The opinion of the court was delivered by: PLATT
Petitioner, William Price, has filed a petition, dated May 29, 1980, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After his first trial ended in a mistrial entered upon his own motion, petitioner was convicted of two counts of burglary in the first degree and felonious possession of a weapon. The Appellate Division unanimously affirmed the conviction on October 11, 1977, and leave to appeal was denied by the Court of Appeals on December 1 of that same year. Petitioner then sought a writ of habeas corpus in the State courts, alleging the same grounds he alleges here. This application was dismissed by the New York Supreme Court and that decision was affirmed by the Appellate Division; finally, on March 20, 1980, the Court of Appeals denied leave to appeal. Petitioner, as a consequence of the foregoing, has exhausted his State remedies as to the issues raised here and this petition is properly before this Court.
Petitioner advances one ground in support of his petition, namely, that his retrial violated his rights under the Double Jeopardy Clause of the Fifth Amendment.
Traditionally, jeopardy does not attach, thus serving to bar retrial under the Double Jeopardy Clause, when a mistrial is declared upon a defendant's motion. See United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976); Drayton v. Hayes, 589 F.2d 117 (2d Cir. 1979); see also, Mitchell v. Smith, 633 F.2d 1009, (2d Cir., 1980). An exception to this rule exists, however, when the motion for mistrial is provoked by the intentional, bad faith conduct of the judge or prosecutor. See United States v. Dinetz, supra; United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). Petitioner asserts that, in this case, the prosecutor's conduct exhibits such bad faith as to make the exception applicable.
Essentially, the issue in the instant case centers around a statement made by the prosecutor in his opening remarks and the introduction of testimony of a police officer which might have suggested to the jury that petitioner had committed burglaries other than those with which he was charged.
At trial, defense counsel objected to the following statement made by the prosecutor:
Police Officer Flynn observed a gun protruding from the pocket of this defendant whereupon he said, "He has a gun," and his two brother officers came and they apprehended Calvin Williams and they took his black zipper attache case from Calvin Williams and they opened it up and inside the case they found Jewelry, Bankbooks, money, and other objects.
They ran an investigation. They later learned the owners of some of this property, namely, Warry Contrarous and Elevrus Connegroes, and they will tell you that they left their home sometime during the day and when they returned on November 17th-
MR. GREEN: I hesitate to interrupt.
May I approach the side-bar on the record?
(People v. Calvin Williams, September 27, 1974 Trial Transcript at 16, hereinafter cited as Tr.) (Emphasis added).
After defense counsel's objection and because the prosecutor referred to property which petitioner had in his possession but which was not the basis for the indictment, the judge rendered curative instructions to the jury and the trial proceeded. (Once testimony began, two other occasions arose which prompted related objections by defense counsel but these were overruled by the judge, apparently because he believed that there was not sufficient reference to the other burglaries to sustain the objection.) (See Tr. 28-30, 37-38).
Finally, however, testimony was given which did prove to be objectionable because it indicated that petitioner had committed other burglaries:
Q Could you read to the Court the list of this property that was made that you removed from the ...