular
tribunal." Arizona v. Washington, 

, 503 (1978)
(quoting United States v. Jorn, 

, 484 (1971)).
As urged by New Jersey, however, this "valued right . . .
must in some instances be subordinated to the public's
interest in fair trials designed to end in just judgments."
Wade v. Hunter, 

, 689 (1949). Accordingly, the
Supreme Court has crafted certain exceptions to the literal
language of the Clause. New Jersey presented two of these
exceptions to the district court and urges them upon us
here.

Mistrials declared with the defendants' consent do not
bar a later prosecution. United States v. Dinitz, 

, 607 (1976). Even without their consent, defendants
may be retried when, "taking all the circumstances into
consideration, there is a manifest necessity for the
[mistrial], or the ends of public justice would otherwise be
defeated."1 United States v. Perez, 22 U.S. (9 Wheat.) 579,
_________________________________________________________________

1. New Jersey relies on "manifest necessity" because the phrase "ends of
public justice" is not applicable to the facts of this case. See Illinois v.
Somerville, 

, 468-471 (1973) (holding that the ends of public
justice justify a mistrial where the trial contains a defect such that a
conviction, if obtained, could be upset at will on appeal or in collateral
proceedings).

                    3
580 (1824) (Justice Story coining the phrase "manifest
necessity"). Our task is to decide whether there was
manifest necessity for declaring the mistrial and whether
Petitioner expressly or impliedly consented to the mistrial.
New Jersey also argues that the court erred in conducting
an evidentiary hearing in the § 2254 proceeding. The
district court had jurisdiction under 28 U.S.C. § 2254. We
have jurisdiction under 28 U.S.C. § 1291. The appeal was
timely filed under Rule 4, Federal Rules of Appellate
Procedure.

Where a district court holds an evidentiary hearing in a
habeas proceeding, this court reviews the district court's
findings of fact for clear error. Lesko v. Owens, 

, 50-51 (3d Cir. 1989). We exercise plenary review over
the district court's legal conclusions. Yohn v. Love, 

(3d Cir. 1996).

I.

Love stood trial in the Atlantic County, New Jersey
Superior Court in two trials before two juries on charges of
robbery and armed robbery. The first jury was sworn and
testimony began on the morning of June 15, 1993. During
the testimony of the State's fourth witness, the jury was
excused so that counsel could argue an issue relating to
"chain of custody." Counsel and the trial judge, James
Citta, repaired to chambers to discuss the matter. At about
3:30 p.m., the judge received a telephone call from his wife,
who was exceedingly upset because her mother had died
unexpectedly. The judge later testified that he was close to
his mother-in-law and was upset not only at her untimely
passing, but also at his inability to be immediately available
to comfort his wife. The prosecuting attorney testified that
Judge Citta was "very upset" and "visibly shaken." Judge
Citta called the presiding criminal judge, Judge
Braithwaite, and briefly discussed the situation.

The prosecutor has described the events that took place
in Judge Citta's chambers after the call from the judge's
wife:

We waited for him to get off the telephone, and he
explained to us that, as I indicated, his wife was very

                    4
distraught that her--her mother had died suddenly
and unexpectedly and she had been unable to reach
anyone. He further indicated that he was an hour away
from home and that he had to leave. He had to get out
of here and go home and so forth, and it was apparent
there was stress on his face and in his demeanor and
his voice and so forth that he--there was an urgency to
his need to leave the courthouse. He said that `I don't
know what I'm going to do about this case. I don't
know if we'll mistry it or not. I'm not sure what the
procedure should be. I'm going to call Judge
Braithwaite,['] which is what he did. He phoned Judge
Braithwaite in our presence. He discussed the situation
with Judge Braithwaite including the fact of the State's
witnesses having just arrived from Canada yesterday
afternoon and then--that there being some wish on the
part of the State that the case proceed, whether that
could be effected through the assignment of another
judge to pick up the case from that point on or to start
the case anew, whatever; but he discussed the matter
with Judge Braithwaite; and after he got off the
telephone, he advised us that he was going to mistry
the case. Now, needless to say, counsel and I in that
position were in the situation where we both had an
interest in the case proceeding from that point on, but
neither of us was in a situation where we could tell
Judge Citta `Forget your wife and forget your mother-
in-law's death. Let's get on with this trial.' I mean there
was an urgency and an emergent situation here that
none of us had previously encountered.

