Lee v. US

• Decision Date: 14 December 1995
• Docket Number: 93-CF-770,93-CO-761,No. 93-CO-714,93-CF-730,and 93-CO-855.,93-CO-769,93-CO-714
• Citation: 668 A.2d 822
• Parties: David LEE, Appellant/Cross-Appellee, v. UNITED STATES, Appellee/Cross-Appellant. UNITED STATES, Appellant/Cross-Appellee, v. Reginald C. SPEARS, Appellee/Cross-Appellant.
• Court: D.C. Court of Appeals

668 A.2d 822

David LEE, Appellant/Cross-Appellee, v. UNITED STATES, Appellee/Cross-Appellant.

UNITED STATES, Appellant/Cross-Appellee, v. Reginald C. SPEARS, Appellee/Cross-Appellant.

Nos. 93-CO-714, 93-CF-730, 93-CO-761, 93-CO-769, 93-CF-770, and 93-CO-855.

District of Columbia Court of Appeals.

Argued September 7, 1995.

Decided December 14, 1995.

Jonathan Zucker, with whom Patricia Daus, Washington, DC, was on brief for appellant/cross-appellee David Lee.

Richard S. Stolker, Rockville, MD, for appellee/cross-appellant Reginald C. Spears.

Roy W. McLeese, III, Assistant U.S. Attorney, with whom Eric H. Holder, Jr., U.S. Attorney, and Laura Leedy Gansler, Special Assistant U.S. Attorney, and John R. Fisher, Barbara A. Grewe, Margaret M. Lawton, and S. Hollis Fleischer, Assistant U.S. Attorneys, were on brief, for appellant/cross-appellee.

Before WAGNER, Chief Judge, and SCHWELB and REID, Associate Judges.

SCHWELB, Associate Judge:

A jury acquitted appellants David Lee and Reginald C. Spears, defendants below, of second degree murder while armed (SDMWA),¹ but convicted each man of voluntary manslaughter while armed (VMWA) and of several associated offenses.² In a post-trial order, the trial judge set aside appellants' convictions of VMWA and substituted therefor convictions of unarmed manslaughter. He held that VMWA was not a lesser included offense (LIO) of SDMWA and that the jury therefore should not have been permitted to consider VMWA.

In a separate post-trial order, the judge denied a motion by Lee for a new trial on the basis of newly discovered evidence. Lee's motion was based on the alleged recantation by a prosecution witness of certain testimony incriminating Lee.

The government has appealed from the judge's order vacating appellants' VMWA convictions. It contends that VMWA is a lesser included offense of SDMWA, and that the jury was properly permitted to consider VMWA. We agree with the government and direct that appellants' VMWA convictions be reinstated.

Each defendant has appealed, on various grounds,³ from all of his convictions. Lee has filed a separate appeal from the order denying his motion for a new trial. We affirm all of the defendants' convictions and conclude that the judge did not abuse his discretion in denying Lee a new trial.

I. THE EVIDENCE

This case had its genesis in a disagreement over the quality of a batch of cocaine. On March 2, 1990, John Bivens, who was originally appellants' codefendant, purchased this cocaine from the decedent, Kenneth Adams, for the purpose of resale to Bivens' customers. When Bivens began to sell small bags of the cocaine in his own neighborhood, several purchasers complained that the merchandise was defective. Bivens returned these customers' purchase money, and decided to seek a refund from Adams.

Three of Bivens' associates—appellants Lee and Spears and a man named Marvin Jennings—had been with Bivens when he bought the cocaine from Adams. After Bivens' customers complained, all four men returned to Adams' neighborhood. When they made contact with Adams, the latter insisted that the cocaine which he had sold to Bivens was of good quality, and he refused to return Bivens' money. Adams and Bivens eventually agreed to have the quality of the drugs "tested" by Kathleen Washington, a "pipehead" who was apparently able to assess the quality of the cocaine. Ms. Washington went downstairs in order to determine whether the drugs were defective.

Although different witnesses provided sharply conflicting accounts of the events that followed and of the roles of the various participants,⁴ it appears that Spears and Lee became embroiled in a dispute with Adams. The quarrel escalated, and Adams was ultimately shot at close range, once in the head and once in the groin area. Adams died immediately.

According to two of the witnesses, at least one of these shots⁵ was fired by Spears. Bivens, who had entered an Alford⁶ plea to manslaughter, and who was subsequently called as a witness for the prosecution, testified that Lee had passed a pistol to him, and that he (Bivens) then passed the weapon on to Spears. Bivens also stated that Lee had another handgun in his possession. Although there was no direct testimony that Lee shot Adams, the prosecution's theory of the case, based on the circumstantial evidence, was that Lee was the second shooter.

Appellants were ultimately acquitted of SDMWA, but convicted of VMWA and of other offenses as described above. These appeals and cross-appeals followed.

