Morris v. United States

648 A.2d 958, 1994 D.C. App. LEXIS 193, 1994 WL 578155

• Court: District of Columbia Court of Appeals
• Decided: October 20, 1994
• Docket: No. 91-CF-1067
• Status: Published

Opinions

FARRELL, Associate Judge:

Appellant pleaded guilty to involuntary manslaughter while armed, D.C.Code §§ 22-2405, -3202 (1989 & 1994 Supp.). The factual basis for the plea, in essence, was that he was “playing with” a loaded pistol in the company of others when it accidentally fired and struck Eric King in the head, killing him. Appellant now contests the enhanced (“while armed”) portion of his sentence, contending that under Reed v. United States, 584 A.2d 585 (D.C.1990), there is an “inherent conflict,” id. at 588, between the lack of awareness of risk implicit in involuntary manslaughter ¹ and the awareness of risk of harm to others through use of a dangerous weapon required by the “while armed” enhancement provision of D.C.Code § 22-3202(a)(l). Unpersuaded by this contention, we affirm.²

I.

Appellant was charged with, among other things, second-degree murder while armed. At the plea proceeding, where he indicated his desire to plead guilty to involuntary manslaughter while armed, the government proffered facts demonstrating that on August 8, 1989, appellant and his friends were teasing the 16-year-old King, an admitted homosexual. The proffer stated that while appellant and his companions “were attempting to get the decedent to reveal his private parts,” appellant pulled out a loaded pistol and “was aiming it at the decedent when the gun went off[,] striking the decedent in the head.” Appellant’s counsel stated a sightly different version of events: appelant had taken out the pistol and had “not point[ed] it at the decedent specificaly[,] but it was positioned and he was just fiddling with it in such a way that it was pointed in the general direction of the decedent” when it discharged. Responding to questions from the court, appelant admitted that he had puled a gun from his pocket and held it in his hand when it went off, firing a bulet that struck and Idled King. He acknowledged, in the court’s words, that the death “was a result of a course of conduct involving extreme danger of death or serious bodily injury,” and that he “acted very carelessly and very recklessly.” Upon acceptance of his plea, appelant was sentenced to a prison term of ten to thirty years pursuant to the enhancement provision of § 22-3202(a)(l).

II.

Section 22-3202 provides in relevant part:

(a) Any person who commits a crime of violence, or a dangerous crime[,] in the District of Columbia when aimed with or having readly available any pistol or other firearm ... or other dangerous or deadly weapon ...

(1) May ... be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment

For purposes of this statute, § 22-3201(f) defines a “[cjrime of violence” to include “manslaughter.” The statute does not distinguish between kinds of manslaughter — voluntary or involuntary. Indeed, as we explained in Comber v. United States, 584 A.2d 26, 37 n. 8 (D.C.1990) (en banc), the statute punishing manslaughter itself draws “no ... distinction between voluntary and involuntary manslaughter in the District of Columbia.” See D.C.Code § 22-2405 (“[w]hoever commits manslaughter shall be punished ... by imprisonment not exceeding 15 years ... ”). Nevertheless, the distinction is ingrained in our law, as Comber demonstrated. Involuntary manslaughter, which alone concerns us here, is an “unintentional or accidental killing” committed “[in] the absence of circumstances of justification or excuse-” Comber, 584 A.2d at 47-48. It includes “two categories of unintentional killing,” roughly labelled “criminal negligence involuntary manslaughter” and “misdemeanor involuntary ’manslaughter.” The first,, which was the basis for appellant’s plea of guilty, applies to “one who unintentionally causes the death of another as the result of non-criminal conduct,” where that conduct “both creates ‘extreme danger to life or of serious bodily injury,’ and amounts to ‘a gross deviation from a reasonable standard of care.’ ” Id. at 48 (citation omitted). The required mental state for this “involuntary reckless manslaughter,” id. at 49, as we later pointed out in Reed, supra, is “lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk.” Reed, 584 A.2d at 588 (quoting United States v. Bradford, 344 A.2d 208, 215 (D.C.1975)).³

Appellant seizes on this “lack of awareness of risk” in arguing that Congress, in enacting § 22-3202, could not have intended to enhance punishment for conduct involving “risks of which a defendant was [unjaware.” Correctly pointing out that the purpose of the statute is to deter certain armed crimes, he argues that “[i]t would not serve the purpose of deterrence to punish conduct which was unintended or merely negligent.” But this argument meets an obvious difficulty at the outset, which is that Congress, presumptively aware of the common-law bifurcated definition of manslaughter in the District of Columbia, Comber, 584 A.2d at 35, nonetheless wrote no such distinction into the enhancement statute, instead employing the unitary term “manslaughter.” As used in this statute, the term is not ambiguous any more than it could be said to be ambiguous in § 22-2405, punishing (unarmed) “manslaughter” — without differentiation — by imprisonment for up to fifteen years. We therefore must enforce § 22-3202 according to its plain language, as including manslaughter without further distinction, unless this is one of the “rare cases” in which “literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citation and internal quotation marks omitted). See also Bulls v. United States, 490 A.2d 197, 200 (D.C.1985). Appellant attempts that demonstration by reliance on Reed, supra, but fails.

