United States v. Sedgwick, 8125.

• Decision Date: 30 September 1975
• Docket Number: No. 8125.,8125.
• Citation: 345 A.2d 465
• Parties: UNITED STATES, Appellant, v. Alan Duane SEDGWICK, Appellee.
• Court: D.C. Court of Appeals

345 A.2d 465

UNITED STATES, Appellant, v. Alan Duane SEDGWICK, Appellee.

No. 8125.

District of Columbia Court of Appeals.

Argued January 16, 1975.

Decided September 30, 1975.

Stay Denied Dec. 15, 1975. See 96 S.Ct. 558.

Edward D. Ross, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Roger M. Adelman, and John E. Drury, III, Asst. U. S. Attys., were on the brief, for appellant.

Linda Huber and W. Gary Kohlman, Washington, D. C., for appellee.

Before REILLY, Chief Judge, and KERN and YEAGLEY, Associate Judges.

REILLY, Chief Judge:

This appeal by the government from a dismissal of an indictment¹ by a trial court in a case where it had previously declared a mistrial presents two substantial constitutional questions. The first is whether the court erred in holding that the prosecution deprived the accused of due process by its failure to disclose to the defense in advance of trial a certain police report (PD-252) under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The second is whether this question is moot, defense counsel contending that even had the trial court erred, it would be futile to reinstate the dismissed indictment because the double jeopardy clause would bar a second trial.

It would be academic to pass upon the merits of the government's appeal before deciding whether in this posture of the case a retrial is not precluded by the Fifth Amendment protection against being "twice put in jeopardy."

The defendant charged by the indictment here was picked up by the police some three weeks after they had received a report, of a burglary in a townhouse near DuPont Circle, in the course of which the burglar attempted to rape a young housewife and did stab her husband. According to the testimony at trial, a married couple, asleep in one apartment of this house, were awakened in the early hours of October 29, 1972 by a stranger, a young Negro male, who placed a knife at the wife's throat and demanded money. After discovering a few dollars hidden in a chest of drawers, the intruder forced the husband into the bedroom closet and tried to coerce the wife into sexual intercourse. As the husband broke out the closet to defend her, the burglar turned on him with a knife, stabbed him in the stomach and chest, and made a getaway. The victims gave a description of their assailant to the police after the husband was taken in an ambulance to a hospital for treatment of his wounds.

Although a detective from the sex squad, Edward L. Allen, canvassed the DuPont Circle neighborhood in an effort to learn the identity of the burglar, it was not until November 18th that an arrest was made. On that day, the husband, having been discharged from the hospital, saw an attendant in a parking lot a few blocks from his house whom he felt sure was the man who had broken into his apartment. He telephoned the police, who came and arrested the man — the defendant, Sedgwick. The following morning the defendant was interviewed at the precinct station, where he was confined, by Detective Allen and admitted that he was the person who had forced his way into the complainants' apartment.²

Before the government rested its case, Detective Allen was called to the stand to testify as to the circumstances in which the oral confession was made. Later in voir dire examination the witness referred to some reports he had placed in the jacket of the investigation file several days before the arrest. Apparently both trial counsel were unaware of certain of these reports, particularly a Form PD-252, dated October 31, 1972, which was then produced in court, examined by the judge, and made available for the first time to the defense. Defendant's counsel moved orally for dismissal on the ground that this report should have been given him prior to trial.

The officer was then questioned outside the presence of the jury at some length. He testified that he took a further statement from the female victim and also interviewed a number of possible informants as well as neighbors and several passers-by in the area. One of them — a stranger with whom he had talked the previous day — told him of hearing that a man known as "Duvall" had been boasting about committing the assault which the officer was investigating.

The text of this report (PD-252) was:

Respondent to 18th and S, N.W. Canvassed area spoke with subject who related that he had heard that subject known as Duvall N/M 20's 5'9" Dark who hangs around "Bimbo's" 1600 Block Conn. and the French "Underground" 20th and P N.W. Had been bragging that he had committed the assault in the 1900 Block of S St., N.W.

