United States v. Harvey

377 A.2d 411

• Court: District of Columbia Court of Appeals
• Decided: November 23, 1977
• Docket: 10843
• Status: Published

Opinions

HARRIS, Associate Judge:

The government appeals from the trial court’s order dismissing an indictment for first-degree burglary, D.C.Code 1973, § 22-1801(a), and petit larceny, id. § 22-2202. We have jurisdiction to hear the appeal under § 23-104(c) of the Code unless the Double Jeopardy Clause of the Fifth Amendment erects a constitutional barrier. We conclude that it does not, and reverse.

I

The problem began in another Superior Court case brought against a father and his son in United States v. Jamison, Cr. Nos. 80315 and 80316-’74, aff’d, D.C.App., 373 A.2d 594 (1977). Earlier convictions of the two men in the United States District Court for first-degree murder had been reversed by the circuit court on the ground that the indictments were constitutionally infirm. United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974). Clayborne Jami-son, Sr., and Clayborne Jamison, Jr., then were reindicted in the Superior Court and tried for second-degree murder. The jury acquitted the father and convicted the son. After the verdict was returned, Judge Han-non spoke to the jurors:

Now, ladies and gentlemen of the jury, you wondered what happened in this case since 1971, and I can tell you this time now that your verdicts are in, and I want to attest upon you that in no sense of the word, am I being critical of you. I am merely telling you what the history of this case was.

Mr. Jamison, Jr., and Mr. Jamison, Sr., were tried in this case at another time, in another court before another judge, at which time they were both found guilty of murder in the first degree. Because of a technicality, the Court of Appeals reversed that, and they had to be tried before you, and you found, Jamison, Jr., guilty of what the Court of Appeals said must be a lesser offense, so the Court of Appeals directed that he be tried only for second degree, and so it came back before you, and you did find Jamison, Jr., guilty of second degree, and his father not guilty of murder in the second degree.

Again, I want to impress upon you that what I am telling you, this is the history of the case, and in no sense am I being critical of the judgments you made in this case. I just want to inform you of the history of this case.

I want to thank you on behalf of counsel and myself for the attention that you have provided in this case, and I excuse you now to return to the jury lounge for your next case. Thank you very much.

As the jurors left the courtroom, several overheard a police officer remark that the jurors had let the wrong man go. Shortly thereafter, the same officer asked one juror if the jury had a problem with the government’s case.¹ Some other jurors learned of these events. These incidents came to Judge Hannon’s attention, and he had the jurors return to his courtroom. He addressed them in part as follows:

I was in no way critical of the verdict that you returned in this case with respect to Mr. Jamison, Sr., and I want to impress that upon you right now, that whether or not I disagree with that verdict is something that you will never know, because I will never say anything that would cause one of you to conclude that I disagree with that verdict, because, if I did so, then I would be in effect intimidating you in connection with carrying out your duties in the next case.

You are not to be intimidated by any Judge or police officer. If you are intimidated by what the police officer said to you, and I assume that he said it to you. If you feel that by virtue of what was said to you, that you cannot be a fair and impartial juror for the rest of the month, then please tell me now, and I will excuse you right now, but you should not be intimidated in carrying out your responsibilities as jurors by anything that was said to you, and I hope, and I want to make that plain to each and every one of you, so that each of you understands that.

A brief general voir dire persuaded Judge Hannon that all the jurors could be fair and impartial in future cases, and he instructed them to return to the jury lounge.

Later the jury panel in appellee’s case came to the courtroom and was sworn for the voir dire. Judge Alexander, appellee’s trial judge, inquired:

Is there anyone who has had, what shall I say, a bad taste left in his or her mouth by a prosecutor during the course of this month? All right. We will take these answers at the bench.

Or a defense lawyer? Or a judge? Anyone been castigated by a prosecutor or a defense lawyer or a Judge?

All right. Those of you who fall into that category we will take those at the bench.

