Commonwealth v. Brock

COMMONWEALTH OF VIRGINIA v. NATHANIEL LAMONT BROCK

Record No. 1438-19-2

COURT OF APPEALS OF VIRGINIA

FEBRUARY 18, 2020

UNPUBLISHED

Present: Chief Judge Decker, Judges O'Brien and AtLee

Argued by teleconference

MEMORANDUM OPINION^* BY CHIEF JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY

William E. Glover, Judge

Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Christopher M. Reyes (Spencer, Meyer & Koch, PLC, on brief), for appellee.

Nathaniel Lamont Brock (the defendant) was indicted for possession of a controlled substance with the intent to distribute, distribution of a controlled substance, and conspiracy to distribute a controlled substance in violation of Code §§ 18.2-248 and -256. The defendant filed a pretrial motion to dismiss the indictments, arguing that the prosecution of the charges would violate the constitutional prohibition against double jeopardy. After a hearing, the circuit court granted the motion and dismissed the charges on double jeopardy grounds. The Commonwealth appeals the dismissal pursuant to Code § 19.2-398, arguing that double jeopardy principles do not apply. After a thorough review of the record, arguments, and relevant law, we conclude that the circuit court erred because the defendant waived his double jeopardy objection. Consequently, we reverse thecircuit court's ruling dismissing the indictments and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND¹

This case stems from a purported cocaine sale made by the defendant to Darius Waugh on May 1, 2018. Scott Morgan acted as a confidential informant for the police and provided Waugh with transportation to meet the defendant. As a result of the meeting, the defendant was charged with possession of a controlled substance with the intent to distribute, distribution of a controlled substance, and conspiracy to distribute a controlled substance.

On the morning of the defendant's trial, the Commonwealth asked the circuit court to nolle prosequi the charges. The prosecutor explained that Waugh verbally agreed to plead guilty and was expected to testify against the defendant. However, he was incarcerated in Maryland on an unrelated charge and was not available to testify at the defendant's trial. The defendant objected. Defense counsel urged the circuit court "to consider taking it a step further" if it thought nolle prosequi was appropriate and instead dismiss the case with prejudice. The court denied both motions.

The case proceeded to trial, and a jury was selected and sworn.

Near the conclusion of the case-in-chief, the Commonwealth called Scott Morgan to testify. Morgan asked about immunity from prosecution based on his anticipated testimony. The judge sent the jury out of the courtroom and then asked Morgan if he had discussed with an attorney whether he should testify. He told the judge that he had not been advised by counsel about whether he should testify regarding the May 1, 2018 incident. The prosecutor relayed that Morgan had notreceived an offer of immunity. The judge told Morgan that the court could not give him immunity but he had a right to refuse to testify. Morgan indicated that he was willing to testify but was concerned that he might incur charges based on his testimony.

The judge sua sponte declared a mistrial because the "witness . . . ha[d] not been properly vetted with a lawyer." Immediately, the defendant's attorney said, "Thank you, sir." The court announced that it would reschedule the case in order to allow Morgan the opportunity to consult with legal counsel before testifying. Defense counsel stated that she "accept[ed] the [c]ourt's decision as to a mistrial." She complained, however, that the mistrial "le[d] right back" to the prosecutor's earlier motion to nolle prosequi. Defense counsel then argued: "This puts [the defendant in] a very precarious position. So instead of a mistrial, I'm asking this Court . . . to reconsider and dismiss the case entirely with prejudice because the jury has been called, witnesses have been called, so jeopardy has attached." The court denied the request and noted that the mistrial had nothing to do with the prosecutor's actions. The defense attorney and prosecutor then both participated in setting the date for retrial.

After a new trial date was set, the defendant filed a motion to dismiss the charges on double jeopardy grounds. On August 28, 2019, a different judge than the judge who presided over the original trial heard the motion. The Commonwealth, relying on Commonwealth v. Washington, 263 Va. 298 (2002), contended that the defendant had implicitly consented to the mistrial and thus waived any double jeopardy challenge.

The judge agreed with the defendant and granted his motion to dismiss the indictments. In so ruling, the judge concluded that the defendant had sufficiently objected to the mistrial.

