*1 “position disput- and in a permitted question to observe all of the to ask the same of the events_” reaching Ante at 639. In other two witnesses. these circumstances conclusion, majority that upon the relies wondering the could have been left making “absolutely North Carolina it why the dentist did not also elicit the same mandatory for the witness to demonstrate Strong denial from and Mothersole. position that he or she was to hear or story The dentist needed to Products, Clifton, see....” Leisure Inc. v. by showing possible that all of the witnesses 803, N.C.App. 260 S.E.2d would have remembered the incident it case, prospective none of the wit- patient occurred as the claimed it did. The However, nesses could meet that test. we was, course, disregard of free to testi- capacity have never held that the of the mony setting out the dentist’s version of witness to observe the can events be estab- events, certainly pres- but he was entitled to only by particular ques- lished the witness entirety. ent it in its Because he was not reason, I example, why tion. see no so, allowed to do the could well have supplied foundation could not be some present concluded that the dentist did not view, my other witness or witnesses. And in they the other two witnesses because testimony patient placing the a dental did, testify contrary as Gabri a conclusion participating assistant the room reality. view, point From the dentist’s procedure, coupled with the dentist’s testimo- provide either all of the witnesses should ny present dental assistant must testimony sought or none of them should necessity watch him because of the that she testify point. Any on that other result (a hand instruments to him circumstance that necessarily prejudicial and a sufficient basis here) patient just testified occurred grant for the of a For new trial. all these Therefore, say that. I cannot it would have reasons, I conclude that the trial court did been error for the trial court to have admit- setting not abuse discretion.in aside ver- testimony. ted the dict, ground, on this after the first trial. majority holds that the trial court’s ruling excluding initial the evidence was cor-

rect. Ante at 639. IWhile would hold oth-

erwise, stated, for the reasons I think it is question fairly

fair to characterize that as a that,

close one. it Given seems to me that question that needs to be answered is not evidentiary correct, ruling

whether the judge but rather we should ask: Did the trial PARTLOW, Appellant, Robert A. in granting abuse discretion the new trial upon concluding motion depriving defense of this evidence was harmful? STATES, Appellee. UNITED question seems to me that the answer to that No. 93-CO-1547. “no,” First, must be for two reasons. above, evidentiary ruling stated awas Appeals. District of Columbia Court of one, close and where a trial makes Argued findings determining Feb. 1995. factual the threshold evidence, question admissibility gen- we Decided March 1996. erally give findings.5 deference to those Sec- ond, having admitted the evidence with re- witnesses,

spect to one of the the harm to the

defendant was manifest when he was not See, Smith, neous”); (D.C. e.g., Laumer v. United Watts v. (D.C.1979) (in reviewing 1967) (same the trial court’s reviewing standard when ruling admissibility on the of a declaration judge’s ruling admissibility spontaneous on interest, against penal "we will not disturb utterance). findings clearly they trial court’s unless erro-

Mary Kennedy, Public Defender Ser- C. Klein, Fam, vice, with whom James Sarnia Service, Reiser, Defender and David Public brief, appellant. were on the Lawton, United Margaret M. Assistant Holder, Attorney, Eric H. with whom States Jr., Attorney, and John R. States Trosman, Fisher, F. and Kenneth Elizabeth Whitted, Attorneys, United States Assistant brief, appellee. were on the FARRELL, RUIZ, TERRY, Before Judges. Associate Judge Opinion for the court Associate TERRY.

Concurring Judge opinion Associate p.647. RUIZ at TERRY, Judge: Associate Appellant, old at the time seventeen indictment, one of his to commit mur- count of assault with intent (AWIMWA) and related der while armed tried as an adult offenses. He was Superior pur- Division of the Court 16-2301(3)(A) (1989). suant to D.C.Code partial acquitting returned a charge, but when of the AWIMWA on the re- it was unable to reach a verdict maining charges, the court declared a mistri- request. Appellant at defense counsel’s al to transfer his case back to the then moved court, arguing that his charge removed acquittal on the AWIMWA jurisdiction of the Criminal him from the appellant’s mo- Division. The court denied subsequent motion to tion as weE as appeals; He we affirm. reconsider.

