Mack v. United States

772 A.2d 813, 2001 D.C. App. LEXIS 111, 2001 WL 491128
CourtDistrict of Columbia Court of Appeals
DecidedMay 10, 2001
DocketNo. 99-CF-1611
StatusPublished
Cited by2 cases

This text of 772 A.2d 813 (Mack 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
Mack v. United States, 772 A.2d 813, 2001 D.C. App. LEXIS 111, 2001 WL 491128 (D.C. 2001).

Opinion

REID, Associate Judge:

After a jury trial, appellant Cornell G. Mack was convicted of assaulting a police officer (“APO”), in violation of D.C.Code § 22-505(a) (1996); escape from an officer, in violation of § 22-2601(a)(2); carrying a pistol without a license (“CPWL”), in violation of § 22-3204(a); possessing an unregistered firearm (“UF”), in violation of § 6-2311(a) (1995); and possessing unregistered ammunition (“UA”), in violation of § 6-2361(3).1 On appeal, Mack contends [815]*815that: 1) his conviction of APO merges with his conviction of escape; and 2) the evidence presented at trial was insufficient to sustain a conviction under § 22-2601. We affirm.

FACTUAL SUMMARY

At trial, the government’s evidence showed that, at approximately 9:00 p.m. on February 23, 1999, Officer Albert Williams, a six-year veteran of the Metropolitan Police Department (“MPD”), was “working mountain bike patrol” along the 1100 block of Montello Avenue, N.E., in the District. During this patrol, Officer Williams was wearing his official blue “mountain bike uniform” which visibly contained the word “Police.”

As Officer Williams was riding north between Montello and Trinidad Avenues, N.E., he heard someone shout out “one time,”2 and immediately observed Mack “coming from an alley ... [with] a marijuana cigarette in his right hand[,] and a[n] ... open container of alcohol [in the other].” Intending to place Mack under arrest, Officer Williams “told him to get on his knees,” and proceeded to go “over to him.” However, “[Mack] ... sprung up and started ... swinging ... like [he was] trying to get away.” As Officer Williams attempted to restrain him by “grab[bing] him around the shoulders,” Mack “took his jacket off’ and started “throwing punches.” Officer Williams then “grabbed ahold of him and picked him up and ... kind of threw him to the ground.” As he proceeded to “place him under arrest,” Mack “punched [Officer Williams] in [his left] eye” and absconded without pursuit. After retrieving Mack’s jacket and searching it, Officer Williams found a .38 caliber loaded handgun, a cell phone, a scale, and “some papers” which bore Mack’s name.

Later that evening, after being shown a single photograph by a fellow officer, Officer Williams identified Mack as his assailant. Officer Williams was confident that Mack was the individual who assaulted him because he “had seen [Mack] plenty of times in the area.”

At trial, Mack testified on his behalf as the only defense witness, and argued mis-identification. After admitting that the recovered jacket may have belonged to him, he stated that his jacket was stolen from him one day prior to the assault on Officer Williams.

ANALYSIS

The Merger Issue

Mack asserts that if this court finds that he was in lawful custody during his altercation with Officer Williams, it must nevertheless reverse and remand this matter for a new trial because the “[APO] conviction [should have] merged with [the] Escape [conviction], as a lesser-included offense.” The government contends that Mack’s merger argument “fails as a matter of law [because] [e]ach of the[ ] offenses require[] proof of a fact or element not found in the other.” In Silver v. United States, 726 A.2d 191 (D.C.1999), a case where the appellant alleged his conviction of cruelty to animals merged with his conviction for animal fighting because animal [816]*816cruelty was a lesser included offense of animal fighting, we recently observed that

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Id. at 194 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); accord Byrd v. United States, 598 A.2d 386, 389 (D.C.1991) (en banc) (other citation omitted). See also Simms v. United States, 634 A.2d 442, 447 (D.C.1993).

A review of §§ 22-505(a)3, and 2601(a)(2)4 illustrates that “each crime requires proof of an element which the other does not....” Silver, supra, 726 A.2d at 194. An individual who unjustifiably assaults, resists, opposes, impedes, intimidates, or interferes with a District of Columbia police officer while the officer is performing his or her official duties, at a time when the individual knew or had reason to believe that the complainant was a District police officer, may be found guilty of APO. See D.C.Code § 22-505(a); Criminal Jury Instructions for the District of Columbia, No. 4-11 (4th ed.1993). In contrast, to obtain a conviction for escape, the government must show that a person was in lawful custody and attempted to escape. See § 22-2601(a)(2); Criminal Jury Instructions for the District of Columbia, No. 4.99 A (1996 Supp.). Thus, since each of these crimes demands “proof of an element which the other does not,” Silver, supra, 726 A.2d at 194, we agree with the government that Mack’s convictions for APO and escape, do not merge. See Byrd, supra, 598 A.2d at 389; Blockburger, supra, 284 U.S. at 304, 52 S.Ct. 180.

The Sufficiency Issue

Mack contends that the trial court erred in denying his motions for judgment of acquittal, both at trial and after trial, because “the evidence presented by the government in it[s] case-in-chief did not show that [he] was in ‘lawful custody’ before he fled his jacket and ran away.” Specifically, he argues that “custody” under § 22-2601 requires commitment “to a facility by a judicial order.”

Viewing the evidence in the light most favorable to the government, as we must, see Foster v. United States, 699 A.2d 1113, 1115 (D.C.1997), and based primarily upon the testimony of Officer Williams, we conclude that the government satisfied its burden of proving, beyond a reasonable doubt, that Mack was in lawful police custody immediately prior to his escape. First, we reject Mack’s argument that commitment “to a facility by a judicial order” is required under § 22-2601(a)(2). The plain words of § 22-2601(a)(2) do not require a commitment to a facility before an individual may be charged with escape under this subsection. Indeed, in contrast [817]*817to § 22-2601(a)(2), § 22-2601(a)(1) specifically applies to an escape from a penal institution or facility to which a person is confined by a judicial order. Moreover, at least one other jurisdiction has declined “to read into [a] statute [that is similar to ours] the requirement that ‘custody’ be limited to mean institutional custody.” State v. Adams, 152 Wis.2d 68, 447 N.W.2d 90, 94 (App.1989).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carlos Davis v. United States
166 A.3d 944 (District of Columbia Court of Appeals, 2017)
Brawner v. United States
979 A.2d 1191 (District of Columbia Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
772 A.2d 813, 2001 D.C. App. LEXIS 111, 2001 WL 491128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-united-states-dc-2001.