U.S. v. Jamison

• Decision Date: 15 October 1974
• Docket Number: Nos. 73-1277 and 74-1042,s. 73-1277 and 74-1042
• Citation: 164 U.S.App.D.C. 300,505 F.2d 407
• Parties: UNITED STATES of America v. Clayborne JAMISON, Jr., Appellant. UNITED STATES of America v. Clayborne JAMISON, Sr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 407

505 F.2d 407

164 U.S.App.D.C. 300

UNITED STATES of America v. Clayborne JAMISON, Jr., Appellant.

UNITED STATES of America v. Clayborne JAMISON, Sr., Appellant.

Nos. 73-1277 and 74-1042.

United States Court of Appeals, District of Columbia Circuit.

Argued May 28, 1974.

Decided Oct. 15, 1974.

Daniel M. Singer, Washington, D.C. (appointed by this court) for appellant in No. 73-1277.

Thomas Fortune Fay, Chevy Chase, Md., for appellant in No. 74-1042.

James N. Owens, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Warren L. Miller, Asst. U.S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U.S. Atty., at the time the record was filed, entered an appearance for appellee in No. 73-1277.

Before McGOWAN and ROBINSON, Circuit Judges, and WELGEL, ^* United States District Judge for the Northern District of California.

McGOWAN, Circuit Judge:

The central question presented by these consolidated appeals from the district Court is whether appellants, having successfully sought a mistrial under an earlier indictment for second degree murder, could thereafter be indicted for first degree murder. We conclude that, under the circumstances disclosed by this record, the Due Process Clause stands in the way. Accordingly, and for the reasons set forth hereinafter, we find the indictments invalid and reverse the convictions.

I

According to the testimony of government witnesses, appellants Clayborne Jamison, Sr., and his son, Clayborne Jamison, Jr., spent much of the evening of April 13, 1971, searching for one Paul Willis, whom they accused of having robbed them on two occasions. Two witnesses, one of them Willis's mother, testified that the Jamisons had approached them during the evening to ask if they knew Willis's whereabouts, and, brandishing pistols, had stated their intention when they found him to 'blow his brains out.' Several bystanders in the cafe where Willis was murdered later that night testified that it was Jamison, Jr., accompanied by his father, who entered the cafe and, walking straight to where Willis was seated, put a pistol to his head and fired the shot which caused his death.

Indicted for second degree murder and carrying a dangerous weapon, 22 D.C.Code 2403, 3204 (1973), appellants were tried together on June 1, 1972. In the presentation of the government's evidence, the prosecutor attempted to introduce an oral confession purportedly made by Jamison, Jr., when he surrendered himself to police custody a few hours after the shooting, but this was found by the trial judge to have been illegally obtained and it was excluded. Defense counsel, who was representing both appellants, thereafter made an opening statement to the jury which consisted almost exclusively of an assertion that both appellants would take the stand in their own defense and that their testimony would prove more credible than that of the government's witnesses. The trial judge immediately called defense counsel to the bench and directed his attention to the Supreme Court's decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), under which the government would in all likelihood have been permitted to introduce the excluded confession to impeach Jamison, Jr., had he taken the stand. There was a short recess during which defense counsel acquainted himself with the Harris case, of which he confessed he had previously been unaware. During this recess, the prosecutor apparently notified defense counsel that he also intended to offer the testimony of Jamison, Sr.'s wife should the Jamisons take the stand. ¹

Following the recess there was a further discussion at the bench, during which the trial judge commented that if appellants did not take the stand, defense counsel would have to make some explanatory statement to the jury, which might draw adverse inferences from the reversal of strategy. Defense counsel then requested 'ten or fifteen minutes' for discussion of the dilemma with his clients. Expressing dissatisfaction with the delay that had already been caused, the trial judge gave defense counsel 'five or six minutes' for the purpose. When the court reconvened, defense counsel moved for a mistrial on grounds of 'ineffective assistance of counsel.' The prosecutor responded that he was 'ready to go to the jury' and 'in a real good position,' suggesting also that each defendant be asked if he concurred in defense counsel's motion. Without elaboration the trial judge asked each appellant if he 'agreed with the position taken' by defense counsel. When they answered affirmatively, a mistrial was declared.

