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December 4, 1995

ELWOOD CAMPBELL, Petitioner, against CHARLES BRUNNELLE, Respondent.

The opinion of the court was delivered by: PECK

 TO THE HONORABLE PETER K. LEISURE, United States District Judge:

 Petitioner Elwood Campbell's first trial for robbery lasted two days and ended when the state trial judge declared a mistrial when the jury declared themselves deadlocked after three hours of deliberations. The trial judge relied on the controlling New York case on jury deadlock, Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 481 N.Y.S.2d 657, 471 N.E.2d 429 (1984), and the United States Supreme Court's test of "manifest necessity" to support his decision to discharge the jury. Petitioner Campbell's present petition for a writ of habeas corpus claims that the trial judge did not meet the test of manifest necessity, and therefore that his subsequent robbery conviction placed him in double jeopardy in violation of the Fifth Amendment.

 For the reasons set forth below, I recommend that the Court deny Campbell's petition.


 The Evidence at Campbell's First Trial

 Petitioner Elwood Campbell was arrested for the robbery of William Valentine after being identified in a police lineup. The main issue at Campbell's first trial was whether Valentine correctly identified Campbell as the robber.

 On July 2, 1990, Valentine walked to the end of a pier to watch the sunset. (Respondent's Appendix ["App."] at 48.) Two men approached him, one African-American and one Hispanic. (App. at 51-52.) The first man was African-American of generous build, approximately thirty years old, wearing a dark shirt and dark shorts; the second man was Hispanic with dark wiry hair, approximately twenty-three years old, dressed in a loose tank top shirt and white shorts. (App. at 52, 74-75.) The African-American pushed Valentine to the ground, ripped Valentine's pants pocket and took his wallet. (App. at 52-54.) The two assailants then ran quickly from the pier towards the parking lot. (App. at 56.) Valentine estimated that the whole incident lasted "maybe twelve to fifteen" seconds, and that during half of that time, he was looking at the African-American's face. (App. at 57.)

 During closing arguments, defense counsel attempted to discredit Valentine's identification testimony. Counsel depicted the incident as "a short period of time, [when] an extremely unusual stressful, horrifying incident took place" (App. at 159), and argued that as a result, Valentine's ability to make an accurate identification was weak at best. (App. at 168-69.)

 After the attack, four witnesses assisted Valentine, and told him that they had seen the African-American on the pier previously. (App. at 63-64.) They then accompanied Valentine to the police precinct to report the robbery and describe the assailants. (App. at 64.)

 Two weeks later, one of the four witnesses, David Naill, called the police to tell them that he had spotted the African-American man who attacked Valentine; Naill described the suspect and where the police could find him on the pier. (App. at 89-94, 111-14.) The police arrested Campbell and called Valentine in, to view a lineup. (App. at 65, 115.) When Valentine arrived, he was brought to a room where Naill also was present. (App. at 66.) Naill described the red tee-shirt that Campbell was wearing, but the police officer conducting the lineup provided Campbell with a different, black shirt to wear. (App. at 132.) Valentine picked Campbell out of the lineup within thirty to forty seconds. (App. at 69, 70, 151.) *fn1" Valentine admitted, however, that at trial, eight months after the robbery, he could not be certain that Campbell was his assailant. (App. at 69: "The man sitting at the defense table looks familiar to me, but it's been eight months. And I don't feel that I can positively say that it's him.")

 Hugo Fasano, a private investigator, was presented by the defense to rebut Naill's testimony that he was 100 feet from the robbery. (App. at 85, 155.) The defense had Fasano measure distances based on marks Valentine and Naill had made on photographs of the pier showing their whereabouts during the robbery. (App. 60-61, 83-84.) Fasano calculated Naill's distance from the robbery to be two hundred twenty-five feet, while Naill had testified it was one hundred feet. (App. at 155, 85.) On cross-examination, however, Fasano admitted that he was not present on the night of the robbery, that he was not certain as to Naill's exact position, and therefore that his "measurements of the pier are abstract measurements of the dimensions of the pier." (App. at 157.) The defense also argued that Naill implicated Campbell in the robbery because Naill disliked him as a result of a "screaming match" they had had before the robbery. (App. at 87, 169-76.)

 Jury Deliberations and the Court's Declaration of a Mistrial

 After two days of testimony (from Valentine, Naill, three police officers, and the defendant's private investigator), the jurors deliberated for three hours. On the jury's first return to the courtroom, they asked to hear excerpts from Valentine's and Naill's testimony and that of the police officer who took the witnesses' description of the assailants on the night of the robbery. (App. at 180-81.)

 The jury next asked whether they could consider the possibility that the conversation between Valentine and Naill prior to the lineup, at the police station may have affected Valentine's choice in the lineup, and whether they could consider the possibility that Naill "might have influenced Mr. Valentine's opinion of who his assailant was." (App. at 182.) The judge instructed the jury to decide solely on the evidence presented, adding that if there was evidence of such a conversation or influence, they may "avail" themselves of that testimony, but that speculation was not permitted. (App. at 182-84.)

 On their final return, the jury reported that the were deadlocked:

THE COURT: Has the jury agreed upon a verdict? Obviously, you have not. But, that's a required question. Your answer is, no.
I have your note. It reads, "Judge Leff, we're presently deadlocked after three votes, The latter two of which have maintained the same counts of four against."
What happens in this situation? Well, there is a specific section of the law that says what that situation is, which you have just described.

 (App. at 186, emphasis added.) The judge then quoted N.Y. Criminal Procedure Law ยง 310.60 to the jury:

"A deliberating jury may be discharged by the Court without having to render a verdict only when the jury has deliberated for an extensive period of time without agreeing upon a verdict with respect to any of the charges submitted and the Court is satisfied that any such agreement is unlikely within a reasonable time."

 (App. at 186.) The judge then read to the jury an excerpt from Plummer v. Rothwax, 63 N.Y.2d 243, 481 N.Y.S.2d 657, 471 N.E.2d 429 (1984):

[COURT:] I would like to allude to what your note says and read to you from a Court decision in this state in the Court of Appeals, the state's highest court in a similar situation. Obviously it's a different case. But, I'll read what happened in that case.
At 5:40PM the jury sent a note to the trial judge, saying, "Your Honor, we cannot come to a verdict." The jurors were assembled in the courtroom and the judge read from Section 310.60 and explained what the statute implies where further deliberations would be fruitless, where there would be no possibility of further deliberations altering the position of the jury. Addressing the foreperson in the presence of the other jurors, he then engaged in the following dialogue.
THE COURT [from Plummer v. Rothwax:] "Now, is, Madam Foreperson, is that the position of the jury at this time? Do you think if you were to discuss this case for an additional period of time the ...

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