Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
As Amended September 29, 1978.
Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-1246).
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
In this action, a petition for habeas corpus brought against the Superior Court of the District of Columbia, the District Court granted the petition and the government took a timely appeal. *fn1 The issuance of the writ was grounded on the Double Jeopardy Clause of the Constitution. *fn2 The order precludes the trial of petitioner-appellee for various crimes burglary, robbery, assault with intent to rape, assault with a dangerous weapon, and assault with intent to kill arising out of a break-in in the Dupont Circle area in 1972.
We were troubled by the issue of jurisdiction and called for memoranda on that point. We conclude that the District Court had jurisdiction to entertain the petition for habeas corpus since petitioner is not a person who has been convicted in the Superior Court. *fn3 However, we disagree with the District Court's judgment and accordingly reverse.
Petitioner was originally brought to trial in the Superior Court before Judge William Stewart. In the course of the trial, a Brady question arose which the judge felt cast a shadow on the proceedings. During the government's case in chief, Officer Edward L. Allen, while relating the circumstances surrounding petitioner's controverted confession, testified that during his investigation of the break-in he had received information that one "Duvall" had been overheard in two local bars claiming he committed the offenses. Officer Allen stated that he did not regard the tip as reliable, but nevertheless recorded the interview on a police department form PD-252. He also visited the two bars but could obtain no corroborating information. A check of the police department's nickname file revealed some 30 "Duvalls", and the matter was not pursued after petitioner's arrest and alleged confession.
The trial court examined the PD-252 and concluded that it should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The court Sua sponte granted a mistrial. If the defendant had asked for a mistrial, the court's ruling would not raise a double jeopardy issue. *fn4 Instead, defense counsel pressed the court for dismissal of the indictment. The defendant now contends that since he did not move for a mistrial notwithstanding the judge's indication that such a motion would be granted, and since he did not explicitly state that he acquiesced in the mistrial, he must be determined to have objected to the granting of the mistrial, thus entitling him to raise the double jeopardy issue.
We need not concern ourselves here with the issue that might arise where a judge acts sua sponte to grant a mistrial, in the absence of any motion by the defendant; this would raise the question whether the silence of the defendant falls short of acquiescence, and bars a new trial unless the mistrial was a matter of "manifest necessity." *fn5 The government stresses that in any event where, as here, the defendant has put a motion to the trial judge asking for relief (E. g., dismissal), he has an obligation to make his ultimate position clear. That is, if the defendant seeks only a dismissal, and does not want the judge to consider the possibility of granting the lesser relief of a mistrial even if the dismissal is denied, he must state that position explicitly.
In substance this was the position taken in this case by the District of Columbia Court of Appeals. One month after declaring a mistrial, the trial court heard testimony on both the defense and prosecution's unsuccessful attempts to follow up the "Duvall" lead. The trial court concluded that the conduct of the prosecution and the passage of time had deprived the defendant of the benefit of the purported Brady material. It therefore dismissed the indictment. The District of Columbia Court of Appeals reversed, holding that the government had not violated Brady and that a new trial was not barred by the Double Jeopardy Clause. United States v. Sedgwick, 345 A.2d 465 (D.C.App.1975), Cert. denied, 425 U.S. 966, 96 S. Ct. 1751, 48 L. Ed. 2d 210 (1976). It found the undisclosed information mere "street rumor" and not properly Brady material.
The Double Jeopardy Clause gives the defendant a "valued right to have his trial completed by a particular tribunal." *fn6 The defendant's right to receive a verdict is such that "(e)ven when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal.' " *fn7 Here the defendant did not express an interest in obtaining a verdict from the first jury. In fact defense counsel pressed for dismissal, arguing that the defendant's "right to a fair trial ha(d) been seriously undermined" by the Government's failure to disclose the purported Brady material. *fn8
We are instructed not to apply the Double Jeopardy Clause mechanically, but to look beyond the labels of trial motions and rulings to discern the actual intentions of the parties and trial court. *fn9 Such an approach in this case impels the conclusion that the defendant was not interested in obtaining a verdict from the first jury. Therefore we do not believe that permitting ...