Abrams v. United States, 85-176.
| Citation | 531 A.2d 964 |
| Decision Date | 25 September 1987 |
| Docket Number | No. 85-176.,No. 86-647.,85-176.,86-647. |
| Parties | Christopher A. ABRAMS, Appellant, v. UNITED STATES, Appellee. Billy Ray DUNN, Jr., Appellant, v. UNITED STATES, Appellee. |
| Court | Court of Appeals of Columbia District |
Scott Howe, Public Defender Service, with whom James Klein, Maureen Cannon, and Ellen Kreitzberg, Public Defender Service, Washington, D.C., were on the brief, for appellant Abrams.
William T. Morrison, Washington, D.C., submitted a brief for appellant Dunn.
Maria E. Cassalia, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Mary Incontro, and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before FERREN, TERRY, and STEADMAN, Associate Judges.
In these consolidated appeals,1 Christopher A. Abrams and Billy Ray Dunn, Jr. challenge their sentences imposed under the so-called "mandatory-minimum" provisions of the District of Columbia Code. D.C.Code § 22-3202(a)(1) (1981 & 1987 Supp.).2 Section 22-3202 (a)(1), as amended in response to a voter initiative effective June 7, 1983,3 mandates a sentence of not less than five years for anyone convicted of a "crime of violence . . . while armed with a pistol or firearm." Appellants present three arguments. First, they contend that, although labeled as a sentencing provision, the mandatory-minimum requirement of § 22-3202(a)(1) creates a new offense that must be alleged, as such, in the indictment —which, they say, was not done here. Second, appellants maintain that the words "while armed with" cannot be applied to aiders and abettors, such as themselves, who did not actually possess a pistol; proof of personal possession is required. Finally, appellants argue that § 22-3202(a)(1) requires proof, which allegedly is lacking here, that the pistol involved was "operable," since operability is a required element of any conviction for carrying a pistol without license. See D.C.Code § 22-3204 (1981); Tucker v. United States, 421 A.2d 32, 34 (D.C. 1980).
We conclude that § 22-3202(a)(1), as amended by the mandatory-minimum provision, does not require proof that an accomplice have actual, personal possession of a pistol or other firearm before he or she can receive the mandatory-minimum of five to fifteen years of imprisonment. We need not decide whether § 22-3202(a)(1) creates a new and thus separately indictable offense or requires proof that the pistol was "operable." Appellants were properly indicted and convicted even if the voter initiative did create a new class of offenses under § 22-3202(a)(1), and appellants have either conceded or waived the operability issue. We therefore affirm appellants' convictions.
In a thirteen-count indictment, the government charged Abrams with armed robbery (two counts), D.C.Code §§ 22-2901, -3202 (1981 & 1987 Supp.), carrying a pistol without a license, id., § 22-3204 (1981), and obstruction of justice (ten counts), id., § 22-722(a)(1) (1987 Supp.). The armed robbery counts alleged in relevant part that Abrams had committed the robbery "armed with and having readily available a pistol." Pursuant to a plea bargain with the government, Abrams entered guilty pleas to one count of armed robbery and to one count of obstruction of justice. With respect to the armed robbery charge, Judge Morrison informed Abrams that the government would have to prove that:
[W]hile you used or had readily available to use a pistol and while acting in concert with other people or you, yourself took property from the actual possession of Diane Russell—the property belonged to Holly Farms—that you took property by force or violence; that you took it with the specific intent to steal it; that you didn't have the right to take it; and that you carried the property away some distance.
A few minutes later, the judge explained the sentences that would result from such a conviction:
The longest sentence I could give you is a sentence of not less than 15 years nor more than life. If I gave you that sentence, you could not be released until 15 years had passed and that's on the armed robbery charge. There is an automatic sentence of at least five to 15 years no matter what I want to do. You have got to get that much. Do you understand?
(Emphasis added). Abrams replied that he understood.
