Heard v. US, 94-CF-1485.

• Decision Date: 12 December 1996
• Docket Number: No. 94-CF-1485.,94-CF-1485.
• Citation: 686 A.2d 1026
• Parties: Lamont E. HEARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

686 A.2d 1026

Lamont E. HEARD, Appellant, v. UNITED STATES, Appellee.

No. 94-CF-1485.

District of Columbia Court of Appeals.

Argued February 6, 1996.

Decided December 12, 1996.

Richard Greenlee, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on brief, for appellant.

Leanne Shaltis Fallin, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on brief, for appellee.

Before FERREN, STEADMAN, and RUIZ, Associate Judges.

RUIZ, Associate Judge:

Heard was convicted of two counts of being an accessory after the fact to assault with intent to kill while armed and one count of being an accessory after the fact to possession of a firearm during a crime of violence, for his role in a shooting that injured one man and killed another on December 19, 1992. He received two concurrent prison terms of six and two thirds to twenty years on each of the accessory after the fact to assault with intent to kill while armed counts and a consecutive prison term of thirty to ninety months for being an accessory after the fact to possession of a firearm during a crime of violence.

Heard presents two issues on appeal: 1) that the three accessory after the fact convictions should merge into one, and 2) that this court should remand this case for a new sentence not to exceed seven and one half years. We conclude that the two counts of accessory after the fact to assault with intent to kill while armed and the one count of accessory after the fact to possession of a firearm during a crime of violence do not merge and that Heard's sentence is proper.

I.

On December 19, 1992, Heard was driving a vehicle containing two passengers, Patrick Baucum and Thomas Johnson, in the Southeast section of Washington D.C. At approximately 3:00 in the afternoon Heard approached the intersection of Alabama Avenue and Naylor Road, S.E. Stopped at a red light at that intersection was a car driven by Willie Washington and occupied by his uncle, Earl Nelson. While the light was still red, Heard pulled his vehicle up beside the vehicle driven by Washington. Johnson, who was sitting in the front passenger seat, and Baucum, who was sitting in the rear passenger seat, pulled out guns and fired at least eight shots into Washington's vehicle. After Baucum and Johnson finished shooting, Heard remained stopped at the light until it turned green, and then proceeded through the intersection at a normal rate of speed. These events were witnessed by an off-duty officer. Heard, Baucum and Johnson were subsequently apprehended and charged in connection with this shooting.¹

II.

Heard argues that his three accessory after the fact convictions should merge because they are based on the same conduct. He contends that the accessory after the fact statute is ambiguous as to whether multiple punishments for the same act of accessoryship are permitted. Because the statute is ambiguous and because his convictions are based on one act of driving the getaway car, Heard contends that the rule of lenity should be applied and his convictions should merge.

Under the rule of lenity, when it is unclear whether the legislature intended to impose multiple punishments, multiple convictions under the same statute that are based on the same act will merge. Ladner v. United States, 358 U.S. 169, 177-78, 79 S.Ct. 209, 213-14, 3 L.Ed.2d 199 (1958) (holding that injuring two police officers with a single shot gun blast was one offense); Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622-23, 99 L.Ed. 905 (1955) (holding that transporting two women in interstate commerce for an immoral purpose in violation of the Mann Act, 18 U.S.C. § 2421, was a single offense); Morris v. United States, 622 A.2d 1116, 1129, cert. denied, 510 U.S. 899, 114 S.Ct. 270, 126 L.Ed.2d 221 (1993) (holding that the attempted armed robbery and the assault with a dangerous weapon—a gun— committed against the same victim were offenses in violation of the same statute, D.C.Code § 22-3204 (1996); therefore, they merged); Bean v. United States, 576 A.2d 187, 189-91 (D.C.1990) (holding that simultaneous possession of a sawed-off .22 caliber rifle and a knife constituted one violation of D.C.Code § 22-3204); Cormier v. United States, 137 A.2d 212, 216-17 (D.C.1957) (holding that simultaneous possession of two pistols was one offense); see Joiner v. United States, 585 A.2d 176, 178 (D.C.1991) (holding that firing a single shot in the direction of seven men was one offense). The rule of lenity is reserved for situations where "the language and structure, legislative history, and motivating policies" do not remove any reasonable doubt as to the scope of a statute. Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); see also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (stating that the court should apply lenity in cases when, after exhausting all helpful materials, the statute is still ambiguous)). Thus, we look to the "language and structure, legislative history and motivating policies" of the statute to see if it authorizes multiple punishments. Moskal, supra, 498 U.S. at 108, 111 S.Ct. at 465.