In Reed this court held, in the circumstances there presented, that “[t]he two parts of the charge” of involuntary manslaughter while armed were “contradictory,” 584 A.2d at 590, in “inherent conflict” with one another, id. at 588, so that the legislature could not have intended § 22-3202 to enhance the defendant’s manslaughter conviction. But the court made clear that it was “[o]n these facts” that “the inappropriateness of enhancement of an involuntary manslaughter conviction as “while armed’ is manifest.” Id. The defendant was charged with involuntary manslaughter of the criminal negligence variety in that he recklessly drove his automobile across a median strip and killed the driver of another car. In concluding “that an automobile is not a dangerous weapon for the purposes of [§ 22-3202(a)(l)] when operated with gross negligence,” the court relied on the established principle that, “[wjhile certain objects are weapons by design, for instance, a handgun or a switchblade, other objects become weapons only when there is some general intent for them to be a weapon.” Id. (emphasis added).⁴ An automobile, whose normal use is transportation, thus becomes a weapon only when “driven with the purpose of injuring another_” Id. at 589. Of course, “a specific intent to use an object offensively” is not required; “use of an object with reckless disregard of the risk [of injury is] sufficient to enhance a conviction under § 22-3202.” Id. at 590. But, the court reasoned,

[r]eckless disregard of a risk requires an awareness of the risk created and a conscious disregard thereof_ [I]n the instant case, appellant was charged only with involuntary manslaughter, the killing of another as the result of conduct which created a risk to others that the defendant should have been aware of but was not. Because a car is not designed as a weapon, appellant’s conviction can be enhanced only if a jury could infer from the circumstances that appellant was aware that his manner of using the ear was likely to result in injuries to others. The charge against appellant, involuntary manslaughter while armed, thus effectively charged both that the defendant was not aware of the risk and that he was aware of the risk.

Id. at 590 (emphasis added).

Reed is thus noteworthy both for what it held and for what it did not hold. It plainly did not hold that a loaded firearm was not a dangerous weapon for purposes of § 22-3202 enhancement. Reed’s holding turned upon the expansive statutory meaning of dangerous or deadly weapon, which includes objects not “inherently “weapons’,” id.; enhancement of an involuntary manslaughter conviction (entailing lack of awareness of risk) is senseless as applied to an object made a weapon only by its purposeful use to injure as defined in Reed. At the core of the dangerous weapon category, by contrast, are instruments — like firearms — “designed” as weapons, and as to these Reed leaves no doubt that their possession may enhance the punishment for involuntary manslaughter.⁵

The present case illustrates why that must be so. Assuming the government had proven that appellant had no license to carry the pistol, then under Comber one can analyze his conduct in “fiddling with” and pointing the loaded gun in two ways: either as noncriminal but reckless conduct bearing an extreme risk of serious bodily injury, or as the commission of an inherently dangerous misdemeanor carrying with it a reasonably foreseeable risk of appreciable physical injury. See note 3, supra. Viewed either way, there is nothing inherently contradictory or unreasonable in saying that Congress, in § 22-3202, gave notice that unintentional killings resulting from behavior of this sort could receive enhanced punishment precisely because of the heightened risk of such death from playing with a loaded gun in front of others. Application of the statute to appellant’s conduct thus serves its deterrent purpose.⁶

Affirmed.

1 . That is, in the ‘‘criminal negligence” category of involuntary manslaughter. See discussion in text, infra.

2 . In view of our disposition of the case, we need not consider the government’s contention that appellant may not contest his “while armed” enhancement because he never moved to withdraw his guilty plea. But see Lorimer v. United States, 425 A.2d 1306, 1308 (D.C.1981) (court of appeals may address “legality of the sentence imposed” on appeal from conviction based on plea of guilty).

3 . The second category involves an accidental killing in the course of commission of a misdemean- or bearing "an inherent danger of physical injury” and where commission of the act itself "entails a reasonably foreseeable risk of appreciable physical injury.” Comber, 584 A.2d at 50-51 (footnotes omitted).

4 . The court looked, for example, to the meaning of a dangerous or deadly weapon under D.C.Code § 22-3204 (carrying a concealed weapon), which our decisions had explained as follows:

A deadly or dangerous weapon is one which is likely to produce death or great bodily injury by the use made of it. Such instrument may be dangerous [either] in its ordinary use as contemplated by its design and construction, or where the purpose of carrying the object, under the circumstances, is its use as a weapon.

584 A.2d at 589 (quoting Scott v. United States, 243 A.2d 54, 56 (D.C.1968) (emphasis in Scott)).

5 . It need not follow from this analysis that had Reed fortuitously been carrying a firearm at the time he killed the other driver, he could have been punished under § 22-3202. That hypothesis might stretch rational application of the statute — i.e., any link of foreseeable use between the gun and the homicide — to the breaking point. In any event, it is not this case.

6 . We decline the invitation to apply principles of lenity to the enhancement of appellant's sentence. Where, as here, Congress, "has conveyed its purpose clearly,” courts may not "manufacture ambiguity where none exists.” United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978). See also Beecham v. United States, - U.S. -, -, 114 S.Ct. 1669, 1672, 128 L.Ed.2d 383 (1994).