Parker v. US, 95-CF-211.

• Decision Date: 03 April 1997
• Docket Number: No. 95-CF-211.,95-CF-211.
• Citation: 692 A.2d 913
• Parties: James D. PARKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

692 A.2d 913

James D. PARKER, Appellant, v. UNITED STATES, Appellee.

No. 95-CF-211.

District of Columbia Court of Appeals.

Argued December 13, 1996.

Decided April 3, 1997.

David E. Jones, appointed by the court, for appellant.

Steve E. Rindner, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, and Roy W. McLeese, III, Renate D. Staley, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN, STEADMAN, and RUIZ, Associate Judges.

RUIZ, Associate Judge:

A jury found appellant, James Parker, guilty as charged with first-degree murder while armed in violation of D.C.Code §§ 22-2401, -3202 (1996), felony murder while armed in violation of D.C.Code §§ 22-2401, -3202, kidnapping while armed in violation of D.C.Code §§ 22-2101, -3202 (1996), possession of a firearm during a crime of violence (PFCV) in violation of D.C.Code § 22-3204(b) (1996), and carrying a pistol without a license (CPWL) in violation of D.C.Code § 22-3204(a) (1996). The trial court sentenced Parker to life without parole for first-degree murder while armed, life without parole for felony murder while armed, fifteen years to life for kidnapping while armed, five to fifteen years for PFCV, and one year for CPWL, all sentences to run concurrently. Parker raises two issues on appeal: whether the trial court erred in (1) denying his motion for judgment of acquittal on the kidnapping charge because it merged with the murder charges, and (2) concluding beyond a reasonable doubt that the crime was "especially heinous, atrocious or cruel." We affirm.

I.

A week prior to the murder of Deborah Beal, she had asked Parker to move out of her apartment and had broken off relations with him. On April 14, 1994, Beal was driving to her apartment complex on Wisconsin Avenue with a co-worker, Debbie Parsons. Beal recognized Parker's car waiting outside the apartment complex and instead of pulling into the garage, she kept driving along Wisconsin Avenue. Parker followed Beal and pulled alongside the car. Beal then attempted to gain access to her apartment's garage by using a key card. As Beal drove into the garage, Parker followed behind before the door closed. Parsons testified that while in the garage she asked Beal what to do, to which Beal responded that they should act as if everything was normal. After Parsons retrieved her belongings, she went into the laundry room and struck up a conversation with Ms. Wilma Anze, another tenant. Parsons and Anze heard Beal scream and went into the garage to see Parker pulling Beal toward his car as she attempted to pull her-self away. Parker dragged Beal approximately twenty-five to thirty feet to his car. At this point, Beal's dress was ripped in the back and her hair was in disarray. Beal repeatedly asked Parker to let her go. Parsons testified that Parker forced Beal into his car and that Beal screamed out for someone to call the police. Parsons then ran off to call for help. Anze then heard gunshots and saw the windows break in Parker's car. After this happened, Anze ran away with her two children to call the police. Leaving Beal on the garage floor, Parker retrieved the garage door opener from Beal's car and drove to Maryland where his wife and their two children lived.

Officer Missouri was the first officer to arrive on the scene and found Beal in a great deal of pain on the garage floor. Beal indicated that she had been shot by her ex-boyfriend. At the hospital Beal spoke briefly with Detective Carew and told Carew Parker's name, age, and address where he could be found in Maryland. Uniformed Maryland officers were dispatched to Parker's Maryland address. Upon arrival at Parker's home, officers saw Parker exit the house and enter a vehicle. Parker proceeded to drive around the block, return to the house and run inside before turning off the motor. Parker called 911 and was connected with the officer outside the house. Parker repeatedly told the officer that "I've done something bad. I think I killed her." Parker surrendered without incident after a three-hour standoff. A search of the house, consented to by Parker's wife, turned up the gun used in the shooting. After waiving his Miranda¹ rights, Parker provided an oral statement admitting to the shooting. Three days later, Parker was transported to the District. Parker again waived his Miranda rights and admitted to the shooting.

At the hospital, Beal repeatedly asked whether she was going to die. She in fact did die the next day. The medical examiner testified that the decedent's causes of death were gunshot wounds, compressive injuries to the neck, and blunt force trauma to the head.

