Sedgwick v. Superior Court for District of Columbia

• Decision Date: 29 September 1978
• Docket Number: No. 76-1967,76-1967
• Citation: 190 U.S.App.D.C. 63,584 F.2d 1044
• Parties: . United States Court of Appeals, District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1044

584 F.2d 1044

190 U.S.App.D.C. 63

Alan SEDGWICK v. SUPERIOR COURT FOR the DISTRICT OF COLUMBIA, Appellant.

No. 76-1967.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 12, 1977.

Decided July 25, 1978.

As Amended Sept. 29, 1978.

Robert Fabrikant, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Oscar Altshuler and Edward D. Ross, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief for appellant.

W. Gary Kohlman, Washington, D. C., with whom Frederick H. Weisberg, Jeffrey Freund and Silas Wasserstrom, Washington, D. C., were on the brief, for appellee.

Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

In this action, a petition for habeas corpus brought against the Superior Court of the District of Columbia, the District Court granted the petition and the government took a timely appeal. ¹ The issuance of the writ was grounded on the Double Jeopardy Clause of the Constitution. ² The order precludes the trial of petitioner-appellee for various crimes burglary, robbery, assault with intent to rape, assault with a dangerous weapon, and assault with intent to kill arising out of a break-in in the Dupont Circle area in 1972.

We were troubled by the issue of jurisdiction and called for memoranda on that point. We conclude that the District Court had jurisdiction to entertain the petition for habeas corpus since petitioner is not a person who has been convicted in the Superior Court. ³ However, we disagree with the District Court's judgment and accordingly reverse.

Petitioner was originally brought to trial in the Superior Court before Judge William Stewart. In the course of the trial, a Brady question arose which the judge felt cast a shadow on the proceedings. During the government's case in chief, Officer Edward L. Allen, while relating the circumstances surrounding petitioner's controverted confession, testified that during his investigation of the break-in he had received information that one "Duvall" had been overheard in two local bars claiming he committed the offenses. Officer Allen stated that he did not regard the tip as reliable, but nevertheless recorded the interview on a police department form PD-252. He also visited the two bars but could obtain no corroborating information. A check of the police department's nickname file revealed some 30 "Duvalls", and the matter was not pursued after petitioner's arrest and alleged confession.

The trial court examined the PD-252 and concluded that it should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court Sua sponte granted a mistrial. If the defendant had asked for a mistrial, the court's ruling would not raise a double jeopardy issue. ⁴ Instead, defense counsel pressed the court for dismissal of the indictment. The defendant now contends that since he did not move for a mistrial notwithstanding the judge's indication that such a motion would be granted, and since he did not explicitly state that he acquiesced in the mistrial, he must be determined to have objected to the granting of the mistrial, thus entitling him to raise the double jeopardy issue.

We need not concern ourselves here with the issue that might arise where a judge acts sua sponte to grant a mistrial, in the absence of any motion by the defendant; this would raise the question whether the silence of the defendant falls short of acquiescence, and bars a new trial unless the mistrial was a matter of "manifest necessity." ⁵ The government stresses that in any event where, as here, the defendant has put a motion to the trial judge asking for relief (E. g., dismissal), he has an obligation to make his ultimate position clear. That is, if the defendant seeks only a dismissal, and does not want the judge to consider the possibility of granting the lesser relief of a mistrial even if the dismissal is denied, he must state that position explicitly.

In substance this was the position taken in this case by the District of Columbia Court of Appeals. One month after declaring a mistrial, the trial court heard testimony on both the defense and prosecution's unsuccessful attempts to follow up the "Duvall" lead. The trial court concluded that the conduct of the prosecution and the passage of time had deprived the defendant of the benefit of the purported Brady material. It therefore dismissed the indictment. The District of Columbia Court of Appeals reversed, holding that the government had not violated Brady and that a new trial was not barred by the Double Jeopardy Clause. United States v. Sedgwick, 345 A.2d 465 (D.C.App.1975), Cert. denied, 425 U.S. 966, 96 S.Ct. 1751, 48 L.Ed.2d 210 (1976). It found the undisclosed information mere "street rumor" and not properly Brady material.

