David Montgomery Webb, Appellee, v. Terrell Don Hutto, Appellant, 720 F.2d 375 (4th Cir. 1983)

David Montgomery Webb was convicted in the Circuit Court for the City of Salem, Virginia on July 24, 1980 for possession of, and for possessing with intent to distribute, a controlled substance. Sentence was suspended as to the possession count and twelve years were imposed on the possession with intent to distribute count, but six years were suspended, leaving a sentence of six years to be served.

We consider an appeal by the Commonwealth from a grant to Webb of the writ of habeas corpus by the United States District Court for the Western District of Virginia, 564 F. Supp. 405. The grant was limited to the conviction for possession with intent to distribute, Webb having withdrawn that portion of his petition for habeas corpus regarding his conviction on the charge of simple possession.

The police had been properly prudent and had obtained a warrant to search a house for suspected marijuana possessed with intent to distribute. They executed the warrant on October 30, 1979, and, upon their entry of the house, they caught Nancy W. Thompson, the owner, and Virgil D. Spence with quantities of a powder which later proved to be methamphetamine. Spence was cutting powder over scales. Thompson stood by with scissors.

Webb had responded to the knock of the police at the door. He was shown to have resided at the house whenever he visited the Roanoke area. The crucial question was whether Webb was a participant or merely an innocent bystander in what the evidence established to be a developed drug operation.

All three, Webb, Spence and Thompson, were indicted. Webb was the first to come to trial. Proceedings commenced on Thursday, July 17, 1980, in the Circuit Court for the City of Salem, Virginia. Both the prosecution and the defense announced their readiness for trial. Webb waived trial by jury, the witnesses who counsel indicated would give evidence were sworn and separated, and the Commonwealth's first witness, a police detective, testified. He was effectively cross-examined in a manner raising substantial doubt as to the existence of a connection between Webb and the drugs. The testimony was that, on answering the knock of the police officials executing the warrant, Webb took no steps to warn Spence and Thompson. Nor were the drugs found with clothing possessed by Webb, but rather were in locations which were reasonably to be associated with Thompson.

Thereupon the prosecuting attorney woke up to a perilously large gap in his case. He moved for a continuance, to obtain testimony from Spence and Thompson in order to bolster the case against Webb. The prosecutor explained:

In the preparation of this case, the Commonwealth has not attempted, although there are two other co-defendants, has not attempted to enter into any sort of plea agreement wherein a co-defendant whether that co-defendant be Mr. Webb or Miss Thompson or Mr. Spence would testify against any of the other two co-defendants. We have approached counsel ... co-counsel about whether or not they felt it would be in their client's best interest to testify voluntarily for the Commonwealth. And in preparing for trial yesterday I touched base once again the office of Mr. Spence's attorney, that being Mr. Charles Phillips. Mr. Phillips being out of town, Mr. Doherty received the message and being unaware of this particular case attempted to contact Mr. Spence as to whether or not he perhaps might wish to testify in this case.... We're asking a continuance, so to speak, or a recess until Mr. Phillips who is Mr. Spence's attorney, who is presently on vacation would return to town on Monday, so that he might properly advise his client whether or not it would be in his best interest to voluntarily testify.... I would only assume that Mr. Spence would, if he desired to testify as to the truth, from what the Commonwealth knows of the case the truth would be [sic] have tremendous impact on this particular case. And we respectfully ask the Court to grant the Court ... grant the Commonwealth that recess so that we might determine whether or not Mr. Spence does in fact wish to testify as to the truth of the facts before the Court today.

