Coley v. United States ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CO-368
VICTOR L. COLEY, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-19633-13)
(Hon. J. Michael Ryan, Trial Judge)
(Argued December 7, 2021 Decided January 27, 2022)
Sicilia C. Englert for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Channing D.
Phillips, Acting United States Attorney, and Chrisellen R. Kolb, Elizabeth H.
Danello, Jeffrey S. Nestler, and Rachel A. Fletcher, Assistant United States
Attorneys, were on the brief, for appellee.
Before GLICKMAN, THOMPSON, * and BECKWITH, Associate Judges.
*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-
1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to perform
judicial duties as a Senior Judge and will begin her service as a Senior Judge on a
2
BECKWITH, Associate Judge: Victor Coley challenges on interlocutory appeal
the trial court’s denial of his motion to dismiss the charges against him on double
jeopardy grounds. Mr. Coley argues that jeopardy had attached when the trial court
discharged his as-yet unsworn jury and that proceeding to trial would violate his
Fifth Amendment protection against double jeopardy. We hold that for double
jeopardy purposes, a jury is “empaneled and sworn”—and jeopardy attaches—when
the trial court swears in the petit jury that will hear and decide the case. Because
Mr. Coley’s petit jury had not yet taken its oath, the trial court’s denial of Mr.
Coley’s motion to dismiss did not violate his right against double jeopardy. We
therefore affirm the ruling of the Superior Court.
I.
In 2015, a jury found Mr. Coley guilty of fifteen counts related to a shooting.
On appeal, this court determined that the trial court had failed to effectively mitigate
the risk of jury coercion after a juror submitted a note stating, “I don’t feel he did
it.” Coley v. United States, 196 A.3d 414, 419, 425 (D.C. 2018). The court reversed
Mr. Coley’s convictions and remanded the case for a new trial. Id.date to be determined after her successor is appointed and qualifies.
3
The day before the retrial date, the government filed an ex parte motion
seeking a protective order that would relieve it from its obligation to inform defense
counsel of an ongoing investigation into alleged misconduct at the Department of
Forensic Science (DFS), the District’s independent forensics laboratory. The next
day, just prior to jury selection, the court held an ex parte bench conference on the
government’s motion. The prosecutor disclosed that for the past month, law
enforcement agencies had been investigating DFS and that Jonathan Pope, a DFS
employee who had testified as an expert witness at Mr. Coley’s first trial, was a
subject of the investigation. The prosecutor informed the trial court that he
anticipated calling a different forensic expert at Mr. Coley’s retrial in order to avoid
“deal[ing] with any baggage” related to Mr. Pope. The court agreed—at another ex
parte bench conference the following day—that it would suspend any disclosure
obligation the government had while the court considered the motion.
On the morning set for opening statements, the trial judge and counsel
conferred outside the presence of the jury. At the direction of the court, the
prosecutor informed defense counsel of the investigation into misconduct at DFS
and provided several documents to the trial court and defense counsel. Defense
counsel sought an overnight continuance to review the disclosures. The court
initially agreed, noting that it was “untenable to suggest that [the court] force the
4
defense to go forward without them being able to actually read the materials that are
at issue.” The prosecutor opposed the brief continuance because an important
government witness, Dennis Foster, would become unavailable the next day due to
a scheduled surgery. After a recess, defense counsel stated that Mr. Foster was
important to Mr. Coley’s case as well. Rather than proceed without having had time
to review the government’s disclosures, defense counsel asked the court to discharge
the jury—which had not yet been sworn—and set a new date for trial. 1 The trial
court granted the request and dismissed the jury. Mr. Coley subsequently filed a
motion to dismiss his case on the ground (among others) that it would violate double
jeopardy to go forward with a trial. The trial court denied that motion, and Mr. Coley
filed this interlocutory appeal of that ruling.
II.
