STONE v. PEOPLE (1981)

In a single count, Clifford Stone was accused of murder. The jury which heard his trial decided he was not guilty of murder but could not agree whether he was guilty of manslaughter. The trial court discharged the jury because it did not reach a verdict. Stone now seeks to avoid retrial for murder, contending the jury has acquitted him of it, barring retrial for that offense. He argues the discharge of the jury was unnecessary and premature, and he may not be retried for manslaughter either.

This petition for an extraordinary writ presents two legal issues. Do the facts establish a legal acquittal of the murder charge, or is there only an insignificant jury poll? If there has been an acquittal of murder, for what offenses, if any, may Stone be retried? We decided Stone may be retried for manslaughter only.

THE RECORD

The case was submitted to the jury for deliberation on the murder charge and all possible included offenses. The jury was not given a separate verdict form for each possible degree of homicide, such as guilty or not guilty of first degree murder, guilty or not guilty of second degree murder, and so forth. Rather, it was given the choice of either acquitting Stone completely, or of finding him guilty of some degree of murder or manslaughter. The verdict forms presented six options: either total acquittal, justifiable homicide, or guilty of one of first degree murder, second degree murder, voluntary manslaughter, or involuntary manslaughter.

The jury deliberated for eleven days under these circumstances: Twice, the jurors requested and received clarification of instructions. Then the forelady gave the court a note which said:

“We have tried every way we can conceive to reach a unanimous decision. It appears to be impossible. Do you have any suggestions? We have tried and tried. We're not even close. We're really trying not to have a mistrial. If you have any suggestions, we certainly would appreciate it.”

With the agreement of defense counsel and the district attorney, the court gave the jury a chart showing the elements of the various degrees of homicide, and a modified Allen instruction stating the jury's duty to reach a verdict if possible without violating any juror's individual conscience. The court also told the jury to attempt to narrow its focus by establishing areas of agreement if possible.

The next day the forelady presented another note to the court stating the jurors were unable to reach a unanimous verdict (within the options given them).

Defense counsel then asked the court to make special findings to establish whether the jurors had been able to eliminate any counts or legal theories. The district attorney agreed to a polling. The jury was brought into court, and with all jurors present the forelady stated how the jurors stood: none for either degree of murder; four for voluntary manslaughter; two for involuntary manslaughter; and six for justifiable homicide. The court released the jury for the evening recess.

The next day, defense counsel moved the court to take a jury verdict on first and second degree murder, to withdraw the lesser included offense instructions, to request a special verdict on the malice issue, or to compel the prosecutor to charge murder and manslaughter separately to permit separate verdicts. Defense counsel also objected to discharging the jury before this procedure was attempted. The court ruled it had no authority to take a partial verdict or follow the other procedures moved for by the defense. It then said:

“I am ruling there is a clear expression after approximately ten weeks of trial and one week of deliberations there is not one juror of the 12 who believes the evidence is sufficient to support a finding of first degree murder or second degree murder beyond a reasonable doubt. I don't think I can give you any more. And I don't think I can, if you will, play with their minds. Maybe that's what it boils down to from here on in.”

The court then recalled the jury and sent it out once more to attempt to reach a verdict.

On the next day the jury again sent a note stating it could not reach a unanimous decision. The court said eleven days was long enough to deliberate and there was no possibility of a decision. The jury was polled in the courtroom on the question whether further deliberations could produce a verdict, and all agreed the deadlock was hopeless. With all jurors present the court asked the forelady how the jurors then stood, and she reported they stood three for voluntary manslaughter, five for involuntary, and four for justifiable homicide. No juror voted for murder. The court then declared a mistrial and discharged the jury.

DISCUSSION

The double jeopardy clauses of both the Federal and the California Constitutions forbid retrial after acquittal of an offense. (U.S.Const. Fifth and Fourteenth Amendments; Cal.Const. Art. I, s 15.) The cases have presented a variety of difficult, subtle problems of what circumstances may amount to an acquittal for purposes of invoking double jeopardy protection. Here it is necessary only to consider the most basic and universally accepted definition of an acquittal, which is a unanimous jury decision the defendant is not guilty of the charge because there is not enough evidence to convict him. (See Burks v. United States (1978) 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1.) The opposite of such a decision is a conviction, and if the jury cannot agree on either of these options, then the result is a hung jury, after which retrial of the undecided charge is permitted. (See e. g., Pen. Code, ss 1140, 1141.)

