U.S. v. Jackson

• Decision Date: 09 July 1987
• Docket Number: No. 85-125.,No. 85-59.,85-59.,85-125.
• Citation: 528 A.2d 1211
• Parties: UNITED STATES, Appellant, v. Ricky L. JACKSON, Appellee. Ricky L. JACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

528 A.2d 1211

UNITED STATES, Appellant, v. Ricky L. JACKSON, Appellee.

Ricky L. JACKSON, Appellant, v. UNITED STATES, Appellee.

No. 85-59.

No. 85-125.

District of Columbia Court of Appeals.

Argued November 14, 1985.

Decided July 9, 1987.

William T. Morrison, Washington, D.C., appointed by the court, for appellee in No. 85-59 and appellant in No. 85-125.

Judith Hetherton, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, and Keith A. O'Donnell, Asst. U.S. Attys., Washington, D.C., were on brief, for appellant in No. 85-59 and appellee in No. 85-125.

Before NEBEKER, MACK and ROGERS, Associate Judges.

ROGERS, Associate Judge.

We are asked to decide whether to retain the "year and a day rule" as law in the District of Columbia. A Superior Court trial judge, relying upon this ancient doctrine,¹ dismissed a second-degree murder indictment brought against appellee Jackson in No. 85-59. The government appeals the dismissal. It argues that the rationale for the year and a day rule no longer exists, that courts faced with the question in the last twenty-five years have uniformly criticized the rule and with two exceptions have abrogated it, that the rule has never expressly been adopted in this jurisdiction and its recognition would serve no legitimate public policy, and that judicial abrogation of a common law rule is appropriate. Further, the government argues, were we to abrogate the rule, no constitutional or other bar would prevent prosecuting appellee for second-degree murder. Appellee responds, principally, that this court should defer to the legislature because the rule may serve important social values which the court is ill equipped to evaluate, and, in any event, its abrogation to permit his prosecution for second-degree murder would constitute double jeopardy and violate the ex post facto clause of the fifth amendment of the Constitution. Appellee also cross-appeals in No. 85-125 on the ground that this court lacks jurisdiction to hear this case because the government failed to show excusable neglect in filing an untimely appeal under our Rule 4-II,² and, in any event, that the appeal is barred by the double jeopardy clause of the Constitution.

We hold we have jurisdiction to review this case because, under unusual circumstances, the government's appeal was perfected within the period allowed by our rules, and that double jeopardy does not bar the appeal. We also conclude that abrogation of the common law year and a day rule is overdue and properly accomplished by judicial opinion, and leave it to the legislature to determine if a time limitation on death should exist in the District of Columbia other than the limitations arising from the requirements of due process of law and of proof beyond a reasonable doubt of causation. We hold, however, that, although collateral estoppel principles incorporated in the double jeopardy clause do not, the ex post facto clause does bar the prosecution of appellee for second-degree murder; accordingly, the order dismissing the indictment is affirmed.

I

Walter Bloss was wounded by a gunshot to the back of the head on January 2, 1982, and taken at once to Howard University Hospital. He was never discharged from the hospital, but remained there until his death fourteen months after the assault. In the meantime, appellee Ricky Jackson was brought to trial on charges stemming from the January 2nd incident, and found guilty by a jury of assault with a dangerous weapon, D.C.Code § 22-502 (1981), and carrying a pistol without a license, D.C. Code § 22-3204 (1981), and not guilty of assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1981). Later, after Bloss' death, the government obtained an indictment charging Jackson with second-degree murder while armed, D.C. Code §§ 22-2403, -3202 (1981).³ Relying on the year and a day rule, the trial judge dismissed the indictment. It is from this order that the government appeals.

The dismissal was posted in the court jacket on December 24, 1984, outside the presence of the parties and without previous notice to them. The jacket entry merely notes "Motion to Dismiss Granted. Order filed within. Ct. `G' of Indictment is dismissed." Despite the requirements of former D.C.App.R. 4-II(b)(4)⁴ and Super. Ct.Crim.R. 49(c),⁵ no entry was ever made in the docket by the Clerk of the Superior Court indicating that the dismissal order had been mailed.

When the docket entry was made, the prosecutor assigned to the case had left town for the Christmas holiday. Before departing, he asked the trial judge's law clerk to send any orders issued during his vacation to another government attorney. After the order was issued late in the day on Christmas Eve, the trial court forwarded two notices to the government, but both were in the same envelope and addressed and delivered to the office of the original prosecutor. When he returned to work on January 7, 1985, the prosecutor opened the envelope, immediately filed with the trial court a motion for leave to file notice of appeal out of time, and served a copy of the motion on defense counsel. On January 17, 1985, the trial court granted the motion, finding excusable neglect pursuant to former D.C.App.R. 4-II(b)(3), and extended the time for filing the notice until January 31, 1985.⁶ It is from this order that Jackson cross-appeaks. See supra note 2.

