IN RE J. A. H., 315 A.2d 825 (1974)
In the Matter of J. A. H., Appellant.
No. 6907.
District of Columbia Court of Appeals.
Argued July 11, 1973.
Decided February 26, 1974.
Appeal from the Superior Court, Norma Holloway Johnson, J.
Joel Chasnoff, Washington, D.C., appointed by this court, for
appellant.
E. Calvin Golumbic, Asst. Corp. Counsel, Washington, D.C.,
with whom C. Francis Murphy, Corp. Counsel, and Richard W.
Barton, Asst. Corp. Counsel, Washington, D.C., were on the
brief, for appellee.
Page 826
Before KELLY, GALLAGHER and HARRIS, Associate Judges.
HARRIS, Associate Judge:
Appellant, a juvenile, was found guilty of the unauthorized
use of a motor vehicle (D.C.Code 1973, § 22-2204) and of
assault with a dangerous weapon (D.C.Code 1973, § 22-502) at
the conclusion of a factfinding hearing in the Family Division
of Superior Court. The argument which warrants discussion is
that appellant's Fifth Amendment right to be free from double
jeopardy precluded his being found guilty of unauthorized use.
We reject that contention and affirm.
Appellant and several companions were on Route 295 in a car
which was observed speeding by the police. Appellant was
driving; a co-respondent, T. T., was one of the passengers. One
police car pursued the juveniles at speeds in excess of 85
m.p.h. Another police car stationed itself ahead in the middle
lane of Route 295 with its lights flashing. The resulting
traffic congestion brought appellant to a stop, and an officer
approached the vehicle on foot with his gun in his hand.
Suddenly, an opening occurred in the traffic jam. Appellant
started to drive off, swerving towards the opening and the
officer. The officer leapt to safety as the accelerating car
brushed his trousers. Simultaneously, the officer shot
appellant as he drove past, and the car promptly came to a
stop. Two other passengers fled; appellant and T. T. were
apprehended. T. T. was charged with unauthorized use; appellant
was charged with operating a vehicle without a license
[D.C.Code 1973, § 40-301(d)], assault on a police officer
[D.C.Code 1973, § 22-505(a)], unauthorized use, and assault
with a dangerous weapon (the automobile).[fn1]
Police officers testified to establish the elements of the
assault charges. In order to support findings of guilty on the
UUV charges, the government was obliged to establish that the
operation of the vehicle was without consent. The car in this
case normally was used by a minor named Faulkner, but was
registered in his father's name. The son testified that he had
not given permission to the respondents to drive the car. The
government then called the registered owner. When it was
realized that he was not present, the government rested.
Counsel for the two respondents moved for judgments of
acquittal on the UUV charges, contending that the government's
evidence was insufficient. The trial court agreed that the lack
of the testimony of the registered owner was fatal, and granted
the motions of both respondents.
Since the only charge against T. T. was unauthorized use,
such a ruling terminated the case against him. He left the
courtroom, and the case against appellant resumed on the
assault charges. At that moment, the registered owner appeared
in the courtroom. The government immediately requested the
court to reconsider its rulings and reopen the cases to receive
testimony from the registered owner. The following colloquy
occurred:
[THE PROSECUTOR]: I wish to make a motion, if I
may, and that is that the Court reconsider that
ruling and allow the government to reopen its
case. Mr. Faulkner has just now arrived. I feel I
must make that motion, Your Honor.
THE COURT: With regard to the respondent who has
not been totally acquitted [J. A. H.], I will let
you do it. But the one I have acquitted [T. T.], I
am sorry, it is just not fair. That boy was here
and ready to go at 9:15. He
Page 827
stands acquitted now. I am just not going to bring
him back.
I will let you reopen before we proceed with the
defendant's case. I am not going to do it with the
other.