This record reflects clear factual agreement of 12 jurors on Stone's innocence of murder. The court did not, however, initiate the formal procedure known as the taking of a verdict, which would have involved writing down the jury decision and polling the jury in open court, if requested by counsel, to make sure each juror voted for the result. We ask now, how formal must a jury verdict be in order to have legal significance? Penal Code section 1162 states there is an acquittal if the jury's intent to acquit can be clearly understood, even though the jury “persists” in finding an “informal” verdict. The statute requires more formality for a conviction. The cases construing this statute have not treated acquittal and conviction decisions differently, however, but in both instances the authorities have followed the statutory mandate to effectuate the jury's factually clear decisions. (See e. g., People v. Bratis, 73 Cal.App.3d 751, 758f, 141 Cal.Rptr. 45; People v. McKinney, 71 Cal.App.2d 5, 161 P.2d 957; People v. Wiley, 111 Cal.App. 622, 625, 295 P. 1075.) As the court put it in Bratis, supra, quoting from McKinney, supra, “There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed. (Citations.)” (People v. Bratis, supra, 73 Cal.App.3d 751, 763, 141 Cal.Rptr. 45, quoting People v. McKinney, supra, 71 Cal.App.2d 5, 13, 161 P.2d 957.)

Here, as in the above precedents, there is an unmistakably clear decision to acquit of the charge of murder. The cited cases, and the statute on which they are based, require us to treat that decision as a formal acquittal, a result which benefits the judicial system as a whole by preserving an unambiguous jury decision brought forth after much investment of time and effort.

It is argued, however, the case of People v. Griffin, 66 Cal.2d 459, 58 Cal.Rptr. 107, 426 P.2d 507, prevents a jury poll from having legal effect. Griffin was thrice tried for murder. The first trial resulted in a first degree murder conviction, which was reversed on appeal. The second trial resulted in a hung jury. A poll was taken after the discharge of the second jury, and it revealed the jurors stood ten for acquittal and two for second degree murder, i. e., no juror for first degree murder. A third trial took place, resulting again in a first degree murder conviction. On appeal from the third judgment, Griffin argued his third trial was impermissible under the double jeopardy clause because the jurors at the second trial had acquitted him of first degree murder. The Supreme Court said no, because there had been no formal verdict of acquittal, but only a poll which reflected mere compromise to reach accord rather than a unanimous decision. Such a poll had no legal significance and did not bar retrial.

Griffin did not discuss the issue whether the defendant might have had any right to compel the second court to enter a separate verdict on the first degree murder charge. It was unnecessary and in fact futile to consider such a problem because Griffin never sought such relief at the second trial. In fact, by the time the jury was polled it had already been discharged, and it was too late to take a formal verdict. It was also too late, after the third trial, to protect Griffin from being placed again in jeopardy after the second trial. There was no way a formal verdict could legally have been obtained on Griffin's behalf. Here, however, the jury was in effect polled before its discharge, twice in open court, just as might have been done had the court actually taken a verdict, and twice the court found no juror voted for murder. Nothing prevented the taking of a formal verdict, and the facts clearly established the jury had acquitted Stone of murder. We decide the Griffin case cannot control the result on these very different facts.

We turn to the question why the trial court believed it had no power to enter a partial verdict on the murder charges. The court correctly perceived the California cases have not permitted a partial verdict procedure and have also refused to permit the jury in an included offense case to consider the offenses separately. The reason why the cases have taken this approach is Penal Code section 1023, in effect since 1872, which provides:

“When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.” (Italics ours.)

The statute plainly says an acquittal of an offense is also a bar to retrial of any lesser included offense. Therefore it has been assumed if a separate verdict were taken on a greater offense, then retrial would be prevented on included offenses. In fact, such a result occurred in at least one case, where after a separate verdict was permitted, a new trial on included offenses was declared impermissible. (Menjou v. Superior Court, 128 Cal.App. 117, 16 P.2d 1007.)