The District's accessory after the fact statute provides:

Whoever shall be convicted of being an accessory after the fact to any crime punishable by death shall be punished by imprisonment for not more than 20 years. Whoever shall be convicted of being an accessory after the fact to any crime punishable by imprisonment shall be punished by a fine or imprisonment, or both, as the case may be, not more than one-half the maximum fine or imprisonment, or both, to which the principal offender may be subjected.

D.C.Code § 22-106 (1996).

The District's accessory after the fact statute, which provides only the penalties authorized for persons convicted as accessories, was enacted by Congress in 1901 as part of a comprehensive code of law for the District of Columbia. See ch. 854, sec. 909, 31 Stat. 1337 (1901). Because the District's accessory after the fact statute provides only for punishment, we look to the common law for an understanding of the substantive definition of the offense. Clark v. United States, 418 A.2d 1059, 1061 (D.C.1980); Butler v. United States, 481 A.2d 431, 442-43 (D.C. 1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). Section one of the 1901 Code provides that, "the common law, all British statutes in force in Maryland. . . at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with or are replaced by. . . some provision of this code". D.C.Code § 49-301 (1990). The Code provision dealing with accessories after the fact has remained unchanged since 1901. Thus, in the absence of governing case law in our jurisdiction, we look to the common law of Maryland for the substantive definition of the crime of accessory after the fact. O'Connor v. United States, 399 A.2d 21, 25 (D.C.1979).

"`This court has, customarily, looked to post-1801 decisions of the Court of Appeals of Maryland for assistance ... in interpreting the law which was inherited from that State....'" Brooks v. United States, 655 A.2d 844, 846 n. 6 (D.C.1995) (quoting Watkins v. Rives, 75 U.S.App. D.C. 109, 111, 125 F.2d 33, 35 (1941)). Accessory after the fact is a common law offense in Maryland and it has retained, almost without change, the characteristics of the common law. Lewis v. State, 285 Md. 705, 404 A.2d 1073, 1075 (1979) (quoting State v. Ward, 284 Md. 189, 396 A.2d 1041, 1043 (1978) ("Maryland is one of the few, if not the only state, which has retained the common law doctrine of accessoryship in virtually the same form as it existed at the time of William Blackstone in the 18th century....")). Because to interpret the legislative intent behind D.C.Code § 22-106 we need to look to the Maryland common law of accessory after the fact, and Maryland common law retains the common law incidents of the offense of an accessory after the fact, we turn to an analysis of the common law more generally to discern the principles which underlie the offense of accessory after the fact as it exists in the District of Columbia through the Maryland common law.

At common law, an accessory after the fact was one who knew of the commission of the felony by the other person, and hindered the felon's apprehension, conviction or punishment. 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 6.9(a) (1986). An understanding of the common law theory of accessories to a crime "requires full acceptance of the concept of one crime" committed by the principal which forms the basis of guilt for the accessories. Rollin M. Perkins, Parties to Crime, 89 U. PA.L.REV. 581, 586 (1941). "The common law rested on the notion that one who helps an offender avoid justice becomes in some sense an accomplice in the original crime." MODEL PENAL CODE § 242.3 cmt. 1 (1980). At common law the liability of the accessory was derived from that of the principal offender. Id. According to one commentator:

Under the common-law theory the accessory after the fact was spoken of also as guilty of the original felony. His assistance to the known felon related back to the crime itself, it was said, and tainted him with guilt of that very offense, and subjected him to the same penalty except as the rigor of this rule was modified by statute.

ROLLIN M. PERKINS, PERKINS ON CRIMINAL LAW, 650 (2d ed.1969) (footnotes omitted); see also, GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART § 138, at 410 (2d ed. 1961) ("The crime of receiving felons was anciently regarded as of equal gravity with the felony; the receiver became tainted with the felony."). At common law,...