The Double Jeopardy Clause gives the defendant a "valued right to have his trial completed by a particular tribunal." ⁶ The defendant's right to receive a verdict is such that "(e)ven when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire 'to go to the first jury and, perhaps, end the dispute then and there with an acquittal.' " ⁷ Here the defendant did not express an interest in obtaining a verdict from the first jury. In fact defense counsel pressed for dismissal, arguing that the defendant's "right to a fair trial ha(d) been seriously undermined" by the Government's failure to disclose the purported Brady material. ⁸

We are instructed not to apply the Double Jeopardy Clause mechanically, but to look beyond the labels of trial motions and rulings to discern the actual intentions of the parties and trial court. ⁹ Such an approach in this case impels the conclusion that the defendant was not interested in obtaining a verdict from the first jury. Therefore we do not believe that permitting a retrial in this case does violence to the values underlying the Double Jeopardy Clause. ¹⁰

The defendant also relies on Judge Stewart's order subsequent to the declaration of mistrial in which he granted defendant's request for a dismissal of the indictment on the ground that the passage of time and other circumstances made the Brady violation incurable and precluded a fair trial. Judge Stewart indicated that if his dismissal on Brady grounds were reversed on appeal, the defendant would be subject to trial. ¹¹ Nevertheless, the defendant argues that Judge Stewart's order of dismissal operates, as a matter of law, to bar retrial. Upon reviewing the Supreme Court's recent pronouncements in this area, we disagree.

In Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), the Supreme Court, in an opinion by Justice Powell, held that a retrial was not barred by the Double Jeopardy Clause in a case where the trial court had dismissed the information during the first trial for failure to allege the requisite intent. Defense counsel had made his objection to the information after the prosecutor's opening statement, a time when the trial court could not readily furnish full consideration. The court therefore tentatively denied the motion, noting that he would reconsider it at his first opportunity to research the point. That opportunity came after the government presented its case, and the court dismissed the information.

The Supreme Court distinguished its earlier opinion in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), where it had found a dismissal did bar retrial.

The distinction drawn by Jenkins does not turn on whether the District Court labels its action a "dismissal" or a "declaration of mistrial." The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U.S. 470, 476(, 91 S.Ct. 547, 27 L.Ed.2d 543) (1971) (plurality opinion), while a dismissal may or may not do so. Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause.

432 U.S. at 30, 97 S.Ct. at 2146.

Jenkins was a case involving refusal to submit to induction into the Armed Services. Under the law of the Second Circuit existing at the time of the offense, the induction order was improper and the defendant could not be convicted. Between the time of the offense and the date of trial, the Supreme Court reversed the Second Circuit: induction orders such as the one at issue in Jenkins were now proper. The District Court concluded that retroactive application of the Supreme Court's decision would be unfair, "eroding fundamental and basic equitable principles of law," and dismissed the indictment. United States v. Jenkins, 349 F.Supp. 1068, 1073 (E.D.N.Y.1972). The Supreme Court ruled that a government appeal from that dismissal would violate the Double Jeopardy Clause. ¹² The Lee opinion characterized the Jenkins dismissal as one that "contemplate(d) an end to all prosecution of the defendant for the offense charged," and was granted on the ground "that the defendant simply cannot be convicted of (that) offense."

The Supreme Court in Lee found no such impediment to retrial. They observed that the dismissal was not predicated on a judgment that Lee could never be prosecuted or convicted.

To the contrary, the District Court stressed that the only obstacle to a conviction was the fact that the information had been drawn improperly. The error, like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided absent any double jeopardy bar by beginning anew the prosecution of the defendant. And there can be little doubt that the court granted the...