II. ANALYSIS

The Commonwealth appeals the dismissal of this case as authorized by Code § 19.2-398(A)(1). It argues that the circuit court erred in holding that the defendant's constitutionalprotections from double jeopardy barred the trial because he consented to the mistrial and consequently waived such rights.

In the circuit court, the defendant carries the burden of "'substantiat[ing]' his allegation [of double jeopardy]." Roach v. Commonwealth, 51 Va. App. 741, 749 (2008) (second alteration in original) (quoting Cooper v. Commonwealth, 13 Va. App. 642, 644 (1992)). On appeal, the Commonwealth, as the appellant, bears the burden of showing that the circuit court's ruling constituted reversible error. See, e.g., Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017). An appellate court reviews de novo the legal question whether double jeopardy bars a subsequent prosecution. See Commonwealth v. Gregg, 295 Va. 293, 296 (2018). "This Court 'examine[s] the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter[s].'" Campbell v. Commonwealth, 69 Va. App. 217, 226 (2018) (alterations in original) (quoting Davis v. Commonwealth, 63 Va. App. 45, 52 (2014)). Finally, in making this examination, an appellate court "indulge[s] every reasonable presumption against" concluding that a criminal defendant has waived a fundamental constitutional right. Allen v. Commonwealth, 252 Va. 105, 111 (1996) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937)).

The Fifth Amendment protection against double jeopardy "provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.'"² Washington, 263 Va. at 302 (quoting U.S. Const. amend. V). "The underlying idea" is that the government "should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense[,] and ordeal . . . , as well as enhancing the possibility that even though innocent he may be found guilty." Id. at 303 (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).

The constitutional guarantee against double jeopardy includes a defendant's "right to have his trial completed by a particular tribunal." Id. Consequently, it also provides "the right . . . to have [a defendant's] trial completed before the first jury empaneled to try him." Id. (first alteration in original) (quoting Oregon v. Kennedy, 456 U.S. 667, 673 (1982)).

Generally, double jeopardy attaches in a criminal case when the jury is sworn. Kemph v. Commonwealth, 17 Va. App. 335, 340 (1993). However, some exceptions to this general rule exist, including when a defendant has waived double jeopardy protections. Washington, 263 Va. at 303. "This waiver may be expressed or implied." Id. (quoting Mack v. Commonwealth, 177 Va. 921, 930 (1941)). "The Supreme Court has made clear that a defendant may 'waive[] his double jeopardy rights' by failing to make 'an express objection to the circuit court's declaration of a mistrial.'" King v. Commonwealth, 40 Va. App. 364, 371 (2003) (quoting Washington, 263 Va. at 304-05).

Whether a criminal defendant has waived his Fifth Amendment right against double jeopardy is "not a question of historical fact[] but one which . . . requires 'application of constitutional principles'" to the facts. See Brewer v. Williams, 430 U.S. 387, 403 (1977) (quoting Brown v. Allen, 344 U.S. 443, 507 (1953) (separate opinion)) (discussing waiver of the constitutional right to counsel). Accordingly, whether a defendant's actions and statements constituted a waiver is a "legal determination that we review de novo," taking into account the facts in the record.³ See Blue v. Commonwealth, 49 Va. App. 704, 710 (2007) (quoting Commonwealth v. Redmond, 264 Va. 321, 327 (2002)) (addressing waiver of right to counsel). In determining whether a defendant has waived a constitutional right, an appellate court reviews "the record as a whole." See Watkins v. Commonwealth, 26 Va. App. 335, 344-45 (1998).

In Washington, 263 Va. at 300-01, the judge at the original trial declared a mistrial after the jury was sworn because not enough jurors remained in the venire from which to select an alternate. Although Washington's attorney did not expressly object to the mistrial, she asserted at the time that jeopardy had attached because the jurors had been sworn. Id. at 302. In addition, the circuit court stated that "[n]ow [defendant's counsel] is going to move to dismiss on double jeopardy grounds." Id. (second alteration in original); see also id. at 309-12 (Koontz, J., dissenting) (explaining the events establishing that Washington did not consent to the mistrial). At the subsequent trial, with a different judge presiding, Washington moved to dismiss the charges on double jeopardy grounds. Id. at 302. The court denied the motion. Id. The Supreme Court of Virginia held that the defendant "implicitly consented" to the mistrial because he had not expressly objected when the circuit court...