Appellant's trial counsel did not object to the reopening of
the unauthorized use count, thus limiting the scope of our
review to plain error. Adams v. United States, D.C.App.,
302 A.2d 232 (1973). Appellant argues that the court's withdrawal
of its oral ruling of acquittal and resumption of the hearing
on the UUV charge violated his right to be free from double
jeopardy. However, the constitutional protection against double
jeopardy is a personal privilege, which is waived if no timely
objection is made. Mayle v. District of Columbia, D.C.Mun.App.,
168 A.2d 398 (1961); United States v. Scott, 150 U.S.App.D.C.
323, 464 F.2d 832 (1972); Miller v. United States, 41 App.D.C.
52, cert. denied, 231 U.S. 755, 34 S.Ct. 323, 58 L.Ed. 468
(1913); cf. Burke v. United States, D.C.Mun.App., 103 A.2d 347
(1954). As stated in United States v. Reeves, 293 F. Supp. 213,
214 (D.D.C. 1968):
Defense of second jeopardy cannot be raised for
the first time by motion in arrest of judgment or
for a new trial or on appeal. The constitutional
immunity from double jeopardy is a personal
privilege which the accused may waive. Such a
waiver by defendant of this constitutional
privilege may be either express or implied, and it
will be implied where the accused pleads not
guilty and proceeds to trial, verdict and judgment
without raising the defense of former jeopardy.
[Citations omitted.]
The crucial procedural events in this case transpired within
a very narrow time span. We conclude that appellant waived any
potential double jeopardy claim when his trial counsel
acquiesced in the continuation of the hearing, and that no
plain error was committed.[fn2]
If we were to assume that appellant's double jeopardy claim
had been properly preserved by objection in the factfinding
hearing, our ultimate conclusion nonetheless would be the same.
Appellant contends that the court's oral granting of his motion
for a judgment of acquittal on the UUV charge was equivalent to
a final, written judgment, and that the court therefore could
not reconsider the issue. However, a trial or a factfinding
hearing does not terminate until the actual entry of judgment;
until then, the court is free to reconsider its prior rulings.
See, e. g., United States v. Baker, 419 F.2d 83, 89 (2d Cir.
1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d
271 (1970); Price v. State, 7 Md. App. 131, 254 A.2d 219,
226-227 (1969).
The sequence of events which occurred below did not infringe
on appellant's right to be free from double jeopardy.
Cf. Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033,
10 L.Ed.2d 100 (1963), and cases cited therein. We share the
views of the United States Court of Appeals for the Second
Circuit which were expressed in a similar procedural situation
(United States v. Baker, supra at 89 of 419 F.2d):
We must confess that we have difficulty in
perceiving any connection between a defendant's
constitutional right not to be
Page 828
placed twice in jeopardy and the events we have
recited. * * * In the case before us, no final
judgment of acquittal was ever entered, and
certainly [the defendant] was not subjected to the
harassment of successive prosecutions. Nor did the
prosecution seek a delay in order to obtain a more
favorable opportunity to convict. The only
prejudice [he] suffered is psychological; his
hopes were first raised, then quickly lowered. But
so ephemeral and insubstantial an injury is not
proscribed by the Constitution.
There being no error requiring reversal, the judgment below
is
Affirmed.
[fn1] J.A.H. pleaded guilty to driving without a license. Although
he was found guilty of ADW (as well as of UUV), the trial court
elected to dismiss the count charging assault on a police
officer. Appellant argues that the apparent inconsistency of
the latter ruling necessitates reversal; we disagree.
[fn2] We do not reach the government's contention, based upon In re
McDonald, D.C.Mun. App., 153 A.2d 651 (1959), that the double
jeopardy provision of the Constitution is inapplicable to
juvenile proceedings. Although this precise issue has not been
resolved by the Supreme Court, more recent cases such as In re
Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and In
re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970),
cast great doubt on the continuing validity of McDonald. See
also District of Columbia v. M.E.H., D.C.App., 312 A.2d 561
(1973); In re M.W.F., D.C.App., 312 A.2d 302 (1973) (dissenting
opinion); In re Grand Jury Proceedings, 491 F.2d 42 (D.C. Cir.,
1974); Fain v. Duff, 488 F.2d 218 (5th Cir., 1973).
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