Perkins v. United States

• Decision Date: 24 May 1982
• Docket Number: No. 80-132.,No. 80-161.,80-132.,80-161.
• Citation: 446 A.2d 19
• Parties: Ronald PERKINS, Appellant, v. UNITED STATES, Appellee. Garnell HAMILTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

446 A.2d 19

Ronald PERKINS, Appellant, v. UNITED STATES, Appellee.

Garnell HAMILTON, Appellant, v. UNITED STATES, Appellee.

No. 80-132.

No. 80-161.

District of Columbia Court of Appeals.

Argued December 4, 1980.

Decided May 24, 1982.

Silas Wasserstrom, Public Defender Service, Washington, D. C., with whom Richard S. Greenlee, Public Defender Service, Washington, D. C., was on brief, for appellant Perkins.

Mark N. Duvall, Washington, D. C., appointed by this court, with whom Charles F. Lettow, Washington, D. C., was on brief, for appellant Hamilton.

Harold Damelin, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty. at the time briefs were filed, and John A. Terry, Michael W. Farrell and Harold L. Cushenberry, Jr., Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEBEKER, MACK and FER-REN, Associate Judges.

PER CURIAM:

Appellants were convicted in a joint trial by jury of malicious disfigurement while armed and assault with a dangerous weapon. D.C.Code 1973, §§ 22-506, -3202, and -502, respectively. They had been indicted for assault with intent to kill while armed, id., §§ 22-501, -3202, assault with intent to commit robbery while armed, id., §§ 22-501, -3202, mayhem and malicious disfigurement while armed, id., §§ 22-506, -3202, sodomy, id., § 22-3502, and arson, id., § 22-401. Before the start of trial the government dismissed the arson count, and at the conclusion of the government's case the court dismissed the sodomy count. Together, appellants assert several grounds for reversal. Both maintain that the trial judge committed reversible error in instructing the jury on the common law elements of malicious disfigurement. In that regard, appellants contend that the trial judge erred in refusing to instruct the jury that specific intent is an element of the crime and erred in his definition of the element of permanent disfigurement. Partly as a corollary to this attack on the convictions, appellants maintain that since the elements of the crime were improperly stated more broadly than the common law precedents require, the convictions are unsupported by sufficient evidence. The feudal origins of this common law crime and the sparsity of precedential case law have led both counsel and the court deep into English and Colonial history with the result that the majority of our opinion deals with this issue. We find we agree with appellants and thus conclude that the trial judge erred in declining to include a specific intent element in his instruction covering malicious disfigurement.

Appellants also maintain that the trial judge should have vacated their convictions for assault with a deadly weapon on their post-verdict motion because that charge is arguably a lesser included offense of malicious disfigurement while armed and merged with that conviction. Hamilton proposes that his conviction be reversed for the additional reason that the trial judge failed sua sponte to sever his trial from that of Perkins. These contentions have no merit.

We affirm the convictions for assault with a deadly weapon but reverse the convictions for malicious disfigurement while armed.

I

Responding to a fire in an apartment building, a D.C. firefighter discovered Larry Quarles lying in the basement, his scalp convulsed in two or three places and his eye apparently displaced from its socket. The basement was littered with various items, including cement blocks and an iron pipe which were bloodied.

Perkins was arrested by police who were directed to his home by a witness who had seen him fleeing the building. When arrested, Perkins had blood on his pants and shoes. This blood later was matched to the blood type of the victim. Police investigation eventually led to the arrest of Hamilton.

Four other men were in the basement of the building at the time of the offenses "having a little bull session and drinking." From their testimony, the following sequence of events emerges. Perkins and Hamilton dragged Quarles down the stairs into the basement where the four other men were talking, at which time Quarles already appeared beaten and bloodied. Both appellants demanded money from Quarles. While doing so, they beat him repeatedly with a cinder block, a stick, an iron pipe, and an angle iron from a steel door frame. One of the men gathered in the basement testified that one of the appellants stabbed Quarles several times during the attack. Another testified that Hamilton at one point threw a dresser on Quarles. Testimony from all four men indicated that Perkins may have attempted an act of sodomy on Quarles.¹

During the ordeal, the single light bulb illuminating the basement was broken and a fire was started to provide light. As smoke spread, an occupant of the building called the fire department. When the engines arrived, the group fled the basement leaving Quarles behind. The entire attack lasted approximately one and a half hours.

