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08/28/92 REBECCA HALICKI v. UNITED STATES

August 28, 1992

REBECCA HALICKI, APPELLANT
v.
UNITED STATES, APPELLEE; UNITED STATES, CROSS-APPELLANT V. REBECCA HALICKI, CROSS-APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge); (Hon. Shellie F. Bowers, Motion Judge)

Before Ferren, Schwelb, and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge:

Rebecca Halicki (appellant in No. 92-CO-132 and cross-appellee in No. 92-CO-292, hereinafter "appellant") was indicted along with Wallace Mitchell and "another" (subsequently identified as Floyd Calloway), for armed first degree burglary, *fn1 armed assault with intent to kill, *fn2 armed first degree felony-murder, *fn3 armed first degree premeditated murder, *fn4 possession of a firearm during the commission of a crime of violence or dangerous crime *fn5 (PFCV), and two counts of carrying a pistol without a license *fn6 (CPWL). She was tried alone beginning in October 1991 before Judge Suda. On November 6, 1991, the jury acquitted on one of the CPWL charges, but was unable to reach a verdict on any of the remaining charges.

Subsequently, appellant moved for dismissal of the unresolved charges on the ground that a retrial would violate constitutional principles of Double Jeopardy. Judge Bowers rejected that claim; however, he ruled that collateral estoppel would bar introduction at any retrial of any evidence concerning the pistols. He also concluded that, since the jury was not asked, and therefore did not report which pistol was the subject of the not-guilty verdict, a judgment of not-guilty should be entered as to both CPWL counts. *fn7 Appellant appeals the denial of her motion to dismiss (No. 92-CO-132). The government cross-appeals the trial court's ruling barring introduction of evidence relating to the pistols (No. 92-CO-292). Three issues are raised in these appeals: (1) whether a retrial on the unresolved charges is barred by the Double Jeopardy Clause; (2) whether the collateral estoppel doctrine bars retrial of those charges; and (3) whether, if a retrial is permitted, the government can introduce evidence regarding the pistols. We hold that the motion Judge properly rejected appellant's motion to dismiss on Double Jeopardy and collateral estoppel grounds. We also hold that the motion Judge erred in denying the government the use of the pistols as evidence at the retrial.

I.

The evidence presented by the government at trial showed that on January 16, 1990, appellant accompanied Wallace Mitchell and Floyd Galloway to Washington, D.C., by automobile from Ohio, to find Mitchell's wife, Denise. Appellant had come to the District earlier that month with the wife, but had returned to Ohio while the wife remained in the District. Appellant accompanied Mitchell and Galloway back to the District, since she knew where Mitchell's wife could be found.

After appellant, Mitchell, and Galloway arrived in the District, Mitchell produced a sawed-off shotgun and two pistols from a bag located in the trunk of the vehicle. He loaded the three weapons in the presence of appellant and Galloway and gave one of the pistols to Galloway.

In the early morning hours of January 17, 1990, the three arrived at the apartment building where appellant believed Mitchell's wife was staying in an apartment with Darryl Arrington and Randy Nelson. The three entered the building and Mitchell and Galloway positioned themselves on either side of the door of the apartment where Arrington and Nelson resided. Mitchell was armed with the shotgun and one of the pistols, and Galloway was armed with the other pistol. Appellant stood at the door and knocked, asking for "Denise." She persuaded Arrington to open the door. *fn8 Subsequently, shots were fired by Mitchell which struck Arrington in the arm and in the back. When the shooting began, appellant and Calloway ran out of the building. Mitchell, however, entered the apartment and, firing both the pistol and the shotgun, inflicted fatal wounds on Nelson.

The government's theory was that appellant aided and abetted Mitchell in the commission of the armed burglary (Count I), the armed assault with intent to kill Arrington (Count II), the two armed first degree murder charges (Counts III and IV) relating to the death of Nelson, and aided and abetted Mitchell and Calloway in the commission of the PFCV offense (Count V), and the two CPWL offenses (Count VI and VII). The weapons specified in Counts I through V were "pistols and a shotgun." A "pistol" of course was the only weapon specified for the CPWL charges. The jury reached a not-guilty verdict on one CPWL charge but was unable to reach a verdict on any of the other charges. Although it was clearly understood by the court and the parties that one CPWL charge related to the pistol carried by Calloway and the other CPWL charge related to the pistol carried by Mitchell, the jury was never asked to specify which of the two "carryings" was the basis for its not-guilty verdict. As noted above, Judge Bowers entered a not-guilty judgment on the unresolved CPWL charge.

II.

Relying on Grady v. Corbin, 495 U.S. 508 (1990), appellant claims that a retrial on Counts I through V is barred since the "same conduct" that established those offenses was the subject of the not-guilty verdict for the one CPWL charge. Thus appellant reasons a retrial is barred since Grady v. Corbin holds that a criminal defendant cannot be subjected to successive prosecutions for separate offenses arising out of the same occurrence. Appellant reads that case far too broadly, and we conclude that the principles set forth there do not bar reprosecution under the circumstances presented in this case.

Corbin was involved in an automobile collision that resulted in the death of one occupant and injury to another occupant of another vehicle involved in the collision. On the evening of the collision Corbin was served with two traffic tickets charging him with driving while intoxicated and failing to keep to the right of the median. Less than a month later, Corbin appeared in the Town Justice Court and pleaded guilty to both charges. He was sentenced within weeks after the pleas. Approximately two months later, an indictment was returned charging Corbin with vehicular homicide and assault for the death and injury that resulted from the collision. In a bill of particulars the government identified three reckless or negligent acts it would rely upon in proving its case -- two of which were the conduct that was the subject matter of the guilty pleas in the Town Justice Court. The Supreme Court concluded that Corbin could not be tried for the charges set forth in the indictment, holding that:

The Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense ...


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