Douglas v. United States

Decision Date13 February 1985
Docket NumberNo. 82-1048.,82-1048.
PartiesBruce DOUGLAS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

W. Anthony Fitch, Public Defender Service, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the brief was filed, were on the brief, for appellant.

Bruce A. Peterson, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, Judith Hetherton, and Robert F. O'Neill, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, FERREN and BELSON, Associate Judges.

FERREN, Associate Judge:

Appellant challenges a trial court order of January 25, 1982, denying his pretrial motion to dismiss the indictment on grounds of double jeopardy. During the first trial before Judge Hannon in September 1981, appellant's retained counsel, Gerald Kane, received a letter from the Office of Bar Counsel informing Kane that appellant had filed a complaint against him and that Bar Counsel, accordingly, was opening an inquiry into Kane's conduct. Appellant had lodged his complaint with Bar Counsel several weeks before trial. It alleged that Kane had not made a sufficient effort to obtain a bond reduction; it was unrelated to Kane's trial preparation or performance. Both appellant and Kane unambiguously expressed a desire for the trial to continue with Kane as counsel. Judge Hannon acknowledged, after a hearing, that Kane's challenged pretrial conduct did not amount to ineffective assistance and did not compromise Kane's ability to represent appellant effectively at trial. The judge concluded, nonetheless, that Bar Counsel's inquiry in itself created an insurmountable conflict of interest between Kane and his client. Judge Hannon, therefore, declared a mistrial sua sponte.

Appellant contends that, because the trial court declared a mistrial without exploring ways to accommodate his expressed desire to continue with the trial, a second trial will violate his rights under the double jeopardy clause of the Fifth Amendment. We agree. That clause bars a second prosecution unless the defendant consents to the mistrial — which did not happen here — or the government is able to demonstrate a "manifest necessity" for stopping the first trial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). Although Bar Counsel's inquiry provided ample reason for the trial court to inquire into Kane's ability to provide appellant with effective assistance, it did not constitute an automatic basis for declaring a mistrial. Appellant apparently was willing to waive his constitutional right to effective assistance of counsel, i.e., to a lawyer unhindered by a conflict of interest. The trial court, therefore, was obliged to investigate this possibility — this less drastic alternative — before rejecting appellant's request to go forward with the trial. The court's obligation to explore a waiver was enhanced, moreover, by another constitutionally protected right at issue here: appellant's right to counsel of choice. Without consideration of the possible waiver, therefore, the trial court had no reasonable basis for concluding there was "manifest necessity" for a mistrial. Accordingly, appellant may not be prosecuted a second time; we have no alternative to vacating the challenged order and directing dismissal of the indictment.


Appellant was arrested on July 12, 1979, and detained in lieu of posting a $5,000 surety bond in connection with charges arising from two separate crimes, an armed assault and an armed robbery. A grand jury later returned a five count indictment charging appellant with one count of armed assault with intent to kill, D.C.Code §§ 22-501, — 3202 (1973); one count of armed assault with intent to rob, id. §§ 22-501, — 3202; one count of armed robbery, id. §§ 22-2901, -3202; one count of carrying a pistol without a license, id. § 22-3204; and one count of unauthorized use of a vehicle, id. § 22-2204 (Supp. V 1978).1

Soon after his arrest, appellant retained Gerald Kane, a member of the District of Columbia Bar. Kane first entered his appearance at a preliminary hearing on July 18, 1979, and one week later filed a bond review motion for appellant's release into third party custody. The trial court denied this motion and placed appellant in a Department of Corrections halfway house. On May 8, 1980, the court granted a second bond review motion filed by Kane and released appellant pending trial into the third party custody of his parents.

In September 1980, appellant failed to appear for a scheduled court date; the trial court issued a bench warrant for his arrest. Appellant was apprehended on March 16, 1982, and charged with violating provisions of the Bail Reform Act (BRA), D.C.Code § 23-1327 (1981). Although the court initially joined the BRA charge with appellant's earlier charges, the BRA charge was later severed and is not at issue in this appeal. Appellant's case was assigned to Judge Hannon, who imposed a $25,000 surety bond and scheduled trial for September 1981. Kane appeared on appellant's behalf at a number of proceedings related to the BRA charge and to the setting of bond, and continued to represent appellant on the charges contained in the original indictment.

Because appellant was unable to post bond, he remained incarcerated awaiting trial. During the spring and early summer of 1981, appellant sent a number of letters to Judge Hannon's chambers. In them, he offered an explanation for his failure to appear for his scheduled court date and requested a reduction of bond. While the first two letters did not mention appellant's attorney, each of three later letters contained some reference to appellant's belief that Kane was not exerting sufficient effort to obtain a bond reduction. At no point, however, did appellant indicate that he wanted Kane removed as his attorney or that he wanted the court to appoint new counsel. Kane did, in fact, file a motion to reduce bond on July 10, 1981. That motion was denied.

At a status hearing on July 13, 1981, Judge Scott, substituting for Judge Hannon, informed Kane of appellant's complaints about his failure to obtain a reduction of appellant's bond. Judge Scott then questioned appellant and ascertained that appellant wished to continue to trial with Kane as his attorney. Judge Scott concluded that there was no basis for finding ineffective assistance of counsel, and he permitted Kane to remain as appellant's attorney. Judge Scott, nonetheless, did indicate that he would refer appellant's complaints about Kane to the Office of Bar Counsel.

After the July 13 status hearing, and at Judge Scott's request, the Office of Bar Counsel contacted appellant, asking if he wished to file a complaint against Kane. Appellant filed a complaint, alleging principally that Kane had failed to make diligent efforts for pretrial release. Neither Kane nor the trial court was informed about this complaint before trial began.

The court reached appellant's case for trial on September 9, 1981. Before proceeding with jury selection, Judge Hannon raised the issue of appellant's dissatisfaction with Kane, as reflected in the letters to the court several months earlier. Although Judge Scott previously had questioned appellant about these letters, Judge Hannon decided to conduct a hearing, pursuant to this court's holdings in Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), and Farrell v. United States, 391 A.2d 755 (D.C.1978), to determine whether Kane's "pretrial representation was `within the range of competence demanded of attorneys in criminal cases.'" Farrell, 391 A.2d at 762 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). In response to a series of questions from the court, appellant indicated that he and Kane had discussed the case fully and that he wished to proceed to trial with Kane as his attorney. Judge Hannon, finding that Kane was prepared to render effective representation at trial, ordered that the trial go forward.

After a jury had been selected and sworn, both the government and defense presented opening statements. Kane's opening statement set forth the defense theory, arguing that one of the government's principal witnesses — appellant's former girl friend — had committed the crimes charged and was now attempting to frame appellant in order to exculpate herself. The government called as its first witness one of the two complainants, who testified that he had been the victim of an armed robbery. This witness did not make an in-court identification of appellant, and his testimony concerning two attempted out-of-court identification procedures reflected serious uncertainty as to the witness' ability to recognize his assailant. On cross-examination, Kane used several impeachment techniques to discredit the witness' testimony. Following this testimony, the court adjourned for the day.

On the morning of the second day of trial, Kane informed the court that he had just received a letter from the Office of Bar Counsel notifying him of appellant's complaint. The letter stated that Bar Counsel was opening an inquiry into Kane's conduct, that Kane had a right to counsel of his choice, and that Kane should submit within ten days a written response to appellant's grievances.

Appellant confirmed that he had filed a complaint with Bar Counsel several weeks before trial. He indicated, however, that he had understood Bar Counsel would not notify Kane of the complaint until after an investigation had been conducted, and that the existence of the complaint would not interfere with...

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