I charged by indictment with AppeHant was with intent to commit murder while assault armed,1 possession of a firearm while com- violence,2 carrying mitting a crime of Although he was a pistol without a Hcense.3 Attorney’s juvenile, Office the United States charge him as an adult under elected to 16-2301(3)(A). two-day After a 22-3204(a) (1989). 22-503, 3. D.C.Code §§ 22-3202 1. D.C.Code 22-3204(b) (1995 Supp.). 2. D.C.Code

trial, was instructed and retired to Criminal Division. This ease involves the day exceptions, deliberate. The next returned a second of these which enables the partial acquitted appellant Attorney, verdict. of the United States in his or her discre- tion, AWIMWA but announced that it was prosecute as an adult a sixteen- or remaining unable to reach verdicts on the seventeen-year-old “charged” who is with one *3 charges, including the lesser included offense or more serious crimes in enumerated dangerous weapon of assault with a 16-2301(3). on which § D.C.Code The latter statute it had been instructed. provides pertinent part: in (3)The term “child” means an individual Before the resumed delibera years age, except who is under 18 of day, following appellant tions the to moved the term “child” does not include an indi- Family have his case transferred to the back age vidual iswho sixteen or older Division, arguing longer that since he was no and— “charged” with an enumerated under offense D.C.Code and had not been (A) charged by the United States at- convicted of a lesser included offense under (i) murder, torney rape, with forcible 16-2301(3)(B), D.C.Code the Criminal Divi burglary degree, robbery in the first longer jurisdiction sion no had over his case. armed, while or assault with intent to The court denied the motion. After further (ii) any commit such or an of- deliberations, deadlocked, the remained (i) any in fense listed clause other and the court declared a at the re joinable properly offense with such quest of defense counsel. renewed offense; [or] request Family for a transfer to the (B) charged with an offense referred motion, again Division. The court denied the (A)(i) subparagraph into and convicted concluding was by plea or verdict of a lesser included juvenile position as in the defendant Lucas v. offense.... States, (D.C.1987), 522 A.2d 876 who By excluding from the definition of “child” manslaughter, was retried as an adult for seventeen-year-olds sixteen- and who are lesser included offense of the crime with Attorney charged by the United States originally charged (first-degree which he was offenses, provision certain serious auto- murder), manslaughter after his conviction of matically jurisdiction terminates the appeal had been on of trial reversed because Family Division and transfers court error. counsel Defense then filed juvenile over the to the Division for reconsideration; government motion for prosecution as an adult. United States See opposition, filed an and the court denied the Hobbs, M.R., 67; supra, In re order, ruling in motion a written C.S., (D.C.1987); re 615 384 controlling. appeal Lucas was This foll H.R.Rep. (D.C.1977); A.2d No. 91- owed.4 Cong., 91st 2d Sess. Family jurisdiction is restored if Division’s

