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02/05/93 ANTONIO B. JOHNSON v. UNITED STATES

February 5, 1993

ANTONIO B. JOHNSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge); (Hon. Robert M. Scott, Motions Judge)

Before Ferren, Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge : On the second day of jury deliberations in appellant's first trial on a ten-count indictment, the trial court declared a mistrial, over the defendant's objection, on grounds of "manifest necessity." Before us is an expedited interlocutory appeal from a trial court ruling, prior to commencement of a second trial, denying appellant's motion to dismiss the charges on double jeopardy grounds. *fn1 We hold that under the circumstances of this case, the trial court in the first trial did not abuse its discretion in declaring a mistrial for manifest necessity. Accordingly, we affirm the order denying the motion to dismiss.

I.

The jury deliberations in the first trial commenced at approximately 2 p.m. on Wednesday, October 2, 1991. Shortly thereafter, the foreperson of the jury sent the following note to Judge Ryan, who presided at the trial:

The majority of us some grave concerns as to the ability of one of the jurors to make mentally sound decisions based on the facts and evidence presented in the case. We the majority are concerned about his mental capacity as a whole. Furthermore, he has decided how he is going to vote on subsequent counts in advance of our voting on them. We have been concerned about these matters since the start of the trial.

Judge Ryan elected not to respond to this note, opting instead to "let them deliberate for a while." After further deliberations failed to produce a verdict, Judge Ryan sent the jury home for the evening.

The jury continued its deliberations the following morning, Thursday, October 3. At 12:05 p.m., the foreperson sent a note to Judge Weisberg, who was sitting in for Judge Ryan. The note read:

Your Honor:

On yesterday, October 2nd, a note was sent to the previous Judge in reference to the mental capacity of one of the jurors. No answer was ever received in reference to that letter, and to be perfectly honest, I as the foreperson have become frustrated.

The juror in question has voted not guilty on several counts (as promised), and he even voted not guilty on a count in which the defendant admitted guilt to. Furthermore, the person in question has very little recollection the facts of the trial. What can be done in this instance, as the majority of jurors that we want a verdict based on the facts presented in the trial.

During the course of Discussion about an appropriate response, the trial court received another note saying that a different juror had to make an urgent phone call concerning his hospitalized father. Over the lunch break, Judge Weisberg learned that the juror's father had passed away and therefore excused the juror. *fn2 Neither side objected to the course of action concerning the excused juror. Judge Weisberg noted that the excused juror would likely not be able to come back until the following Monday -- or perhaps even later -- and even then there was a substantial question of whether his mental state would be such that he could carry out his duties as a juror effectively. Additionally, given the other problem concerning the juror described in the notes, Judge Weisberg thought there was "a real difficulty here trying to obtain a verdict from this jury." *fn3

The parties discussed the possibility of proceeding with fewer than twelve jurors. The defense was willing to accept a jury of eleven -- with only the excused juror being permanently excused. The government, however, was only willing to accept fewer than twelve jurors if both the excused juror and the juror whose conduct was challenged in the notes were permanently excused. After both sides had made their positions clear and after much Discussion of what ...


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