Appeal from an order entered in the United States District Cort for the Eastern District of New York, Eugene H. Nickerson, Judge, granting a writ of habeas corpus following the conviction of James Mizell in New York Supreme Court, Kings County, for robbery, petty larceny, assault and possession of a dangerous weapon.
Before Friendly and Mulligan, Circuit Judges, and Wyatt, District Judge.*fn*
James Mizell was convicted on September 10, 1971 in New York Supreme Court, Kings County, of robbery, petty larceny, assault and possession of a dangerous weapon. The record in the state court indicated that a jury of twelve plus two alternates was duly impaneled and sworn late in the afternoon of Wednesday, March 24, 1971. The state court judge gave the jury preliminary instructions and adjourned the case to the following morning. Mizell's counsel requested a Wade hearing to determine the admissibility of certain identification testimony. A hearing was held and the court found that the testimony was admissible. At this point (2:45 p. m. on Thursday, March 25) the Assistant District Attorney advised the court that two state witnesses who had been subpoenaed had failed to appear. One had gone to North Carolina because of a death in the family and the other had simply failed to make an appearance. The Assistant District Attorney requested a continuance until the following Monday.
At that point the following colloquy took place:
The Court: What am I going to do with that jury, Mr. Turner?
Mr. Turner (Assistant District Attorney): Your Honor, since the jurors are serving their first week this week, they would be serving next week as well. I don't think it would be a hardship on those jurors because we wouldn't be holding them past their service. However, if the Court feels that it would be a hardship on the jury, then the people would have to move at this time for a discharge of the jury.
The Court: Are you so moving?
Mr. Turner: Well, I would first ask that the Court rule on my application to keep the jury.
Mr. Turner: Then in that case, your Honor, the people would have to move for a discharge of the jury.
The Court: All right, that motion is granted. The Court is basing its ruling (on) the case of the matter of Roy Bland (phonetic) and also the matter of William Maury (Murray) (phonetic), which is decided in 20 New York 2nd, Page 552 (285 N.Y.S.2d 597, 232 N.E.2d 633). All right, bring in the jury. Discharge them.
Mr. Albert (Petitioner's Counsel): If your Honor please, I'd like to note my exception.
The Court: You have an exception.
The case was called for trial again before a new jury on Tuesday, March 30, 1971 but a mistrial was subsequently declared when the jury failed to agree on a verdict. Mizell was eventually found guilty by another jury. At sentencing on September 10, 1971, Mizell's counsel moved to dismiss the indictment on the ground of double jeopardy. The motion was denied. On appeal to the Appellate Division of the Supreme Court, the State of New York, Second Department, the judgment of conviction was affirmed without opinion on February 26, 1973. ...