Thomas v. Municipal Court of Antelope Valley Judicial Dist. of California

• Decision Date: 23 June 1989
• Docket Number: No. 88-5700,88-5700
• Parties: John THOMAS, Petitioner-Appellant, v. MUNICIPAL COURT OF the ANTELOPE VALLEY JUDICIAL DISTRICT OF CALIFORNIA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 285

878 F.2d 285

John THOMAS, Petitioner-Appellant, v. MUNICIPAL COURT OF the ANTELOPE VALLEY JUDICIAL DISTRICT OF

CALIFORNIA, Respondent-Appellee.

No. 88-5700.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 1, 1988.

Decided June 23, 1989.

Joseph W. Fairfield, Los Angeles, Cal., for petitioner-appellant.

Donald J. Kaplan and John W. Messer, Deputy Dist. Attys. of Los Angeles County, Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before HALL and LEAVY, Circuit Judges, and STRAND ^*, District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Dr. John Thomas, on appeal from the district court's denial of his petition for a writ of habeas corpus, claims that the double jeopardy clause of the fifth amendment bars his retrial in state court for the assault and battery of his estranged wife. Dr. Thomas contends that (1) the district court improperly determined his attorney had a conflict of interest, and (2) his retrial is barred because the trial judge declared a mistrial sua sponte, after jeopardy had attached, without manifest necessity.

I

In 1979, Wanda Thomas married Dr. Thomas although, at the time, she was still married to a Mr. Popa. Mrs. Thomas' marriage to Popa was ultimately dissolved in 1981. Joseph W. Fairfield represented Mrs. Thomas in her dissolution from Popa. In March 1985, Mrs. Thomas began dissolution proceedings against Dr. Thomas. Fairfield represented Dr. Thomas in those proceedings.

In August of 1985, the district attorney filed a criminal complaint charging Dr. Thomas with assault and battery of his wife, in violation of California Penal Code Secs. 245(a)(1) and 242 (West's 1988). Trial began in Antelope Valley Municipal Court on December 18, 1985; Fairfield also represented Dr. Thomas in those proceedings. A jury was empaneled and sworn. In his opening statement, Fairfield told the jury that Mrs. Thomas fabricated the assault charges in retaliation for her husband's alleging, in the course of their pending dissolution, that she was a bigamist who married him in bad faith and who was, therefore, not entitled to community assets of the marriage. The prosecutor interposed an objection. A conference in chambers followed in which Fairfield produced documents indicating that Mrs. Thomas' previous marriage was not dissolved when she married Dr. Thomas. Fairfield also revealed that he had represented Mrs. Thomas in the 1981 Popa dissolution proceedings.

The prosecutor moved that Fairfield be disqualified for a conflict of interest. Fairfield denied the existence of a conflict and said he would confine his evidence and cross-examination concerning the retaliation defense to the dates of Mrs. Thomas' divorces and marriages. Fairfield also said he would abandon the bigamy motive. However, the trial court agreed with the prosecution that Fairfield had a disabling conflict of interest. Because Dr. Thomas would not waive any conflict of interest or agree to a mistrial, the trial court declared a mistrial sua sponte and set the matter for retrial on January 28, 1986.

Dr. Thomas began efforts to prevent a retrial. Still represented by Fairfield, Dr. Thomas moved in municipal court for an order of acquittal on the grounds that retrial was barred by double jeopardy. After his motion was denied, Dr. Thomas sought a writ of prohibition in Superior Court of Los Angeles County which was also denied on February 6, 1986. The California Court of Appeal denied Thomas' petition for review of the Superior Court's decision on February 25, 1986.

On March 3, 1986, there were further proceedings in municipal court. Dr. Thomas told the trial court he wished to waive any conflict of interest. However, when the prosecutor attempted to obtain a waiver, it became apparent that Dr. Thomas was not making a knowing, informed, and intelligent waiver since he had not discussed the potential penalties he would face on the charges. All agreed that Dr. Thomas should talk with another lawyer before deciding whether to waive the conflict. Although Fairfield appeared for Dr. Thomas on March 3rd, the court made it clear that a conflict of interest existed which required that Dr. Thomas consult another attorney.

