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February 5, 1991


Appeal from the Superior Court of the District of Columbia; Hon. George H. Goodrich, Motions Judge

Ferren, Belson and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

Appellant Coreas was acquitted by a jury of second degree murder while armed, *fn1 but convicted of the lesser included offense of manslaughter while armed *fn2 and of carrying a pistol without a license. *fn3 On his first appeal, a divided panel of this court reversed his convictions, holding that prosecutorial misconduct had denied him a fair trial. Coreas v. United States, 565 A.2d 594 (D.C. 1989) (Coreas I). The court held that although no objection had been made to the prosecutor's improper rebuttal argument until the second day of jury deliberations, "the cumulative effect of the prosecutorial misconduct jeopardized the very fairness and integrity of the trial." Id. at 606. At the Conclusion of the majority opinion, the court wrote "Reversed", but did not specify what, if any, further proceedings should follow. *fn4

Seeking to prevent his retrial, Coreas filed a motion in the trial court asking that the prosecution be dismissed. He contended, among other things, that retrial would subject him to double jeopardy. The trial Judge denied the motion.

Coreas filed a second appeal, *fn5 and now contends that the Double Jeopardy Clause precludes a second trial because the prosecutorial misconduct which led to the reversal of his conviction rose to the level of plain error, and that he cannot be retried for manslaughter, in light of his acquittal of second degree murder, unless the government obtains a new indictment. We affirm.


The government maintains that on the present record, a new trial would not implicate double jeopardy concerns. We agree.

"The general rule is that jeopardy does not fully terminate, and retrial may occur, with respect to a crime for which a person was originally convicted, notwithstanding reversal of that conviction on appeal." Lucas v. United States, 522 A.2d 876, 879 (D.C. 1987); accord, Lockhart v. Nelson, 488 U.S. 33, 38, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988); Thomas v. United States, 557 A.2d 599, 601 (D.C. 1989) (per curiam) (en banc). There is an exception to this general rule where a conviction has been reversed due to insufficiency of the evidence for, where this occurs, the defendant ought to have been acquitted, and the Double Jeopardy Clause "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). The Court explained in Burks, however, that

Reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g.,. . . prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair adjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

Id. at 15 (emphasis added); see also Lockhart, supra, 488 U.S. at 38-42.

In the present case, the reversal of Coreas' convictions was not based on evidentiary insufficiency. Indeed, the court explicitly rejected Coreas' contention that the evidence was insufficient to support the jury's verdict. See Coreas I, supra, 565 A.2d at 596 n.2. Rather, the reversal was based on prosecutorial misconduct, and was unrelated to Coreas' guilt or innocence. Accordingly, the government is not precluded from retrying Coreas on the charges of voluntary manslaughter while armed and carrying a pistol without a license.

Coreas argues, however, that retrial is barred by Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), or at least by what he maintains would be a reasonable extension of the doctrine of that case. In Kennedy, the Court addressed the question whether the Double Jeopardy Clause proscribes a respondent's retrial after his first trial has ended in a mistrial granted on his own motion. The Court reiterated the general principle that the reversal at the defendant's behest of a criminal conviction does not ordinarily implicate the Double Jeopardy Clause or preclude retrial, and that a mistrial granted upon the defendant's motion likewise leaves the prosecutor free to retry the defendant. Id. at 671-73. Recognizing that a criminal defendant has a "valued right to have his trial completed by a particular tribunal", id. at 671-72 (citation omitted), however, the Court recognized a narrow exception to the general rule and explained that "where the governmental conduct. . . is intended to 'goad' the defendant into moving for a mistrial a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676. The Court added that

the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Id. at 679. The trial court having found that the prosecutor had not attempted to provoke a motion for a mistrial, and the Oregon appellate courts having upheld that finding, the Supreme ...

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