Braxton v. United States

• Decision Date: 25 October 1978
• Docket Number: No. 12415.,No. 12481.,No. 12412.,12412.,12415.,12481.
• Parties: Gene A. BRAXTON, Appellant, v. UNITED STATES, Appellee. Calvin L. BRAXTON, Appellant, v. UNITED STATES, Appellee. Darnell L. WASHINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 759

395 A.2d 759

Gene A. BRAXTON, Appellant, v. UNITED STATES, Appellee.

Calvin L. BRAXTON, Appellant, v. UNITED STATES, Appellee.

Darnell L. WASHINGTON, Appellant, v. UNITED STATES, Appellee.

No. 12412.

No. 12415.

No. 12481.

District of Columbia Court of Appeals.

Argued April 11, 1978.

Decided October 25, 1978.

COPYRIGHT MATERIAL OMITTED

Kenneth M. Trombly, Washington, D. C., appointed by this court, for appellant Calvin L. Braxton.

Robert Case Liotta, Washington, D. C., appointed by this court, for appellant Eugene A. Braxton.

O. B. Parker, Washington, D. C., appointed by this court, for appellant Darnell L. Washington.

Henry F. Greene, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John P. Hume, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and NEBEKER and MACK, Associate Judges.

NEBEKER, Associate Judge:

Appellants were charged with murder in the second degree while armed. D.C.Code 1973, §§ 22-2403, -3202. During the course of their four-day trial by jury, the trial judge declared a mistrial as to each appellant. Their cases were reassigned to another judge for re-trial, and their several motions for dismissal upon double jeopardy grounds were denied. Those denials are the subjects of these appeals. The issues presented are whether the mistrials were declared upon the request or acquiescence of appellants and, if not, whether there existed a manifest necessity for the declarations. We conclude that neither justification existed and that, therefore, the indictment must be dismissed.

Because our holding will necessarily be limited to the specific occurrences revealed in this case and because we desire to avoid editorial characterization, we burden this opinion with extensive quotations from the record.

I

Appellants were each charged in the death of James Marshman. The government's evidence tended to show that appellant Gene Braxton, who was on crutches at the time, became engaged in an argument with Marshman outside a bar. Marshman pushed Gene Braxton, whereupon Gene Braxton pulled a knife and cut Marshman about the face and neck. Appellant Calvin Braxton and appellant Washington joined the fray. Calvin Braxton broke a walking cane across Marshman's head, and Washington thrust a screwdriver through Marshman's breastbone. Marshman died as a result of the knife and screwdriver wounds.

Calvin Braxton presented no defense.¹ Both Gene Braxton and Washington testified in their own defenses on the third day of trial. During Washington's self-defense testimony he necessarily admitted that he stabbed the victim with the screwdriver. The following day, during cross-examination by the prosecutor, Washington was asked:

Q. When is the first time you ever told anyone you struck that man with the screwdriver?

A. The first time I told anyone? It was Patricia Brooks [a government witness], I told her that the screwdriver that she handed me, she asked me did I stab him with it, I told her yes.

Q. What was the next time you even told anyone about that, sir? You never told anyone until you got on the stand yesterday, is that right, sir?

A. On the stand yesterday — that's right.

* * * * * * Q. Isn't it correct, sir, that [at] none of those times [prior conversations about this case] did you ever tell the police, myself, your lawyer, anyone, that you struck this man with a screwdriver, isn't that true?

A. No one but Patricia.

No objection was made to the prosecutor's reference to conversations between Washington and his attorney or to the attempted impeachment by prior silence. On redirect, Washington's attorney asked:

Q. Do you recall [the prosecutor] talking to you just a minute ago and asking you the question, when was the first time you told — you have indicated you struck the man with a screwdriver, is that correct?

A. Yes, sir.

Q. Is this the first time —

THE COURT: Excuse me, send the jury out, please.

During the ensuing bench conference, Washington's attorney, Mr. Parker, proffered the following line of questioning:

[T]he only question I'm asking is, when is the first time you [Washington] heard that the man had died from a stab wound and, secondly, had he ever told me about it, and why he had never told me about it.

THE COURT: The better approach is that he told you, his lawyer, that he did this to him.

MR. ABRAMS [the prosecutor]: He didn't try —

THE COURT: Mr. Parker says he did.

