Kahlil v. Commonwealth, Record No. 0705-07-4 (Va. App. 5/6/2008)

• Decision Date: 06 May 2008
• Docket Number: Record No. 0705-07-4.
• Court: Virginia Court of Appeals
• Parties: KARIM JEHAD KAHLIL v. COMMONWEALTH OF VIRGINIA

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KARIM JEHAD KAHLIL v. COMMONWEALTH OF VIRGINIA

Record No. 0705-07-4.

Court of Appeals of Virginia.

May 6, 2008.

Appeal from the Circuit Court of Arlington County, Benjamin N.A. Kendrick, Judge.

Harry A. Dennis, III, for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges McClanahan, Petty and Senior Judge Annunziata.

MEMORANDUM OPINION^*

JUDGE WILLIAM G. PETTY.

Karim Jehad Kahlil, appellant, argues that his conviction following a jury trial for robbery, in violation of Code § 18.2-58, should be reversed and dismissed because of a violation of his rights under the double jeopardy provision of the Fifth Amendment to the United States Constitution. Because we determine that Kahlil waived his double jeopardy rights, we do not address the merits of Kahlil's argument that the trial court lacked the requisite manifest necessity to declare a mistrial in his first trial and that his subsequent trial accordingly violated his Fifth Amendment right against double jeopardy.

I. BACKGROUND

On appeal, we review the facts in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to "`discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Kelly v. Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).

This case was originally set for a jury trial on May 22, 2006. Immediately prior to trial, Kahlil moved for a continuance due to the failure of one of his witnesses to appear.¹ After some discussion, the circuit court denied the motion, and jury selection commenced. After the jury had been selected and sworn, one of the jurors belatedly revealed to the circuit court that she would not be available for jury duty beyond that day. The following colloquy between the trial court and the parties ensued:

[Trial Court]: Have a seat, folks. Counsel, what do you want to do?

[Defense Attorney]: I believe the jury has been sworn in, Your Honor.

* * * * * * *

[Trial Court]: [W]e're in a difficult spot now because the jury has been sworn. Jeopardy has attached. And so we have a difficult problem . . . .

[The trial court admonished the juror for failing to inform the court that she was unavailable the next day.]

* * * * * * *

[Trial Court]: Counsel, any input?

[Defense Attorney]: I'm at a loss, Your Honor.

[Commonwealth]: Likewise. Your Honor, I think the Court would have to find that there is good cause in order to call off the proceedings at this point. And I would submit that the juror stating that she cannot be here, she has been excused and that staying here would be a hardship both on her personally as well as financially puts the jury composition in a very bad light. And I just don't think that it would be going forward for either party, it would be in the interests of justice.

* * * * * * *

[Trial Court]: [Kahlil] has a right to a fair trial, and the longer it's delayed, it's not good for him. It's not good for the system. It's not good for anybody. He has an absolute right to have this matter resolved by a fair and impartial jury, as does the Commonwealth, as does this community. . . . I'm finding a manifest injustice or a manifest reason to declare a mistrial.

[Defense Attorney]: Please note my exception, Your Honor.

[Trial Court]: Your exception is noted for the record. Now, what this means, we're going to have to start all over again. You're excused, [juror].

* * * * * * *

[Trial Court]: Now, let me ask [the parties] this. Do you want to start all over again with what's left of the members of this community that are left, or do you want to continue to another day? It's up to you two.

[Commonwealth]: I would be just as happy to proceed.

[Defense Attorney]: I think it's not appropriate at this point to start again with a pool that has already been selected and has strike members in it.

[Trial Court]: Well, you're given the opportunity. I want the record to reflect you're given the opportunity.

[Defense Attorney]: No, Your Honor, I do not wish to go forward with this jury pool.

After this conversation, the circuit court granted Kahlil's motion to continue, declared a mistrial based on its earlier finding of manifest necessity, and discharged the jury. After the jury was dismissed, the defense counsel asked to "make a record." The defense attorney stated as follows:

Thank you, Your Honor. Just for the record, the jury was sworn in. I did object to the allowing of [the juror] to be released.