II.

Parker argues that the kidnapping charge merges with the murder charges because the kidnapping was incidental to the underlying crime. Parker's merger analysis relies on the fact-based inquiry applied in Robinson v. United States, 388 A.2d 1210 (D.C.1978). Robinson stated that:

Although the conduct complained of in this case falls within the literal terms of D.C.Code 1973, § 22-2101, it is also obvious that some type of seizure, detention or confinement is an integral part of every rape. Consequently, we think it unlikely that Congress intended that every person who commits a rape be also charged and convicted of kidnaping, with its generally more severe penal consequences. The facts of each case must be examined to determine whether in fact two separate crimes were committed, or whether they merged.

In making this determination, we inquire whether the asportation (or seizure) in a given case was of the type incidental to every rape or whether the confinement and restraint were significant enough of themselves to warrant an independent prosecution for kidnaping. A like question is whether the `kidnaping' substantially increased the risk of harm over and above that necessarily present in the underlying crime.

Id. at 1211-12 (citations omitted) (footnote omitted). In Sinclair v. United States, 388 A.2d 1201 (D.C.1978), we explained that where the facts underlying the charge of kidnapping are not "approximately coextensive or a necessary incident to the crime of robbery.... The conviction ... for the separate offense of kidnapping was within the intent as well as the text of the applicable section of the Code." Id. at 1208. In West v. United States, 599 A.2d 788 (D.C.1991), we applied the reasoning in Robinson and Sinclair and upheld the trial court's refusal to merge a kidnapping conviction into rape and robbery convictions, because the seizure "both temporally and in kind was more than `approximately coextensive' within the underlying incidents themselves ... and enhanced the likelihood of success in perpetrating the underlying crime." Id. at 793; see Catlett v. United States, 545 A.2d 1202, 1216 (D.C.1988) (upholding separate robbery and kidnapping convictions where the kidnapping element "exposed the victim to more danger and decreased the risk that appellants would be caught").

Parker argues that because Beal suffered life threatening injuries during the short time that he was dragging her to his car, the acts, including his movement of Beal, that support a charge of kidnapping, were incidental to the underlying murder. In addition, Parker contends that dragging Beal to his car did not diminish the chances that he would be caught, West, supra, 599 A.2d at 793, because the garage door opener was not in Parker's car. Therefore, the kidnapping conviction should merge into the murder conviction.

We decline to adopt Parker's merger analysis because it has been superseded by this court's opinion in Byrd v. United States, 598 A.2d 386 (D.C.1991) (en banc).² To ascertain legislative intent with respect to whether two offenses charged in a simple prosecution merge, Byrd adopted the Blockburger³ rule of statutory construction that focuses on objective criteria, the statutory elements of the offenses charged, rather than the approach of Robinson and Sinclair of divining legislative intent based on the evidence adduced at a particular trial. As we stated in Byrd:

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 389 (quoting Blockburger, supra, 284 U.S. at 304, 52 S.Ct. at 182).⁴ As a rule of construction, Blockburger's presumptive rule that offenses do not merge if they require proof of different facts, can be overcome by "`a clear indication of contrary legislative intent.'" Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (alteration in original) (quoting Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981)). The reasoning of Robinson and Sinclair, based on evidence presented at a particular trial does not suffice to overcome the presumption, applying the Blockburger analysis, that a charge of kidnapping does not merge into a charge of murder.

First-degree murder is a purposeful killing done with premeditated malice, D.C.Code § 22-2401, while kidnapping involves the "seizing, confining, inveigling, enticing, decoying, kidnapping, abducting, concealing, or carrying away any individual by any means whatsoever, and holding or detaining, or with the intent to hold or detain, such individual for ransom or reward or otherwise...." D.C.Code § 22-2101. Thus, because each charge requires proof of an element that the other does not, the convictions of kidnapping and murder do not merge. See Whitaker v. United States, 616 A.2d 843, 856 (D.C.1992) (kidnapping conviction did not merge with assault with intent to rape while armed, mayhem while armed, and assault with a deadly weapon since kidnapping required proof of asportation or confinement, while other convictions required some form of assault); Monroe v. United States, ...