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August 9, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Rogers, Chief Judge, and Terry And Steadman, Associate Judges. Opinion for the Court by Chief Judge Rogers. Concurring opinion by Associate Judge Terry.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: In this expedited appeal, appellant Joel Davis contends that the trial Judge erred in granting a mistrial for manifest necessity and ordering defense counsel to disclose privileged information, and in denying his motion to dismiss on the ground of double jeopardy. We affirm.


Appellant went to trial on December 3, 1992, on charges of assault, with intent to kill while armed, D.C. Code §§ 22-501, -3202 and mayhem while armed, id. §§ 22-506, -3202 (Repl. 1989). The complainant, Brian Watson, the only witness to his stabbing, testified on direct examination that after having spent the afternoon of March 16, 1991 drinking vodka, he attended a "disco" party at the business place of appellant's grandfather. Watson had previously been fired from a position in this business. The night of March 16th, he assisted the disc jockeys in loading and unloading their music equipment. Later, after helping to reload the equipment, Watson was approached by appellant, who accused Watson of stealing a battery from one of appellant's grandfather's catering vans. When Watson denied this, appellant responded "well, I know you took the battery, and I'm going to fuck you up." Appellant turned away from Watson and then he turned back, stabbed Watson in the abdomen, and ran. Watson, with the knife still in his body, crossed the street and dialed 911 for an ambulance. He testified that he does not normally carry weapons, and that he had none on him that evening. After the direct testimony, the trial Judge recessed the trial for lunch, with the cross-examination to begin after the recess.

When court resumed after lunch, Watson, who had been under government subpoena for the trial, could not be found. The prosecutor suggested to the trial Judge that the reason for the witness' absence might be that defense counsel had informed him, during the recess, of an outstanding bench warrant for his arrest. The prosecutor explained that she had not known of the bench warrant until after lunch when defense counsel had informed her of it. In response to the trial Judge's question to defense counsel as to whether he had told Watson about the warrant, defense counsel stated that any conversation he had with Watson was protected as attorney work-product. The trial Judge disagreed and ordered defense counsel to inform the court of what he had said to the witness. Defense counsel told the Judge that he had "told that I knew he had a bench warrant on a pending case and asked him if he wanted to discuss that case with me." Defense counsel stated that Watson did not respond, walked away, and then returned to ask him a question that he did not remember. The prosecutor advised the Judge that police officers had told her that defense counsel "seemed to be following" Watson during lunch. Defense counsel denied this, stating he had only one conversation with the witness. The trial Judge issued a bench warrant for Watson and continued the case until December 9, 1992.

On December 9th, despite the efforts of the United States Marshal Service, Watson did not appear in court. The prosecutor proffered that Watson had told the police that "he was being followed and harassed by the defense counsel." The prosecutor also stated that Watson had told her that defense counsel was trying to speak to him and that she had informed him that he could speak to counsel but was not required to do so. The Judge continued the trial until December 14, 1992.

On December 14, 1992, Watson was still at large despite, according to the prosecutor's proffer, repeated efforts by the marshals to locate him. The trial Judge dismissed the jury. The prosecutor asked the Judge to declare a mistrial for manifest necessity since Watson had been subpoenaed for trial, his absence was not the fault of the government, his failure to appear was unexpected and arose after the beginning of trial, and Watson was an essential witness needed to prove the identity of the assailant. Defense counsel argued that the government had been negligent in not discovering and disclosing the information about Watson's bench warrant. *fn1

Further, defense counsel maintained that his conduct had been entirely proper. He stated that he had gone to the records room, discovered the outstanding bench warrant, and had then informed the trial Judge's law clerk of its existence. Following that, he had approached Watson to confirm that the bench warrant continued to be outstanding since, he proffered, court jackets are often out of date. Defense counsel was of the view that Watson would be the person best informed on whether the warrant remained outstanding. Over objection, in response to the trial Judge's questions, defense counsel repeated the nature of his conversation with the witness.

The trial Judge granted the government's motion for a mistrial on the ground of manifest necessity. The Judge found that Watson was an essential government witness, he was unavailable, his unavailability was unexpected and not caused by the government, and that defense counsel, rather than informing the court, the police, or the prosecutor, took a course of action that he must have known was likely to make the witness flee and that "it was this action, on the part of defense counsel, that precipitated Mr. Watson's flight." The Judge denied appellant's motion to dismiss the indictment on the grounds of double jeopardy, and advised that he would set a new trial date. *fn2


Since jeopardy had attached at the time the mistrial was granted, *fn3 appellant's "valued right to have his trial completed by a particular tribunal" was implicated. Arizona v. Washington, 434 U.S. 497, 503, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834, 837 (1949)). That right, however, is not absolute as it "is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Id. at 505. The prosecutor can overcome appellant's right to completion of the trial by a particular tribunal by showing "manifest necessity." Id.

Not all circumstances involving unavailability of a witness will suffice. See Downum v. United States, 372 U.S. 734, 737, 10 L. Ed. 2d 100, 83 S. Ct. 1033 (1963). See id. at 736 ("the discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances"') (quoting United States v. Coolidge, 2 Gall. 364, 25 F. Cas. 622, 623 (C.C.D. Mass. 1813) (No. 14,857)). This court has made clear that in order to demonstrate "manifest necessity," the government must show that the missing witness' testimony is essential to the government's case. Routh, supra note 3, 483 A.2d at 643. The court exercises "the strictest scrutiny" in determining whether the trial court properly exercised its discretion in our review of the grant of a mistrial for manifest necessity because a critical government witness is unavailable. Id. at 642 (quoting Arizona v. Washington, 434 U.S. at 508); see also Douglas v. United States 488 A.2d 121, 133 (D.C. 1985) (level of deference will depend on the problem facing the trial court and the court "ordinarily will accept a trial Judge's determination that there is a 'high degree of necessity' for a mistrial, without a less drastic alternative, as long as that determination is reasonable") (citations omitted).

Watson's testimony was clearly essential to the government's case. Watson, the complaining witness, was the only person who could identify appellant as the person who stabbed him. Moreover, without Watson present for cross-examination, the police radio runs and Watson's call to 911, which contained reports of Watson's identification of his assailant, were inadmissible hearsay. See Yelverton v. United States, 606 A.2d 181, 183-84 (D.C. 1992). The ...

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