Routh v. United States, 82-1181.

• Decision Date: 02 October 1984
• Docket Number: No. 82-1181.,82-1181.
• Citation: 483 A.2d 638
• Parties: Lawrence ROUTH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

483 A.2d 638

Lawrence ROUTH, Appellant, v. UNITED STATES, Appellee.

No. 82-1181.

District of Columbia Court of Appeals.

Argued November 8, 1983.

Decided October 2, 1984.

Melvin M. Dildine, Washington, D.C., appointed by the court, for appellant.

John F. Stevens, 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, Michael W. Farrell, Judith Hetherton, and Robert F. O'Neill, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before BELSON, Associate Judge, and PAIR and KERN,^* Associate Judges, Retired.

BELSON, Associate Judge:

The question on this appeal is whether double jeopardy prohibits the retrial of appellant, whose first trial was declared a mistrial when a government witness became unavailable because of illness. We hold that under the circumstances retrial is prohibited, and accordingly reverse the trial court's denial of appellant's motion to dismiss the indictment.

Appellant was charged with assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1981 & Supp.1984), carrying a pistol without a license, id. § 22-3204, and destroying property, id. § 22-403, in connection with the shooting on February 20, 1981, of Thomas Massey. The case came on for trial on May 4, 1982, a jury was sworn, and trial began.

In his opening statement the prosecutor told the jury that the evidence would show that during a fight on February 19, 1981, Massey had struck appellant several times with a pipe. In revenge, the prosecutor said, appellant came up to Massey the next morning as Massey was warming up his car and shot him at point-blank range. Massey, who survived the attack, would be the only witness who was present at the shooting. There would be other witnesses, the prosecutor said, including a police crime scene technician who would introduce photographs of Massey's car showing that a window was blown out and showing a rip in the headrest.

Defense counsel, in his opening statement, specifically disclaimed reliance on a self-defense theory. Rather, he said, "Our defense is my client didn't do it." The defense would present a number of witnesses who would testify that appellant was at home at the time the shooting occurred, he added. Nowhere in his statement did defense counsel dispute that Massey had been shot.

By the time opening statements were completed, only a short time remained in the trial day for the presentation of testimony. The prosecutor said that he could have put on a crime scene search officer, who would have been "a very short witness," but that the officer had had to leave. Rather than begin the testimony of the complaining witness, Massey, the trial court adjourned the proceedings for the day.

The next morning the prosecutor alerted the court and defense counsel that the crime scene technician had been recently diagnosed as having epilepsy, and that the medication he was taking for his condition might affect his thinking and his speech. He said that he did not intend to bring this out before the jury unless it became obvious the officer was having difficulty.

The government then presented complainant Massey as its first witness. Massey testified that he had had casual contact with appellant at his government job for 7 or 8 years. He described the fight mentioned in the prosecutor's opening statement, contending that appellant had punched him several times, and that only then had he struck appellant with a pipe. The pipe for the previous 2 or 3 years had been in the government vehicle that Massey drove; Massey did not know what it was doing there, he said.

The next morning, Massey testified, as he was warming up his car he saw a shadow and turned to see who it was. He saw appellant, who walked up to the car from the side and took a gun out of his pocket. According to Massey, appellant said, "I told you it wasn't over with," and began firing. Massey tried to duck the shots, but was hit. He remembered hearing 4 or 5 shots, he said.

Without defense objection, Massey then removed his upper garments and showed the jury 5 or 6 places where bullets had either entered or exited his body. Massey also identified a shirt and jacket he had been wearing that morning, and pointed out the holes caused by the bullets.

Massey also identified two photographs showing the damage to his car: the driver's window had been shot out and there was a scratch mark on the driver's headrest. The car had been undamaged before the shooting, Massey said. Finally, Massey affirmed that he was sure the man who shot him was appellant.