Appellants were subsequently re-indicted for first degree murder and carrying a dangerous weapon, 22 D.C.Code 2401, 3204 (1973), to which they took exception. ² At their second trial beginning October 18, 1972, the government offered substantially the same evidence as it had offered at the first trial. Appellants offered no evidence of their own, and after the dismissal of the dangerous weapon count against Jamison, Sr., a jury convicted them as charged. They now appeal their convictions for first degree murder. ³

Appellants have between them raised a number of distinct challenges to their convictions: (1) that the earlier trial ending in a mistrial constituted former jeopardy and barred any reprosecution of them for the criminal acts involved in this case; (2) that the double jeopardy clause in any event prevented the United States from reindicting them for a more serious crime than that for which they were previously indicted; (3) that the possibility of being charged with and convicted of a more serious crime on retrial denied the defendants due process in that it placed an 'unconstitutional condition' on the exercise of their right to seek a mistrial; (4) that due process requires that the fear of a vindictive charge increase following upon a successful defense request for a mistrial be dispelled by a prohibition of any such increase; ⁴ and (5) that, in the case of appellant Jamison, Jr., who was twenty years old when sentenced, the trial court erroneously sentenced him as an adult instead of committing him as a youth offender under the Youth Corrections Act, 18 U.S.C. 5005 et seq. (1970). We think the first of these contentions is without merit; and, since we hold that the fourth requires reversal, we do not reach the remaining points. ⁵

II

In considering the various ways in which a trial may come to an end prematurely, the courts have largely 'declined . . . to formulate rules based on categories of circumstances which will permit or preclude retrial.' United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971). In appellants' case, however, their mistrial falls into that category which has most consistently been held not to bar further proceedings, namely, those mistrials which are granted at the behest of defendants. The Supreme Court has repeatedly held that the Double Jeopardy Clause does not bar reprosecution of a defendant who succeeds in overturning his conviction on appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); and it has left little doubt that the same is true of a defendant who succeeds in obtaining a mistrial. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547; United States v. Tateo, 377 U.S. 463, 467-468, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1961). The rule that a mistrial on defendant's motion generally does not bar retrial is firmly established in this circuit, see United States v. Henderson, 142 U.S.App.D.C. 21, 439 F.2d 53 (1970); Gregory v. United States, 33 U.S.App.D.C. 317, 410 F.2d 1016 (1969); Leigh v. United States, 117 U.S.App.D.C. 315, 329 F.2d 883 (1964), as well as in a number of others. See United States v. Romano, 482 F.2d 1183 (5th Cir. 1973); United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973); Roberts v. United States, 477 F.2d 544 (8th Cir. 1973) (per curiam); United States v. Pappas, 445 F.2d 1194 (3d Cir.), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); United States v. Franke, 409 F.2d 958 (7th Cir. 1969); Raslich v. Bannan, 273 F.2d 420 (6th Cir. 1959).

Appellants argue, however, that the formality of the defendant's having moved for a mistrial should not be controlling in all cases, and that to consider it so would be to adopt a 'mechanical rule' of the kind that the Supreme Court has consistently rejected in this area. Illinois v. Sommerville, 410 U.S. 458, 462, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). To be sure, a judge or prosecutor should not be free to have one trial disbanded and another convened by intentionally committing errors so prejudicial to the defendant that he is forced to seek a mistrial; and, indeed, the Supreme Court has made it clear that in such a case of 'judicial or prosecutorial overreaching,' reprosecution might well be barred. United States v. Jorn, supra, 400 U.S. at 485 & n. 12, 91 S.Ct. 547. See also, United States v. Tateo, supra, 377 U.S. at 468 n. 3, 84 S.Ct. 1587.

When exactly judicial or prosecutorial misconduct ceases to be of the kind that may provoke a defendant's mistrial motion without barring retrial and becomes an 'overreaching' we cannot say, but no such question arises in this case. It was action by defense counsel which brought about the need to discontinue the proceedings. It may be that he would not have moved for a mistrial had not the prosecutor threatened to introduce the excluded confession and the testimony of Jamison, Sr.'s wife if appellants took the stand, but we can find no fault with the prosecutor's making it clear that he would use whatever evidence was legally available to the government. As for the trial judge, apart from acceding to the mistrial motion, his actions were primarily...