Pendergrast v. United States , 385 A.2d 173 ( 1978 )

Opinion for the court by KELLY, Associate Judge.

KELLY, Associate Judge:

On February 18, 1975, a panel of this court reversed appellant’s conviction of second-degree murder because the trial court erroneously refused to instruct the jury on the lesser included offense of manslaughter. Pendergrast v. United States, D.C.App., 332 A.2d 919 (1975). In Section IY of the opinion we stated:

Considering all of the circumstances, this may well be an appropriate case for the government to consent to the entry of a judgment of guilty of manslaughter on remand, and for the trial court to consider such a final disposition of the . proceeding after hearing from both parties. See United States v. Wharton, 139 U.S. App.D.C. 293, 303, 433 F.2d 451, 461 (1970). [Id. at 927.]

On remand, appellant sought a new trial. At the trial court’s suggestion, however, the government moved for an entry of a judgment of guilty of manslaughter. After receipt of memoranda of law from the parties the court entered the judgment of conviction of manslaughter, stating in its order that

2. The District of Columbia Court of Appeals reversed the conviction and remanded the matter to this Court. The Court of Appeals directed that, should the government consent, an entry of a judgment of guilty of manslaughter should be made, thereby obviating an essentially purposeless new trial.

The trial court went on to say that “[h]ad the Court of Appeals intended any procedure or resolution of the case other than that set forth in Wharton, they [sic] would not have ordered that the Wharton case be adhered to.”

Appellant’s position both before the trial court and here is that this is not an appropriate case in which to apply the Wharton procedure. He points out that in our prior opinion at least two more trial errors were recognized¹ and two other alleged errors were not even discussed. Thus errors committed at trial could have influenced the conviction itself (i. e., appellant’s guilt or innocence) rather than just the degree of conviction, the only point to which the Wharton line of cases speak.²

We agree with appellant and conclude that the reference to Wharton in our original opinion was not only confusing but also ill advised,³ for. in that case only the jury instructions were in issue and not the fairness of the trial itself. And this court cannot now, from hindsight, flesh out its original opinion to deal with the alleged errors in such manner as to justify the use of the Wharton procedure over appellant’s objection.⁴ It was possible that on remand, with the government’s consent, appellant would have accepted a manslaughter conviction. But when appellant objected and sought a new trial, neither the court nor the government could insist, in the posture of this case, that such judgment of conviction be entered.⁵ Appellant is entitled to a fair trial free of reversible error and the trial court should have afforded him that opportunity.⁶

Reversed and remanded.

1 . Id. at 921 n. 1, 926 n. 5.

2 . See United States v. Perkins, 162 U.S.App.D.C. 321, 498 F.2d 1054 (1974); United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971); United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970); United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969); Allison v. United States, 133 U.S.App.D.C. 159, 409 F.2d 445 (1969); Hemphill v. United States, 131 U.S.App.D.C. 46, 402 F.2d 187 (1968).

3 . Contrary to the trial court’s statement, we did not direct an entry of the manslaughter conviction.

4 . The Wharton remedy was originally fashioned in Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967). Errors at trial were alleged in Austin, but they were found to be without merit before remand.

5 . Able counsel from the Public Defender Service argues that common sense dictates the conclusion that our language on remand included the option of a new trial if appellant so desired. It is neither appropriate nor helpful, however, to discuss arguable or plausible assumptions about our prior decision.

6 .Whatever the relevance or validity of the dissent’s law of the case discussion to the question at issue, what we held in our prior opinion is that the Superior Court properly exercised jurisdiction over appellant as an adult and that it was error (1) to deny a request for a lesser included offense jury instruction and (2) to exclude evidence of appellant’s reputation for truth and veracity. We did not decide whether the court’s error in communicating with the jury without notice to counsel required reversal since reversal was required on the jury instructional flaw.