Lee-Thomas v. U.S.

• Decision Date: 19 April 2007
• Docket Number: No. 06-CO-1096.,No. 06-CO-1138.,No. 06-CO-1137,06-CO-1096.,06-CO-1137,06-CO-1138.
• Citation: 921 A.2d 773
• Parties: Gary J. LEE-THOMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

921 A.2d 773

Gary J. LEE-THOMAS, Appellant, v. UNITED STATES, Appellee.

No. 06-CO-1096.

No. 06-CO-1137

No. 06-CO-1138.

District of Columbia Court of Appeals.

Argued March 20, 2007.

Decided April 19, 2007.

Lance A. Wade, with whom David M. Zinn and Benjamin A. O'Neil, Washington, DC, were on the brief, for appellant.

Florence Pan, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and Wendy L. Short, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and RUIZ, Associate Judges, and STEADMAN, Senior Judge.

STEADMAN, Senior Judge:

This case comes before us as an expedited interlocutory appeal from the trial court's denial of appellant's motion to dismiss indictments against him on the basis of double jeopardy so as to bar a retrial. Appellant does not dispute that he consented to the mistrial in the initial proceeding, but contends that his consent was obtained in violation of his Sixth Amendment right to effective and conflict-free counsel and was thus invalid. Because appellant has failed to meet the requirement of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), to show that the alleged conflict adversely affected the advice of his counsel, we affirm the denial of the motion.

I.

Appellant was indicted by a grand jury on multiple counts¹ arising out of a dispute between appellant and the victim, Keion Davis, over a drug transaction in which Davis sold appellant fake cocaine. At trial, appellant admitted that he shot Davis, which left him a quadriplegic, but asserted that he acted in self-defense. There were no witnesses to the shooting other than Davis and appellant, who both testified.

After the close of evidence but before closing argument, the trial judge called the attorneys into his chambers to discuss his concerns about the performance of defense counsel, who had been retained. Later that afternoon when the parties reconvened in court, the judge again voiced his concerns to place them on the record.² He stated that based on his observation of the jurors' faces, he believed that a conviction was coming on all counts, and he wanted to prevent a post-conviction claim of ineffective assistance of counsel. The judge suggested the solution of declaring a mistrial, but stated that he would allow appellant to consider his options and provide the parties with an opportunity to discuss the matter. The judge solicited thoughts from appellant's family, who stated that they were all satisfied with defense counsel's performance. The defense counsel defended his decisions. The government also noted its disagreement with the trial judge's assessment and stated that it would be prepared and willing to defend against any collateral attack that appellant might later assert. After some further discussion, the judge stated that the case would be continued until the following day to allow appellant to consult with his counsel and his family, and that "if you all want to go forward with this trial, I stand ready to do that and we move forward as if nothing else has been occurring .. .."

The next day, appellant's defense counsel informed the court that he had spoken with appellant and his family, and that "[b]ased on the discussion yesterday, [appellant] has indicated to me that his family is in the process of retaining new counsel and he would like the court to afford him an opportunity to get new counsel and declare this matter as a mistrial." The court then asked appellant to tell him personally about his decision to retain new counsel. Appellant stated:

Well, Your Honor, I was thinking about the matters that you brought up the other day, about the cross-examination, and I did feel that was an issue. I also feel that, that there's more things that need to be brought out and maybe they can be brought out in the next trial.

The court inquired as to whether appellant had discussed the matter with his family, and appellant indicated that his family agreed with his decision. The court then declared a mistrial, explicitly indicating that it was doing so at the request of the defendant and "as such. . . double jeopardy will not attach in this case."

Two months later, appellant moved to dismiss the indictments on double jeopardy grounds. Appellant takes a pretrial appeal from the denial of that motion.

II.

