United States v. Harvey, No. 10843.

Docket NºNo. 10843.
Citation377 A.2d 411
Case DateAugust 29, 1977
CourtCourt of Appeals of Columbia District
377 A.2d 411
UNITED STATES, Appellant,
v.
Paul J. HARVEY, Appellee.
No. 10843.
District of Columbia Court of Appeals.
Argued February 17, 1977.
Decided August 29, 1977.
Opinions Vacated on Grant of Rehearing en Baanc November 23, 1977.

Page 412

William J. O'Malley, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry and Albert H. Turkus, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

Thomas W. Farquhar, Washington, D. C., appointed by the court, for appellee.

Before NEBEKER and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.

HARRIS, Associate Judge:


The government appeals from the trial court's order dismissing an indictment for first-degree burglary, D.C.Code 1973, § 22-1801(a), and petit larceny, id. § 22-2202. We have jurisdiction to hear the appeal under § 23-104(c) of the Code unless the Double Jeopardy Clause of the Fifth Amendment erects a constitutional barrier. We conclude that it does not, and reverse.

I.

The problem began in another Superior Court case brought against a father and his son in United States v. Jamison, Cr. Nos. 80315 and 80316-'74, aff'd, D.C.App., 373 A.2d 594 (1977). Earlier convictions of the two men in the United States District Court for first-degree murder had been reversed by the circuit court on the ground that the indictments were constitutionally infirm. United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974). Clayborne Jamison, Sr., and Clayborne Jamison, Jr., then were reindicted in the Superior Court and tried for second-degree murder. The jury acquitted the father and convicted the son. After the verdict was returned, Judge Hannon spoke to the jurors:

Now, ladies and gentlemen of the jury, you wondered what happened in this case since 1971, and I can tell you this time now that your verdicts are in, and I want to attest upon you that in no sense of the word, am I being critical of you. I am merely telling you what the history of this case was.

Mr. Jamison, Jr., and Mr. Jamison, Sr., were tried in this case at another time, in another court before another judge, at which time they were both found guilty of murder in the first degree. Because of a technicality, the Court of Appeals reversed that, and they had to be tried before you, and you found Jamison, Jr., guilty of what the Court of Appeals said must be a lesser offense, so the Court of Appeals directed that he be tried only for second degree, and so it came back before you, and you did find Jamison, Jr., guilty of second degree, and his father not guilty of murder in the second degree.

Again, I want to impress upon you that what I am telling you, this is the history of the case, and in no sense am I being critical of the judgments you made in this case. I just want to inform you of the history of this case.

I want to thank you on behalf of counsel and myself for the attention that you have provided in this case, and I excuse you now to return to the jury lounge for your next case. Thank you very much.

As the jurors left the courtroom, several overheard a police officer remark that the jurors had let the wrong man go. Shortly thereafter, the same officer asked one juror if the jury had a problem with the government's case.1 Some other jurors learned of

Page 413

these events. These incidents came to Judge Hannon's attention, and he had the

jurors return to his courtroom. He addressed them in part as follows:

I was in no way critical of the verdict that you returned in this case with respect to Mr. Jamison, Sr., and I want to impress that upon you right now, that whether or not I disagree with that verdict is something that you will never know, because I will never say anything that would cause one of you to conclude that I disagree with that verdict, because, if I did so, then I would be in effect intimidating you in connection with carrying out your duties in the next case.

You are not to be intimidated by any Judge or police officer. If you are intimidated by what the police officer said to you, and I assume that he said it to you. If you feel that by virtue of what was said to you, that you cannot be a fair and impartial juror for the rest of the month, then please tell me now, and I will excuse you right now, but you should not be intimidated in carrying out your responsibilities as jurors by anything that was said to you, and I hope, and I want to make that plain to each and every one of you, so that each of you understands that.

A brief general voir dire persuaded Judge Hannon that all the jurors could be fair and impartial in future cases, and he instructed them to return to the jury lounge.

Later the jury panel in appellee's case came to the courtroom and was sworn for the voir dire. Judge Alexander, appellee's trial judge, inquired:

Is there anyone who has had, what shall I say, a bad taste left in his or her mouth by a prosecutor during the course of this month? All right. We will take these answers at the bench.

Or a defense lawyer? Or a judge? Anyone been castigated by a prosecutor or a defense lawyer or a Judge? All right. Those of you who fall into that category we will take those at the bench.

* * * * * *

Before we take those at the bench, let me remind you that prosecutors, lawyers and Judges are human and they make mistakes, just like anybody else, and if you have had an incident to occur which affects you with respect to either one of those categories, it may be that it can affect you in another case. It may be that if I had remonstrated with you because you returned a guilty verdict, then you may not like that. You have a right not to like it.

Page 414

If I have remonstrated with you because you returned a not guilty verdict, you may not like that, and you have a right not to like it.

If I remonstrated with you for anything, you may not like it, and you may be proper, but what I'm trying to say is, don't have any fear in this courtroom or any other courtroom because you have a very important responsibility and people like me ought not frighten you and people like me ought not make you afraid to do what your conscience dictates.

Your job will be to hear the evidence. It will be to determine credibility. It will be to apply that, the facts that you will find to the law as the Court instructs you. No one should make you afraid to do any of those duties, neither the whole country, nor me, nor the prosecution, nor the defense.

