573 F.2d 193 (4th Cir. 1978), 77-1095, Nottingham v. Zahradnick

Docket Nº:77-1095.
Citation:573 F.2d 193
Party Name:Raymond Bradley NOTTINGHAM, Jr., Appellant, v. Robert F. ZAHRADNICK, Superintendent of the Virginia State Penitentiary, Appellee.
Case Date:April 03, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 193

573 F.2d 193 (4th Cir. 1978)

Raymond Bradley NOTTINGHAM, Jr., Appellant,

v.

Robert F. ZAHRADNICK, Superintendent of the Virginia State

Penitentiary, Appellee.

No. 77-1095.

United States Court of Appeals, Fourth Circuit

April 3, 1978

Argued July 12, 1977.

Phillip G. Dantes, Baltimore, Md., Maryland Juvenile Law Clinic (Peter S. Smith, Baltimore, Md., Edward F. Houff, Third Year Law Student, Sally L. Swann, Third Year Law Student, Maryland Juvenile Law Clinic, on brief), for appellant.

James E. Kulp, Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Atty. Gen. of Virginia and K. Marshall Cook, Asst. Atty. Gen., Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.

PER CURIAM:

In his habeas corpus petition, Raymond B. Nottingham contends he was twice tried for robbery in violation of the Double Jeopardy Clause. The district court denied relief. We reverse.

Nottingham was afforded a preliminary hearing in the Criminal Division of the General District Court of Norfolk. Subsequently, he was indicted by a grand jury. The case proceeded to trial in the Circuit Court of the City of Norfolk where a jury was impaneled. During the prosecution's presentation of its case-in-chief, the trial judge learned that the robbery victim was seventeen at the time of the offense, and thus a juvenile under Virginia Code § 16.1-141(3). The judge then declared a mistrial based upon his interpretation of Virginia law that criminal proceedings must begin by way of preliminary hearing in the Juvenile and Domestic Relations Court whenever the victim is a juvenile.

After the mistrial was declared, Nottingham, an adult, had a preliminary hearing in the juvenile court, was reindicted and subjected to a second trial. His motion to have the proceedings dismissed on double jeopardy grounds was denied. He was found guilty by the jury and sentenced to serve five years. After having exhausted state remedies, he brought this petition in federal court.

Page 194

Only if we find that jeopardy attached at Nottingham's first trial are we faced with determining whether the trial judge's declaration of a mistrial was necessary under the "manifest necessity" or "ends of public justice" doctrine first enunciated in United States v. Perez, 9 Wheat 579, 580, 6 L.Ed. 165 (1824), and followed in Illinois v. Somerville...

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