This case is before us on a Petition for Writ of Prohibition filed by Armando Quiñones, defendant, after the declaration of a mistrial on the motion of the state in the midst of trial and over defendant's objection. Defendant challenges the trial court's finding of a manifest necessity for the mistrial and now seeks to prohibit retrial on double jeopardy grounds. For the reasons which follow we deny the petition.
The facts of the underlying case are irrelevant to our consideration, we mention only that the defendant was charged by information with aggravated battery for the very serious slashing of the alleged victim with a knife. The defendant claimed that he acted in self-defense.
After several days of trial, the state moved for a mistrial arguing two grounds. First, defense counsel had repeatedly violated the court's pre-trial order in limine forbidding the defense from telling the jury that the alleged victim was incarcerated and otherwise unavailable.
(Emphasis added). The record before us contains ample evidence to support the trial judge's factual conclusions, and to support his finding of a manifest necessity for the declaration of a mistrial over the defendant's objection.
During the course of what should have been a simple case, defense counsel achieved unprecedented levels of attorney misconduct. Indeed, it is arguable that his intent was not to try the case at all but, rather, to sabotage it. Counsel's misconduct is best addressed as presented by the state in its motion for mistrial: first, repeated disobedience of the trial court's orders, and second, the suppression of physical evidence. His misbehavior unquestionably had a significant impact on the jury.
Defense counsel's disregard for the court's orders was not only unethical but contumacious. During the course of the trial, defense counsel directly and repeatedly ignored the court's ruling that no mention was to be made of the fact that the victim was incarcerated and otherwise
Along the same line, on more than one occasion, the judge warned counsel to lower the volume of his voice while arguing matters at side bar. Counsel again refused to obey a direct order from the court. At one point, the bailiff, who was seated at the rear of the courtroom by the entrance, felt compelled to approach the bench and warn the judge that he could hear defense counsel's side bar argument from the back of the room. On another occasion, the bailiff alerted the court and counsel that he had been approached by jurors who told him that they could hear the arguments being made in the courtroom when they were in the jury room. We are convinced by the record that defense counsel was purposely raising his voice so as to communicate otherwise impermissible matters to the jury.
Although not at the center of our analysis on the issue presented, counsel's shameful disrespect for the trial court did not end at ignoring evidentiary rulings. He continuously argued with the court well after the court had heard argument and ruled. On more than one occasion counsel went so far as to tell the judge that his rulings were "wrong" and "unfair," gratuitous comments which did not advance legal arguments and could only have been intended to embarrass the court. At one point, counsel told the court that the trial was a "mockery" and "not a real trial." On another occasion he referred to the state's witnesses as "clowns" and moved to dismiss the case as "a joke." Additionally, many arguments were laced with sarcasm clearly intended to mock the trial judge's rulings and instructions.
During trial, although defense counsel was repeatedly ordered not to interrupt the prosecutors while they were addressing the court, he repeatedly interrupted them as well as the judge himself. He was told by the court that he was being disrespectful to the prosecutors and was told to stop that behavior, he ignored this order as well. At one point, the judge reprimanded him for referring to one of the prosecutors as "this lady," and told him to address her by name. Counsel refused, saying that he could not "bring [him]self' to do so.
As the trial court observed, defense counsel was grossly disrespectful to opposing counsel. He repeatedly interrupted their arguments, on one occasion by laughing at them as they were trying to argue their position to the court.
The state's second argument in support of their motion for mistrial was defense counsel's suppression of critical evidence. Apparently determined to violate as many ethical rules as possible, during the direct examination of his client, defense counsel reached into his pocket and produced a knife which his client identified as the knife he used to defend himself when he
In Thomason v. State, 620 So.2d 1234, 1237 (Fla.1993), the Florida Supreme Court articulated the following general principles:
(Emphasis added) (Citations omitted). In Thomason, the trial court declared a mistrial sua sponte, over the objections of the defendant and the state, believing that defense counsel was too ill to proceed with the trial. The Supreme Court concluded that the judge had failed to consider available alternatives, in that case the possibility of granting a brief continuance or proceeding with the trial and monitoring the performance of defense counsel among others, and consequently retrial was barred. See id. at 1239-40.
Defendant relies on Thomason and argues that the trial judge in the present case failed to consider alternatives to the declaration of a mistrial. We disagree. In reaching our decision we have looked at the trial transcript in its entirety and not just the single page of the transcript where the ruling appears. The trial judge had previously availed himself of the only alternative available, a cautionary instruction to the jury. Although we presume that juries will obey such instructions there comes a time where the improprieties become so numerous that such a presumption becomes untenable. See United States v. Spears, 89 F.Supp.2d 891, 896 (W.D.Mich.2000)(Under circumstances similar to those of the present case, the Court stated: "[D]efense counsel's misconduct consisted of much more than a single arguably improper question. [Counsel's] misconduct ... was varied in nature and pervaded some seven days of trial. The potential juror bias arising from the cumulative effects of [counsel's] misconduct was, therefore, not so easily isolated and remedied through a simple corrective instruction."). A careful reading of this record demonstrates that the trial judge made every effort to avoid the declaration of a mistrial. Aside from the cautionary instructions he gave, the judge demonstrated a level of patience which far exceeds that which is expected of judicial officers. He granted the state's motion for mistrial only after realizing that counsel's reprehensible tactics had completely undermined the fairness of the trial.
