Turner v. United States

474 A.2d 1293, 1984 D.C. App. LEXIS 391

• Court: District of Columbia Court of Appeals
• Decided: May 8, 1984
• Docket: 82-498
• Status: Published

Opinions

YEAGLEY, Associate Judge,

Retired:

After reargument and reconsideration, we find no reason to modify the earlier opinion of the court.¹

However, in view of the government’s contention that this court’s decision in United States v. Smith, 337 A.2d 499 (D.C.1975) should be controlling here, we feel constrained to point to differences that make that decision inapposite to the issue before us.

Smith involved a multi-count indictment charging appellant with bribery, threats and obstruction of justice. The jury acquitted him on the bribery and threats counts, and hung on the obstruction of justice count which the government sought to retry.

This court understandably noted that a hung jury determines nothing, and that from the verdict one could not conclude what the jury necessarily must have determined. Accordingly, collateral estoppel could not apply.

In the case before us, however, the question is whether we should accord res judi-cata effect to an acquittal in the earlier trial on the identical charge the government now seeks to retry, to-wit: second degree murder. This question was not before the Smith court and we think the answer is patently clear. We know of no differences in the elements of proof required for conviction under the two counts of second degree murder and the government has been unable to cite us to any. At trial, the court and both counsel agreed that convictions on both counts could not stand, with which view we agree.

Accordingly, we hold that the jury’s acquittal on one count of second degree murder at the first trial bars a second trial on that charge arising out of the same transaction.

Reversed.

1 . Associate Judge Catherine B. Kelly, who was a member of the division which originally decided this case, retired on March 31, 1983 and was replaced by Associate Judge Mack for purposes of this rehearing. See Turner v. United States, 459 A.2d 1054 (D.C.1983).