Davidson v. United States, No. 12–CO–472.

• Decision Date: 19 July 2012
• Docket Number: No. 12–CO–472.
• Parties: Jorida DAVIDSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

48 A.3d 194

Jorida DAVIDSON, Appellant,

v.UNITED STATES, Appellee.

No. 12–CO–472.

District of Columbia Court of Appeals.

Argued June 14, 2012.

Decided July 19, 2012.

J. Michael Hannon, Washington, for appellant.

John P. Mannarino, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time, and Michael C. Liebman, Assistant United States Attorney, were on the brief, for appellee.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and FARRELL, Senior Judge.

FISHER, Associate Judge:

Invoking the constitutional protection against double jeopardy, appellant Jorida Davidson brings this interlocutory appeal seeking to preclude a second trial for voluntary manslaughter. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). She also seeks to forestall trial on a new charge of involuntary manslaughter. We conclude that, under the circumstances of this case, a retrial for voluntary manslaughter is not barred. However, because appellant was convicted of negligent homicide, a lesser-included offense, the government may not prosecute appellant for the new charge of involuntary manslaughter based on the same conduct.

I. Facts

While driving under the influence of alcohol on October 7, 2010, Jorida Davidson struck and killed a pedestrian, Kiela Ryan, with her sport utility vehicle. The grand jury charged appellant with voluntary manslaughter, ¹ leaving the scene of a collision involving personal injury,² and driving under the influence of alcohol.³ The indictment did not include a charge of involuntary manslaughter.⁴

A jury trial began on June 7, 2011, and lasted for nine days. At its conclusion, the court instructed the jury on the elements of voluntary manslaughter, as well as the lesser-included offense of negligent homicide. ⁵ At appellant's request, the court advised the jury that it need only use “reasonable efforts” to reach a verdict on the greater offense of voluntary manslaughter before moving on to consider negligent homicide. See Criminal Jury Instructions for the District of Columbia, No. 2.401A (5th ed. rev.2011). On June 21, 2011, after nearly fifteen hours of deliberations, the jurors reported: “We have reached our decision on all three counts.”

At 2:16 p.m., the jury entered the courtroom. The court addressed the foreperson:

COURT: Ma'am, has the jury reached a unanimous verdict on each of the counts?

FOREPERSON: Yes.

COURT: I'm going to start with Count 1. How does the jury find the defendant on the charge of manslaughter?

FOREPERSON: We were unable to do so.

COURT: And does that mean that you have not reached any verdict either way on that count, on that charge? Let me ask you the question again. Has the jury reached any verdict on the charge of manslaughter?

FOREPERSON: No.

The jury then proceeded to deliver guilty verdicts for each of the remaining charges, including negligent homicide.⁶ The court conducted a poll of the jurors to determine whether they “agree[d] with the verdict as stated by your foreperson,” and each juror responded affirmatively. After the poll, the court announced:

Ladies and gentlemen, that does conclude your service in this case. And I do want to thank you for the time that you've put into this process.... I hope you have a very pleasant afternoon. Mr. Dillard will take the verdict form from you and the jury instructions. Thank you very much. You may be excused.

The jury exited the courtroom at 2:19 p.m. Counsel and the court then discussed scheduling matters and whether appellant should be held pending sentencing. The judge concluded by asking whether “there [was] anything further?” to which government counsel responded, “No, Your Honor.” Court adjourned at 2:25 p.m.

Two hours later, the trial judge's law clerk sent an e-mail to counsel stating that “the Judge neglected to enter a mistrial as to the Voluntary manslaughter charge this afternoon. She will do so on the court docket so that the record accurately reflects the results as to that charge, unless there is any objection by either party.” Defense counsel promptly responded: “I object to the entry of a mistrial on the Voluntary Manslaughter charge, and objectto the implication that Ms. Davidson can be retried on that count.”

In the following months, the government moved for entry of a mistrial on the court docket, nunc pro tunc to June 21, 2011. It also sought a superseding indictment from the grand jury, which, on July 21, 2011, again charged appellant with voluntary manslaughter. In the superseding indictment, the government added a new count of involuntary manslaughter, arising from the death of Kiela Ryan. After hearing from the parties, the court issued a comprehensive opinion on December 12, 2011, granting the government's motion for entry of a mistrial on the docket and denying appellant's motion to dismiss the superseding indictment.