MR. ABRAMS: I don't think Mr. Parker said that. Mr. Parker had — testify [sic] he'd say he never heard that version, he heard a different version.

THE COURT: You [Mr. Parker] are suborning perjury in this courtroom. If he told you something else and you put him on the stand, you should have notified me immediately, and you should have — first, has to get out of it [apparently, the trial], because — or alternatively stay in it, but let him tell his story without putting him on here and charging him as though he was a credible witness.

* * * * * *

Did he ever tell you at all, the same story that he has told on that stand?

* * * * * *

Did he tell you essentially the same thing? Because if he told you something different, you have perjury.

* * * * * *

MR. PARKER: He indicated to me at the table, if Your Honor please, that he had used the screwdriver. That was before he took the stand.

THE COURT: Mr. Parker, I would suggest, in the future, you consult the canon of ethics because, in effect, what you are doing, you are waiting until the last minute, laying back and picking his best story and putting him up on the stand. You are allowing perjury in the case.

* * * * * *

MR. PARKER: He indicated [this] to me just a few minutes before he took the stand.

THE COURT: Then you're suborning perjury.

MR. PARKER: No, he indicated to me when he took the stand, he was going to tell the truth.

THE COURT: You should have claimed surprise and come to me. You can't continue to examine a man who told you one story and when you put him forward as a credibility witness, he tells a separate story —

* * * * * *

I don't know whether you're all requesting this trial, whether mistrials are in order and if not in order how to guide you the rest of the way.

No motion for a mistrial had been made at this point. After further colloquy of this nature, the trial judge ruled on the consequences of the alleged subornation of perjury:

You [Mr. Parker] cannot argue anything [to the jury] as far as his testimony, because you don't know what the heck the truth is.

* * * * * *

Alternatively, unless all of you are asking for mistrials — Gene Braxton's attorney thereupon requested a mistrial because Washington had "testified extensively with regard to what the other defendants did." The court denied the motion, stating that "You can argue his testimony to the jury," and directed that further discussion be off the record. Upon returning to the record, Washington's attorney declined to request a mistrial: "I don't think I have done anything wrong. I'm not asking for a mistrial at this time." The court again directed that discussion be off the record. Upon return to the record, Calvin Braxton's attorney declined to request a mistrial, but Washington's attorney requested that he be excused from the case "based upon what Your Honor has said." That request was denied:

I will not let you rescue or step out of this case. . . . [B]ut I admonish you sir, to make no comment in your summation to anything that your client has said, and that's pursuant to the canons, sir.

When the jury was brought back, Washington's attorney rested his case.

The government, in its case in rebuttal, produced a police officer who testified concerning certain statements made by Washington while in custody which varied from Washington's trial testimony. Many of the statements allegedly made by Washington concerned the participation of his codefendants in the alleged murder. The jury was instructed that the officer's testimony could be considered only in impeachment of Washington and not as probative of the participation of Washington's codefendants in the alleged murder. Counsel for Gene Braxton, however, requested a mistrial because some of the statements attributed to Washington purported to quote Gene Braxton as making the inflammatory statement, "I took care of that nigger." The court ruled that the jury had been properly instructed.

During closing argument, the prosecutor referred to Washington's alleged extra-trial statements. Counsel for both Gene and Calvin Braxton moved for a mistrial on the grounds that the prosecutor argued the substantively probative value of these statements rather than their impeachment value. Neither motion was granted.

Counsel for Calvin Braxton made his closing argument to the jury which was not transcribed.

Counsel for Gene Braxton (Mr. Liotta) next argued his case to the jury. In the course of that argument, he referred by name to the lesser included offenses to murder in the second degree while armed and stated, "I will state to you part of what His Honor's instructions will be about, just so you can get an idea how the facts fit in." Immediately following this statement the following colloquy occurred:

THE COURT: Sustain the objection, it's improper — merely highlight the fact that I will give it to them is sufficient, Mr. Liotta.

MR. LIOTTA: But Your Honor, I don't think I will infringe upon Your Honor's ground at all.

THE COURT: All right, let's continue. When Mr. Liotta stated that the court would instruct the jury that the government must prove that his client "inflicted an injury on the deceased from which the deceased died" the court responded: "That's improper under the aiding and abetting instruction; that's improper. Don't go into the instructions. Don't debate with me, please; it's too warm. Proceed." Mr. Liotta then argued that the government must prove malice. The court again cautioned counsel not to refer to...