The attending physician during Quarles' twenty-two-day hospitalization testified as to the injuries Quarles suffered. He received a convulsion of the scalp, meaning that a portion of the scalp had actually been torn away. His face and eye were lacerated and he received puncture wounds of the arms and torso. Quarles also sustained residual brain damage.

A plastic surgeon treated Quarles for severe lacerations to his left eye which had become depressed. X-rays revealed an orbital floor fracture of the eye which required surgery. The injury and the surgical repair both left scars in this area.

At the conclusion of the government's case, appellants announced that they would present no evidence and there followed a discussion of jury instructions. Both appellants requested the court to instruct the jury that assault with a dangerous weapon was a lesser included offense of two of the indicted offenses, namely assault with intent to kill while armed, D.C.Code 1973, §§ 22-501, -3202, and assault with intent to commit robbery while armed, D.C.Code 1973, §§ 22-501, -3202. The court agreed to give this instruction. Neither appellant, however, requested that the court instruct the jury that assault with a dangerous weapon was a lesser included offense of malicious disfigurement while armed, an argument which they now advance on appeal. As for the malicious disfigurement while armed instruction, both the government and appellant Perkins submitted proposed jury instructions to the court. After considering these submissions the court drafted its own instruction. Appellant Perkins objected to it; appellant Hamilton did not.

The court instructed the jury, in part, as follows:

The essential elements of the charge of Malicious Disfigurement, each of which the Government must prove beyond a reasonable doubt, are one, that the defendant inflicted an injury on the complaining witness Mr. Larry Quarles.

Two, that as a result of the injury the complaining witness was permanently disfigured.

Three, that the defendant inflicted the injury on the complaining witness with malice and four, that the defendant inflicted the injury while armed with or having readily available a dangerous or deadly weapon.

* * * * * *

Malice means a state of mind or heart regardless of the life or safety of another. It may also be defined as a condition of mind which prompts a person to do wilfully, that is on purpose without adequate provocation, justification or excuse, a wrongful act the foreseeable consequence of which is a serious permanent disfiguring bodily injury to another.

In contrast, appellant Perkins had requested, in part, the following instruction:

Malicious disfigurement is the intentional infliction of permanently disfiguring injury on another person by total or partial removal of a cosmetically important organ or bodily part, or by severe scarring of the skin.

The elements of the offense, each of which the Government must prove beyond a reasonable doubt, are:

1. That the defendant inflicted an injury on the complainant;

* * * * * *

4. That at the time the defendant inflicted the injury, he specifically intended to cause the disfigurement, that is, that the defendant had in his mind a specific desire or purpose to disfigure the complainant.

II

Both mayhem and malicious disfigurement are contained in a single statute, D.C. Code 1973, § 22-506, which was enacted in 1901 and has never been amended. The statute provides:

Every person convicted of mayhem or of maliciously disfiguring another shall be imprisoned for not more than ten years.

We conclude that the crime of malicious disfigurement requires proof of specific intent and, consequently, that the trial court's instruction, in omitting this element of the offense, was erroneous.

A. Both parties agree that neither the statute itself nor the District of Columbia Criminal Jury Instructions (3d ed. 1978) provides a definition of malicious disfigurement. In the absence of a statutory definition of the elements of a crime, the common law definition is controlling. Clark v. United States, D.C.App., 418 A.2d 1059, 1061 (1980); United States v. Bradford, U.S. App., 344 A.2d 208, 213 (1975).²

We turn, then, to the common law of the District of Columbia as defined by D.C.Code 1973, § 49-301.³ Our common law consists of the common law of Maryland and all British statutes in force in Maryland in 1801, unless inconsistent with provisions of the . District of Columbia Code. Id. In 1776, Maryland adopted the common law as it then existed in England. O'Connor v. United States, D.C.App., 399 A.2d 21, 25 (1979); Gladden v. State, 273 Md. 383, 389, 330 A.2d 176, 180 (1974); Md.Const. Decl. Of Rts., art. 5. At that time malicious disfigurement was a part of English statutory law, having been enacted as a crime in 1670 when Parliament found it necessary to close a loophole in the common law crime of mayhem. This loophole in the crime of mayhem had permitted some imaginative rogues to escape punishment for some calculatedly heinous acts.

The...