The trial court “conclude[d] from the entire record that the defense deliberately and for tactical reasons stood silent, calculating that the government, or the court, or both, were failing to make a record that would withstand a double jeopardy challenge to retrial on the manslaughter charge.” Under all the circumstances, “the court conclude[d] defendant consented to a mistrial on the charge of voluntary manslaughter. Double jeopardy therefore does not bar retrial on that charge.”

II. Voluntary Manslaughter

A. Rule 26.3

At the outset, we recognize that the trial court failed to abide by the provisions of Super. Ct.Crim. R. 26.3:

Before ordering a mistrial, the Court shall provide an opportunity for the government and for each defendant to comment on the propriety of the order, including whether each party consents or objects to a mistrial, and to suggest any alternatives.

The Superior Court rule is based on Fed.R.Crim.P. 26.3, which was “designed to reduce the possibility of an erroneously ordered mistrial which could produce adverse and irretrievable consequences.” Fed.R.Crim.P. 26.3 advisory committee's note. “The Rule [wa]s not designed to change the substantive law governing mistrials.” Id. However, “Rule 26.3 recalls to trial judges the critical importance of consultation with counsel[,]” United States v. Berroa, 374 F.3d 1053, 1058 (11th Cir.2004), and that the power to declare a mistrial “ought to be used with the greatest caution.” United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L.Ed. 165 (1824); see United States v. Sloan, 36 F.3d 386, 394 (4th Cir.1994) (“[T]he need for careful consideration of alternatives to mistrial, and the hard lesson of retrials barred by double jeopardy when there was no such consideration, was one of the factors that led to the promulgation of Fed.R.Crim.P. 26.3[.]”).

There are a variety of circumstances in which a mistrial may be contemplated. “One end of the spectrum, which requires the strictest scrutiny, is the situation where the prosecutor has provoked a mistrial for a tactical advantage.” Coleman v. United States, 449 A.2d 327, 329 (D.C.1982) (citing Arizona v. Washington, 434 U.S. 497, 507–10, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). “At the other extreme where there is a dead-locked jury or an issue of possible juror bias, the court's decision should be afforded the greatest deference.” Id. In the context of an apparently deadlocked jury, consulting with counsel assists the court in protecting the defendant's “valued right to have his trial completed by a particular tribunal.” Carter v. United States, 497 A.2d 438, 441 (D.C.1985) (quoting Washington, 434 U.S. at 503 & n. 11, 98 S.Ct. 824);see Berroa, 374 F.3d at 1059 (“The trial judge did not hear from the parties prior to declaring a mistrial. We consider this failure significant, given the mandate of Rule 26.3, and it strongly suggests that the trial judge did not exercise sound discretion.”).

Shortly after receiving the jury's verdict, the trial judge thanked the jurors for their service and excused them from the courtroom. The court did not solicit the views of government counsel or defense counsel on the propriety of declaring a mistrial before the jury left, and neither party suggested any possible alternatives to a mistrial. Indeed, the word “mistrial” was not spoken by the court or by counsel. Cf. United States v. Wecht, 541 F.3d 493, 499–501 (3d Cir.2008) (outlining “the procedures that district courts should follow prior to declaring a mistrial based on a deadlocked jury”).

This is not a situation where it would have been pointless to discuss available alternatives. Based on the jury's note and statements in open court, and the fact that a “reasonable efforts” instruction had been given, it was reasonable for the trial court to conclude that the jury was genuinely deadlocked, and should therefore be excused. See Epperson v. United States, 495 A.2d 1170, 1172 (D.C.1985) (discussing considerations in determining whether there is a “hung jury”). But the court might also have sent the jury back for further deliberations on the voluntary manslaughter count. See Jackson v. United States, 683 A.2d 1379, 1384 (D.C.1996). Under Rule 26.3, these alternatives should have been evaluated with the input of counsel. Had this occurred, we would have a better record of the considerations which informed the trial court's decision.

Nevertheless, “[w]e agree that a violation of Rule 26.3 does not always mean that a mistrial was declared improperly as a matter of constitutional law, and accordingly hold that the remedy for a violation of Rule 26.3 is not automatically the dismissal of the indictment.” Wecht, 541 F.3d at 504. Without question, “the more prudent course would have been to consult with counsel.” Fuentes v. Commonwealth, 448 Mass. 1017, 863 N.E.2d 43, 46 (2007) (trial court did not abuse its discretion by dismissing a hung jury and declaring a mistrial without providing counsel an opportunity to be heard). But, as a constitutional matter, the...