On cross-examination, Massey admitted that he had previously been convicted of carrying a dangerous weapon — a pipe — that he had put in his own car. He also admitted that he had been terminated from his government job but said that the matter was on appeal. Defense counsel then impeached Massey with a prior statement he had given in the administrative termination proceeding concerning whether he saw who shot him. The prosecutor protested vociferously that the impeachment was improper because the statement was consistent with what Massey had said on direct.

While this matter was being discussed at the bench, defense counsel's investigator came in with a pipe, which defense counsel then carried through the courtroom in view of the jury. The prosecutor objected, but out of the jury's presence Massey identified it as the pipe with which he had hit appellant. At that point the proceedings were recessed for lunch.

The trial was never resumed, however. Immediately after lunch the prosecutor reported that the crime scene technician had been placed on leave under doctor's orders. The doctor had explicitly forbidden the technician to testify in court. Moreover, the doctor had indicated that it would be months before he would be able to testify.

When defense counsel declined to stipulate to the admission of photographs, bullets and shell casings that the technician would have introduced, and to the location at which the bullets and casings were found, the prosecutor moved for a mistrial. The prosecutor maintained that there was no other witness or witnesses through whom this "essential evidence" could be introduced.

Defense counsel "strenuously" objected to the granting of a mistrial. He argued that the photographs could probably be admitted through other witnesses and that the location of the shell casings and bullets was irrelevant since the defendant was not contesting that a shooting had occurred.

After listening to the parties' arguments, the court declared,

Gentlemen, I think under all these circumstances, in order to be as fair as possible to every side in this case, I'm going to grant the government's request for a mistrial. . . . [I]f it appears after a matter of, say, several months, that this witness isn't going to be any better able to supply this information, then I think we're going to have to consider throwing the case out.

At the prosecutor's request, the trial judge added that he was granting the mistrial "[for manifest necessity." However, the trial judge did not state why he concluded that the technician's testimony was essential to the government's case.

Appellant subsequently filed a motion to dismiss the indictment, arguing, as he had at trial, that there was no manifest necessity for declaring a mistrial because the crime scene technician was not essential to the government's case. The trial court denied the motion without hearing on the ground that appellant had not set forth any new reasons for opposing the mistrial. Appellant then noted this interlocutory appeal.¹

The general principles that guide our decision are well-established and may be summarized briefly. The Fifth Amendment prohibits an accused from being "twice put in jeopardy of life or limb" for the same offense. "The underlying idea," the Supreme Court has said,

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957) (quoted in Arizona v. Washington, 434 U.S. 497, 504 n. 13, 98 S.Ct. 824, 829 n. 13, 54 L.Ed.2d 717 (1978)). As a general rule, therefore, "the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington, supra, 434 U.S. at 505, 98 S.Ct. at 830.

Once the jury is selected and sworn, jeopardy "attaches." Illinois v. Somerville, 410 U.S. 458, 466-67, 93 S.Ct. 1066, 1071-72, 35 L.Ed.2d 425 (1973); Coleman v. United States, 449 A.2d 327, 328 (D.C.1982). At that point, a defendant has a "valued right to have his trial completed by a particular tribunal." Arizona v. Washington, supra, 434 U.S. at 503 & n. 11, 98 S.Ct. at 829 & n. 11; Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); Coleman, supra, 449 A.2d at 328. That right "is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Arizona v. Washington, supra, 434 U.S. at 505, 98 S.Ct. at 830.² However, in view of the importance of the right and the fact that it is frustrated by any mistrial, the government bears the burden of demonstrating "manifest necessity" for any mistrial declared over the objection of the defendant. Id. at 505, 98 S.Ct. at 830. Absolute necessity is not required, but a "high degree" of necessity must be shown, sufficient to override the defendant's interest in having his fate determined by the jury. Id. at 506, 98 S.Ct. at 830, and Illinois v. Somerville, supra, 410 U.S. at 471, 93 S.Ct. at 1073.

Thus, whether appellant may be retried depends on...