Lee-Thomas v. United States

921 A.2d 773, 2007 D.C. App. LEXIS 225, 2007 WL 1144795

• Court: District of Columbia Court of Appeals
• Decided: April 19, 2007
• Docket: 06-CO-1096, 06-CO-1137 and 06-CO-1138
• Status: Published

Opinions

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 “[biased 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 prosecuto-rial 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 im-permissibly 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 has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” Cronic, 466 U.S. at 658, 104 S.Ct. 2039 (emphasis added). This is not a ease of “complete denial of counsel” where the attorney’s failure was so complete that it amounted to constructive absence of counsel.⁶ Id. at 659, 104 S.Ct. 2039; Shields v. United States, 916 A.2d 903 (D.C.2007) (describing such circumstances as “exceptional”).

Finally, appellant contends that, in any event, the trial judge’s statements “goaded” him into consenting to a mistrial. This claim lacks merit, however, because goading requires an intent “to subvert the protections afforded by the Double Jeopardy Clause.” Fletcher v. United States, 569 A.2d 597, 598 (D.C.1990) (quoting Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (emphasis added)). There is no evidence of such intent here. Indeed, it is undisputed that the trial judge was solely attempting to protect appellant’s rights by voicing his concerns. Cf. Wright v. United States, 365 A.2d 365, 366 (D.C.1976) (retrial not barred by double jeopardy. where trial judge declared mistrial solely for the benefit of appellant to protect his right to effective assistance of counsel).

Our dissenting colleague is of the opinion that appellant did not “retain primary control over the course to be followed,” and that the judge’s forceful comments about the likelihood of a conviction rendered his choice in the matter nothing more than a “hollow shell.” However, these standards are drawn from cases addressing goading, which is wholly unsupported by the record in this case, as discussed supra. 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.⁷ 424 U.S. at 610-11, 96 S.Ct. 1075; Speaks, supra note 6, 617 A.2d at 954-55 (describing the circumstances where Double Jeopardy principles bar a retrial after a defendant has consented as “extraordinarily narrow” and limited to “ ‘those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.’ ” (quoting Oregon v. Kennedy, supra, 456 U.S. at 679, 102 S.Ct. 2083)); Coreas v. United States, 585 A.2d 1376, 1379 (D.C.1991) (“To avail himself of the Kennedy doctrine, [the defendant] must indisputably show that the defense was goaded by prosecutorial misconduct into requesting abandonment of the trial.”). See also Sundel v. Justices of Superior Court of Rhode Island, 728 F.2d 40, 42 (1st Cir.1984) (Breyer, J.).

Moreover, we do not think the record here would support the expanded exception argued by the dissent. Notwithstanding the trial judge’s initial strong criticisms of defense counsel’s performance and view of the impending verdict, he retreated from his original stance⁸ and made clear that the choice to continue rested with appellant. The trial judge unambiguously stated that “it’s up to the defense whether they want to go forward,” and his final statement on the subject before appellant made his decision was “if you all want to go forward with the trial, I stand ready to do that and we move forward as if nothing else has been occurring of the hind that we have [been discussing].” In this case, appellant may have been faced with two options that were both imperfect, but he still retained the ability to choose between them. The trial judge clearly stood willing to follow whichever option appellant chose, and under these circumstances, we cannot say that the defendant did not retain “primary control of the course to be followed.” Dinitz, 424 U.S. at 609, 96 S.Ct. 1075.

For the foregoing reasons, the order of the trial court rejecting appellant’s double jeopardy claim is

Affirmed.

1 . The major counts were assault with intent to kill while armed, D.C.Code §§ 22-401, - 4502, and mayhem while armed, D.C.Code §§ 22-406, -4502. In separate indictments, appellant was also charged with one count of escape from an institution, D.C.Code § 22-2601(a)(1), and one count of violating the Bail Reform Act, D.C.Code § 23-1327(a).

2 . The trial court’s concerns about counsel’s performance focused on the absence of pretrial motions, the submission of only two hand-written voir dire questions, the limited cross-examination of Dr. Johnson (the treating physician of the complaining witness), the perceived insufficiency of direct examination of appellant and his step-father, and a handwritten "theory of the case" instruction.

3 .The government notes in its brief:

As an initial matter the parties agree that the trial court erred in finding defense counsel ineffective while the trial was ongoing, instead of waiting until the trial’s conclusion. As this Court held in Johnson v. United States, 746 A.2d 349, 354 (D.C.2000), “once jeopardy attaches in a criminal trial, any subsequent allegation of ineffective assistance of counsel should usually be addressed in a post-trial motion or on appeal (or both), where the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] standard can be applied in its proper context.”... Although Johnson notes that a mid-trial finding of ineffectiveness might be appropriate where "it is so obvious that defendant has been denied his right to the effective assistance of counsel as to make post-conviction relief on that ground all but inevitable,” id. at 354 n. 7, the parties agree ... that that standard 'was not met here.

4 . Appellant premises his argument in part on the assumption that it was in defense counsel’s best interest to convince appellant to request a mistrial in order to avoid further inquiry into his performance at trial. We are not convinced that the record supports this assumption.

5 . In the later case of Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the Supreme Court clarified that the Cuyler standard "is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An ’actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.”

6 . We note appellant’s reliance on Vega v. United States, 709 A.2d 1168 (D.C.1998) for the proposition that he had a Sixth Amendment right to effective assistance of counsel at the time he made his decision to request a mistrial. While in Vega we questioned the ability of unrepresented defendants to intelligently evaluate their options when faced with the possibility of a mistrial, id. at 1172, that case presented the issue of whether the trial judge had properly found “manifest necessity” for a mistrial without regard to the defendant’s consent-an issue very different from the one presented here. We have consistently stated that consent to a mistrial does not "depend[ ] on a knowing, voluntary, and intelligent waiver of a constitutional right.” Speaks v. United States, 617 A.2d 942, 955 (D.C.1992) (quoting United States v. Dinitz, 424 U.S. 600, 609 n. 11, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).

7 . Again, we do not reach the question of whether a defendant is entitled to counsel at the time he reaches his decision to consent to a mistrial.

8 . After hearing from defense counsel, the government, and a member of appellant’s family, the trial judge stated: "Maybe you all’s views of what I have seen is different from what I have seen and so I can tell you that I stand ready to be swayed in the other direction and I thank you.”