* Jfc * * * }j!

Before we take those at the bench, let me remind you that prosecutors, lawyers and Judges are human and they make mistakes, just like anybody else, and if you have had an incident to occur which affects you with respect to either one of those categories, it may be that it can affect you in another case. It may be that if I had remonstrated with you because you returned a guilty verdict, then you may not like that. You have a right not to like it.

If I have remonstrated with you because you returned a not guilty verdict, you may not like that, and you have a right not to like it.

If I remonstrated with you for anything, you may not like it, and you may be proper, but what I’m trying to say is, don’t have any fear in this courtroom or any other courtroom because you have a very important responsibility and people like me ought not frighten you and people like me ought not make you afraid to do what your conscience dictates.

Your job will be to hear the evidence. It will be to determine credibility. It will be to apply that, the facts that you will find to the law as the Court instructs you. No one should make you afraid to do any of those duties, neither the whole country, nor me, nor the prosecution, nor the defense.

No one should frighten you nor should you be allowed to have yourselves frightened.

So, if you have any fear engendered by anyone or anybody, when you come to the bench, you can tell us about that, too.

One venirewoman did approach the bench, but not about the Jamison incidents. Later, Judge Alexander asked:

Now, ladies and gentlemen of the panel, having heard the subject matters and questions propounded and some answers given, may have given you some ideas about what you would like to do and whether or not you would like to be excused.

Any person on the panel who would not like to sit in this particular case other than indications that the Court has already given?

Are there any members of the panel who feel that he or she could not render a true and impartial verdict based solely upon the testimony adduced from the witness stand, the logical inferences to be drawn therefrom and according to the Court’s instructions?

There being no response, twelve jurors and one alternate were selected, and the court again asked if anyone felt unable to give an impartial verdict. Throughout all of these proceedings, no juror mentioned Judge Hannon’s remarks or the police officer’s comment and question at the conclusion of the Jamisons’ trial. The jury then was sworn.

The following morning, a defense lawyer in another ease moved for a continuance based upon the Jamison incidents. Upon learning of this, Judge Alexander decided to obtain transcripts of the earlier events and hold hearings to determine if his jury, which included one Jamison juror, had been prejudiced. Appellee’s counsel moved to dismiss the indictment on that ground. Toward the end of the lengthy hearings, the jury was discharged without ever having heard any evidence. Their period of jury service was over, and they returned to their normal pursuits. Approximately six months later, Judge Alexander issued a written opinion dismissing the indictment.² The government appealed.

II

Double jeopardy principles do not preclude this appeal.³ Ordinarily, a government appeal after jeopardy has attached is barred if “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would [be] required upon reversal and remand.” United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250 (1975); see Finch v. United States, - U.S. -, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (U.S.1977). It is well settled, however, that a mistrial which has been sought by a defendant does not bar retrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The objectives of the double jeopardy bar would not be thwarted by allowing a government appeal when a defendant is in any event subject to a new trial.

When the trial judge decided to take the motion for dismissal of the indictment under advisement, he excused the jurors.⁴ This he did with defense counsel’s consent, although counsel sought to shy away from acknowledging it. Counsel stated:

I don’t mean to appear on the record as making a motion that the jury be discharged because, of course, that would reflect on later claims we would have in this case. It seems to me they could be excused.

******

Your Honor, so far as — Well, on this particular issue pending before the Court, I understood your ruling yesterday [that the jury would be discharged or excused] as it is today. So that’s why I said briefly that I had no objection yesterday to the jury being released. I hate to use the word dismissed, discharged, or anything like that so long as [the prosecutor] wants me to make a motion for a mistrial.

