Nero v. District of Columbia, 06-CT-269.

• Decision Date: 29 November 2007
• Docket Number: No. 06-CT-269.,06-CT-269.
• Citation: 936 A.2d 310
• Parties: Jimmy NERO, Jr., Appellant v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

936 A.2d 310

Jimmy NERO, Jr., Appellant v. DISTRICT OF COLUMBIA, Appellee.

No. 06-CT-269.

District of Columbia Court of Appeals.

Argued November 6, 2007.

Decided November 29, 2007.

Kenneth W. Cowgill, appointed by the court, for appellant.

Stacy L. Anderson, Assistant Attorney General, with whom Linda Singer, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, was on the brief, for appellee.

Before NEWMAN, BELSON, and KING, Senior Judges.

NEWMAN, Senior Judge:

Appellant Jimmy Nero was charged by information with driving under the influence of drugs, in violation of D.C.Code § 50-2201.05(b)(1) (2001), and failing to obey the lawful order of a police officer, in violation of 18 DCMR § 2000.2 (2006). During cross-examination of Nero at his first trial, it was discovered that Nero was under the influence of Phencyclidine ("PCP"). After this discovery, trial counsel, over the objection of Nero, moved for a mistrial, which the trial court granted. Nero was represented by the same counsel at the retrial four days later; neither counsel nor Nero made any double jeopardy objections to the retrial. On appeal, Nero claims that his retrial violated the constitutional prohibition against double jeopardy since he voiced his opposition to his counsel's motion for a mistrial. We affirm.

I. Background

At approximately 5:00 p.m. on September 14, 2004, the United States Capitol Police directed traffic at the intersection of Washington and Independence Avenues, Southwest in the District of Columbia. Nero, while driving his vehicle, stopped at the intersection but failed to obey an officer's whistle and hand signals to proceed. After waiting approximately fifteen seconds for Nero to comply, the officer approached his vehicle and observed that Nero was dazed and incoherent, appearing to be impaired by alcohol or drugs. After the vehicle was moved to the side of the road, a second officer, trained in administering field sobriety tests, arrived at the scene. The second officer also observed that Nero appeared to be dazed, confused and incoherent. After administering three standardized field sobriety tests, the second officer concluded that Nero was clearly impaired and arrested him for driving under the influence. At the police station, Nero consented to a urinalysis, which showed that he was under the influence of PCP. Nero told an officer that he was "on the Holy Spirit."

At his first scheduled trial date, Nero's first trial counsel asked the court to permit him to withdraw from the case because of a difference of opinion. Nero then informed the court that "the Holy Spirit is in me and ... I was in the spirit when I was in the car that day." He further explained that he was on "living water" and that he could not "call God a drug." The trial court asked if there were concerns about Nero's competency, to which both counsel for the government and counsel for Nero said no. The court then appointed new counsel for Nero and continued the matter.

At a status hearing on June 7, 2005, Nero was removed from the courthouse because he was "irate" and the court ordered that he be monitored by the Pretrial Services Agency for drug use. On November 9, 2005, he was taken into custody in a courtroom and tested positive for PCP. The next day, the court ordered Nero held pending trial, set bond at $300, and ordered that he undergo a preliminary mental health screening.

On November 14, 2005, a clinical psychologist filed a report with the court opining that Nero was competent to stand trial. The trial court agreed, entered an order finding Nero competent to stand trial, and released him from custody on personal recognizance. That same day, defense counsel filed a motion asking the court to hold Nero in custody pending trial to ensure that he was not under the influence of drugs come trial. As Nero had already been released, the court denied the motion.

At trial on February 13, 2006, the government presented its case and rested. In the defense case-in-chief, Nero's counsel stated that he informed his client of his right not to testify, but Nero still wished to take the stand. On direct examination, Nero explained that at the time of the incident he "wasn't on drugs" but was "still with the Holy Spirit." On cross examination, Nero stated that PCP "is a living water, Holy Spirit, a fountain of living water." He said, "I am in the Spirit now as we're speaking...."