State v. 

.

Judge Citta testified at the evidentiary hearing in the
district court that he did not remember asking counsel for
their input or consent to the mistrial:

I do not recall asking either counsel if they consented
to a mistrial. I'm not the sort of judge that asked for
permission or asked for consent. Generally in
situations like this when I have made a decision--and
the decision had been made--and my recollection is
that I informed them that this is what I was going to do

                     5
and to please go in the courtroom and get the jury in
there as quickly as possible.

Love v. 

n.3. 7

After his conversation with Judge Braithwaite, Judge
Citta notified counsel that he would declare a mistrial, and
counsel returned to the courtroom. Defense counsel later
testified that the time between his return to the courtroom
and the judge's return was "five to ten minutes at the
most." Judge Citta addressed the jury:

Ladies and gentleman, I am going to declare a mistrial
in this case. It has nothing to do with either of the
litigants, their--the attorneys or the defendant or you.
I just received a phone call that my mother-in-law
passed away this afternoon, and I have some things I
must attend to as a result of that, and I will not be
available for the rest of this week. Due to the
scheduling problems--normally what I would do is I
would continue the case and dismiss you for the
balance of this week and have you come back next
week and we would finish it, but due to some
scheduling problems that obviously could not be
anticipated and the difficulty that it causes for various
witnesses in the case, I'm going to declare a mistrial.

State v. 

. After declaring the mistrial,
Judge Citta immediately returned to his chambers. He left
the courthouse shortly thereafter. The prosecutor gave
fifteen minutes as a "ballpark estimate" of the time that
expired between the call from Judge Citta's wife and the
time Judge Citta left the courtroom.

At the time Judge Citta declared the mistrial, another
judge, Judge Alvarez, was available to complete the trial. In
fact, Judge Alvarez had been a spectator in the courtroom
during some of the day's proceedings. Nevertheless, Judge
Braithwaite instructed counsel to return the following
morning to pick a new jury. Later that afternoon, Judge
Braithwaite assigned Judge Alvarez to begin a new trial in
the morning.

When asked during the district court hearing whether he
had considered prior to declaring a mistrial that "there

                    6
might be double jeopardy problems," Judge Citta replied:
"Never crossed my mind, no." Apparently no one else
involved in this case considered the possibility of double
jeopardy until defense counsel returned to his office and
began discussing the case with his colleagues. At that point
he began to realize the potential implications of the
mistrial. The following morning, defense counsel asked
Judge Alvarez to dismiss the charges on double jeopardy
grounds. Judge Alvarez denied the motion, the trial
proceeded, and Love was convicted and sentenced to 30
years.

Love appealed to the Superior Court Appellate Division,
arguing that his conviction was invalid because his second
trial violated double jeopardy principles. State v. 

. In affirming Love's conviction, the Appellate
Division emphasized that Love's mistrial was not the result
of bad faith or improper motive on the part of the trial
judge or the prosecuting attorney. 

Jersey
Supreme Court denied certification. State v. Love, 

, 

(1995).

The district court proceedings followed. After examining
the record and conducting an evidentiary hearing, the court
determined that Love's conviction was invalid. The court
found that the mistrial was not required by manifest
necessity, and that defense counsel's failure to object did
not constitute implied consent. The court granted Love's
petition for habeas relief, but stayed issuance of the writ
pending the result of this appeal.

II.

Before addressing the double jeopardy issue, we will
consider whether it was proper for the district court to
conduct an evidentiary hearing. New Jersey suggests that
an evidentiary hearing was improper in light of the recent
28 U.S.C. § 2254 amendments included in the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Section
2254(e)(2) now provides:

If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall

                    7
not hold an evidentiary hearing on the claim unless the
applicant shows that--

(A) the claim relies on--

 (i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or

(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and

(B) the facts of the claim would be sufficient to
establish by clear and convincing evidence that but
for constitutional error, no reasonable fact finder
would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2254(e)(2).