II the criminal “terminated” oth- Ordinarily Family Division guilty, provid- plea er than or verdict of Superior Court has exclusive juvenile ed that has not been committing a over a “child” accused of delin in the meantime. with another offense See quent act that would be considered a crime 16-2307(h). committed an adult. D.C.Code 16-2302 Hobbs, court, (1989); see, Appellant argues, in the trial e.g., United States v. here as (D.C.1991); Montgomery lost to A.2d v. Unit that the Criminal Division (D.C.1987). try acquitted Two him he of the AWIM- ed 521 A.2d 1150 once was juveniles unable to reach exceptions to this rule allow certain WA and the prosecuted in the court’s on the lesser included offense. He to be as adults (D.C. 1978). appealable A.2d 4. The denial of a motion transfer is as a final order. Choco v. United 16-2301(3)(A). The fact that he was longer he was no contends that since “charged” ultimately the offenses listed convicted of this not must be trans- his case lost not mean that ferred back to the single- jurisdiction over his case. Under 16-2307(h). view, trial In his Lucas, gov- principle articulated relying on Lucas v. United court erred retry transferred ernment States, supra, Lucas construed sec- because pending until all as an adult defendant he, unlike the tion and because charges are resolved. was not convicted defendant that our decision was noted in Lucas We persuad- lesser included offense. We are jeop- principles of double consistent with the arguments. hold instead these We law, ardy although Lucas was not a double prosecuted in that once a has been *4 consistency evi- jeopardy case. A similar is Division as an adult under the Criminal 16-2301(3)(A), acknowledged Divi- “[t]he dent here. Lucas we sion retains over that fully general jeopardy ... does not rule charges. disposition pending final of all until occur, terminate, with re- and retrial person was spect to a crime for which a factually Although Lucas is different convicted, notwithstanding reversal originally bar, agree the trial from the case at we appeal.” A2d at of that conviction on 522 controlling in Lucas is court that our decision cases). Likewise, failure of a (citing essentially in here because is in this case —is to reach a verdict —as position in that case. as the defendant jeopardy: not an event terminates which first-degree as adult for Lucas was tried murder while armed and related offenses exception, courts have held [W]ithout old, committed when he was sixteen may discharge genu- a trial that the included but was convicted of the lesser require the de- inely deadlocked and involuntary manslaughter while offense of trial. This to submit to a second fendant armed, robbery attempted as well as society’s inter- recognition to rule accords carrying pistol a without a license. After his giving prosecution in one est appeal, was reversed on he was conviction those who have vio- opportunity to convict manslaughter for and related offenses retried lated its laws. ap second and was convicted. argued did peal, Lucas that the trial court 497, 509, 98 Washington, 434 U.S. Arizona v. not have over him at the second (1978); 824, 832, see 54 L.Ed.2d 717 S.Ct. because, though even at the 468 U.S. Richardson v. United guilty him of a lesser first trial had found 3081, 3085-3086, 324-325, 104 S.Ct. meaning included offense within the of sec Florida, (1984); v. Tibbs L.Ed.2d 16-2301(3)(B), that conviction had been tion 31, 42, 72 L.Ed.2d U.S. 16-2301(3)(B) reversed, and because section (9 Perez, (1982); 22 U.S. States requirement “an unstated that the embodies Wheat.) 579, 580, In this 6 L.Ed. 165 charge and conviction ... occur within the case, parallel in the in we find a as single trial.” 522 A2d at 878. confines continuing jeopardy. Just as concept of that the Division does not We held Criminal hung jury not resulting from juve “automatically jurisdiction over lose[] does it terminate jeopardy, neither terminate charged as adults as soon as the niles “charge” within the mean pendency of a founded upon adult treatment was which 16-2301(3)(A). Rather, ing of section of the case” and that Lucas’ second drops out any portion long as as “charge” remains alive of the first simply “a continuation trial was Montgomery finally resolved. See of it is not apply principles Id. at 879. These [trial].” at 1151. supra, 521 A.2d v. United case. as well to the instant asser- by appellant’s unpersuaded We are jurisdiction of the Crimi brought within the 16- history of section legislative tion that the as he was nal Division when legisla- The requires a different result. commit murder while sault with intent to helpful appellant; to history armed, in tive enumerated one of the offenses anything, argument.5 it alleged undermines his Nor for an offense to have accept can we his contention that for us to by subsequent been committed the child “charged ... construe the term with” transfer. including “past” section as added). (emphasis Congress, Id. Thus “present” charges well as would render sec- 16-2307(h), made “termination of the 16-2301(3)(B) superfluous. tion 16- Section prosecution” (provided there has been no 2301(3)(B) merely allows the Criminal Divi- offense) intervening charged trig- the event sentencing pur- sion to retain gering juris- restoration of poses whenever defendant is convicted of a diction. Since sections lesser included either a verdict or 16-2307(h) were enacted at the same time guilty plea. It neither states nor im- materia, plainly pari and are the latter plies the curtailment of a trial understanding can inform our of the former. mistrial before the trier of fact has reached a deprives jur- the Criminal Division of Appellant, argument, as we understand his isdiction.6 does not contend that mistrial at defense jurisdictional scheme as a whole dem- request, following acquittal on a enu- onstrates that the drafters of 16- merated divests the 2301(3)(B)were not concerned