The federal district judge who presided in the habeas corpus proceeding, whose findings we, of course, respect, determined "that the Commonwealth Attorney requested the continuance solely because of his realization that the case could not be made against the petitioner without the testimony of at least one of the co-defendants." He went on to point out:

Neither of the co-defendants [Spence and Thompson] had been subpoenaed to testify at the trial held that day [July 17, 1980], that one of the co-defendants, Virgil Spence, was present in the courthouse during the trial of petitioner, with the knowledge of the Commonwealth's Attorney, and that despite his presence, the co-defendant was not called to the stand to determine whether he would answer questions or not. Counsel representing Spence at the time of the trial indicated in the habeas proceeding that he instructed his client to "tell the truth and co-operate to the best of his ability" should he be subpoenaed.¹ 

The Salem Circuit Court concluded that, in the interest of justice, it being unclear whether Spence's counsel would or would not advise him to testify, it would be best to continue the trial for five days, until the 22nd of July, 1980. On that date Spence and Thompson testified. The evidence of Thompson was especially damaging to Webb.²  The determination of guilt which followed was well supported by the record.

About the kindest word that one can apply to the prosecutor's failure to subpoena Spence and Thompson, and his failure to establish in advance of trial that they would not be advised to decline to testify on self-incrimination grounds is "sloppy."³ 

The petition for habeas corpus was grounded on three asserted constitutional infirmities:

A. Violation of Webb's rights to due process.⁴ 

B. Double jeopardy in violation of the Fifth Amendment.⁵ 

C. Denial of Webb's right to a speedy trial.

The assertion that speedy trial was denied need not detain us long. It was not argued on appeal. The right to a speedy trial was certainly satisfied here once a trial had commenced within nine months of the alleged offense and the first witness had been examined and cross-examined. Furthermore, a delay of five days (two of them Saturday and Sunday, when the court customarily would not be sitting in any event) was well within the customary time limits for a continuance, and simply does not support an assertion that the accused was not speedily brought to trial, especially considering the total lack of prejudice to the defendant here. Cf. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972) (five years' delay not unconstitutional); Ricon v. Garrison, 517 F.2d 628 (4th Cir. 1975), cert. denied, 423 U.S. 895, 96 S. Ct. 195, 46 L. Ed. 2d 127 (1975) (36 month delay not unconstitutional).

As for double jeopardy, the district judge was greatly influenced by what apparently seemed to him no more than an insignificant formal difference between (a) a mistrial, involving a discharge of the jury and an attempt to begin anew before another jury, (b) a dismissal in a non-jury proceeding followed by a complete recommencement before the same judge (both of which, in the absence of manifest necessity, would be impermissible on grounds of double jeopardy), and (c) a postponement for a few days in a non-jury trial followed by a continuation of the same case, taking up before the same judge at the point where the case had previously left off. However, the district judge was frank to acknowledge that a search for authority to sustain the proposition that a continuance should be deemed to constitute double jeopardy upon resumption by the same judge where the case had left off had "proved fruitless."⁶ 

The difficulty is that the doctrine of double jeopardy is by no means devoid of thin distinctions. Immediately before, and immediately after, empaneling and swearing of the jury things are much the same, but in one jeopardy has not attached while, in the other, it has. Cf. Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978). So, too, immediately before and immediately after the swearing of the first witness in a non-jury trial the difference is, in many respects, miniscule. Cf. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975). The simple, yet to us controlling, consideration is that the accused must be placed in jeopardy twice for double jeopardy to exist. It happens when the second event involves a completely new beginning, i.e., when the second proceeding takes place before a new trier of fact, whether that be a different judge or jury, or the same judge starting with a clean slate. It simply does not occur when the very same proceeding continues on after a brief postponement before the first and only trier of fact, as was the case here.

The point is graphically illustrated by the decision in Harris v. Young, 607 F.2d 1081 (4th Cir. 1979), cert. denied sub nom. Mitchell v. Harris, 444 U.S. 1025, 100 S. Ct. 688, 62 L. Ed. 2d 659 (1980). The jury trial there was, in circumstances not amounting to manifest necessity, aborted by the court's sua sponte declaration of a mistrial. A subsequent, wholly new, prosecution was held barred. However, Chief Judge Haynsworth, speaking for the court, was careful to point out that a less extreme alternative, which would not have brought double jeopardy into play, existed: "The discovery rule allows for a continuance for disclosure and inspection if new matter surfaces upon trial. This was an obvious solution to the problem." 607 F.2d at 1086.