Government counsel asked to approach the bench to discuss Nero's competency. Hearing this, Nero interjected and stated that he had been coming to court for two years, before the court cut him off. During the bench conference, both counsel and the trial court expressed concerns as to whether Nero was presently under the influence of drugs. The court then ordered a recess, during which Nero was required to undergo a urinalysis conducted by Pretrial Services. Nero's urine tested positive for PCP. After some discussion between counsel and the court, Nero's counsel moved for a mistrial, which the trial court granted, explaining:

Here's a defendant who has a history of abuse with PCP. And at some time while this case was pending, someone asked the Court to detain him so that he would be drug free pending trial, but apparently, one of my colleagues refused to do that. He comes in today. He gets on the witness stand. His behavior is such which prompted the prosecutor and defense counsel both to request the Court to have him tested for drug usage. He's tested positive for PCP. We have no way of knowing the extent of, how extensive that is with respect to his ability to understand what transpired here this morning or his ability to testify on his own behalf. Certainly, his testimony seemed to be very unusual. That it would be that unusual if he weren't, didn't have PCP in his system, we have no way of knowing.... To go forward with the trial when the defendant has drugs in the system, the defense attorney feels that this has affected the ability to arrive at a just result in this matter, I don't see where we have any choice but to grant a mistrial.

Again, Nero expressed his opposition to the mistrial and scheduling a new trial date. He explained again that this case has lasted two years, that he lost a job because of all of his court dates, that he had another job interview scheduled, and that he had freedom of religion. The trial court ordered Nero to be taken into custody and be held pending a new trial. After considering how long the effects of PCP last, the court scheduled the trial for February 15, 2006.

At the second trial, the parties stipulated that Nero tested positive for PCP at the time of his arrest, and two Capitol Police Officers testified about their observations of Nero and the field sobriety tests they conducted. On direct examination, Nero again testified that he was under the influence of the "Holy Spirit" at the time of his arrest. The trial court found Nero guilty and sentenced him.

II. Analysis

Nero argues that his second trial violated his constitutional protection against double jeopardy. He asserts that this is a personal right, and claims that a trial court has a duty to inquire of a criminal defendant personally before declaring a mistrial. He alleges that he was competent at the first trial and that the trial court's conclusion that he was under the influence of drugs at trial was legally and factually erroneous. Lastly, Nero argues that his trial counsel's motion for a mistrial and failure to raise a double jeopardy claim at the second trial did not waive his double jeopardy rights since he verbally expressed his objection to the mistral before the trial court.

The Fifth Amendment's Double Jeopardy Clause¹ protects a defendant against multiple prosecutions or sentences for the same crime. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In a non-jury trial, jeopardy attaches as soon as the trial judge begins to hear evidence. Douglas v. United States, 488 A.2d 121, 130 (D.C. 1985). As the mistrial was declared during the defense case-in-chief, jeopardy had already attached in Nero's first trial.

However, this bar against multiple trials is not absolute. Courts have long held that a new trial is permitted if a trial judge declares a mistrial for "manifest necessity."² Johnson v. United States, 619 A.2d 1183, 1186 (D.C.1993) (citing Richardson v. United States, 468 U.S. 317, 323-26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)). Alternatively, a defendant waives his double jeopardy right and may be retried if he moves for a mistrial. "Dinitz and its progeny make clear that absent judicial or prosecutorial goading, a defendant's consent to a mistrial will act as a bar to double jeopardy claims." Lee-Thomas v. United States, 921 A.2d 773, 778 (D.C.2007) (citing Dinitz, supra, 424 U.S. at 610-11, 96 S.Ct. 1075); see United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Speaks v. United States, 617 A.2d 942, 954 (D.C.1992). It is clear that double jeopardy is not one of the constitutional rights which requires a knowing, voluntary, and intelligent waiver. Lee-Thomas, supra, 921 A.2d at 777-78 n. 6 (quoting Dinitz, supra, 424 U.S. at 609 n. 11, 96 S.Ct. 1075) (other citations and quotations omitted); Speaks, supra, 617 A.2d at 955. However, to be valid, the waiver has to be made by the "defendant." Although other courts have done so, we have not previously considered whether defense counsel can appropriately waive his client's double jeopardy rights over a defendant's objection.

The Supreme Court has examined the decision-making roles of defendants and their court-appointed counsel in criminal cases. In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the court reversed the Second Circuit's conclusion that a defendant has the...