U.S.A. v. Washington, s. 98-2212

• Decision Date: 18 November 1999
• Docket Number: 99-1252,Nos. 98-2212,s. 98-2212
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. TIMOTHY C. WASHINGTON, ALSO KNOWN AS APPEAL FROM THE UNITED STATES TIMOTHY CHARLES WASHINGTON, ALSO DISTRICT COURT FOR THE DISTRICT KNOWN AS TIMOTHY WASHINGTON, ALSO OF NEBRASKA. KNOWN AS TIMMY S. WASHINGTON, ALSO KNOWN AS TIMMY WASHINGTON, ALSO KNOWN AS TIM WASHINGTON, ALSO KNOWN AS BABY FLY WASHINGTON, ALSO KNOWN AS LESTER BABY FLY JACKMAN, ALSO KNOWN AS LESTER JACKMAN, ALSO KNOWN AS PRION C. WASHINGTON, ALSO KNOWN AS PERRION CHARLES WASHINGTON, ALSO KNOWN AS PERRION KEESEE WASHINGTON, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 721

198 F.3d 721 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. TIMOTHY C. WASHINGTON, ALSO KNOWN AS APPEAL FROM THE UNITED STATES TIMOTHY CHARLES WASHINGTON, ALSO DISTRICT COURT FOR THE DISTRICT KNOWN AS TIMOTHY WASHINGTON, ALSO OF NEBRASKA. KNOWN AS TIMMY S. WASHINGTON, ALSO

KNOWN AS TIMMY WASHINGTON, ALSO KNOWN AS TIM WASHINGTON, ALSO KNOWN AS BABY FLY WASHINGTON, ALSO KNOWN AS LESTER BABY FLY JACKMAN, ALSO KNOWN AS LESTER JACKMAN, ALSO KNOWN AS PRION C. WASHINGTON, ALSO KNOWN AS PERRION CHARLES WASHINGTON, ALSO KNOWN AS PERRION KEESEE WASHINGTON, APPELLANT.

Nos. 98-2212, 99-1252

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 18, 1999

December 27, 1999

Before Beam, Floyd R. Gibson, and Wellford,¹ Circuit Judges.

Beam, Circuit Judge.

Timothy Washington sat silent in the courtroom while his counsel made numerous motions for a mistrial at Washington's first trial on drug trafficking charges. The district court² ultimately granted counsel's last mistrial motion. Washington was subsequently re-tried and convicted. He now claims a mistrial should neither have been sought nor granted because his counsel did not allow him to make that decision. He also contends that his re-trial was barred on double jeopardy grounds because the prosecutor intended to provoke his counsel into moving for a mistrial. We reject both of Washington's contentions and affirm his conviction.

On the third day of Washington's initial trial, his counsel moved for a mistrial because the government failed to disclose a written summary of testimony from expert witnesses scheduled to appear that day. Washington's counsel also moved for a mistrial because the government failed to provide the proffer agreement of another witness. The district court declined to grant the motions.

The prosecutor then brought to the court's attention a summary report of Harry Harrison's criminal history that showed that Harrison was a convicted felon. Harrison had testified as a witness for the government on the second day of trial. Washington's counsel again moved for a mistrial because the government had not met its obligation to produce this impeachment evidence prior to Harrison's cross-examination. The district court granted this motion.

We review a district court's ruling on a motion for mistrial for abuse of discretion. See United States v. Adams, 37 F.3d 383, 384 (8th Cir. 1994). Notwithstanding, Washington argues that the defendant must be allowed to make the ultimate decision on whether to request a mistrial. We disagree and hold that the decision to make such a request is a strategic decision for counsel.

We have held that counsel need not consult with the defendant when making the strategic decision not to request a mistrial. See Walker v. Lockhart, 852 F.2d 379, 382 (8th Cir. 1988). We see little reason why the decision to request a mistrial should be any different. In both cases, counsel is called upon to balance the burden of another trial against the burden of proceeding with a jury that has potentially become prejudiced against the defendant. While the decision to request a mistrial may subject the defendant to another proceeding, this choice is no more important than the decision to subject the defendant to a potentially adverse fact finder.

Further, the Supreme Court has recognized only four fundamental choices that a defendant must always make. See Jones v. Barnes, 463 U.S. 745, 751 (1983); see also United States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996) (aside from the four fundamental decisions enumerated by the Supreme Court in Jones, all other trial decisions are strategic decisions that counsel must make). A defendant must always make the ultimate decision as to pleading guilty, waiving a jury trial, testifying on his or her own behalf, and taking an appeal. See Jones, 463 U.S. at 751.³ These four decisions naturally reside with the defendant because they implicate the two most basic tenets of our legal system-the opportunity to have a day in court and the opportunity to have a jury of peers. In contrast, the decision to request a mistrial implicates neither of these basic matters. A defendant's successful request for a mistrial means that the first empaneled jury will not judge the defendant. However, this does not mean that no jury will decide the defendant's fate, only that another jury will be selected.

Common sense also dictates that counsel make the ultimate decision to request a mistrial. Such a decision does not involve a choice that is as easily comprehensible to a lay person as, for example, the decision to plead guilty. The decision to plead guilty involves two stark alternatives that are easily understood-admit guilt or assert innocence. In comparison, the decision to move for a mistrial often must be made in a split-second and it involves numerous alternative strategies such as remaining silent, interposing an objection, requesting a curative instruction, or requesting an end to the proceeding. See Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996) (decision to request a mistrial is a strategic decision for counsel because of multiple options counsel must consider when deciding whether to request a mistrial). Moreover, counsel is generally in a better position than a lay person to judge the impact of a potentially prejudicial incident in the context of the entire trial.⁴

Finally, even if we assume that Washington had the right to make the ultimate decision, he waived his right to object to his attorney's motion for a...