Pendergrast v. United States

Decision Date18 February 1975
Docket NumberNo. 7428.,7428.
Citation332 A.2d 919
PartiesBillie Lee PENDERGRAST, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

W. Gary Kohlman, Washington, D. C., appointed by this court, for appellant.

Mervin Cherrin, Washington, D. C., also appointed by this court, entered an appearance for appellant.

Julius A. Johnson, Asst. U. S. Atty., with W110111 Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before KELLY, TICKLING, and HAR-RIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was charged with second degree murder in connection with the death of Charles Perry. D.C.Code 1973, § 22-2403. A jury found him guilty. At sentencing, he was committed to the custody of the Attorney General "for treatment and supervision" under § 5010(b) of the

Youth Corrections Act. IS § 5010(b) (1970). We reject the argument that the Superior Court's exercise of jurisdiction over appellant as an adult was improper, but find error in the trial court's denial of the government's request (acceded to by defense counsel) for a jury instruction on the lesser included offense of manslaughter. Accordingly, we reverse the conviction.1

I

In the summer of 1972, appellant was 17 years of age. On a hot Sunday afternoon in late July, appellant and others in the neighborhood of the 1300 block of Corcoran Street, NA., were playing in the drenchings of an open fire hydrant. Charles Perry, a slight man in his late 40's, ventured by and had buckets of water thrown on him. Perry, who lived on the block, went to put on dry clothes. The hydrant was shut off, and the participants including appellant, returned to their homes. Angered by his saturation, Perry, openly displaying a pistol in his belt, told one witness that he "didn't like it and what he was going to do to the MF's that threw water on him." Appellant, at home and within earshot of Perry, claimed the older man said "if someone wet him up again he was going to shoot somebody, something like that."

Accompanying Perry's general threat was abusive language directed at appellant's mother, Alice Jackson, and an explicit threat against appellant. Pendergrast could hear the vituperation being directed against both his mother and him. As he left his apartment, his foot brushed against a baseball bat. He picked it up and walked outside to confront Perry.

Pendergrast found Perry sitting in a chair on the sidewalk. Angry words passed between the two. There were four recollections of this exchange, including those of appellant and two government witnesses, Mrs. Winston and Mr. Johnson. All were substantially similar. There was evidence that appellant thought Perry had a gun in his pocket. Mrs. Winston testified that appellant said:

I heard you have been talking about me. I am tired of you talking about me. You pulled a knife out on me and threatened me with a gun. If you go toward your pocket I will hit you with this God damn bat.

Mr. Johnson remembered the words as:

I'm really tired of this. You drew your knife on me and you caught me up the street and drew your pistol on me. . . . I'm tired of this.

Don't go in your pocket . .

The evidence was conflicting as to the precise nature of the hand movements then made by Perry. Mrs. Winston, the chief government witness, testified that Perry's right hand was "going towards his pocket", meaning his shirt pocket on the left side. Appellant's mother said that she saw Perry's hand slowly move to his right (presumably pants) pocket and slowly come out. Garnell Young, another defense witness, testified that he saw Perry reach "down toward his side", although he did not see Perry actually go into his pocket. Additional evidence was offered by the defense to show that Perry was rising from his chair simultaneously with the hand movements. The prosecution disputed this contention, but Mrs. Winston did testify that Perry "reached up a little bit."

At that moment, the volcanic conversation erupted. Appellant, apparently believing that Perry was both armed and drunk and that he (appellant) "would not have time if he pulled a gun out of his pocket", struck one quick blow with the baseball bat to the left side of Perry's head. Pendergrast testified that he "didn't aim"; he "just swung the bat . . . out of fear." Perry, conscious but bleeding, was taken to the hospital, where emergency surgery was per formed.

