Coley v. United States

• Decision Date: 27 January 2022
• Docket Number: No. 21-CO-368,21-CO-368
• Citation: 267 A.3d 1065
• Parties: Victor L. COLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

267 A.3d 1065

Victor L. COLEY, Appellant,

v.UNITED STATES, Appellee.

No. 21-CO-368

District of Columbia Court of Appeals.

Argued December 7, 2021

Decided January 27, 2022

Sicilia C. Englert for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney, and Chrisellen R. Kolb, Elizabeth H. Danello, Jeffrey S. Nestler, and Rachel A. Fletcher, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Thompson,^* and Beckwith, Associate Judges.

Beckwith, Associate Judge:

Victor Coley challenges on interlocutory appeal the trial court's denial of his motion to dismiss the charges against him on double jeopardy grounds. Mr. Coley argues that jeopardy had attached when the trial court discharged his as-yet unsworn jury and that proceeding to trial would violate his Fifth Amendment protection against double jeopardy. We hold that for double jeopardy purposes, a jury is "empaneled and sworn"—and jeopardy attaches—when the trial court swears in the petit jury that will hear and decide the case. Because Mr. Coley's petit jury had not yet taken its oath, the trial court's denial of Mr. Coley's motion to dismiss did not violate his right against double jeopardy. We therefore affirm the ruling of the Superior Court.

I.

In 2015, a jury found Mr. Coley guilty of fifteen counts related to a shooting. On appeal, this court determined that the trial court had failed to effectively mitigate the risk of jury coercion after a juror submitted a note stating, "I don't feel he did it." Coley v. United States , 196 A.3d 414, 419, 425 (D.C. 2018). The court reversed Mr. Coley's convictions and remanded the case for a new trial. Id.

The day before the retrial date, the government filed an ex parte motion seeking a protective order that would relieve it from its obligation to inform defense counsel of an ongoing investigation into alleged misconduct at the Department of Forensic Science (DFS), the District's independent forensics laboratory. The next day, just prior to jury selection, the court held an ex parte bench conference on the government's motion. The prosecutor disclosed that for the past month, law enforcement agencies had been investigating DFS and that Jonathan Pope, a DFS employee who had testified as an expert witness at Mr. Coley's first trial, was a subject of the investigation. The prosecutor informed the trial court that he anticipated calling a different forensic expert at Mr. Coley's retrial in order to avoid "deal[ing] with any baggage" related to Mr. Pope. The court agreed—at another ex parte bench conference the following day—that it would suspend any disclosure obligation the government had while the court considered the motion.

On the morning set for opening statements, the trial judge and counsel conferred outside the presence of the jury. At the direction of the court, the prosecutor informed defense counsel of the investigation into misconduct at DFS and provided several documents to the trial court and defense counsel. Defense counsel sought an overnight continuance to review the disclosures. The court initially agreed, noting that it was "untenable to suggest that [the court] force the defense to go forward without them being able to actually read the materials that are at issue." The prosecutor opposed the brief continuance because an important government witness, Dennis Foster, would become unavailable the next day due to a scheduled surgery. After a recess, defense counsel stated that Mr. Foster was important to Mr. Coley's case as well. Rather than proceed without having had time to review the government's disclosures, defense counsel asked the court to discharge the jury—which had not yet been sworn—and set a new date for trial.¹ The trial court granted the request and dismissed the jury. Mr. Coley subsequently filed a motion to dismiss his case on the ground (among others) that it would violate double jeopardy to go forward with a trial. The trial court denied that motion, and Mr. Coley filed this interlocutory appeal of that ruling.

II.

Mr. Coley argues that the trial court erred in denying his motion to dismiss because jeopardy had attached by the time the jury was discharged, notwithstanding that the court had not yet sworn the petit jury. "Denial of a motion to dismiss an indictment on double jeopardy grounds is the proper subject of an interlocutory appeal and receives de novo review." Young v. United States , 745 A.2d 943, 945 (D.C. 2000) ; see Jones v. United States , 669 A.2d 724, 728 (D.C. 1995) ("[D]enial of a motion to dismiss based on double jeopardy is immediately appealable as a collateral order, because the right not to be tried twice is nullified once a defendant is put through the trial he had a right to avoid." (citing Abney v. United States , 431 U.S. 651, 662–63, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) )).

The Fifth Amendment's statement that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb," U.S. Const. amend. V, protects individuals from "being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States , 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). A criminal defendant's protection against double jeopardy attaches at the moment a jury is "empaneled and sworn." Serfass v. United States , 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) ; Martinez v. Illinois , 572 U.S. 833, 834, 134 S.Ct. 2070, 188 L.Ed.2d 1112 (2014). Courts have consistently understood an "empaneled and sworn" jury to refer to the jurors who are sworn to try the case and determine a defendant's guilt or innocence. See, e.g. , United States v. Green , 556 F.2d 71, 72 (D.C. Cir. 1977) ; Lupi v. Commonwealth , 434 Mass. 1018, 750 N.E.2d 1013, 1014–15 (Mass. 2001) (collecting cases).

Mr. Coley nevertheless contends that the Supreme Court's use of the phrase "empaneled and sworn" could signify the members of the venire, who take an oath to be truthful during jury selection, as opposed to the petit...