Trial courts have found unreasonable a result which acquits of the greater but prevents retrial of included offenses on which the jury has disagreed. For one thing, double jeopardy protection extends to retrials after evidentiary acquittals, not to jury disagreement. For example, if separate but not included offenses are tried together, and the jury agrees on some and disagrees on others, there may be retrial of all undecided counts. (Pen.Code, s 1160; see e. g., People v. Ham, 7 Cal.App.3d 768, 86 Cal.Rptr. 906.) Further, if there is total disagreement, then again there may be retrial. (Pen.Code, ss 1140, 1141.) Why then should a defendant be immunized from retrial of undecided lesser offense charges just because there is agreement on the greater offense? Perceiving that result to be wrong, courts have avoided the problem by refusing to permit a partial verdict on the greater offense. (See People v. Doolittle, 23 Cal.App.3d 14, 99 Cal.Rptr. 810; People v. Roberts, 51 Cal.App.3d 125, 140-141, 123 Cal.Rptr. 893.)

In avoiding Penal Code section 1023, however, the courts have devised a procedure for the trial of included offenses which creates other species of unfairness and absurdity. This case well illustrates the problem. First, Stone here is treated differently from defendants charged with separate but unincluded offenses. Those defendants are entitled to the benefit of all jury acquittals on any counts, but Stone is not. No justification exists for this difference except the perceived need to avoid Penal Code section 1023. Second, Stone is treated more harshly than a defendant actually convicted of a lesser offense. That defendant may not be retried for the greater offense. Stone, however, may be retried, even though some jurors believe he is guilty of nothing, thus indicating Stone is arguably less culpable than the defendant convicted of the included offense. These results are equally as absurd and unfair as is the result apparently mandated by Penal Code section 1023 preventing retrial of the lesser offenses.

We have here a dilemma of untenable alternatives. If we do not permit the jury's acquittal of Stone of murder, we authorize a violation of the most basic principle of double jeopardy protection which bars retrial after an evidentiary acquittal. This is no small technicality, but rather the resurrection of an ancient evil which double jeopardy protection is intended to prevent, namely the tyrannical practice of trying and retrying a charge until enough evidence is amassed to convict, or until the simple laws of probability result in conviction. (See e. g., Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199; United States v. Wilson (1975) 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232; Burks v. United States, supra, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1.) Also, we violate Stone's right to be treated equally with persons similarly situated, namely defendants charged with related but not included offenses, as well as defendants where the jury agrees to convict of a lesser offense, instead of disagreeing on the lesser.

On the other hand, if we permit the acquittal of murder, then it is argued we must also prevent retrial for manslaughter. Yet, aside from Penal Code 1023, that retrial violates no basic jeopardy principle. We have disagreement, not acquittal, on the lesser charges, and disagreement and the discharge of the jury are not a bar to retrial, as we have stated. Why then, does Penal Code section 1023 prevent such retrial? Certainly acquittal of a greater offense is not necessarily an acquittal of a lesser charge with fewer elements, needing less proof. The statute rests on neither a constitutional nor a logical basis. It has, however, a legitimate application to another kind of harassment which the double jeopardy clause prevents. Multiple unnecessary trials of related crimes which should be tried together is forbidden by this statute as well as by Penal Code section 654 and the many cases dealing with protection from harassing multiple prosecutions. Included offenses must be tried together, as they were here, or be forever barred from prosecution. Penal Code section 1023, unfortunately, is drafted so as to reach beyond its needed sphere, in that its language is sufficiently general to encompass not only separately tried included offenses, but also those which are tried together but cannot all be resolved in one proceeding.

At oral argument the district attorney was asked whether, if Penal Code section 1023 did not prevent retrial for manslaughter, there was then any disadvantage to the People in permitting a partial verdict procedure in these cases. He could think of no such disadvantage, nor can we, other than a possible speculative increase in the number of trials which may result if partial verdicts are permitted. Such a possible speculative increase is obviously insufficient to outweigh the defendant's right to be free from double jeopardy on the greater offense. Of course, the People lose the right to retry for that offense, but the loss results from the prosecution's failure to produce enough evidence to secure a conviction, which fact is a reason to bar retrial, not to permit it. Thus nothing but the possible impact of section 1023 argues against the use of the separate verdict procedure.

