Byrd v. United States

• Citation: 500 A.2d 1376
• Decision Date: 15 November 1985
• Docket Number: No. 84-1266.,84-1266.
• Parties: Samuel L. BYRD, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1376

500 A.2d 1376

Samuel L. BYRD, Jr., Appellant, v. UNITED STATES, Appellee.

No. 84-1266.

District of Columbia Court of Appeals.

Argued June 5, 1985.

Decided November 15, 1985.

Rehearing en banc granted and opinion vacated February 3, 1986.

M. Shanara Gilbert, with whom James Klein and Mark Carlin, Public Defender Service, Washington, D.C. were on brief, for appellant.

Samuel L. Byrd, Jr., filed briefs, pro se.

Curtis E. Hall, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C. were on brief, for appellee.

Before NEWMAN and BELSON, Associate Judges, and PAIR, Senior Judge.

BELSON, Associate Judge:

Appellant contends that he may not be convicted of, and receive concurrent sentences for, both first-degree felony murder while armed and first-degree premeditated murder while armed for a single killing. We are convinced by appellant's reasoning, but are constrained by our holdings in Doepel v. United States, 434 A.2d 449 (D.C.), cert. denied, 454 U.S. 1037 (1981), McFadden e. United Stales, 395 A.2d 14 (D.C. 1978), and Cheistian c. United States, 394 A.2d 1 (D.C.1978), cert. denied, 442 U.S. 944 (1979), to affirm both convictions and sentences. See M.A.P. e. Ryan, 285 A.2d 310, 312 (D.C.1971) (only en banc court may overrule a prior decision). We take this opportunity, however, to explain why we are persuaded by appellant's argument.

I

A grand jury indicted appellant, and two codefendants, on June 10, 1980, on, inter alia, one count of "First Degree Murder while Armed — Felony Murder" — during the course of an armed kidnapping, D.C. Code §§ 22-2401, -3202 (1973), one count of "First Degree Murder while Armed — Felony Murder" during the course of an armed robbery, id., and "First Degree Murder while Armed," with deliberate and premeditated malice, id., all arising from the killing of one person.¹

At trial, the government introduced evidence that appellant and his two codefendants stole an automobile and drove it to a gas station. There, appellant and a codefendant left the car, and attempted to rob at gunpoint William Bell, an employee of the gas station. When Bell resisted, he was forced into the car with the three men. The three robbers drove off, with the gas station owner in pursuit. Bell was thereafter pushed out of the car. As Bell ran away, one of the codefendants, identified as appellant, shot and killed him. A jury found appellant and his codefendants guilty of all charges, except for one count of assault with a dangerous weapon. The trial judge sentenced appellant to concurrent terms of imprisonment of 20 years to life for premeditated murder, and 20 years to life for each of the two counts of felony murder.²

On direct appeal, this court affirmed appellant's convictions by memorandum opinion and judgment. The Supreme Court denied appellant's petition for writ of certiorari. 463 U.S. 1213, 103 S.Ct. 3550, 77 L.Ed.2d 1397 (1983). Appellant thereafter filed in Superior Court a pro se motion to vacate, set aside, or correct his sentence pursuant to D.C. Code § 23-110 (1981).³ Appellant argued that the indictment was defective because it charged him with three counts of first-degree murder (two counts of felony murder and one count of premeditated murder) arising from the death of only one individual and that "cumulative" punishments for the three offenses constituted multiple punishment in violation of the double jeopardy clause.

The trial court raised sua sponte the issue of whether one of appellant's felony murder convictions, and the felony conviction underlying the other felony murder should be vacated under Garris v. United States, 465 A.2d 817 (D.C.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1013, 79 L.Ed.2d 243 (1984), and Harling v. United States, 460 A.2d 571 (D.C.1983). Defense counsel answered that question in the affirmative, and also contended that appellant could not be convicted of both felony murder and premeditated murder for one killing.

After considering briefs of the government and defense counsel, the court vacated appellant's felony murder conviction based on the felony of kidnapping and the armed robbery conviction underlying the other felony murder. The court concluded, however, that a single killing may result in concurrent sentences for both premeditated murder and felony murder, citing Harling and Doepel v. United States, 434 A.2d 449, 459 (D.C.1981).⁴ Appellant challenges that conclusion.⁵

II

On several occasions, we have sustained the imposition of concurrent sentences for convictions of premeditated murder and felony murder arising from a single killing. Judge Leventhal's opinion for the en banc Court of Appeals for the District of Columbia Circuit in Fuller v. United States, 132 U.S.App.D.C. 264, 288-89, 407 F.2d 1199, 1223-24 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969) set forth the rationale for that practice.

