Appeal from the Superior Court of the District of Columbia (CF1-18988-10) (Hon. Lynn Leibovitz, Trial Judge)
The opinion of the court was delivered by: Fisher, Associate Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FARRELL, Senior Judge.
Invoking the constitutional protection against double jeopardy, appellant Jorida Davidson brings this interlocutory appeal seeking to preclude a second trial for voluntary manslaughter. See Abney v. United States, 431 U.S. 651, 662 (1977). She also seeks to forestall trial on a new charge of involuntary manslaughter. We conclude that, under the circumstances of this case, a retrial for voluntary manslaughter is not barred. However, because appellant was convicted of negligent homicide, a lesser-included offense, the government may not prosecute appellant for the new charge of involuntary manslaughter based on the same conduct.
While driving under the influence of alcohol on October 7, 2010, Jorida Davidson struck and killed a pedestrian, Kiela Ryan, with her sport utility vehicle. The grand jury charged appellant with voluntary manslaughter,*fn1 leaving the scene of a collision involving personal injury,*fn2 and driving under the influence of alcohol.*fn3 The indictment did not include a charge of involuntary manslaughter.*fn4
A jury trial began on June 7, 2011, and lasted for nine days. At its conclusion, the court instructed the jury on the elements of voluntary manslaughter, as well as the lesser-included offense of negligent homicide.*fn5 At appellant‟s request, the court advised the jury that it need only use "reasonable efforts" to reach a verdict on the greater offense of voluntary manslaughter before moving on to consider negligent homicide.See Criminal Jury Instructions for the District of Columbia, No. 2.401A (5th ed. rev. 2011). On June 21, 2011, after nearly fifteen hours of deliberations, the jurors reported: "We have reached our decision on all three counts."
At 2:16 p.m., the jury entered the courtroom. The court addressed the foreperson:
COURT: Ma‟am, has the jury reached a unanimous verdict on each of the counts?
COURT: I‟m going to start with Count 1. How does the jury find the defendant on the charge of manslaughter? FOREPERSON: We were unable to do so.
COURT: And does that mean that you have not reached any verdict either way on that count, on that charge? Let me ask you the question again. Has the jury reached any verdict on the charge of manslaughter?
The jury then proceeded to deliver guilty verdicts for each of the remaining charges, including negligent homicide.*fn6 The court conducted a poll of the jurors to determine whether they "agree[d] with the verdict as stated by your foreperson," and each juror responded affirmatively.After the poll, the court announced:
Ladies and gentlemen, that does conclude your service in this case. And I do want to thank you for the time that you‟ve put into this process. . . . I hope you have a very pleasant afternoon. Mr. Dillard will take the verdict form from you and the jury instructions. Thank you very much. You may be excused.
The jury exited the courtroom at 2:19 p.m. Counsel and the court then discussed scheduling matters and whether appellant should be held pending sentencing. The judge concluded by asking whether "there [was] anything further?" to which government counsel responded, "No, Your Honor." Court adjourned at 2:25 p.m.
Two hours later, the trial judge‟s law clerk sent an e-mail to counsel stating that "the Judge neglected to enter a mistrial as to the Voluntary manslaughter charge this afternoon. She will do so on the court docket so that the record accurately reflects the results as to that charge, unless there is any objection by either party." Defense counsel promptly responded: "I object to the entry of a mistrial on the Voluntary Manslaughter charge, and object to the implication that Ms. Davidson can be retried on that count."
In the following months, the government moved for entry of a mistrial on the court docket, nunc pro tunc to June 21, 2011.It also sought a superseding indictment from the grand jury, which, on July 21, 2011, again charged appellant with voluntary manslaughter. In the superseding indictment, the government added a new count of involuntary manslaughter, arising from the death of Kiela Ryan. After hearing from the parties, the court issued a comprehensive opinion on December 12, 2011, granting the ...