Pynes v. United States, 8111.

• Decision Date: 26 April 1978
• Docket Number: No. 8111.,8111.
• Citation: 385 A.2d 772
• Parties: James E. PYNES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 772

385 A.2d 772

James E. PYNES, Appellant, v. UNITED STATES, Appellee.

No. 8111.

District of Columbia Court of Appeals.

Argued November 30, 1976.

Decided April 26, 1978.

Thomas A. Guidoboni, Public Defender Service, Washington, D. C., for appellant.

D. Michael Stroud, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. John O'B. Clarke, Jr., Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before NEWMAN, Chief Judge, and NEBEKER and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

Appellant was convicted of premeditated first-degree murder, D.C.Code 1973, § 22-2401; felony murder, id.; and armed kidnapping, D.C.Code 1973, §§ 22-2101, -3202. He was sentenced to concurrent terms for the murder counts and a consecutive term for the kidnapping offense. On appeal, he cites as error (1) the imposition of a consecutive sentence on the kidnapping charge; (2) the lack of a jury instruction that the testimony of an informant should be received with suspicion; and (3) the lack of a jury instruction as to the credibility of police officers as witnesses. We conclude that the facts of this case mandate neither the jury instructions requested nor the merger of the kidnapping charge with the felony murder count. Accordingly, we affirm.

On July 22, 1972, the decedent in this case was robbed. Appellant and Gregory Neal were indicted in Maryland for that offense. Subsequent to their indictment, appellant and Neal met the victim at his place of employment. They persuaded the victim to get into their car by pretending to want to talk him out of giving testimony against them in the robbery case. The victim could not be dissuaded and was unwillingly driven to Rock Creek Park. After a brief struggle in a parking area, he was killed by appellant. The circumstances of this killing were elicited from Raymond Monroe to whom appellant had confessed while both were inmates at the Montgomery County Detention Center in 1972. Monroe gave this testimony in exchange for the government's assistance with then-pending Maryland charges against him.

Appellant's first contention is that the victim was taken to the parking area for purposes of the killing and, therefore, the kidnapping should be viewed as an integral part of the murder and not as an independent offense. Attempting to view this series of events as one transaction, appellant urges that the felony murder included every essential element of the kidnapping, and, therefore, the two offenses merged under the test enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not. . . .

Blockburger involved violations of the Harrison Narcotic Act, ch. 1, §§ 1, 2, 38 Stat. 785 (1914), as amended by ch. 18, § 1006, 40 Stat. 1057, 1131 (1919). Section 1 proscribes the selling of any of a number of forbidden drugs except in or from the original stamped package. Section 2 proscribes the selling of any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statutes, two distinct offenses are created. In Blockburger one transaction violated both sections of the Act and the question was whether the accused committed two offenses or only one by the one sale. Because the court found that each offense required proof of a different element, the court precluded merger of the offenses.

The instant case is distinct from the situation in Blockburger in that it does not involve a single transaction resulting in two crimes, but a series of interrelated acts resulting in two crimes which are defined by separate statutes that are not in pari materia. Thus, we must look beyond the Blockburger test to determine whether the offenses merged for it is clear that the test there enunciated did not contemplate its application to a felony murder statute where proof of the felony substitutes for premeditation and deliberation by legislative fiat.

Even if we view the series of events as a continuous transaction, the doctrine of merger is inapplicable because the transaction offended multiple societal interests and constituted separate offenses. See Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). It is settled that the "`heart of the crime' of kidnapping is a seizure and detention against the will of the victim," United States v. Wolford, 144 U.S. App.D.C. 1, 8, 444 F.2d 876, 883 (1971), whereas the heart of the crime of felony murder is a death during the course of certain specified offenses. The kidnapping statute is applicable to kidnappings perpetrated for a broad range of purposes or motives — lust, desire for companionship, revenge, or some other motive which does not involve ransom or reward such as silencing a witness. See United States v. Wolford, supra at 8, 444 F.2d at 883. The legislative purpose is additional punishment for and an additional deterrent against the act of kidnapping an intended murder victim to facilitate the murder and the escape of the perpetrators.

Moreover, the separate nature of the offenses is apparent in that appellant's "course of conduct admitted of interruption and alteration in response to the deterrent influence of additional punishment," a characteristic found pivotal in Irby v. United States, 129 U.S.App.D.C. 17, 20 n. 4, 390 F.2d 432, 435 n. 4 (1967), for upholding consecutive sentences for housebreaking and robbery. In the instant case appellant and Neal committed kidnapping when they drove the victim away from his place of employment against his will. Having committed kidnapping and violated appurtenant societal interests, it was still possible for appellant and Neal to abandon their plan by releasing the victim unharmed. But they continued to the parking area and committed the second, distinct offense of murder. The fact of the killing did not negate the earlier, act of kidnapping. See also Blango v. United States, D.C.App., 373 A.2d 885 (1977).

The situation in the present case is not unlike that in Wolford, supra, in which a helper on a hijacked truck was detained and transported against his will to Rock Creek Park, which was several miles from where the truck was hijacked. The court noted that the purpose of the detention was to facilitate the success of the hijacking and thus to secure a benefit to the hijackers. Accordingly, the court held that two separate and distinct crimes had been committed — armed robbery and kidnapping. So, too, in the instant case the removal of the victim to a secluded spot in a park facilitated the success of the killing and the escape of the perpetrators. Accordingly, appellant committed two separate and distinct crimes and was properly sentenced consecutively therefor.¹

Appellant's next claim of error is the exclusion from the jury instructions that the testimony of an informant "should be received with suspicion." The court gave all but the bracketed portion of the following instruction:

An informer's testimony should be examined by you with greater care than the testimony of an ordinary witness. You should scrutinize it closely to determine...