In Fuller, a grand jury indicted the appellant for first-degree felony murder, first-degree premeditated murder, and rape, arising from one occurrence. 132 U.S.App.D.C. at 286, 407 F.2d at 1221. The trial judge, in submitting the charges to the jury, reduced the first-degree premeditated murder count to second-degree murder. Id. A jury found appellant guilty of felony murder and rape, and of manslaughter as a lesser-included offense of second-degree murder. The court imposed concurrent sentences for the three convictions. Id. at 286, 407 F.2d at 1203.

The sole question before the en banc court was whether the trial court committed reversible error by failing to instruct the jury that it could not convict appellant of both felony murder and second-degree murder. Id. at 287, 407 F.2d at 1222. The court first noted that the grand jury properly indicted appellant for both first-degree premeditated murder and first-degree felony murder for one homicide. To reach that conclusion, Judge Leventhal applied the Blockburger "different elements" test:

The offenses are distinct in the sense that they have different elements. [citing Blockburger r. United States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932)] One requires that the slaying be done with "deliberate and premeditated malice," the other requires that the killing occur in the course of certain enumerated felonies. The same slaying could be both: It could both occur during the course of a rape, and also be the product of the killer's deliberate and premeditated act.

132 U.S.App.D.C. at 289, 407 F,2d at 1224. Judge Leventhal, however, followed with the declaration that the court could not, as a matter of justice, impose consecutive sentences for both first-degree murder and another crime of homicide arising from a single killing:

Obviously there is a need to be careful to prevent injustice when what is essentially a single source of conduct may be prosecuted as more than one offense, under more than statutory provision. Such injustice is obviated by the rule prohibiting the imposition of consecutive sentences, in appropriate cases, even when the defendant has committed two or more legally distinct offenses. Of course, a defendant committing a single homicide cannot be given consecutive sentences for both first degree murder and another crime of homicide. However, the fact that punishments may not be cumulative does not mean that multiple convictions are impermissible.

Id. (footnotes omitted).⁶

Fuller then focused on whether it was improper for the court to submit to the jury charges of both felony murder and second-degree murder (as reduced from premeditated murder). It held that appellant's substantial rights were not plainly violated by that procedure. Id. at 297-98, 407 F.2d at 1232-33.

We relied on Judge Leventhal's application of the Blockburger test to premeditated murder and felony murder in sustaining concurrent sentences for those charges in Christian v. United States, 394 A.2d 1, 47 & n. 119 (D.C.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979). There, each appellant was indicted and convicted of one count of first-degree premeditated murder and one count of first-degree felony murder for each of seven deaths. Id. at 7-8. The court sentenced each appellant to consecutive life sentences for each count of premeditated murder to run concurrently with consecutive life sentences for each count of felony murder. Id. at 8. We rejected appellants' contention that they could not be indicted for or convicted of both premeditated murder and felony murder arising from a single homicide. Id. at 47 n. 119. In support of that holding, we cited Fuller and the Circuit Court's adoption in United States v. Mack, 151 U.S.App.D.C. 162, 166 n. 4, 466 F.2d 333, 337 n. 4, cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972), of its dicta in Fuller concerning the propriety of concurrent sentences for premeditated murder and felony murder.

In McFadden v. United States, 395 A.2d 14, 17 (D.C.1978), we relied on Christian, Mack, and Fuller to reject the argument that premeditated murder and felony murder are but two different theories on which the jury might convict of first-degree murder. In McFadden, the trial court sentenced the appellant to concurrent terms of life imprisonment for first-degree premeditated murder and first-degree felony murder for one death. We observed that the "potential injustice of prosecuting what is essentially a single course of conduct (resulting in a single death) as more than one homicide is obviated by the prohibition against consecutive sentences." Id. We also commented that while "[i]t may be illogical to conclude that one who murders another can receive two convictions, based on two different theories, for the very same act," appellant had failed to suggest a mechanism for determining which conviction should be retained, or for preserving or reinstituting the redundant or discarded conviction if, on appeal,...