with the effect jurisdiction. Let us as- reversals, of mistrials or but rather with sume, jury’s example, a case in which the *5 prosecution by termination of a either a con- continued deliberations on the lesser includ- dismissal) (or acquittal viction or an of the become contaminated acciden- 16-2307(h), charge. lesser part D.C.Code exposure extra-judicial publicity, tal to some enactment, provides necessary. so that a mistrial becomes “[tjransfer prosecution of a child for criminal scarcely argued Congress could be in- [Family] terminates the of the juris- tended the adult criminal court to lose respect any Division over the child with point, prosecution diction at for the subsequent delinquent act.” At the same yet one full and fair would not have had the time, however, opportunity to convict on the lesser [Family] of the Division over 16-2301(3)(B) presumably af- that section (1) if the child is restored the criminal why fords it. But should a mistrial based on prosecution is terminated other than any hung a be different? guilty equivalent], ... a verdict of its [or (2) any Lucas counsels us in event to look to and at the time of the termination of jeopardy.7 In prosecution principles the criminal no or related of double indictment Washington, supra, Supreme information has been filed for criminal Arizona v. States, 919, Pendergrast 5. v. United 332 A.2d that would allow as an adult without (D.C.1975), Congress’ hearing incompatible this court stated that "would be with the es 16-2301(3)(A) enacting rejected intent in was to process.” We have simi sentials of due "work a substantive contraction of the Juvenile arguments past lar and held that Accord, jurisdiction.” Court's earlier Marrow v. juvenile's under section 16- transfer of a States, 1042, (D.C.1991). United 592 A.2d 2301(3)(A) process. does not violate due See Furthermore, Congress placed charging broad supra note Marrow v. United discretion in the hands of the United States At 1045-1046; at Brown v. United torney provide in order "to 'a better mechanism (D.C.1975). separation youthful of the violent offender and recidivist from the rest of the com 7.Indeed, (specifically, itself " the statute H.R.Rep: munity. (citing Id. at 1046 No. 91- 16-2302) reflects an intent to conform to those (1970)). Cong., 91st 2d Sess. when, principles dealing discovery of the while a criminal defendant's status as a child argument 6. makes a related that to pending, differing responses charge is it calls for 16-2301(3)(A) allowing read section as him to be “jeopardy depending the court on whether adult, mistrial, tried after ,of would attach in the case an adult....” "permanently Family shift from the 16-2302(b) 16-2302(a); (if see also D.C.Code Division to Division." He the Criminal main- discovery status is not made “until protected of defendant's constitutionally tains that he has a attached, pro- jeopardy being prosecuted juvenile, the court shall after has interest in as a verdict”). interpretation ceed to that an of section RUIZ, concurring: Judge, considered, pur- Associate jeopardy for double Court scrutiny appropriate degree of poses, the separately to make clear what I write judge’s of a mistrial over declaration it does not reach. holds and what opinion objection i.e., of “manifest because defense — one: necessary holding is a narrow Our necessity” ground of deadlock. the—on jurisdiction, a mistrial is a “non- terms jeopardy holding that the law of double brought properly event” once given “broad permits the trial to be Thus, Partlow Division. before the Criminal deciding or not ‘mani- discretion in whether in the Criminal Division should be retried justifies discharge necessity5 fest prop- following because his ease was hung jury jury,” explained that a the Court Partlow was erly brought in that Division as for a “long considered the classic basis an enumerated offense at 98 S.Ct. at proper mistrial.” U.S. be still omitted). (footnote later, Six offense. We of a lesser-included convicted States, supra, Richardson deciding? premature, it is because proposition that a “reaffirm[ed] Court retrial, whether, after following of a mistrial trial court’s declaration or proceed to sentence Partlow should hung jury is not an event that terminates trans- could or should be Partlow whether original jeopardy [the to which defendant disposition ferred to the at subjected.” 468 is] U.S. depends juvenile. That determination as a any, Partlow is of which on the decisions, Supreme Court it is Given these guilty upon retrial. found simply implausible to conclude that Con- 16-2301(3)(B), gress, in attached

jurisdictional significance result- to a mistrial

ing especially This is from deadlock. perverse if one considers the incentive

true *6 contrary reading

that a would create for a is more convinced than the who guilt.

jury that the evidence demonstrates light forcing continued delibera- COMPANY, W.M. SCHLOSSER objection tion over defense even at the risk INC., Appellant, might of a coerced verdict seem to be worth price retaining jurisdic- court criminal v. worst, price being, tion —that reversal and COMPANY, MARYLAND DRYWALL Any suggestion that a retrial under Lucas. INC., Appellee. appel- the loss of criminal reading lant’s of section COLUMBIA, Appellant, OF DISTRICT juvenile escape judgment not enable a only shift the forum of his acts but would unconvincing. adjudication to court is ROBERTSON, al., Appellees. et Andre adjudication delinquency in

An 92-CV-518, Nos. 92-CV-538. conviction, prose- and the proceeding is not its “one cution would still have been denied Appeals. Court of District of Columbia opportunity to those who convict Washing- have its laws.” Arizona v. violated 10, 1994. Argued June ton, at 832 supra, 434 U.S. at March Decided added). (emphasis denying appellant’s The trial court’s order to the

motion to transfer denying

Division and its order reconsidera- accordingly ruling

tion of

Affirmed.