Appeal from the Superior Court of the District of Columbia (F-5071-04) (Hon. Wendell P. Gardner, Jr., Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and STEADMAN, Senior Judge.
Dissenting opinion by Senior Judge STEADMAN at page 14.
Retrial of a criminal defendant after a mistrial over his objection and unsupported by "manifest necessity" violates double jeopardy. Arizona v. Washington, 434 U.S. 497, 505 (1978). The trial judge here, after being informed by the Assistant United States Attorney mid-trial that appellant, a juvenile, had been mistakenly indicted for a crime that did not subject him to adult prosecution, declared a mistrial in the belief that the court no longer had jurisdiction to proceed to verdict, hence that a mistrial was necessary. We hold that the judge erred - that in fact the court had statutory authority to proceed with the trial to verdict - and that, consequently, appellant's retrial for the re-indicted crime leading to his conviction was barred by double jeopardy.
The grand jury indicted appellant, who was sixteen years old at the time of the offense, for assault with intent to kill while armed (AWIKWA), D.C. Code §§ 22-401, -4502 (2001), and related offenses, all arising from the shooting of Cristobal Serpas in August 2004. A jury trial began on November 29, 2004, and continued through two days of prosecution witnesses. Before trial resumed on the third day, however, the prosecutor informed the judge of "a potential jurisdictional defect" in that none of the charges in the indictment was among those listed in D.C. Code § 16-2301 (3)(A) (2001) as excluding from the definition of a "child," and thereby subjecting to adult prosecution, a juvenile of appellant's age charged with specific offenses.*fn1 Specifically, the indictment charged AWIKWA, whereas the correct charge - the prosecutor acknowledged - would have been assault with intent to commit murder while armed (AWIMWA). See Logan v. United States, 483 A.2d 664, 676 (D.C. 1984) ("§ 16-2301 (3)(A) . . . authorize[s] the prosecution of certain juveniles as adults only when they are charged with an assault committed with a malicious intent to kill," i.e., AWIM) (emphasis added).*fn2
There followed a lengthy discussion between the judge and the parties about available remedies. The prosecutor initially thought that "this kind of defect may be waivable," but opined that "the safer course here is probably to think about it as [a lack of] subject matter jurisdiction. That's a conclusion we've come to." Relying on the Supreme Court's decision in Illinois v. Somerville, 410 U.S. 458 (1973), he asked the judge to "grant a mistrial and find that you had to do it because of manifest necessity," so that appellant could be reindicted. Defense counsel, apparently unaware beforehand of the defective charge, asked and received a recess to consult with the Public Defender Service (PDS) about what to do. After the recess, counsel was initially silent when the judge asked if either party "disagrees that the case properly is to be terminated at this point." A transcript-page later, however, she stated that the advice she had received from PDS was "not to agree to the mistrial, [but rather] to ask to have the case dismissed with prejudice." The prosecutor countered that if, as he believed, a mistrial was justified by manifest necessity - by "a high degree of necessity . . . and . . . there was no less drastic alternative measure" - then re-indictment and retrial would be proper. The judge ultimately agreed with the prosecutor that the indictment for the wrong crime deprived him of authority to continue, and concluded that "there is manifest necessity because . . . it would be useless to go on with the trial, it would be wasting everybody's time . . . [since] if [the jury] reached a decision, it would be subject to appeal." Defense counsel then, while repeating the advice she had received that "the [c]ourt [c]ould declare [a] mistrial and the case would be dismissed . . . with prejudice," made clear her objection to a mistrial:
[Defense counsel]: . . . I'm not agreeing - I can't agree to the mistrial.
[The court]: Right, you [are] objecting to the mistrial. No doubt about that.
[Defense counsel]: Right.
[The court]: . . . I'm going to declare a mistrial based on manifest necessity, over your objection.
Following the mistrial, the grand jury returned an indictment that replaced the AWIKWA charge with AWIMWA and lesser charges. Appellant's written motion to dismiss the indictment on double jeopardy grounds was denied, and he proceeded to trial a second time.*fn3
A jury found him guilty of aggravated assault and related offenses, and he brought this appeal.
"The prosecutor must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant." ...