Appeals from the Superior Court of the District of Columbia (F-6306-04, F-4904-05 & F-4910-05) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Steadman, Senior Judge
Before FARRELL and RUIZ, Associate Judges, and STEADMAN, Senior Judge.
Opinion for the court by Senior Judge STEADMAN.
Concurring opinion by Associate Judge FARRELL at p.10.
Dissenting opinion by Associate Judge RUIZ at p.11.
This case comes before us as an expedited interlocutory appeal from the trial court's denial of appellant's motion to dismiss indictments against him on the basis of double jeopardy so as to bar a retrial. Appellant does not dispute that he consented to the mistrial in the initial proceeding, but contends that his consent was obtained in violation of his Sixth Amendment right to effective and conflict-free counsel and was thus invalid. Because appellant has failed to meet the requirement of Cuyler v. Sullivan, 446 U.S. 335 (1980), to show that the alleged conflict adversely affected the advice of his counsel, we affirm the denial of the motion.
Appellant was indicted by a grand jury on multiple counts*fn1 arising out of a dispute between appellant and the victim, Keion Davis, over a drug transaction in which Davis sold appellant fake cocaine. At trial, appellant admitted that he shot Davis, which left him a quadriplegic, but asserted that he acted in self-defense. There were no witnesses to the shooting other than Davis and appellant, who both testified.
After the close of evidence but before closing argument, the trial judge called the attorneys into his chambers to discuss his concerns about the performance of defense counsel, who had been retained. Later that afternoon when the parties reconvened in court, the judge again voiced his concerns to place them on the record.*fn2 He stated that based on his observation of the jurors' faces, he believed that a conviction was coming on all counts, and he wanted to prevent a post-conviction claim of ineffective assistance of counsel. The judge suggested the solution of declaring a mistrial, but stated that he would allow appellant to consider his options and provide the parties with an opportunity to discuss the matter. The judge solicited thoughts from appellant's family, who stated that they were all satisfied with defense counsel's performance. The defense counsel defended his decisions. The government also noted its disagreement with the trial judge's assessment and stated that it would be prepared and willing to defend against any collateral attack that appellant might later assert. After some further discussion, the judge stated that the case would be continued until the following day to allow appellant to consult with his counsel and his family, and that "if you all want to go forward with this trial, I stand ready to do that and we move forward as if nothing else has been occurring . . . ."
The next day, appellant's defense counsel informed the court that he had spoken with appellant and his family, and that "[b]ased on the discussion yesterday, [appellant] has indicated to me that his family is in the process of retaining new counsel and he would like the court to afford him an opportunity to get new counsel and declare this matter as a mistrial." The court then asked appellant to tell him personally about his decision to retain new counsel. Appellant stated:
Well, Your Honor, I was thinking about the matters that you brought up the other day, about the cross-examination, and I did feel that was an issue. I also feel that, that there's more things that need to be brought out and maybe they can be brought out in the next trial.
The court inquired as to whether appellant had discussed the matter with his family, and appellant indicated that his family agreed with his decision. The court then declared a mistrial, explicitly indicating that it was doing so at the request of the defendant and "as such . . . double jeopardy will not attach in this case."
Two months later, appellant moved to dismiss the indictments on double jeopardy grounds. Appellant takes a pretrial appeal ...