Shortly thereafter, the court asked Abrams to "listen while the prosecutor outlines what her evidence at trial would be." The prosecutor then outlined the government's case against Abrams on the armed robbery charge:
[T]he government's evidence would be that on November 20th at about 11:23 p.m. a woman later identified by the victim entered the Holly Farms at 1335 Rhode Island Avenue, N.E. in the District of Columbia and held Diane Russell, the victim, at gun point. Ms. Bullock got about 12 dollars in that robbery. She went back to the car in which Mr. Abrams was a passenger. The car was stopped within minutes and Ms. Bullock was—well, they were all brought back to the scene and Ms. Bullock was identified by the victim as having been the woman who robbed her.
The court then asked Abrams if what the prosecutor had described was true, and Abrams replied "Yes."
Approximately two and one-half months later, Abrams returned to court for sentencing. At this hearing, the court noted its understanding that the government "was proceeding on the theory that a real weapon was used by Miss Bullock" in the robbery. The prosecutor responded that the pistol recovered from the car after the robbery had been found to be operable. Defense counsel argued, however, that "[n]ot only didn't [Abrams] use the weapon, but it wasn't also readily available to him." Thus, he claimed, Abrams could not be sentenced under the mandatory-minimum provisions.4 Counsel conceded, however, that Abrams could properly be considered an aider and abettor of the armed robbery. The court rejected Abrams' claim, ruling that it had no discretion to sentence him to anything other than the mandatory minimum of five to fifteen years in prison for armed robbery.5
Dunn was charged in a seven-count indictment with armed robbery (three counts), D.C.Code §§ 22-2901, -3202 (1981 & 1987 Supp.), accessory after the fact of armed robbery (three counts), id., § 22-106 (1981), and carrying a pistol without a license, id., § 22-3204 (1981). The armed robbery counts alleged that Dunn had committed the robberies "while armed with and having readily available a pistol." Before trial, the government dismissed the accessory-after-the-fact counts. During the trial, Dunn's codefendant pled guilty to one count of armed robbery (a third codefendant had died before trial). Dunn's convictions resulted from the armed robbery of three persons who were walking through a parking lot in the 1400 block of Clifton Street, N.W. Dunn did not participate actively in the robbery; he remained inside his car with the lights off while his two codefendants alighted and robbed the three victims at gunpoint. After they had taken money from the victims, Dunn's codefendants returned to the car and all three drove away. The police recovered the gun used in the robbery when they apprehended Dunn and the other two men shortly after the robbery. The gun was admitted into evidence. A Metropolitan Police officer testified that he had witnessed a test firing of the weapon, which established that it was operable.
At sentencing, Dunn argued that the mandatory-minimum sentence could not be applied to him because he had acted only as an aider and abettor and had not possessed the pistol used in the robbery. The trial court rejected this argument and sentenced Dunn to five to fifteen years in prison on each armed robbery count and to two to six years for assault with intent to rob while armed, all sentences to be served concurrently.
Appellants primarily contend that the words "while armed with" in § 22-3202(a)(1) must be construed to mean that, before a defendant may be sentenced to the mandatory-minimum term of five years of imprisonment, the government must prove the defendant had actual, personal possession of a pistol or firearm during the commission of the crime.
Before voter approval of the mandatory-minimum sentencing initiative, see supra, note 3, the District of Columbia Code had contained a provision permitting, though not requiring, an enhanced sentence for those who had committed crimes of violence6 "when armed with or having readily available" a pistol or other dangerous weapon. D.C.Code § 22-3202(a) (1981). This provision read in the relevant part:
(a) Any person who commits a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles):
(1) May, if he is convicted for the 1st time of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment. . . .
D.C.Code § 22-3202(a)(1) (1981). The voter initiative amended this provision by adding language to sub-section (1) mandating a minimum sentence under certain circumstances. The provision now reads:
(1) May, if he is convicted for the 1st time of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment and shall, if convicted of such offenses while armed with a pistol or firearm, be imprisoned for a mandatory-minimum term of not less than 5 years. . .
D.C.Code § 22-3202(a)(1) (1987 Supp.) (Amendment emphasized.)
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