II. THE GOVERNMENT'S APPEALS

At the time Adams was shot to death, the maximum penalty for SDMWA was imprisonment for from fifteen years to life. D.C.Code §§ 22-2404, -3202. The maximum penalty for VMWA was imprisonment for from fifteen years to life and a $1,000 fine. D.C.Code §§ 22-2405, -3202.⁷ Both appellants contend, and the trial judge held, that by virtue of the authorized $1,000 fine, the maximum penalty for VMWA is greater than the maximum penalty for SDMWA, and that the former offense therefore cannot be a lesser included offense of the latter. Appellants' argument, which both the trial judge and counsel for Lee candidly described as "counter-intuitive," has a measure of surface plausibility in light of some of this court's precedents. We conclude, however, that Lee and Spears were properly convicted of VMWA, and that their convictions of that offense must therefore be reinstated.

The Supreme Court and this court have traditionally employed an "elements" test to determine whether one offense is a lesser included offense of another, without any discussion of the provisions in the respective statues relating punishment. See, e.g., Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989); Price v. United States, 602 A.2d 641, 644 (D.C.1992); Pendergrast v. United States, 332 A.2d 919, 924 (D.C.1975). It is undisputed that under an "elements" analysis, VMWA is an LIO of SDMWA. Comber v. United States, 584 A.2d 26, 42-43 (D.C.1990) (en banc); Price, supra, 602 A.2d at 644-45; Coreas v. United States, 585 A.2d 1376, 1380 (D.C.) (Coreas II), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 130 (1991); Branch v. United States, 382 A.2d 1033, 1035 n. 1 (D.C.1978). The two offenses have identical elements, except that SDMWA requires proof that the defendant acted with malice, but VMWA does not. Comber, supra, 584 A.2d at 36. Indeed, the doctrine that voluntary manslaughter is a lesser included offense of second degree murder is of ancient vintage. See, e.g., Stevenson v. United States, 162 U.S. 313, 314-15, 16 S.Ct. 839, 840, 40 L.Ed. 980 (1896).

We recognize, and the government concedes, that the precise question raised by appellants in this case was not addressed in Comber or in any of the other VMWA decisions cited above. Because "the judicial mind has not been applied to and passed upon that question," see, e.g. Murphy v. McCloud, 650 A.2d 202, 205 (D.C.1994), those decisions are not controlling. Nevertheless, a holding today that voluntary manslaughter while armed is not a lesser included offense of second degree murder while armed would shatter expectations grounded in many years of history.

A. Rule 31(c).

Rule 31(c) of the Superior Court's Rules of Criminal Procedure, entitled "Conviction of a lesser included offense," provides in pertinent part that "the defendant may be found guilty of an offense necessarily included in the offense charged...." The comment to the Rule discloses that, with exceptions not affecting sub-section (c), local rule 31 is "identical to Federal Rule of Criminal Procedure 31."⁸ Accordingly, absent some compelling reason to the contrary, we should construe the local rule in a manner consistent with the federal rule. Montgomery v. Jimmy's Tire & Auto Ctr., 566 A.2d 1025, 1027 (D.C.1989).

The "lesser included offense" doctrine "originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged." Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980); see also Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967). In conformity with this history and with the language of federal Rule 31(c), which permits conviction of any offense "necessarily included" in the offense charged (without any reference to punishment), the Supreme Court of the United States has explicitly applied an "elements" analysis in construing the Rule. Schmuck, supra, 489 U.S. at 716, 109 S.Ct. at 1450. Specifically, the Court has held that the determination whether an offense is a "lesser included" offense of an allegedly "greater" offense is made by comparing the statutory elements of the two offenses. Id. A lesser included offense charge is proper when "the elements of the lesser offense are a subset of the elements of the charged offense." Id. Accordingly, in the words of the United States Court of Appeals for this Circuit, "we see no reason to create the additional and novel requirement that the penalty for the lesser offense be lower than that for the greater." United States v. Harley, 301 U.S.App.D.C. 70, 74, 990 F.2d 1340, 1344, cert. denied, ___ U.S. ___, 114 S.Ct. 236, 126 L.Ed.2d 190 (1993).

"The adjective `lesser' in Criminal Rule 31(c) refers to the relation between the elements of an offense and not to the relation between their penalties." Nicholson v. State, 656 P.2d 1209, 1212 (Alaska App. 1982); see also Schmuck, supra, 489 U.S. at 716, 109 S.Ct. at 1451 (the language of the rule "suggests that the comparison to be drawn is between offenses"). "The terms `lesser' and `greater' actually refer to the number of elements in the respective crimes, because the offense charged must contain all the elements of the included offense plus at least one additional element." State v. Caudillo, 124 Ariz. 410, 604 P.2d 1121, 1123 (1979) (en...