I understand why the Court did it, but I do believe that her reasons were not sufficient for being released, as the Court made it abundantly clear that if anyone was not available for tomorrow, that they were to notify the Court.

Her failing to notify the Court was effectively a waiver of her inability to be here tomorrow. And as such, I believe that jeopardy has attached, so I wish to make that for the record.

In response to this objection, the circuit court emphasized, "The defendant was given an opportunity to select another jury and refused to indulge in that process." Kahlil was subsequently tried following the trial court's denial of his motion to dismiss the charge on double jeopardy grounds, and convicted of robbery. This appeal followed.

II. ANALYSIS

Standard Of Review

Whether a criminal defendant waives his Fifth Amendment right against double jeopardy is "not a question of historical fact [] but one which . . . requires application of constitutional principles to the facts as found." Brewer v. Williams, 430 U.S. 387, 404 (1977). Accordingly, we review the circuit court's factual determinations only for clear error; however, whether Kahlil's actions and statements constituted a waiver is a "`legal determination that we review de novo.'" Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002) (quoting United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)). To determine whether Kahlil consented to the mistrial in this case, and accordingly waived his double jeopardy rights, we must examine the totality of the circumstances that existed below. See United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973) (citing United States v. Gori, 282 F.2d 43, 46 (2d Cir. 1960)); see also United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (Whether a manifest necessity exists to declare a mistrial must be evaluated based on the totality of the circumstances in the trial court because "it is impossible to define all the circumstances which would render it proper to" discharge a jury.). Finally, in making this examination, we "indulge every reasonable presumption against" concluding that a criminal defendant has waived a fundamental constitutional right. Allen v. Commonwealth, 252 Va. 105, 111, 472 S.E.2d 277, 281 (1996) (citations omitted) (emphasis added). Applying this standard, we find that this record provides ample evidence that Kahlil consented to the mistrial and thereby waived his double jeopardy argument.

Consent To A Mistrial

In a jury trial, jeopardy attaches once the jury is sworn; at that point, the defendant is vested with a constitutional right to have his case decided by that specific jury. Crist v. Bretz, 437 U.S. 28, 36 (1978); King v. Commonwealth, 40 Va. App. 364, 372, 579 S.E.2d 634, 639 (2003).² That right is not, however, absolute. In some instances "a defendant's valued right to have his trial completed by a particular tribunal must . . . be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949). The tension between these opposing interests — the accused's right to have the charges against him adjudicated by his original jury, and the public's interest in having fair trials — has been reconciled by a long line of Supreme Court cases holding that a mistrial may be granted over the defendant's objection only when required by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505 (1978); Perez, 22 U.S. (9 Wheat.) at 580.³

The manifest necessity doctrine is not implicated, however, when a defendant requests or otherwise consents to the granting of a mistrial. The requirement for manifest necessity "operates . . . only when the trial court has declared a mistrial without the consent of the defendant. When the defendant has moved for a mistrial or consents to its declaration, the double jeopardy clause will not bar his retrial." United States v. Puleo, 817 F.2d 702, 705 (11th Cir.) (citing United States v. Scott, 437 U.S. 82, 93 (1978)), cert. denied, 484 U.S. 978 (1987). Thus, when a criminal defendant consents to a mistrial, he waives his right to challenge his subsequent retrial on double jeopardy grounds. Id. Not only "may [a criminal defendant] waive his" double jeopardy rights in the mistrial context, "[t]his waiver may be express or implied." Mack v. Commonwealth, 177 Va. 921, 929, 15 S.E.2d 62, 65 (1941); see also Puleo, 817 F.2d at 705 ("[W]here the trial judge expressed a clear intent to declare a mistrial and the defense counsel had an opportunity to object but did not" the appellant "consented to the mistrial" and noting, "[i]t has certainly never been the rule that consent need be express; indeed, consent may always be `implied from the totality of circumstances attendant on the declaration of a mistrial.'" (quoting Goldstein, 479 F.2d at 1067)).

Both our Supreme Court and several federal circuit courts have held on facts similar to those before us today that the failure to make "an express objection to the circuit court's declaration of a mistrial" is an important factor in determining whether an "implicit consent[]" to...