One way to avoid the impact of Penal Code section 1023 is to stipulate it shall not apply on a retrial. The parties did this in a recent case (People v. Allen, 110 Cal.App.3d 698, 168 Cal.Rptr. 227), where the jury could not agree on a degree of murder, but agreed there was no first degree murder shown. By stipulation of counsel for both sides, the court entered a verdict of not guilty of first degree murder. Then when the People sought retrial for second degree murder, the defendant sought to claim once in jeopardy on the greater offense, citing Menjou, supra, but the court pointed out the defendant had waived his right under Penal Code section 1023 not to be retried for the lesser. The waiver was implied from the separation of the charges. That case illustrates a method by which the parties stipulated to separate verdicts. Here, however, although Stone attempted to do just that, the People would not join in the stipulation and the court discharged the jury.

Inasmuch as the protection against retrial is for the defendant's benefit alone, we do not see why the consent of the People should be necessary for such a waiver. We think the trial court was wrong in not permitting a separate verdict. By not doing so and by discharging the jury, it prevented Stone from receiving the protection to which he is entitled by reason of the jury's agreement he is not guilty of murder. That decision is a bar to his further trial for murder. We see no reason why such a verdict should not have been taken.

In at least two other states such separate verdicts are permitted (see People v. Moorehead (1975) 82 Misc.2d 1064, 372 N.Y.S.2d 803; State v. Castrillo (1977) 90 N.M. 608, 566 P.2d 1146) and the procedure has also been permitted in this state, in People v. Allen, supra.

Here, however, the trial court was understandably perplexed both by the relative rarity of the separate verdict procedure in California, and the inhibiting effect of Penal Code section 1023. Although we do not fault the trial court for not perceiving a solution to the dilemma, we nevertheless must conclude Stone is entitled to the constitutional protection of the double jeopardy clause after an evidentiary acquittal. In open court the jury agreed he is not guilty of murder. He can not be retried for that offense.

Although in the trial court Stone indicated some willingness to be retried on the lesser offenses if the court would permit the verdict of acquittal of murder, here he has argued he is entitled to a complete acquittal. He contends the discharge of the jury was erroneous, hence there can be no retrial (Paulson v. Superior Court, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641)¹ because the discharge deprived him of his right to procure a decision from this particular jury, a right protected by the double jeopardy clause and referred to as his “valued right to have his trial completed by a particular tribunal.” (Wade v. Hunter (1949) 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974; Crist v. Bretz (1978) 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24.) This record gives no indication, however, that the jury's failure to agree on lesser charges was in any way related to the court's failure to enter a formal verdict on the greater offense. Accordingly, if there was error in discharging the jury before taking the formal verdict, no prejudice resulted. In any event we doubt there was error, since it was clear the jury could not agree on any lesser offense.

We conclude Stone's retrial for murder is constitutionally impermissible, but his retrial on the included offenses is neither harassing nor unfair, violates no statutory or constitutional right, and transgresses no value intended to be protected by Penal Code section 1023. Obviously the existence of Penal Code section 1023 cannot deprive Stone of his constitutionally protected rights to be free from double jeopardy and to be treated equally with those similarly situated. On the other hand, neither did the Legislature intend by that statute to give defendants an unfair advantage in lesser included offense cases. We construe the statute as inapplicable to included offense cases where a separate verdict is taken on the greater offense, reserving its protection for cases where included offenses are charged in separate trials or where the defendant objects to a separate verdict being taken. Here Stone has requested a separate verdict, and he may be retried for any degree of manslaughter, but not for murder.

Let a writ of prohibition issue preventing retrial of Stone for any offense greater than manslaughter.

FOOTNOTES

1.  Because historical abuse of power to discharge a jury in midtrial was a central evil at which double jeopardy protection was aimed, the power of the court to discharge a jury has been rigidly circumscribed. A jury can be discharged for failure to agree on a verdict, or for certain other limited causes, only when such discharge is legally necessary. (See Pen.Code, s 1140.) The decision to discharge a hung jury can be made by the trial court only after fully assessing the state of mind of the jurors; if there was a reasonable probability a verdict could have been rendered, the discharge will be held improper and the defendant will not be subject to a retrial. (See Curry v. Superior Court, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345; Paulson v. Superior Court, supra, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.)

BROWN, Presiding Justice.

STANIFORTH and WIENER, JJ., concur.