452 U.S. 944 (1981)

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U.S. Supreme Court

WINSTON v. MOORE , 452 U.S. 944 (1981)

452 U.S. 944

Andrew J. WINSTON, etc., et al. v. Joseph G. MOORE, Jr
No. 80-1474 Supreme Court of the United States June 15, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice STEWART join, dissenting.

The respondent was charged with feloniously breaking and entering with intent to commit larceny, and was tried by the Circuit Court of the city of Richmond, Va., on March 10, 1980. At approximately 4:30 p.m., the presentation of evidence and arguments of counsel having been completed, the jury retired to deliberate. At approximately 6 p.m., the jury recessed for the evening. The next morning the trial court gave the jury its version of an "Allen" charge because it sensed that the jury was having difficulty reaching a verdict. The jury again began deliberating, but after a little less than an hour the foreman notified the trial court that the jury had not been able to reach a verdict. The court then excused the jury and declared a mistrial, all without objection from the respondent. At the same time, the court set the case down for retrial the following month, on April 16, 1980.

On April 15, 1980, the trial court denied respondent's motion to dismiss the indictment on the ground that a retrial would violate the Double Jeopardy Clause of the Fifth Amendment. Respondent sought the same relief from the Supreme Court of Virginia, which was summarily denied on April 16, 1980. App. to Pet. for Cert. 6a. Respondent then filed a federal habeas petition in the Eastern District of Virginia, likewise seeking to enjoin a retrial. Respondent contended that the trial court erred when it declared a mistrial at the March 10, 1980, trial because there was an insufficient showing of "manifest necessity," as required by this Court's ruling in United States v. Perez, 9 Wheat. 579 ( 1824). On April 17, 1980, the District Court held a hearing, apparently on the basis of sworn allegations and responses, see App. to

Page 452 U.S. 944 , 945

Pet. for Cert. 6a, and issued a writ of habeas corpus directing that respondent "shall be free from any further jeopardy on the charges set forth in the indictment against him set forth in the record in this case." Id., at 8a. This determination was in turn affirmed on the basis of the " reasons adequately stated by the district court" by a divided Court of Appeals on December 18, 1980. 639 F.2d 781 (CA 4).

The reasoning of the District Court seems to have been that the jury had deliberated for a relatively short period of time: approximately 11/2 hours on March 10th, and approximately an hour the following day. The state judge, however, had given the jury his version of an "Allen" charge before they commenced deliberations on the second day, and the District Court in its findings of fact and conclusions of law stated that "[t]here is, of course, no magic number of hours." App. to Pet. for Cert. 7a. The second critical flaw which the federal habeas court found in the state- court proceedings was that the foreman of the jury had not specifically informed the judge that the jury was deadlocked, but instead simply stated " the jurors have not been able to reach a verdict." Thereafter, the trial judge failed to inquire of the jury as a whole. Ibid. The federal habeas judge explained: "I think that such an inquiry by the court is required by the law, and in the absence of such an inquiry there is no record which would support a finding that a mistrial was manifestly necessary." Id., at 8a.

Certainly the "law" upon which the federal habeas judge relied is not law which has emanated from this Court. We have recognized that the determination of "manifest necessity" is one which a trial court is uniquely capable of making, and said as much in United States v. Perez, supra :

    "We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opin- [452 U.S. 944 , 946]

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