Nottingham v. Zahradnick, 77-1095

• Decision Date: 03 April 1978
• Docket Number: No. 77-1095,77-1095
• Parties: Raymond Bradley NOTTINGHAM, Jr., Appellant, v. Robert F. ZAHRADNICK, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 193

573 F.2d 193

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.

Argued July 12, 1977.

Decided April 3, 1978.

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.

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, 410 U.S. 458, 468, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). It has been stated that where the first court is without jurisdiction, a plea of double jeopardy is unavailable at a second trial for the same offense, United States v. Ball,163 U.S. 662, 669, 41 L.Ed. 300 (1896), presumably on the theory that a court lacking jurisdiction cannot place one in jeopardy. Virginia argues that Nottingham's first trial court was without jurisdiction.

Virginia Code § 16.1-158 (replaced by Va.Code 16.1-241) states, in pertinent part:

Except as hereinafter provided, each juvenile and domestic relations court shall have, within the limits of the territory for which it is created, exclusive original jurisdiction . . . over all cases . . . involving:

(7) The prosecution and punishment of persons charged with ill-treatment, abuse, abandonment or neglect of children or with any violation of law which causes or tends to cause a child to come within the purview of this law, or with any other offense against a child except murder and manslaughter; provided, that in prosecution for other felonies over which the court shall have jurisdiction, such jurisdiction shall be limited to that of examining magistrate.

In Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), a juvenile defendant was certified for trial as an adult despite the juvenile court's failure to provide him a hearing. Neither the juvenile nor his parents were given notice; nor were they present at the time the judge acted. The Virginia Supreme Court held:

that a preliminary hearing in the juvenile court was jurisdictional and not procedural, and that before the circuit court could acquire jurisdiction to try petitioner there must have been a compliance with the provisions of the Juvenile and Domestic Relations Court Law. Thus, the failure of the juvenile court to comply with the applicable statutes rendered the circuit court proceedings void . . . . 207 Va. at 80, 147 S.E.2d at 743.

The statute upon which the state relies does not foreclose an interpretation of it which would permit concurrent jurisdiction with other courts not of record for preliminary hearings for adults. Under § 16.1-158(7), the juvenile court's...