Responded to CCB.³ Checked Nickname file.

Several Duvall's in File.

Apparently finding nothing in the file he deemed helpful, Detective Allen followed up the stranger's tip by going to the two bars referred to in his report, but as none of their employees or customers could recall a "Duvall" or provide any corroboration, he concluded that this lead was fruitless, and pursued other avenues of investigation.

The trial court, after learning that another Assistant United States Attorney was aware of the Allen report, held that this document did constitute Brady material. Then, ascertaining that the defendant was not asking for a mistrial but insisting on his motion to dismiss, the court sua sponte granted a mistrial "in the interest of justice and as a matter of necessity."

Discharging the jury and reserving disposition on the dismissal motion, the court then directed both sides to utilize the contents of the report for further investigation. Subsequently on December 20, 1973 and January 15, 1974, the trial court heard testimony of a Public Defender investigator who had attempted to develop something tangible from the report, and further testimony of Detective Allen. Neither investigator had been successful in finding anything which would corroborate the tip or even the identity of the person who gave it. The court then dismissed the indictment on the theory that because of the passage of time, the failure of the government to turn over the asserted Brady material at arraignment 13 months earlier had prevented the defendant from ever being able to use it effectively.

It is from this dismissal that the government has appealed, saying that the trial court clearly misconstrued the Brady case, supra, and its progeny, by declaring a pretrial duty on the part of the prosecution to have released the police report which did not come to light until the trial. The defense argues that even though we should agree with the government on the Brady issue, we should not reverse and reinstate the indictment, as any new trial based on such indictment would be barred by the double jeopardy clause of the Fifth Amendment.⁴ The contention is that if the trial court's determination of the Brady question was incorrect, there was no "manifest necessity" for declaring a mistrial and consequently a retrial of the defendant is barred by this provision of the Constitution.

There is a certain plausibility to this argument which rests heavily upon some observations of the Supreme Court in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and a recent decision of this court, United States v. Bristol, D.C.App., 325 A.2d 183 (1974).

The question presented is a close one. The general rule is that jeopardy first attaches when, in a jury trial, the jury is impanelled and sworn or, in a nonjury case, when the first evidence is presented before a trial judge.⁵ See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). There, immediately after the jury had been selected and sworn and a recess taken, the government successfully moved when the court reconvened for the discharge of the jury the ground that the government's key was not present. The Supreme Court reversed the convictions in a later trial for the reasons that the second prosecution constituted double jeopardy inasmuch as the reason given did not justify in terms of "manifest necessity" a second trial.

In the Bristol case, we sustained a trial judge's action in granting a motion to dismiss on double jeopardy grounds because we were unable to discern the exact reason for the first trial judge's declaring a mistrial. In that instance the trial judge, after some rancorous interchanges with counsel, stated that he did so because he felt that one of the co-defendants was not receiving adequate representation, although it seemed apparent that this particular de counsel's aggressive cross-examination had severely undercut the prosecucation's case. This court concluded that the "declaration of mistrial was not based cretion' [citing United States v. Jorn, 400 U.S. 470 at 485, 91 S.Ct. 547, 27 L.Ed.2d (1971)] and cannot be justified on an accepted basis which permits a second trial." (Footnote omited.)⁶

Although the double jeopardy clause in the Fifth Amendment owes its origin to the common-law rule that a prior judgment of conviction or acquittal barred a new trial for the same offense, these cases are illustrative of how far the Supreme Court has gone over the years in granting a broader immunity from a second proseon cution than the original doctrine conwitness templated.⁷ Nevertheless not every trial which is terminated prior to verdict or final judgment prevents the government from subjecting the defendant to another trial on the same charges. Early in our history, the Supreme Court granted the government a retrial in a case where a mistrial had been declared after a jury deadlock. In that case, Mr. Justice Story laid down the historic guideline that the right to retry should be accorded after mistrial only where "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824) (emphasis supplied). Thus the Supreme Court at the time of Perez...