In Matter of Hunt, 46 N.C.App. 732, 266 S.E.2d 385 (1980), it developed, in two cases both considered in the same appeal, that the prosecution could not succeed unless a continuance were granted to round up additional testimony. In one case the judge sua sponte granted a continuance. In the other the prosecution requested and was granted the same relief. The duration of the postponements were 9 days and 42 days respectively. The North Carolina Court of Appeals, in a carefully reasoned opinion, rejected claims of double jeopardy stating:

It is clear in each of the cases that jeopardy attached only once--at the time the judge began to hear evidence. While respondents conceivably may have been put through additional embarrassment, anxiety and expense as a result of the continued hearings, the subsequent hearing before the same trier of fact was not a second trial barred by the Double Jeopardy Clause.

... In the cases before us the Fifth Amendment rights of each of the accused under the Clause--the right to have his case heard in its entirety and determined before the same trier of fact--has not been infringed.

46 N.C.App. at 735-36, 266 S.E.2d at 387-88.

We would not be taken to imply that, simply by use of terminology, a prosecutor could change a result. If what occurred indeed amounted to a beginning over, rather than a progression from the point at which the case had been suspended, calling it a continuation when actually it was a complete retrial would not enable the prosecution to escape the stricture against double jeopardy. However, in the instant case the record makes it indisputably clear that a true continuance was all that was involved.⁷ 

Nor, if there were egregious prosecutorial misconduct designed to make a delay appear to be a continuance when it would be more appropriate to speak in mistrial or jury discharge terms, do we wish to be understood as saying that the raising of the point only under double jeopardy should fail because the proper rubric was "denial of due process." While Webb, in his Brief, phrases his argument only in double jeopardy terms, we are loath to dispose of it on such a technical basis, given that he has made it altogether clear that the asserted misbehavior of the prosecutor is the gravamen of his complaint.

Turning, therefore, to that aspect of the matter, we point out first that Webb has failed to identify any prejudice which he has suffered.⁸  We simply are not prepared to assign to him vested rights in an ill-prepared prosecutor. Except for a claimed "right" not to have the case properly tried, with the ascertainment of truth enhanced, Webb points to nothing which has operated to injure his posture before the Circuit Court for the City of Salem.

It lay within the discretion of the state court judge who presided at the criminal trial to determine how severe the sanction should be for exceedingly poor preparation on the part of the Commonwealth's prosecutor. The prosecutor was fortunate that the trial judge did not order that the case proceed, without interruption, after a denial of the motion for a continuance, with a determination of "Not Guilty" the probable result.⁹ 

There is nothing in the record to show any predisposition of trial judges in the Virginia court system, or of the trial judge in Webb's case in particular, regularly to come to the rescue of hapless prosecutors to the point where objectivity might become suspect. Rather, it appears that the court was scrupulously interested in insuring that justice be done. There is manifestly a public purpose served by that objective.

Webb, as might be expected, has focused attention on the fact that, while the continuance request centered on Spence and whether he would testify, Thompson's testimony is what did him in. However, both Spence and Thompson testified. Each was spotlighted as someone in a position where his or her testimony could be quite relevant. The prosecutor, belatedly waking up, could hardly overlook Thompson too as a possible source once he realized that her co-defendant, Spence, might prove helpful.

For all those reasons, we are not prepared to conclude that prosecutorial overreaching, either in its own right, or as a sub-species of the genus double jeopardy, has been made out sufficiently to constitute grounds under the Fifth or the Fourteenth Amendments for voiding the conviction of Webb in the Commonwealth court.

Accordingly, the judgment below is reversed, and the case remanded with instructions to the district court to deny the writ.

REVERSED AND REMANDED.

WIDENER, Circuit Judge, concurs in the result.