We review de novo the denial of a motion to dismiss an indictment on double jeopardy grounds. Young v. United States, 745 A.2d 943, 945 (D.C.2000) (citing Green v. United States, 584 A.2d 599, 601 (D.C.1991)). Appellant acknowledges that when a mistrial is declared with the consent of the defendant or upon his motion, it is "ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." Carter v. United States, 497 A.2d 438, 441 n. 4 (D.C.1985) (citing Anderson v. United States, 481 A.2d 1299, 1300 (D.C.1984)); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). However, appellant argues that when the trial court raised questions about his attorney's deficient performance,³ it placed counsel in the conflicted position of having to evaluate his own performance in deciding whether to advise appellant to consent to a mistrial. Thus, he argues, his Sixth Amendment right to effective assistance of counsel was violated, his consent was invalid, and therefore a new trial is barred by double jeopardy.⁴ The government responds by asserting, among other arguments, that, even assuming that his counsel gave impermissibly conflicted advice, the sole remedy for any claim of ineffective assistance of counsel is a new trial, not dismissal of the indictment on double jeopardy grounds. We need not reach that issue because we conclude that appellant has not made the required showing under Cuyler to establish a violation of the Sixth Amendment.

In Cuyler, the Supreme Court established the principle that "in order to establish a violation of the Sixth Amendment [based on an attorney's conflict of interest], a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected [the] lawyer's performance." Veney v. United States, 738 A.2d 1185, 1192 (D.C. 1999) (quoting, with emphasis, Cuyler, 446 U.S. at 348, 100 S.Ct. 1708). In Veney, we took particular note of what we termed "the second prong of the Cuyler test; viz., whether an alleged conflict actually affected the attorney's performance." 738 A.2d at 1196.⁵ We observed that, for example, "a trial attorney's performance is not adversely affected where the best interest of the client `could have dictated precisely the course suggested' by the trial attorney." 738 A.2d at 1197 (quoting from Carey v. United States, 50 F.3d 1097, 1100 (1st Cir.1995)). Here, we are quite unable to determine whether the alleged conflict of interest adversely affected defense counsel's performance in advising appellant with respect to a possible mistrial. In his double jeopardy motion to the trial court, appellant did not make any specific allegations how defense counsel provided deficient advice or even set forth what in fact that advice was, nor did he request a hearing on this issue. His brief to us is also silent with respect to the actuality of defense counsel's performance with respect to the mistrial issue. Cf. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (stating that "it is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred.").

Appellant asks us to hold that irrespective of the actual advice given, the conflict based on allegations of ineffectiveness placed the attorney in the position of having to assess his own performance, and thus ipso facto rendered the attorney incapable of providing conflict-free advice. Although it is true that allegations of ineffective assistance can create a conflict between an attorney and his client, see, e.g., Douglas v. United States, 488 A.2d 121, 136-37 (D.C.1985), we have rejected the argument that complaints about an attorney's performance, without more, render an attorney impermissibly conflicted as a matter of law. See Malede v. United States, 767 A.2d 267, 271 (D.C.2001) (declining to hold that "the bare filing of the disciplinary complaint create[s] a conflict of interest necessitating [counsel's] discharge from the case."). Although we recognize that counsel's advice concerning a possible mistrial would necessarily have required him to weigh the risk of a conviction against the chance of succeeding on a post-conviction claim that he had rendered ineffective assistance (including the advice he rendered on the mistrial point), to accept appellant's argument would effectively eliminate the requirement under Cuyler of showing an adverse effect on the attorney's performance.

As a variant argument, appellant asserts that once his defense counsel had been shown to be constitutionally ineffective during the trial itself, counsel must be deemed ineffective for all purposes thereafter, and appellant was thus left in a position of effectively having no counsel at all. Assuming without deciding that the trial court made such a determination, we see no basis on the facts of this case for adopting a per se rule that an attorney's ineffectiveness at one stage of the case renders him deficient in all subsequent aspects of the representation. To prevail on a claim of ineffective assistance of counsel based on deficient performance, appellant must point to "specific errors of counsel" and the prejudicial effect that resulted. United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). The Supreme Court has stated that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it...