Three days later, Pendergrast was petitioned as a juvenile in the Family Division on a charge of assault with intent to kill. On October 10, 1972, Perry died, allegedly as a result of the assault, and the Family Division petition was dismissed on the government's motion. The next day, the United States Attorney charged appellant as an adult with second degree murder pursuant to the election provision of D.C.Code 1973, § 16-2301(3)(A). Appellant was tried as an adult in Superior Court and convicted.

II

At the outset, we are confronted with a challenge to the jurisdiction of the trial court to try appellant as an adult. The incident in issue here occurred on July 23, 1972. Perry was rushed to a hospital where he was to remain for more than a month. Two days after the blow was struck, appellant was arrested. Since the charge was assault with intent to kill, and since appellant was 17 years old, the United States Attorney could have prosecuted him as an adult. D.C.Code 1973, § 16-2301(3)(A). However, that option was not exercised, and appellant was charged as a child in the Family Division. Appellant now contends that once Family Division jurisdiction attached, such jurisdiction could not be divested without the holding of a transfer hearing pursuant to D.C.Code 1973, § 16-2307.

Appellant relies principally on Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). That case dealt with the construction of the pre-court reorganization predecessor of the present statute. The District of Columbia Juvenile Court Act, as it was then known, was interpreted as requiring a hearing prior to the Juvenile Court's waiver of jurisdiction over a juvenile. Kent thus was decided in the context of pre-court reorganization standards for determining when jurisdiction over a juvenile first attached.

Prior to 1970, the Juvenile Court automatically acquired jurisdiction over anyone under 18 charged with an offense, since the term "child" then was defined simply as "a person under 18 years of age." Act of Dec. 23, 1963, Pub.L. No. 88-241, § 1, 77 Stat. 586. Jurisdiction attached to the person of the accused, and continued throughout his minority or until explicitly relinquished by the Juvenile Court. In re Lem, D.C.Mun.App., 164 A.2d 345, 348 (1960).

In 1970, Congress enacted the District of Columbia Court Reorganization Act, which in part amended § 16-2301 of the D.C.Code. The amendment changed the definition of a "child" and, derivatively, altered the scope of Family Division jurisdiction. Section 16-2301(3)(A) now states:

The term "child" means an individual who is under 18 years of age, except that the term "child" does not include an individual who is sixteen years of age or older and

(A) charged by the United States attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault with intent to commit any such offense, . . .

The legislative history of the Act makes it clear that this change was meant to work a substantive contraction of the juvenile Court's earlier jurisdiction. Congress stressed that:

Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community.

H.R.Rep.No.907, 91st Cong., 2d Sess. 50 (1970). Additionally, Congress stated that under the new bill,

a person, 16 years of age or older, who is charged by the United States Attorney with an enumerated violent crime is automatically subject to the jurisdiction of the adult court.

Ibid. Such language further conveys the intention of Congress that jurisdiction over a 16- or 17-year-old juvenile charged with one of the specified offenses is not to be exercised in the Family Division unless the United States Attorney elects not to charge such an accused as an adult. The House Report also states that a "person 16 years or older, charged by the U. S. Attorney with an enumerated violent crime . . . is an adult . . ." Id. at 149.

In an extensive footnote in his brief, appellant raises the question of the constitutionality of § 16-2301(3). In a post-court reorganization decision, the circuit court sustained the Statute's constitutionality. United States v. Bland, 153 U. S.App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L. F:(1.2d 975 (1973). While that opinion is not binding upon us in our interpretation of the specific District of Columbia Code provision involved, we share and endorse the views expressed by the Bland majority. Congress may define who is a child for the purposes of the special treatment the juvenile statutes provide, and Congress has chosen to permit the exclusion of persons in a situation such as appellant's from such treatment. We conclude that Family Division jurisdiction attaches only if the United States Attorney declines to prosecute in a § 16-2301(3) case.

Finally, certain facts should be stressed. This is not a case in which the United States Attorney could have elected to charge appellant with murder on July 26, 1972. The opportunity for such action did not arise until 2½ months after the assault, when Perry died. On October 11, the offense charged was different from that which had been petitioned on...

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