Dr. Thomas petitioned for a writ of prohibition in the California Supreme Court. The Supreme Court transferred the matter to the Court of Appeal, which denied the petition on April 3, 1986. Dr. Thomas then petitioned the California Supreme Court for a review of that denial. The Supreme Court granted review and transferred the matter back to the Court of Appeal with instructions to issue an alternative writ. On August 29, 1986, the Court of Appeal denied the petition and discharged the alternative writ. On September 23, 1986, the Court of Appeal denied a rehearing and on December 11, 1986, the California Supreme Court denied Dr. Thomas' petition for review.

Having thus exhausted his state court remedies, Dr. Thomas filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the United States District Court for the Central District of California on December 26, 1986. On September 23, 1987, the magistrate, to whom the district court referred Dr. Thomas' petition, filed proposed findings and Dr. Thomas filed objections. On October 7, 1987, the district court adopted the magistrate's findings, and entered a judgment denying the petition.

Dr. Thomas filed a timely notice of appeal and applied to the district court for a certificate of probable cause. The district court denied the application, certified for purposes of 28 U.S.C. Sec. 1915(a) that the appeal was not taken in good faith, and indicated that the application was frivolous and without merit. On March 2, 1988, this court granted Dr. Thomas' application for a certificate of probable cause.

II

A district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir.1986). ¹ In our review of the state court proceedings, we must give deference to state court findings of fact but not to state court determinations of mixed questions of law and fact or purely legal questions. Id.

In a jury trial, "jeopardy attaches when the jury is empaneled and sworn." Id. at 769 (citing Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978)); United States v. Jaramillo, 745 F.2d 1245, 1247 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2142, 85 L.Ed.2d 499 (1985). The double jeopardy clause of the fifth amendment protects a defendant's "valued right to have his trial completed by a particular tribunal." Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978); Jaramillo, 745 F.2d at 1247; United States v. Mitchell, 736 F.2d 1299, 1300 (9th Cir.1984). Balanced against the defendant's right, however, is the right of society to be protected against those guilty of crimes by enabling society to retry the accused under certain circumstances. Mitchell, 736 F.2d at 1300. In addressing these competing concerns, the rules that have emerged focus upon whether the defendant has consented to the mistrial. Where a mistrial has been declared over the defendant's objection after jeopardy has attached, however, reprosecution is not barred if the trial was terminated because of "manifest necessity." Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830; United States v. Jarvis, 792 F.2d 767, 769 (9th Cir.1986); Jaramillo, 745 F.2d at 1247; United States v. Williams, 717 F.2d 473, 475 (9th Cir.1983).

The words " 'manifest necessity' ... do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge." Williams, 717 F.2d at 475 (quoting Arizona v. Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31). The Supreme Court has recognized that there are "degrees of necessity" and the degree of deference to be given the trial judge's decision to declare a mistrial because of "manifest necessity" varies according to the circumstances of each case. Arizona v. Washington, 434 U.S. at 507-10, 98 S.Ct. at 830-33; Jarvis, 792 F.2d at 769; Jaramillo, 745 F.2d at 1248; Williams, 717 F.2d at 475.

Because there is no allegation in this case that the prosecution intentionally caused the mistrial, the trial court's decision to grant a mistrial should be accorded great deference and respect. See Jarvis 792 F.2d at 769. In according such deference, however, this court must satisfy itself that the trial court exercised sound discretion in declaring a mistrial. Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 834. If it can be shown that the trial judge acted irrationally or irresponsibly, his actions cannot be condoned. Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 834.

In the present case, jeopardy had already attached when Fairfield's disabling conflict of interest was discovered. We must decide whether this conflict of interest, which Thomas refused to waive, constituted "manifest necessity" for the involuntary discharge of Dr. Thomas' original proceedings. If so, a retrial of Dr. Thomas will not violate the double jeopardy clause. ²

A

We must first decide whether the courts below erred in finding that a conflict of interest existed. The sixth amendment guarantees each criminal defendant the right to assistance of counsel "unhindered by a conflict of interests." ³ United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.), aff'd on other grounds, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1987). Conflicts of interest can arise both in cases of simultaneous and successive representation. Fitzpatrick v. McCormick, 869 F.2d 1247, 1247, 1251 (9th Cir. March 7, 1989); Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988). The present case is clearly one of successive representation.

With successive representation cases, "conflicts of...