Love filed his § 2254 petition on December 5, 1995.
Congress enacted the amendments on April 24, 1996. As
we stated in Burkett v. Love, 

, 138 (3d Cir.
1996), "we need not digress to determine the effect of [the
1996 amendments] on the present action, filed, as it was,
before the amendments were enacted." See also Boria v.
Keane, 

, 37-38 (2d Cir. 1996) (per curiam)
(because the death penalty sections contain an explicitly
retroactive provision and the other sections do not,
Congress intended the latter to have only prospective
effect). But see Lindh v. Murphy, 

(7th Cir.
1996) (en banc), cert. granted, 

(1997).

Even if we were to give retroactive effect to the 1996
amendments to § 2254, we would not conclude that the
district court erred in conducting an evidentiary hearing.2
Section 2254(e)(2) applies to applicants who "failed to
_________________________________________________________________

2. The district court, without discussion, also concluded that an
evidentiary hearing would be appropriate under the 1996 amendments:
"Adopting the majority view on retroactivity, the Court need not revisit
its decision to order an evidentiary hearing beyond noting that the Court
would have ordered an evidentiary hearing under the new 28 U.S.C.
§ 2254(e)(2) as 

n.1.

                    8
develop the factual basis of a claim in State court
proceedings." In this case, Love did not "fail" to develop the
basis of his claim.

Judge Citta's abrupt declaration of a mistrial made it
impossible for Love to develop the record at the time of the
mistrial. Neither defense counsel nor the prosecuting
attorney was given the time or opportunity to comment on
the mistrial decision or to suggest that the decision be
delayed until the next morning. In the words of the
prosecutor: "I mean there was an urgency and an emergent
situation here that none of us had previously encountered."
Following the judge's decision to declare a mistrial, the
attorneys were ordered to return to the courtroom for the
sole purpose of the court's notification to the jury that the
trial was aborted. Under these circumstances, we conclude
that Love was unable to develop the basis of his claim at
trial.

The following morning, Love's counsel moved to dismiss
the indictment on double jeopardy grounds. Defense
counsel and the prosecutor gave narrative accounts of the
events of the previous afternoon and the trial court deemed
these accounts to be a satisfactory basis for denying the
motion, thus ending the double jeopardy matter at the trial
level. Love was unable to fully develop the factual basis of
his claim at that time because of Judge Citta's
unavailability. Love had no opportunity at that point to
inquire, as he later did in the federal hearing, into the
judge's consideration of the available alternatives to a
mistrial.

Similarly, we conclude that Love was unable to develop
the basis of his claim in state court post-conviction
proceedings. In New Jersey "an issue may not be
considered in post-conviction relief proceedings if the
question was decided on direct appeal." State v. Bontempo,

, 233, 

(1979) (citing State
v. Johnson, 

, 592, 

(1965)); see
N.J. Cr. R. 3:22-5 Bar of Ground Expressly Adjudicated.
After the Appellate Division affirmed Love's conviction on
the basis of the limited trial court record, Love could not
raise the double jeopardy issue and present additional
evidence in a post-conviction proceeding.

                    9
Under these circumstances we are unwilling to conclude
that Love failed to develop the factual basis of his claim in
the state court proceedings. We conclude that factors other
than the defendant's action prevented a factual record from
being developed. See Statement by President William J.
Clinton Upon Signing S. 1965, 32 Weekly Compilation of
Presidential Documents 719 (April 29, 1996) (#AB AD8E# 2254(e)(2)]
is not triggered when some factor that is not fairly
attributable to the applicant prevented evidence from being
developed in State court."). Although the President's
statement is not evidence of congressional intent, we refer
to it because we agree with his interpretation of the plain
language of § 2254(e)(2), and we find no contrary
interpretation in the legislative history of the 1996
amendments to § 2254.

III.

Jeopardy attached when the first jury was empaneled
and sworn. See Crist v. Bretz, 

, 35-38 (1978).
Termination of proceedings after jeopardy attaches, without
defendant's consent by motion or otherwise, may bar
reprosecution. United States v. Jorn, 

(1971).
Our jurisprudence does not prohibit retrial following
termination if a defendant consents or waives the right to
assert double jeopardy, or when there is manifest necessity
to terminate the first trial. Oregon v. Kennedy, 

, 673 (1982); Arizona v. Washington, 

(1978); United States v. Dinitz, 

(1976); Illinois
v. Somerville, 

(1973).

