Allen v. United States

• Decision Date: 19 July 1985
• Docket Number: No. 82-798.,82-798.
• Parties: Norman N. ALLEN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

495 A.2d 1145

Norman N. ALLEN, Appellant, v. UNITED STATES, Appellee.

No. 82-798.

District of Columbia Court of Appeals.

Argued En Banc January 20, 1984.

Decided July 19, 1985.

Holly R. Skolnick, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the brief was filed, and James Klein, Public Defender Service, Washington, D.C., were on the briefs, for appellant.

Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Joseph E. diGenova, U.S. Atty., and Noel A. Kramer, Asst. U.S. Atty., Washington, D.C., were on the briefs, for appellee.

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON and ROGERS, Associate Judges.

PRYOR, Chief Judge:

In the course of an unsuccessful direct appeal, appellant Norman N. Allen challenged, for the first time, the adequacy of jury instructions at his trial. Allen alleged that the absence of particular instructions, which he had not requested, compelled the finding that one of two assault convictions received was invalid. Because Allen did not urge this contention prior to jury deliberations, as required by court rule, the panel on direct appeal only considered his claim under the plain error standard and the convictions were affirmed. Allen then returned to the trial court and raised his claim once more, this time styled as a motion to correct an illegal sentence. He was denied relief and appealed once again to this court. Allen contended in this second appeal that a motion to correct an illegal sentence was an appropriate means to seek relief and also complained that the plain error rule, in the context of an instructional error raised initially on direct appeal, has been inconsistently applied by this court.

We heard argument on April 26, 1983. Because of the importance of the issue presented, we voted sua sponte to rehear the case en banc. Allen v. United States, No. 82-798 (D.C. Oct. 31, 1983) (order);¹ see D.C.App. Internal Operating Procedures, Part XI-J (1983) (initial en banc hearing appropriate if "the case is of exceptional importance"). We conclude, for reasons stated herein, that Allen's Rule 35 motion was properly denied, and that his convictions and sentence are not otherwise subject to attack in this proceeding. Moreover, we find that this court has applied the plain error rule consistently with respect to instructional challenges raised initially on direct appeal. We, therefore, affirm.

I

At trial, the government's evidence showed that on January 23, 1979, Victor Halbmillion, sixty years old, awoke at 12:30 p.m. and prepared to start his day. When Halbmillion walked to the front of the house to check his mail, he noticed that a light, which was never used was lit and that several possessions were missing. A check of the front door revealed that someone had broken into the house.² Halbmillion called the Metropolitan Police Department and reported a burglary.

Before the police arrived, Allen entered Halbmillion's house through the broken front door. Upon seeing Halbmillion, he pulled out a pistol and demanded money and valuables. Before Halbmillion could satisfy this request, Allen struck his victim in the face with the pistol. Allen then commanded Halbmillion to get up from the floor, where he had fallen, and directed him towards the rear of the house.

In the kitchen, Allen searched unsuccessfully for some cord with which to bind Halbmillion and threatened to kill Halbmillion if his demands were not met. Halbmillion complained that the pistol whipping had hurt him, and that he was bleeding from the head. He told Allen that there were no valuables in the house. Apparently undeterred, Allen directed Halbmillion at gunpoint into a bedroom and began to search for valuables.

Halbmillion ran out of the bedroom, slamming the door behind him. Allen broke down the door, however, and caught Halbmillion. He forced Halbmillion into a hallway and again began to beat him with the pistol It was alleged that Allen then struck his victim repeatedly with a "coat tree," a coat hanger, an ax, and an umbrella. Allen also kicked Halbmillion when he fell to the floor from the force of the attack.

Responding to Halbmillion's earlier call, Police Lieutenant Ernest Goodson and Officer John Gray arrived at the house. Upon seeing the officers approach, Allen grabbed the ax and ran to the rear of the house. He attempted to escape through a window, but was confronted by Goodson. Allen was arrested by Gray as he ran from the bedroom; a starter pistol was found in Allen's possession.

On February 14, 1979, Allen was charged by indictment with first-degree burglary while armed (imitation pistol), D.C. Code §§ 22-1801(a), -3202 (1981); assault with intent to commit robbery while armed (imitation pistol), id. §§ 22-501, -3202; assault with a dangerous weapon (imitation pistol, ax, coat hanger), id. § 22-502;³ and three counts of possessing a dangerous weapon (imitation pistol, ax, coat hanger), id. § 22-3214(b).

