United States v. Harvey

392 A.2d 1049, 1978 D.C. App. LEXIS 329

• Court: District of Columbia Court of Appeals
• Decided: October 17, 1978
• Docket: No. 10843
• Status: Published

Opinions

PER CURIAM:

The government appeals the trial court’s dismissal, for reason of prosecutorial misconduct, of the indictment in this case. We have jurisdiction to hear this appeal under D.C. Code 1973, § 23-104(c) unless the double jeopardy clause of the Fifth Amendment erects a constitutional barrier. In light of the Supreme Court’s decision in United States v. Scott, -U.S. -, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), we hold that we have jurisdiction; reverse the trial court; and remand this case with instructions to reinstate the indictment.

The events leading to the dismissal of the indictment for first-degree burglary, D.C. Code 1973, § 22-1801(a), and petit larceny, D.C. Code 1973, § 22-2202, began in the factually unrelated case of United States v. Jamison, Super.Ct. Nos. 80315 and 80316-74, aff’d D.C.App., 373 A.2d 594 (1977).¹ In Jamison the jury convicted one defendant while acquitting a codefendant. Police officers who were present when the verdict was read met it with audible signs of disapproval. After receiving the verdict, Judge Hannon told the jury that in a previous trial both of the Jamison defendants had been convicted but their convictions had been reversed on a “technicality.” ² Judge Hannon said he mentioned this only to explain the delay between the indictment and the trial and not to chastise the jury. This revelation upset some of the jurors, and the judge recalled the panel to reiterate his last point.

In the interim, outside the courtroom, several jurors overheard one police officer stating his view that the jury had convicted the wrong man. This same officer confronted one of the Jamison jurors outside the courthouse and demanded to know why the jury had refused to convict the other defendant.

The jury selection process in Harvey began after these events, although neither Judge Alexander nor defense counsel was aware of them at the time. The Assistant United States Attorney in the Harvey case later conceded he was aware of the post-verdict events in Jamison and he knew that one of the Jamison jurors was a potential juror in Harvey. That juror was impan-elled as were at least two others who had heard about the exchanges. The jury was then sworn.³

The next day, July 30, 1975, the trial judge, and defense counsel learned of the possible jury contamination. After a lengthy examination of the jurors by the trial judge, defense counsel, on August 23, 1975, moved to dismiss the indictment. The trial judge discharged the jury on September 2,1975, and granted defendant’s motion to dismiss the indictment on March 3, 1976, based on a finding that the prosecutor acted improperly in failing to inform the court of the potential jury contamination. This appeal followed.⁴

United States v. Scott, supra, disposes of the question whether the trial court’s dismissal of the indictment under the circumstances of this case, raises a double jeopardy bar to a retrial. In Scott, the Supreme Court held that when the defendant himself seeks to have his trial terminated without any submission to either judge or jury of the issue of his guilt or innocence, an appeal by the government from his successful effort to do so is not barred by the double jeopardy clause. 98 S.Ct. at 2199. This is the situation here.

Scott preserves an exception to its general rule whereby a defense motion to dismiss after certain egregious behavior on the part of the prosecution will erect a double jeopardy bar. 98 S.Ct. at 2195. Prosecutorial misconduct can range from outrageous abuses for which dismissal and a bar against reprosecution constitute the only acceptable remedy, to transgressions which, while improper, do not warrant erecting a double jeopardy bar. In our view while there was misconduct in this case, it was not of the severity which, under Scott, serves to trigger a double jeopardy bar to retrial. Furthermore, assuming without deciding that a court has the power, under its supervisory jurisdiction, to hold that some level of prosecutorial misconduct short of that sufficient to trigger the double jeopardy bar, can justify dismissal of an indictment with prejudice, the misconduct in this case was not of a magnitude to trigger such a sanction.

Reversed and remanded with instructions to reinstate the indictment.

1 . For a fuller recitation of the facts in the case sub judice, see the prior division opinion and dissent in this case at 377 A.2d 411. The facts in this case, as it exists before this court, are undisputed. It is the legal significance of these facts which divide the parties and this court.

2 . United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974).

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

4 . The appeal was argued on February 17, 1977, and decided on August 29, 1977, in an opinion reported at 377 A.2d 411. Rehearing en banc was granted November 23, 1977, and the case was reargued on January 23, 1978. On June 14, 1978, the Supreme Court decided United States v. Scott, supra. This court ordered memoranda gauging the effect of Scott on the case at hand from counsel on June 26, 1978.