Heard v. United States

686 A.2d 1026, 1996 D.C. App. LEXIS 274, 1996 WL 711283
CourtDistrict of Columbia Court of Appeals
DecidedDecember 12, 1996
Docket94-CF-1485
StatusPublished
Cited by16 cases

This text of 686 A.2d 1026 (Heard v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heard v. United States, 686 A.2d 1026, 1996 D.C. App. LEXIS 274, 1996 WL 711283 (D.C. 1996).

Opinions

RUIZ, Associate Judge:

Heard was convicted of two counts of being an accessory after the fact to assault with intent to kill while armed and one count of being an accessory after the fact to possession of a firearm during a crime of violence, for his role in a shooting that injured one man and killed another on December 19, 1992. He received two concurrent prison terms of six and two thirds to twenty years on each of the accessory after the fact to assault with intent to kill while armed counts and a consecutive prison term of thirty to ninety months for being an accessory after the fact to possession of a firearm during a crime of violence.

Heard presents two issues on appeal: 1) that the three accessory after the fact convictions should merge into one, and 2) that this court should remand this case for a new sentence not to exceed seven and one half years. We conclude that the two counts of accessory after the fact to assault with intent to kill while armed and the one count of accessory after the fact to possession of a firearm during a crime of violence do not merge and that Heard’s sentence is proper.

I.

On December 19, 1992, Heard was driving a vehicle containing two passengers, Patrick Baucum and Thomas Johnson, in the Southeast section of Washington D.C. At approximately 3:00 in the afternoon Heard approached the intersection of Alabama Avenue and Naylor Road, S.E. Stopped at a red light at that intersection was a car driven by Willie Washington and occupied by his uncle, Earl Nelson. While the light was still red, Heard pulled his vehicle up beside the vehicle driven by Washington. Johnson, who was sitting in the front passenger seat, and Baucum, who was sitting in the rear passenger seat, pulled out guns and fired at least eight shots into Washington’s vehicle. After Baucum and Johnson finished shooting, Heard remained stopped at the light until it turned green, and then proceeded through the intersection at a normal rate of speed. These events were witnessed by an off-duty officer. Heai-d, Baucum and Johnson were subsequently apprehended and charged in connection with this shooting.1

II.

Heard argues that his three accessory after the fact convictions should merge because they are based on the same conduct. He contends that the accessory after the fact statute is ambiguous as to whether multiple punishments for the same act of accessory-ship are permitted. Because the statute is ambiguous and because his convictions are based on one act of driving the getaway car, Heard contends that the rule of lenity should be applied and his convictions should merge.

Under the rule of lenity, when it is unclear whether the legislature intended to impose multiple punishments, multiple convictions under the same statute that are based on the same act will merge. Ladner v. United States, 358 U.S. 169, 177-78, 79 S.Ct. 209, 213-14, 3 L.Ed.2d 199 (1958) (holding that injuring two police officers with a single shot gun blast was one offense); Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622-23, 99 L.Ed. 905 (1955) (holding that transporting two women in interstate commerce for an immoral purpose in violation of the Mann Act, 18 U.S.C. § 2421, was a single offense); Morris v. United States, 622 A.2d 1116, 1129, cert. denied, 510 U.S. 899, 114 S.Ct. 270, 126 L.Ed.2d 221 (1993) (holding that the attempted armed robbery and the assault with a dangerous weapon — a gun— committed against the same victim were offenses in violation of the same statute, D.C.Code § 22-3204 (1996); therefore,-they merged); Bean v. United States, 576 A.2d 187, 189-91 (D.C.1990) (holding that simultaneous possession of a sawed-off .22 caliber rifle and a knife constituted one violation of D.C.Code § 22-3204); Cormier v. United States, 137 A.2d 212, 216-17 (D.C.1957) (hold[1029]*1029ing that simultaneous possession of two pistols was one offense); see Joiner v. United States, 585 A.2d 176, 178 (D.C.1991) (holding that firing a single shot in the direction of seven men was one offense). The rule of lenity is reserved for situations where “the language and structure, legislative history, and motivating policies” do not remove any reasonable doubt as to the scope of a statute. Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); see also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (stating that the court should apply lenity in cases when, after exhausting all helpful materials, the statute is still ambiguous)). Thus, we look to the “language and structure, legislative history and motivating policies” of the statute to see if it authorizes multiple punishments. Moskal, supra, 498 U.S. at 108, 111 S.Ct. at 465.

The District’s accessory after the fact statute provides:

Whoever shall be convicted of being an accessory after the fact to any crime punishable by death shall be punished by imprisonment for not more than 20 years. Whoever shall be convicted of being [an] accessory after the fact to any crime punishable by imprisonment shall be punished by a fine or imprisonment, or both, as the case may be, not more than [one-half] the maximum fine or imprisonment, or both, to which the principal offender may be subjected.

D.C.Code § 22-106 (1996).

The District’s accessory after the fact statute, which provides only the penalties authorized for persons convicted as accessories, was enacted by Congress in 1901 as part of a comprehensive code of law for the District of Columbia. See ch. 854, sec. 909, 31 Stat. 1337 (1901). Because the District’s accessory after the fact statute provides only for punishment, we look to the common law for an understanding of the substantive definition of the offense. Clark v. United States, 418 A.2d 1059, 1061 (D.C.1980); Butler v. United States, 481 A.2d 431, 442-43 (D.C. 1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). Section one of the 1901 Code provides that, “[t]he common law, all British statutes in force in Maryland ... at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with or are replaced by ...

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686 A.2d 1026 (District of Columbia Court of Appeals, 1996)

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Bluebook (online)
686 A.2d 1026, 1996 D.C. App. LEXIS 274, 1996 WL 711283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heard-v-united-states-dc-1996.