Allen testified at trial. He claimed that his car had overheated on the day in question and that he had approached Halbmillion's house for water.⁴ He alleged that Halbmillion assaulted him after answering the door, and he had merely defended himself. Allen admitted possessing the starter pistol.

Allen was found guilty of four of the indictment's six counts; he was acquitted of two counts of possessing a dangerous weapon (ax, coat hanger). He was sentenced to concurrent terms of ten to forty years imprisonment on the first-degree armed burglary and assault with intent to commit robbery counts. He was also sentenced to concurrent terms of five to fifteen years imprisonment for assault with a dangerous weapon (imitation pistol)⁵ and one year imprisonment for possessing a dangerous weapon (imitation pistol) — to be served consecutively to the ten to forty year sentences. Allen noted his appeal.

By Memorandum Opinion and Judgment, a panel of this court affirmed the convictions and sentence despite numerous grounds urged in support of reversal. See Allen v. United States, No. 79-695 (D.C. Aug. 6, 1981) (unpublished). In particular, Allen had contended, for the first time on his direct appeal, that he was improperly convicted and consecutively sentenced for assault with intent to commit robbery while armed (imitation pistol) (hereinafter "AWICR") and assault with a dangerous weapon (imitation pistol) (hereinafter "ADW"). The gravamen of his contention was that the ADW conviction was a lesser-included offense of the AWICR conviction; therefore, its merger prevented separate convictions and sentences. Allen conceded that the government had introduced evidence sufficient to prove that the two counts stemmed from separate and distinct acts,⁶ but argued that the finding of merger was nevertheless compelled because the trial court had not instructed the jury that, in order to find him guilty of both charges, they must first agree that two separate and distinct assaults had taken place. The absence of an appropriate instruction (hereinafter "Bates instruction"), see Bates v. United States, 327 A.2d 542, 547 (D.C. 1974); see also Davis v. United States, 367 A.2d 1254, 1270 (D.C. 1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 114 (1977), Allen asserted, prevented separate convictions. Citing, inter alia, double jeopardy concerns, Allen sought vacation of the ADW conviction and corresponding sentence.⁷

The government had argued on direct appeal that the convictions, based on separate and distinct acts, should stand. It was noted that Allen did not request a Bates instruction, did not object to the instructions that were given, and did not object when he was sentenced. This failure to act, it was urged, amounted to a forfeiture of the point on appeal. Furthermore, the government noted that the prosecutor had highlighted the separate evidence supporting each distinct count of the indictment for the jury during summation, and that this evidence compelled a finding of separate and distinct acts. After taking the case under advisement, the panel issued its judgment affirming Allen's convictions. In the final paragraph of its unpublished opinion, the panel stated:

We do not reach the question of whether the conduct involved in the two charges was "separate and distinct," thus permitting conviction on each under Bates v. United States, D.C.App., 327 A.2d 542 (1974). Appellant has raised this issue for the first time on appeal and we thus need not and do not consider it.

Allen v. United States, supra, at 3.

Allen then filed a motion, pursuant to Super.Ct.Crim.R. 35(a), to correct his allegedly illegal sentence. Repeating the arguments offered on direct appeal,⁸ he alleged that the sentence was illegal because the convictions in question should have merged. Upon consideration of the motion, the trial court ruled:

The court has already concluded that there was ample evidence to support the convictions as separate and distinct offenses. Obviously, there was sufficient evidence on each charge to go to the jury. Any objections to alleged defects in the court's instructions should have been raised at trial. This court cannot speculate as to possible defects in verdicts supported by the evidence. Moreover, it would appear from the record that this issue was briefed and argued in the District of Columbia Court of Appeals and the convictions were affirmed. A stronger showing is required on collateral attack than to warrant an order for a new trial on direct appeal. See Session v. United States, D.C.App., 381 A.2d 1 [, 2-3] (1979) [1977] (Yeagley, J., concurring).

The relief sought by Allen was, therefore, denied.

II

Allen sought post-conviction relief under Super.Ct.Crim.R. 35(a) from what he alleged was an illegal sentence. The rule provides that "[t]he Court may correct an illegal sentence at any time. . . ." Since...