Appeal from denial of writ of habeas corpus by the United States District Court for the Northern District of New York, Edmund Port, Judge, on grounds that jury verdict of acquittal of second degree kidnapping under charge of first degree kidnapping with restraint of over 12 hours and intent to injure or molest bars retrial on charge, on which jury could not agree, of first degree kidnapping where death results. Held, the double jeopardy clause of the Fifth Amendment as applied to the states bars the second trial.
Lumbard and Oakes, Circuit Judges, and Bartels, District Judge.*fn* Lumbard, Circuit Judge (dissenting).
This is a double jeopardy case,*fn1 arising out of a state court conviction for kidnapping. The appeal is from a denial of a writ of habeas corpus by the United States District Court for the Northern District of New York, Edmund Port, Judge. On appellant's previous appeal to this court from such a denial, United States ex rel. Rogers v. LaVallee, 463 F.2d 185 (2d Cir. 1972), he was remanded without prejudice for failure to exhaust state remedies, a failure which now has been cured.*fn2 The case essentially involves the problem whether an acquittal of a lesser included offense under one count necessarily bars a subsequent prosecution when the jury fails to agree on its verdict under another count in which the same lesser offense is also included. Put another way, the question is whether reprosecution after a mistrial following a hung jury on one count is permissible when, inconsistently but pursuant to an inconsistent and erroneous charge, there has been an acquittal on an earlier count of an element, here simple abduction, that is necessary to the later conviction, here kidnapping in the first degree.*fn3
Appellant was indicted on four counts relating to the abduction, sexual abuse and death of a 16-month-old child whose body was found in a garbage can in the back of a Brooklyn, New York, supermarket. The four counts were respectively (1) felony murder, that is, a murder in the course of a kidnapping; (2) first degree (intentional) murder; (3) kidnapping in the first degree, statutorily defined as abduction with 12 hours' restraint and intent to injure or to violate the victim sexually; and (4) kidnapping in the first degree, statutorily defined as abduction with death resulting.*fn4
After a 19-day trial in the Supreme Court, State of New York, County of Kings, the appellant was acquitted on the first three counts and the jury was unable to agree and a mistrial was granted as to the fourth count. The rub, so far as we are concerned, is that the trial judge charged kidnapping in the second degree, that is to say, simple abduction,*fn5 as a lesser included offense under both the third count of kidnapping in the first degree and the fourth count of kidnapping in the first degree. The charge was very explicit in this regard even if very erroneous since it should have permitted the jury to consider kidnapping in the second degree only if there were an acquittal on both counts of kidnapping in the first. It was adhered to in one subsequent explanation after the jury had been out for some time but not mentioned as being included under both the third and fourth counts in a subsequent explanation. However, the clerk interrogated the jury after its return of a verdict of not guilty on the third count as follows:
Court Clerk: That is the third count which charges kidnapping in the first degree. Now, still under the third count, has the jury considered kidnapping in the second degree?
Court Clerk: Now under the fourth count of the indictment which charges kidnapping in the first degree. What is the verdict?
Court Clerk: Deadlocked. Cannot agree. Now, still under the fourth count as to kidnapping under the second degree?
The clerk questioned the jury as to lesser included offenses under the third count as he did for all four counts in the way the court originally specifically charged the jury, and, in response to the jury's first request for explanation, again specifically charged the jury, i.e., to consider the lesser included offense of simple abduction if there were an acquittal under the third count. Unquestionably the jury was confused since it came back twice to ask for explanations of the charge -- the first time to ask for the court's "interpretation of Kidnapping 1 and Kidnapping 2," the second time to obtain a copy of the third and fourth counts of the indictment*fn6 and to have the court "again explain first degree kidnapping and second degree kidnapping and the variations."
Just as clearly the jury did acquit the appellant of the offense of kidnapping in the second degree in respect to the third count. The court clerk read the verdict back as recorded after the colloquy above quoted and the foreman agreed in answer to the question "and so say you all?" The jury was then told to return to deliberation and did so but was unable to reach an agreement on the fourth count. Thereupon without objection by the district attorney and no comment by defense counsel, the court ...