No one should frighten you nor should you be allowed to have yourselves frightened.

So, if you have any fear engendered by anyone or anybody, when you come to the bench, you can tell us about that, too.

One venirewoman did approach the bench, but not about the Jamison incidents. Later, Judge Alexander asked:

Now, ladies and gentlemen of the panel, having heard the subject matters and questions propounded and some answers given, may have given you some ideas about what you would like to do and whether or not you would like to be excused.

Any person on the panel who would not like to sit in this particular case other than indications that the Court has already given?

Are there any members of the panel who feel that he or she could not render a true and impartial verdict based solely upon the testimony adduced from the witness stand, the logical inferences to be drawn therefrom and according to the

Court's instructions?

There being no response, twelve jurors and one alternate were selected, and the court again asked if anyone felt unable to give an impartial verdict. Throughout all of these proceedings, no juror mentioned Judge Hannon's remarks or the police officer's comment and question at the conclusion of the Jamisons' trial. The jury then was sworn.

The following morning, a defense lawyer in another case moved for a continuance based upon the Jamison incidents. Upon learning of this, Judge Alexander decided to obtain transcripts of the earlier events and hold hearings to determine if his jury, which included one Jamison juror, had been prejudiced. Appellee's counsel moved to dismiss the indictment on that ground. Toward the end of the lengthy hearings, the jury was discharged without ever having heard any evidence. Their period of jury service was over, and they returned to their normal pursuits. Approximately six months later, Judge Alexander issued a written opinion dismissing the indictment.2 The government appealed.

II

Double jeopardy principles do not preclude this appeal.3 Ordinarily, a government appeal after jeopardy has attached is barred if "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would [be] required upon reversal and remand." United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250 (1975); see Finch v. United

Page 415

States, ___ U.S. ___, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (U.S.1977). It is well settled, however, that a mistrial which has been sought by a defendant does not bar retrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The objectives of the double jeopardy bar would not be thwarted by allowing a government appeal when a defendant is in any event subject to a new trial.

When the trial judge decided to take the motion for dismissal of the indictment under advisement, he excused the jurors.4 This he did with defense counsel's consent, although counsel sought to shy away from acknowledging it. Counsel stated:

I don't mean to appear on the record as making a motion that the jury be discharged because, of course, that would reflect on later claims we would have in this case. It seems to me they could be excused.

* * * * * *

Your Honor, so far as — Well, on this particular issue pending before the Court, I understood your ruling yesterday [that the jury would be discharged or excused] as it is today. So that's why I said briefly that I had no objection yesterday to the jury being...

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3 practice notes
  • Com. v. Smalis
    • United States
    • Superior Court of Pennsylvania
    • August 24, 1984
    ...v. Jenkins, 420 [331 Pa.Super. 319] U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250, 259 (1975). 5 See also: United States v. Harvey, 377 A.2d 411, 414 (D.C.App.1977); State v. Shaw, supra 282 Md. at 232, 383 A.2d at 1106; People v. Brown, supra, 40 N.Y.2d at 389-390, 386 N.Y.S.2d at 854......
  • State v. Harrell, No. 77-553-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 31, 1978
    ...v. Mandel, 431 F.Supp. 90, 97 (D.C.Md.1977); United States v. Buzzard, 540 F.2d 1383, 1387 (10th Cir. 1976); United States v. Harvey, 377 A.2d 411, 416 (D.C.App.1977); Piesik v. State, 572 P.2d 94, 97 (Alaska 1977); White v. State 523 P.2d 428, 530 (Alaska 1974); State v. Marquez, 113 Ariz.......
  • United States v. Harvey, No. 10843.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 17, 1978
    ...Notes: 1. For a fuller recitation of the facts in the case sub judice, see the prior division opinion and dissent in this case at 377 A.2d 411. The facts in this case, as it exists before this court, are undisputed. It is the legal significance of these facts which divide the parties and th......
3 cases
  • Com. v. Smalis
    • United States
    • Superior Court of Pennsylvania
    • August 24, 1984
    ...v. Jenkins, 420 [331 Pa.Super. 319] U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250, 259 (1975). 5 See also: United States v. Harvey, 377 A.2d 411, 414 (D.C.App.1977); State v. Shaw, supra 282 Md. at 232, 383 A.2d at 1106; People v. Brown, supra, 40 N.Y.2d at 389-390, 386 N.Y.S.2d at 854......
  • State v. Harrell, No. 77-553-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 31, 1978
    ...v. Mandel, 431 F.Supp. 90, 97 (D.C.Md.1977); United States v. Buzzard, 540 F.2d 1383, 1387 (10th Cir. 1976); United States v. Harvey, 377 A.2d 411, 416 (D.C.App.1977); Piesik v. State, 572 P.2d 94, 97 (Alaska 1977); White v. State 523 P.2d 428, 530 (Alaska 1974); State v. Marquez, 113 Ariz.......
  • United States v. Harvey, No. 10843.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 17, 1978
    ...Notes: 1. For a fuller recitation of the facts in the case sub judice, see the prior division opinion and dissent in this case at 377 A.2d 411. The facts in this case, as it exists before this court, are undisputed. It is the legal significance of these facts which divide the parties and th......

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