Jamison v. United States

• Decision Date: 06 May 1977
• Docket Number: No. 9979.,9979.
• Citation: 373 A.2d 594
• Parties: Clayborne JAMISON, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 594

373 A.2d 594

Clayborne JAMISON, Jr., Appellant, v. UNITED STATES, Appellee.

No. 9979.

District of Columbia Court of Appeals.

Submitted January 5, 1977.

Decided May 6, 1977.

Matthew W. Black, Jr., Washington, D. C., appointed by the court, for appellant.

Earl J. Silbert, U. S. Atty., Washington, D. C., with whom John A. Terry, David M. Bullock and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before KELLY, FICKLING^* and GALLAGHER, Associate Judges.

KELLY, Associate Judge:

Appellant was convicted by a jury of the murder on April 13, 1971 of Paul Willis who was shot in the temple and right side at nearly point-blank range while seated in a booth at the Casablanca Bar and Grill in the 3400 block of Georgia Avenue, N.W. The two contentions raised on appeal are that the trial court erred in denying appellant's motion to dismiss the indictment on the grounds of double jeopardy and in refusing to give a requested lesser-included offense instruction on manslaughter. We find no merit in either argument and affirm the conviction.

In June of 1972, appellant and his father went to trial on an indictment for second-degree murder and carrying a dangerous weapon¹ in the United States District Court for the District of Columbia. A mistrial was declared upon a motion due to a defense error² On July 26, 1972, the prosecutor filed a second indictment of appellant and his father for first-degree murder³ and carrying a dangerous weapon and at arraignment on August 16, 1972, the government orally moved to dismiss the original indictment. The motion was granted without objection. Subsequently, appellant and his father were convicted by the jury of both charges. On appeal to the United States Court of Appeals for the District of Columbia it was contended that principles of double jeopardy foreclosed the second trial because the mistrial at the original trial had not been "manifestly necessary" and constituted former jeopardy. The Circuit Court did not accept this argument; but it did reverse the convictions, holding that it was a violation of due process for the government to reindict appellant and his father for a more serious offense than was charged in the original indictment simply because of the fortuitous opportunity which arose when a mistrial was declared. United States v. Jamison, 164 U.S. App.D.C. 300, 505 F.2d 407 (1974).

In its opinion, the Circuit Court noted quite clearly that the mistrial was no bar to retrial for the murder of Paul Willis, stating:

[The case] 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. . . . [United States v. Jamison, supra at 303, 505 F.2d at 410.]

It stated that reprosecution was not barred because the defendant succeeded in overturning his conviction on appeal and concluded that the government was free to reindict on charges of second-degree murder. Id.

Appellant and his father were reindicted in Superior Court for second-degree murder on November 13, 1974. On January 10, 1975, a motion to dismiss the indictments on grounds of double jeopardy was denied by Judge Hess. Later, on July 10, 1975, a second pretrial motion to dismiss on the same ground was denied by Judge Hannon. Both denials were based, at least in part, upon the language of the prior opinion of the United States Court of Appeals.⁴ Appellant was subsequently convicted by the jury of second-degree murder. His father was acquitted. Appellant's present challenge to the denial of his motion to dismiss is that the federal case is not controlling on the issue of double jeopardy because the Circuit Court was not presented with the same argument later advanced in the trial court.

The argument is that because appellant did not affirmatively consent to the government's oral motion to dismiss the original indictment for second-degree murder, made after the first trial was aborted and a second indictment for first-degree murder had been filed, the dismissal acted as an acquittal and bars retrial since jeopardy had attached in the first trial before the mistrial. Moreover, appellant suggests that the prosecutors had "overreached" when they dropped the first indictment in order to bring more serious charges and, therefore, they should not be allowed to retry him. This latter argument was settled by the Circuit Court in its Jamison case, supra. As to the former, it is sufficient to note that dismissal of the first indictment cannot be considered an acquittal because...