We now consider whether the mistrial was required by
manifest necessity. To demonstrate manifest necessity, the
state must show that under the circumstances the trial
judge "had no alternative to the declaration of a mistrial."
United States v. McKoy, 

, 222 (3d Cir. 1979).
The trial judge must consider and exhaust all other
possibilities. 

that the court failed to exhaust the
possibilities of (1) excusing the jury overnight so the parties
could explore the option of continuing the trial with the
same jury and a different judge; and (2) continuing the trial

                    10
with Judge Alvarez and the same jury the next day, or as
soon as Judge Alvarez could familiarize herself with the
trial transcript.

Love explains that the New Jersey Rules of Court provide
for the substitution of judges in situations such as this.
Rule 1:12-3(b) provides that upon the disability of a judge
during trial:

another judge may be designated to complete the trial
as if having presided from its commencement,
provided, however, that the substituted judge is able to
become familiar with the proceedings and all of the
testimony therein through a complete transcript
thereof.

Judge Alvarez was available to begin trial the same
afternoon that Judge Citta declared a mistrial, or the
following morning. Judge Alvarez could easily have become
familiar with the transcript because she was present in the
courtroom during parts of the trial, the transcript consisted
only of 122 pages and the tape recording covered only three
hours. The brute fact is that under Rule 1:12-3(b), Judge
Alvarez could have been designated to complete the trial the
next morning as easily as starting a second trial.

The State argues that the district court had rational
reasons for rejecting the alternatives to mistrial. The State
suggests that the alternative of excusing the jury overnight
was properly rejected because the court would not have
been able to tell the jury how long the trial would be
delayed. The State also argues that it would have been
incongruous to substitute a new judge into a case in which
another judge had made various evidentiary rulings, and
that it would have been particularly inappropriate to
substitute Judge Alvarez into a trial "mid-stream" because
she was new to the bench.

We are not impressed by these arguments. They do not
make out a case of manifest necessity. A mistrial is not
manifestly necessary when the testimony lasts less than
one full day, and a judge who has observed part of the trial
is available to resume the proceedings the next morning. As
a matter of law, declaring a mistrial in this case was not
manifestly necessary when the decision to declare a mistrial

                    11
vel non could have been postponed to the next morning.
The delay would have given both the prosecutor and
defense counsel, as well as the court, adequate time to
consider alternative solutions to the sudden emergency. All
judicial decisions should be based on calm deliberation.
When it comes to decisions squarely implicating the serious
consequences of the Double Jeopardy Clause, the necessity
for collected and composed contemplation assumes a
fortiori proportions. There was no legitimate reason for
making the mistrial decision during a time of distraught
distraction. The court could have easily rendered a decision
the next morning through one of three judicial officers: the
original trial judge, the presiding criminal court judge or
the judge who presided at the second trial. At that time, the
alternatives for aborting the trial or completing it with a
new judge could have been properly considered.

IV.

Having concluded that the mistrial was not manifestly
necessary, we now consider whether Love's counsel
consented to the mistrial by failing to raise an objection.

Mistrials declared with the defendant's consent do not
bar later prosecution. United States v. Dinitz, 

,
607 (1976). The courts of appeals have taken different
approaches in determining whether defense counsel's
failure to object to a mistrial constitutes implied consent.
The First, Fourth, Fifth, Seventh and Eleventh Circuits
have adopted a rule that defendants give implied consent to
a mistrial if they have an opportunity to object but fail to
do so. See United States v. DiPietro, 

, 9-10 (1st
Cir. 1991); United States v. Ham, 

, 83 (4th Cir.
1995); United States v. Nichols, 

, 974 (5th Cir.
1992); Camden v. Circuit Court, 

, 615 (7th Cir.
1989); United States v. Puleo, 

, 705 (11th Cir.
1987). At the other extreme, the Sixth and the Ninth
Circuits refuse to infer consent without some positive
manifestation of acquiescence by the defense. See, e.g.,
Glover v. McMackin, 

, 1240 (6th Cir. 1991);
Weston v. Kernan, 

, 637 (9th Cir. 1995).

Although this court has not decided the issue in
ipsissimis verbis, the teachings of United States ex. rel.