Such semantic quibbling may not control our interpretation of the realities of the situation.⁵ Surely the discharge of a jury before it reaches a verdict (or, as here, before it even hears opening statements) constitutes a mistrial. Fisk v. Henarie, 32 F. 417, 427 (C.C.D.Or.1887); State ex rel. Sullivan v. Peterson, 64 Ariz. 40, 165 P.2d 309, 312 (1946); State v. Johnson, 248 S.C. 153, 149 S.E.2d 348, 350-51 (1966). The trial court’s action “was functionally indistinguishable from a declaration of mistrial.” Lee v. United States, - U.S. -, 97 S.Ct. 2141, 2146, 53 L.Ed.2d 80 (1977) (footnote omitted). Because the trial was aborted under circumstances permitting retrial, the government properly could appeal from the subsequent dismissal of the indictment under D.C.Code 1973, § 23-104(c).

Nonetheless, even assuming arguen-do that the trial court was correct in concluding that the jury had been prejudiced,⁶ it went too far in dismissing the indictment. The proper remedy for a trial before a presumably tainted jury is a new trial before an impartial one. See generally Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Doud, 366 U.S. 717, 728, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Under the assumption that the jury was tainted (an argument which was made by appellee’s counsel both at trial and before us), the correct relief would have been the granting of a mistrial. E. g., Simmons v. United States, 142 U.S. 148, 154-55, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Parker v. United States, 507 F.2d 587, 588 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 5.Ct. 1576, 43 L.Ed.2d 782 (1975); United States v. Chase, 372 F.2d 453, 464-65 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); United States ex rel. Peetros v. Rundle, 342 F.Supp. 55, 60 (E.D.Pa.1972), aff’d mem., 478 F.2d 1399 (3d Cir. 1973); see Whitfield v. Warden, 486 F.2d 1118, 1122-23 (4th Cir. 1973), cert. denied, 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 116 (1974).

The rule that a mistrial granted at the defendant’s request does not bar retrial has an appropriate exception for bad faith prosecutorial or judicial conduct which is designed to give a more favorable opportunity for conviction. Lee v. United States, supra, - U.S. at -, 97 S.Ct. at 2147-48; United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075; see, e. g., United States v. Kessler, 530 F.2d 1246, rehearing en banc denied, 535 F.2d 660 (5th Cir. 1976) (knowing misrepresentation of physical evidence); cf. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (mistrial granted due to absence of prosecution witness was improper and barred retrial). However, there is no rational basis on this record for saying that either Judge Hannon (in the Jamisons’ case, which is once removed from this case) or the Assistant United States Attorney in this case was guilty of misconduct.⁷ Cf. Lee v. United States, supra, - U.S. at -, 97 S.Ct. at 2148. Once Judge Han-non was aware of a potential problem as an aftermath of the Jamisons’ case, he took prompt curative measures with respect to those jurors. Cf. Grady v. United States, D.C.App., 376 A.2d 437 (No. 9859, 1977). The prosecutor in this case understandably believed that Judge Alexander’s extensive voir dire would have cured any possible prejudice which might have resulted from events concerning which he had only second-hand information. Cf. Kyle v. United States, 152 U.S.App.D.C. 141, 144-45, 469 F.2d 547, 550-51 (1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973).

Being satisfied that a new trial is constitutionally permissible, we need not inquire further into the basis for the trial court’s decision to dismiss the indictment.⁸ Because appellant will be tried before a new jury, the question of whether his first jury properly was considered to be prejudiced by its inclusion of one of the jurors from the Jamisons’. case is moot.

Reversed and remanded with instructions to reinstate the indictment.

1 . Our dissenting Brother has elected to magnify beyond all proportion — and indeed beyond the record — the incidents with which we are dealing. Illustratively, the dissent (at p. 417) characterizes the conversation to which we have just referred as follows:

This same police officer confronted one of the Jamison case jurors outside the courthouse several minutes later and demanded to know why the jury had refused to convict the acquitted co-defendant.