A case which we find to be more akin to the present one is Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In Washington, the defendant was convicted of murder in 1971. In 1973 the conviction was reversed because the state withheld exculpatory evidence. The case was re-tried in 1975. During opening statement defense counsel told the jury that the case had been previously tried and
After the opening statement, the prosecutor moved for a mistrial which the trial judge ultimately granted. See id., 98 S.Ct. at 828. When the Arizona Supreme Court denied review, defendant sought and obtained habeas corpus relief in the Federal District Court. The Ninth Circuit Court of Appeal affirmed.
In discussing the meaning of the words "manifest necessity" the United States Supreme Court stated:
Id., 98 S.Ct. at 832 (footnotes omitted). As pertinent to our analysis the Court went on to say:
Id., 98 S.Ct. at 833-34 (emphasis added)(footnotes and citations omitted). See also United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Jackson v. State, 226 Ga.App. 256, 485 S.E.2d 832 (1997); People v. Barfield, 288 Ill.App.3d 578, 223 Ill.Dec. 855, 680 N.E.2d 805 (1997); State v. Dragoo, 1996 WL 251831 (Neb.Ct.App.1996); State v. Levison, 1 Neb.App. 1051, 510 N.W.2d 495 (1993); City of Broadview Heights v. Baron, 2000 WL 1060524 (Ohio Ct.App.2000); Commonwealth v. Leister, 712 A.2d 332 (Pa.Super.Ct.1998); State v. Smith, 871 S.W.2d 667 (Tenn.1994); Torres v. State, 614 S.W.2d 436 (Tex.Crim.App.1981). Like the cases cited above, this case presents the very difficult situation where the misconduct of the defendant's attorney is the catalyst for the manifest necessity to declare a mistrial. Whereas the system contains safeguards to protect the criminal defendant from a prosecutor's misconduct, to-wit: a mistrial at defendant's request, and, if necessary the attachment of double jeopardy if the misconduct is intended to goad the defendant into moving for the mistrial in order to gain an advantage for the prosecution, there is no concomitant
In the present case, the trial judge saw the jurors' reactions when defense counsel argued what had been forbidden pre-trial and he was in the best position to perceive the impact that defense counsel's constant misconduct had on the jury. He was also in the best position to evaluate what impact the knife which counsel had, at best, unethically, and, at worst, illegally suppressed and then improperly displayed in open court and the defendant's testimony thereon had on the jury.
Although he was unable to present any case law to support his position, defense counsel believed and strenuously, repeatedly and very loudly argued that the state was legally and ethically obligated to call the alleged victim as a witness during its case-in-chief. The trial judge correctly ruled that he could not tell the state how to try its case but that he would entertain appropriate motions at the conclusion of the state's case.
(Emphasis added). Counsel admitted that he had been in possession of the knife "from day one," and for over 18 months. The overwhelming authority in the nation concludes that an attorney may not accept evidence of a crime unless he or she makes the same available to the prosecutor or the investigating law enforcement agency. See Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974); see also Clutchette v. Rushen, 770 F.2d 1469 (9th Cir. 1985); In re Ryder, 263 F.Supp. 360 (E.D.Va.), affirmed, 381 F.2d 713 (4th Cir. 1967); Morrell v. State, 575 P.2d 1200 (Alaska 1978); Hitch v. Pima County Super. Ct., 146 Ariz. 588, 708 P.2d 72 (1985); People v. Lee, 3 Cal.App.3d 514, 83 Cal.Rptr. 715 (1970); People v. Swearingen, 649 P.2d 1102 (Colo.1982); People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1983); Commonwealth v. Stenhach, 356 Pa.Super. 5, 514 A.2d 114 (1986); Sanford v. State, 21 S.W.3d 337 (Tex.App.2000); State v. Olwell, 64 Wn.2d 828, 394 P.2d 681 (1964); see generally, Jane M. Graffeo, Note, Ethics, Law and Loyalty: The Attorney's Duty to Turn Over Incriminating Physical Evidence, 32 Stan. L.Rev. 977 (1980).
Whether or not the concealment of the weapon used in this alleged crime was itself a crime we leave to the appropriate authority. As concerns counsel's professional behavior, however, we conclude that failing to reveal the existence of the knife and his intent to introduce it into evidence raises a substantial likelihood that he violated the provisions of Rule 4-3.4(a) and (c) of the Rules of Professional Conduct, Rules Regulating The Florida Bar.
Canon 3D(2) of the Code of Judicial Conduct requires that "a judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating the Florida Bar shall take appropriate action." We conclude that the conduct of attorney Alex Michaels in this case raises a substantial likelihood of numerous violations of the above mentioned rules and therefore refer him to the Florida Bar for disciplinary proceedings.