II

Former D.C.App.R. 4-II controls the computation of time with respect to Jackson's jurisdictional contentions.⁷ When considering criminal appeals noted by defendants, this court previously has held that, in the absence of a docket entry or other proof of mailing by the Clerk of Superior Court, the time for appeal begins to run from the time of the defendant's actual notice of the order. McClurkin v. United States, 472 A.2d 1348, 1351, cert. denied, 469 U.S. 838, 105 S.Ct. 136, 83 L.Ed.2d 76 (1984); Little v. United States, 438 A.2d 1264, 1267 (D.C. 1981); Samuels United States, 435 A.2d 392, 395 (D.C. 1981); Williams v. United States, 412 A.2d 17, 20 (D.C. 1980). Here, there was no proper docket entry referring to the order dismissing the indictment, and the government, not the defendant, wished to appeal.

The government did not receive actual notice of the dismissal of the indictment until the prosecutor originally assigned to the instant case returned from vacation on January 7, 1985, and found the envelope containing the dismissal order on his desk. On that same date the government filed its motion for leave to appeal out of time. The trial court granted the motion, and allowed the government until January 31 to file a notice of appeal. The government's filing on January 18th of its notice of appeal was timely. Since the trial court was authorized by our vote, see supra note 4, to extend the government's time, we hold the government's notice was timely. Hence, we need not reach the issue whether the filing of the government's motion itself satisfied the requirement that an appeal be noted in a timely manner.⁸ See, e.g., McClurkin, supra, 472 A.2d at 1351-52; Interstate Natural Gas Association of America v. FERC, supra note 8, 244 U.S. App.D.C. at 149, 756 F.2d at 170; Fischer v. United States Department of Justice, 759 F.2d 461, 463-64 (5th Cir. 1985); United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).

III

The year and a day rule has roots deep in the soil of our common law. Its origins have been traced to the thirteenth century. See, e.g., State v. Pine, 524 A.2d 1104, 1105 (R.I. 1987); People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143, 145 (1982); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771, 773 (1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1386, 67 L.Ed.2d 360 (1981) (discussing the antique Statute of Glouster, 6 Edw. 1, c. 9 (1278), which provided that a private prosecution for homicide shall not abate if brought within a year and a day of the death); Elliott v. Mills, 335 P.2d 1104, 1106-08 (Okla.Crim.Ct.App. 1959); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501, 503 (1960).⁹ By the 18th century, the assumption was that a homicide prosecution could be brought only if the victim had died within a year and a day of the injury. This doctrine, quite separate from earlier statues of limitation, was discussed by Lord Coke, and also by the eighteenth century commentators Hawkins and Blackstone. Commonwealth v. Ladd, supra, 166 A.2d at 503 (citing 1 Hale, Historia Placitorium Coronae (1736); 3 COKE, INSTITUTIONS OF LAW OF ENGLAND, Ch. VII; 1 HAWKINS, PLEAS OF THE CROWN 91 (Curwood ed. 1824); 4 BLACKSTONE, COMMENTARIES 197 (1769) and others));¹⁰ see also State v. Pine, supra, 524 A.2d at 1105-07; State v. Brown, 21 Md.App. 91, 318 A.2d 257, 258-59 & nn. 2-4 (Ct.Spec.App. 1974) (citations omitted). The application of the rule to criminal prosecutions has been acknowledged by the Supreme Court:

In cases of murder the rule at common law undoubtedly was that no person should be adjudged "by any act whatever to kill another who does not die by it within a year and a day thereafter. . . ." And such is the rule in this country in prosecutions for murder, except in jurisdictions where it may be otherwise prescribed by statute. Louisville, Evansville, & St. Louis Railroad Co. v. Clarke, 152 U.S. 230, 239, 14 S.Ct. 579, 581, 38 L.Ed. 422 (1894) (citations omitted) (civil wrongful death action).

A.

The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. O'Connor v. United States, 399 A.2d 21, 25 (D.C. 1979); see also D.C.Code § 49-301 (1981). In 1776, Maryland adopted the common law of England as it then existed. O'Connor, supra; Gertman v. Burdick, 75 U.S.App.D.C. 48, 53, 123 F.2d 924, 929 (1941) ("Section 3 of Maryland's Original Declaration of Rights (1776) provides: `That the inhabitants of Maryland are entitled to the common law of England. . . .'"), cert. denied, 315 U.S. 824, 62 S.Ct. 917, 86 L.Ed....