Deangelo Foote v. UnitedStates, No. 11-CF-655 (decided February 5, 2015).
Players: Associate Judges Glickman and Thompson,
Senior Judge Ruiz. Per Curiam Opinion. Public Defender Service for Mr. Foote.
Trial Judge: Russell F. Canan
Facts: A jury convicted Mr. Foote of first
degree murder in the shooting death of Kevin Allen. Three witnesses claimed to see a struggle
involving Mr. Foote, the decedent, and several other men in the moments leading
up to the shooting, but only one eyewitness – Mr. Dorsey – testified that he actually saw the shooting,
claiming that Mr. Foote used a “Mac Ten” to kill Mr. Allen. There were serious reasons for a jury to
question Mr. Dorsey’s clam, as he had a motive to curry favor with the
government, likely had difficult seeing due to glaucoma in both eyes, and the
ballistics evidence contradicted his description of where the shooting occurred.
The course of the trial
changed, however, when firearms expert Robert Freese testified that only a Mac
10 or 11 could have fired the eight expended cartridges recovered on the scene. The government’s Rule 16 notice made no
mention of this important conclusion, which corroborated Mr. Dorsey’s
testimony. Defense counsel objected and
moved for a mistrial. The trial court
found that the government violated Rule 16 but denied the motion for a mistrial
because the prosecution did not act in “bad faith.” The judge proposed taking a
short break in the trial for the defense to secure an expert, or, in the
alternative, striking Freese’s testimony on that point. Defense counsel elected to strike Freese’s
testimony, and the trial court instructed the jury to disregard Freese’s
opinion that the Mac 10 fired the cartridges.
He permitted the jury to consider Freese’s testimony that the Mac 10 was
one of nine weapons that could have fired them.
Issue: Did the trial court abuse its discretion when it
denied defense counsel’s motion for a mistrial?
Held: No. The
trial judge properly weighed and considered the three factors that guide a
trial judge’s selection of a Rule 16 violation sanction. As to the first factor – “the reasons for the nondisclosure” – the Court rejected Appellant’s claim that the
trial court had to declare a mistrial because the prosecutor acted in “bad
faith,” noting that defense counsel
asserted otherwise at trial. The Court
also refused to overturn the trial court’s credibility finding.
As to the second factor
– “the impact of the non-disclosure on the trial” – the trial judge appreciated
the force of Freese’s testimony but proposed an instructional remedy that cured
that prejudice. The Court emphasized
that neither defense counsel nor appellant proffered a reason for the Court to find
the instruction ineffective.
As to the third factor –
“the impact of the particular sanction on the proper administration of justice
in general” – the trial court properly recognized that the government’s
witnesses were reluctant to appear, and that a mistrial might render it
impossible for the government to secure the witnesses’ testimony again.
Finally, the trial court
also found that defense counsel below did not make an adequate record in
support of a request for a mistrial, as she did not “convincingly argue why a
mistrial was necessary” and appeared to “agree that instructing the jury to
disregard the expert’s testimony” was satisfactory.
Of Note:
- The Court of Appeals holds defense counsel to an extremely high standard, faulting the defense for not thoroughly describing, as Appellant did on appeal, the numerous ways counsel might have proceeded differently had she been aware of the expert’s conclusions prior to trial (at 20 n.8.) The Court ignores that the prosecutor’s failure to adhere to its discovery obligations caught defense counsel completely off-guard, and that in this context, defense counsel’s less-than-perfect record is understandable. Further, defense counsel repeatedly requested that the trial court declare a mistrial, and told the court that if she had known about the expert’s testimony earlier she might have opened on it or cross-examined witnesses differently.
- The Court did not address appellant’s primarily claim: that regardless of whether the trial court considered each of the three Lee factors, as a matter of law, the trial court had to grant a mistrial. JB
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