                    12
Russo v. Superior Court, 

(3d Cir. 1973), give
persuasive direction. Russo involved a mistrial caused by
jury deadlock. After the jury deliberated for several days
without reaching a verdict, the judge called the jury to the
courtroom and declared a mistrial without any advance
notice to counsel. The defendant was retried and convicted.
When we received the case on appeal from a grant of
federal habeas corpus relief, we held that the Double
Jeopardy Clause prohibited a second trial. On the question
of implied consent, we said:

While the better practice may be to object as soon as
counsel learns that a mistrial is to be granted,
appellant's counsel was in a difficult situation. He had
no advance warning or notice that a mistrial was to be
declared . . . The Supreme Court's conclusion in United
States v. Jorn may also be applicable in this situation:

`. . . [I]ndeed, the trial judge acted so abruptly in
discharging the jury that, had the prosecutor been
disposed to suggest a continuance, or the defendant
to object to the discharge of the jury, there would
have been no opportunity to do so.'

Also, to have objected in front of the jury might have
prejudiced appellant for trying to "show up" the trial
judge, especially if some members of the jury actually
wanted to go home despite their civic obligation. In this
situation, we cannot penalize appellant for failing to
object sooner.

(citations omitted).

It is clear from our holding in Russo that we will not infer
consent from defense counsel's silence unless there was
some opportunity to object. What constitutes adequate
opportunity, however, is a question which we must decide
here. Love contends that his counsel did not have a
meaningful opportunity to object because of the
"emotionally charged atmosphere of the courtroom."

Given the constitutional dimension of a double jeopardy
violation, we must proceed with caution in inferring
consent from counsel's failure to object. Our previously
stated admonition reminds us that close cases regarding

                     13
the propriety of a mistrial "should be resolved in favor of
the liberty of a citizen." 

.

Under the circumstances of this case, we conclude that
Love's counsel did not have a meaningful opportunity to
object to the trial judge's declaration of a mistrial. First, the
judge made no inquiry of counsel regarding the propriety of
a mistrial. He did not invite their comments or ask them to
propose alternatives. Cf. United States v. Buljubasic, 

, 1265-1266 (7th Cir. 1987) ("If a judge should
say: `I think a mistrial would be a good idea, but think this
over and let me know if you disagree', the defendant's
silence would be assent.").

Second, the judge returned to the courtroom to declare a
mistrial only five or ten minutes after informing counsel of
his intent to do so. In other circumstances, this window of
time might be adequate. In this case, however, given the
suddenness of the mistrial declaration and the hectic
atmosphere surrounding the proceedings, the brief period
of time afforded little meaningful opportunity for thoughtful
and reflective decision-making.

Third, when the judge declared the mistrial and
dismissed the jury, he immediately returned to his
chambers and quickly left the courthouse. The judge's swift
departure did not afford a reasonable opportunity to raise
an objection. See United States v. Bates, 

, 393
(9th Cir. 1990) (finding no consent where judge declared a
mistrial, left the courtroom and ignored defendant's request
for a sidebar); Lovinger v. Circuit Court, 

, 744
(7th Cir. 1988) ("It appears from the record that the judge
actually left the courtroom as he finished his statement. He
was gone before the defense had any reasonable
opportunity to consider the import of his statement and act
upon it.").

Fourth, the atmosphere of the proceedings would have
made it difficult to object, even if it had occurred to defense
counsel to do so. We agree with the district court's
assessment: "although objecting to Judge Citta's mistrial
declaration could have been accomplished with due care
and respect, Judge Citta's grief and the urgency of his
familial obligations made such a feat considerably more
difficult." 944 F. Supp at 386-387.

                     14
After considering all the circumstances, we conclude that
Love had no meaningful opportunity to object to the
declaration of a mistrial. Accordingly, there was no implied
consent. Because there was no manifest necessity to
declare the mistrial, and no express or implied consent to
the mistrial by the defendant, we perceive no exception to
the Double Jeopardy Clause's requirement that an
individual may not be subjected "to hazards of trial and
possible conviction more than once for an alleged offense."
Green v. United States, 

, 187 (1957).

We have considered all arguments presented by the
parties and conclude that no further discussion is
necessary.

The judgment of the district court will be affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    15