The juror’s actual testimony was as follows:

He walked to me [as the jurors were leaving the courtroom] and he says, “What was the hangup?” So, I turned around and 1 said, “You mean about” — whatever his name is — 1 said, “They couldn’t reach” — “They said they didn’t have enough evidence,” that’s what I said. He said, “What was the hangup,” and I said, “They said they didn’t have enough evidence.”

So, then, we was still going out the door together and he said, “not enough” — I think he said, “Not enough evidence.” I think he said the father was the one — he did. He said to me, “The father gave the son the gun to shoot the man- — the fellow with,” and then he walked on and when we . . got over to the court, then I saw some of the girls [other jurors] and I was telling them what he said.

The dissent next states: “The juror was shaken and upset by the exchange. . However, her testimony reveals the opposite:

THE COURT: Now, you didn’t get upset right away because you didn’t know the policeman was wrong to do this?

THE WITNESS: No, I didn’t get — it didn’t bother me at all. The only thing that bothered me was the guilt.

* * * * * *

THE COURT: It wasn’t him? You weren’t upset at him?

THE WITNESS, Oh, no, not at him.

THE COURT: Were you angry at him?

THE WITNESS: No, I wasn’t angry at him.

The hearings on what happened concerning the Jamisons’ jury were rather freewheeling in nature, and resulted in a total of 687 pages of transcript. The juror made clear her belief (and that of a number of other jurors) in the acquitted defendant’s guilt. It was solely in that context that she stated that she felt “terrible” because “I shouldn’t have changed my decision. . .

2 . In the final paragraph of its 40-page opinion, the court concluded

that police and prosecutorial misconduct deprived Mr. Harvey, the accused, of his Sixth Amendment rights to a fair and impartial jury of his peers, as well as to the effective assistance of counsel. As such, Mr. Harvey was denied due process of law guaranteed by the Fifth Amendment to the Constitution. The unfortunate but heinous circumstances detailed at the outset of this Opinion dictate that the Indictment be dismissed.

3 . Of course, jeopardy attached when the jury was sworn. Sarfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

4 . Our dissenting Brother strives to minimize the significance of the discharging of the jury, but the fact that it was discharged is incontestable.

5 . The Supreme Court has rejected fine distinctions in determining whether trial-aborting events are mistrials. Lee v. United States, - U.S. -, 97 S.Ct. 2141, 2146 & n.9, 53 L.Ed.2d 80 (1977); cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642, 1354-55 (1977) (rejecting the use of mere labels in determining if a court’s ruling were an acquittal).

6 . But cf. Grady v. United States, D.C.App., 376 A.2d 437 (No. 9859, 1977).

7 . To the extent that it could be said that any “misconduct” occurred, it was committed by the police officer who was baffled by the acquittal of the senior Jamison in that case. That, however, not only did not constitute “prosecutorial” misconduct (since a police witness is not a prosecutor), but it occurred post-trial in another proceeding. (As to the propriety of a lawyer’s communicating with jurors, see DR 7-108 of the Code of Professional Responsibility.)

8 . The dissent’s heavy reliance upon United States v. Means, 513 F.2d 1329 (8th Cir. 1975), is misplaced. There, following a jury trial of approximately 8V2 months in length, the trial judge concluded that the government had been guilty of multiple acts of prosecutorial misconduct in that particular trial. At the time of the court’s ruling, there still was an existing jury, but the court elected to dismiss the indictments rather than declare a mistrial. The court of appeals considered itself to be dealing with a case of first impression in Means, and concluded that the dismissals were nonappealable. The overall factual situation before us bears no recognizable similarity to that presented in Means. (Appellee’s able counsel did not even cite Means, although that case was decided 19 months prior to the filing of appellee’s brief and 23 months prior to the filing of appellee’s post-argument “Supplemental Memorandum on This Court’s Jurisdiction To Hear This Appeal.”) Here, inter alia, not even opening statements were given; the jury simply was sworn and later was discharged months before the indictment was dismissed. Also, as we have noted, there is not even a hint of true prosecutorial misconduct in this case.