Mr. Coley argues that the trial court erred in denying his motion to dismiss
because jeopardy had attached by the time the jury was discharged, notwithstanding
that the court had not yet sworn the petit jury. “Denial of a motion to dismiss an
indictment on double jeopardy grounds is the proper subject of an interlocutory
1
Defense counsel initially stated that Mr. Coley wanted to keep the jury they
had and get the trial started, but defense counsel ultimately determined that both Mr.
Foster’s testimony and the opportunity to review the government’s disclosures
before trial were critical.
5
appeal and receives de novo review.” Young v. United States, 745 A.2d 943, 945
(D.C. 2000); see Jones v. United States, 669 A.2d 724, 728 (D.C. 1995) (“[D]enial
of a motion to dismiss based on double jeopardy is immediately appealable as a
collateral order, because the right not to be tried twice is nullified once a defendant
is put through the trial he had a right to avoid.” (citing Abney v. United States, 431
U.S. 651, 662–63 (1977))).
The Fifth Amendment’s statement that no person “shall . . . be subject for the
same offence to be twice put in jeopardy of life or limb,” U.S. Const. amend. V,
protects individuals from “being subjected to the hazards of trial and possible
conviction more than once for an alleged offense.” Green v. United States, 355 U.S.
184, 187 (1957). A criminal defendant’s protection against double jeopardy attaches
at the moment a jury is “empaneled and sworn.” Serfass v. United States, 420 U.S.
377, 388 (1975); Martinez v. Illinois, 572 U.S. 833, 834 (2014). Courts have
consistently understood an “empaneled and sworn” jury to refer to the jurors who
are sworn to try the case and determine a defendant’s guilt or innocence. See, e.g.,
United States v. Green, 556 F.2d 71, 72 (D.C. Cir. 1977); Lupi v. Commonwealth,
750 N.E.2d 1013, 1014–15 (Mass. 2001) (collecting cases).
Mr. Coley nevertheless contends that the Supreme Court’s use of the phrase
6
“empaneled and sworn” could signify the members of the venire, who take an oath
to be truthful during jury selection, as opposed to the petit jury—that is, the jurors
selected to decide the case—who swear to deliberate based on the evidence
presented and the law as instructed. In Mr. Coley’s view, this court has not formally
adopted the rule that a jury is “empaneled and sworn” when the petit jurors take their
oath before trial. Because the court is not bound by other courts’ interpretations of
Supreme Court precedent, he says, it should now hold jeopardy attaches at the
swearing of the venire.
To the extent it was not clear before, we align ourselves with those courts,
including the U.S. Court of Appeals for the District of Columbia Circuit, that have
specifically held that “until a jury has been sworn to try the case . . . a defendant is
subject to no jeopardy, for the twelve individuals in the box have no power to convict
him.” Green, 556 F.2d at 72. This is the moment when a jury is “empaneled and
sworn” and thus when jeopardy attaches. See Serfass, 420 U.S. at 388. Mr. Coley
calls our attention to no contrary precedent. Because Mr. Coley’s unsworn jury “had
no power to convict him,” Green, 556 F.2d at 72, he is not in danger of being twice
placed in jeopardy. 2
2
Mr. Coley also argues that his motion to dismiss should have been granted
because the government’s late disclosure caused Mr. Coley to choose between
7
We affirm the Superior Court’s denial of Mr. Coley’s motion to dismiss.
So ordered.
continuing the case—and losing his jury—or proceeding without having adequate
time to review the information disclosed by the government. To the extent that this
argument is properly understood as part of the double jeopardy analysis, it fails for
the reasons stated above. Mr. Coley frames it, however, as a separate challenge and
contends that the government’s conduct forced him to forgo his “valued right to have
his trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497,
503 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). Mr. Coley does
not analyze our case law limiting interlocutory appeals in criminal cases to orders
that “fully dispose of a disputed issue which is separate from the merits of the action
and involves an important right which will be irretrievably lost unless an immediate
appeal is allowed.” Meyers v. United States, 730 A.2d 155, 157 (D.C. 1999). In
light of this precedent, we lack jurisdiction to consider the merits of this argument
at this juncture.