Reed v. US

• Decision Date: 28 December 1990
• Docket Number: No. 86-1265.,86-1265.
• Parties: Robert J. REED, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

584 A.2d 585

Robert J. REED, Appellant, v. UNITED STATES, Appellee.

No. 86-1265.

District of Columbia Court of Appeals.

Argued December 1, 1988.

Decided December 28, 1990.

Terrence M. O'Connor, Washington, D.C., appointed by this court, for appellant.

Julieanne Himelstein, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C. at the time the brief was filed, were on the brief, for appellee.

Before FERREN and SCHWELB, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Appellant was indicted and convicted of involuntary manslaughter while armed, D.C.Code §§ 22-2405, -3202 (1989 Repl.), and two counts of destruction of property, id. § 22-403 (1989 Repl.). He was sentenced to two terms of three-to-nine years on the destruction of property counts and three years-to-life on the involuntary manslaughter while armed charge, all sentences to run concurrently. Appellant contends on appeal (a) that the evidence does not support the "while armed" portion of the involuntary manslaughter conviction and (b) that the trial court erred when it limited the testimony of appellant's expert. We remand to enter a judgment of conviction for involuntary manslaughter and for resentencing.

I.

Appellant's convictions arise from an incident in which the vehicle he was driving, a Chevrolet Cavalier, left the northbound lane of South Capitol Street, crossed the median, and crashed into a car in the southbound lane. The driver of that car was killed instantly. Two other cars were damaged in the accident. Appellant was found in his car with the back of his seat in a horizontal position. He suffered serious injuries and was taken to a hospital.

A blood test showed that appellant had a blood alcohol content of .152. At trial, appellant testified that he had three beers around 5:30, two more right before he started driving again at about 8:30, and was drinking another beer while he drove. A nurse at the hospital to which he was taken after the accident testified that he had stated to her that he had used alcohol and marijuana about 7:00 that evening. A government expert on accident reconstruction opined that appellant had been driving without lights on, that he had been travelling at a speed greater than 36 miles per hour before he lost control of the car, and the force of the collision caused appellant's seat-back to collapse. The speed limit at the location of the accident was 25 miles per hour.

Appellant's defense was that, as he looked over his shoulder to change lanes, the seat-back of the car fell back and he lost control of the car. A defense expert in accident reconstruction concluded that the seat mechanism was broken and that the failure had occurred before the crash. He sought to support this conclusion by relying on his own observations of the seat after the accident and a report from General Motors, the manufacturer of the car, to the National Highway Traffic Safety Administrator (NHTSA). The General Motors report contained customer letters to the NHTSA and data from General Motors regarding instances in which the seat-back mechanism had failed. On an in limine motion of the government to exclude this report from evidence, the court ruled that the expert could testify that he had utilized the report in reaching his opinion and give a general description of what the report contained but that he could not testify as to the details of the individual instances contained in the report, unless such were put into issue on cross-examination.¹

On direct examination, appellant's counsel elicited from the expert only that he had read a report from General Motors to the NHTSA regarding the seats. After the government completed its cross-examination of the witness, the court called counsel to the bench and noted the limited inquiry. Appellant's counsel indicated that he intended to have the expert describe certain aspects of the study on redirect. Counsel for the government objected. After much discussion between the court and counsel, the court ruled that the expert could testify that the report was the basis for his conclusion that the seat mechanism had failed even though he could detect no flaw in the mechanism. When counsel for the government objected that this would compel him to get into individual instances on cross-examination, the court disagreed but held that counsel was free to cross-examine the expert on the facts underlying his conclusion. On redirect, defense counsel asked the expert about the source of his conclusion as to two points. The expert replied that he had relied on the General Motors Report, as well as on his own observations.

The trial court instructed the jury on involuntary manslaughter while armed and on criminal negligence. The court instructed that to find appellant guilty of involuntary manslaughter while armed, the jury had to find that appellant inflicted an injury from which the victim died, that the injury was "the result of a course of conduct involving extreme danger of death or serious bodily injury." that the conduct "amounted to recklessness and was a gross deviation from the standard of conduct that a reasonable person should have observed," and that appellant was armed at the time of the offense. On the element of "while armed," the court instructed

The fifth element is the element of being armed at the time of the commission of the offense.

Now a dangerous weapon or deadly weapon is one which is likely to produce either death or great bodily injury. And I instruct you that in appropriate circumstances an automobile may be a dangerous weapon. And in determining whether the automobile in this case was a deadly or dangerous weapon, you consider all the circumstances surrounding its possession and use.²

II.

The enhancement of appellant's conviction for involuntary manslaughter as "while armed" under D.C.Code § 22-3202(a) (1989 Repl.), cannot stand. To allow application of the statute (while armed) to a charge of involuntary manslaughter causes an inherent conflict between the two convictions. On these facts, where the "weapon" involved is an automobile, the inappropriateness of enhancement of an involuntary manslaughter conviction as "while armed" is manifest.

Involuntary manslaughter, the underlying crime for which appellant was convicted, is the unintentional killing of another as a result of a noncriminal act which "creates an extreme risk of death or serious bodily injury" or is a misdemeanor committed in such a way that is particularly dangerous to others. Comber/Hayward v. United States, 584 A.2d 26, 47-48 (D.C.1990) (en banc). Extreme recklessness, or criminal negligence, is defined as the "lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk." United States v. Bradford, 344 A.2d 208, 215 (D.C.1975); see also Comber, supra at 47-48; United States v. Dixon, 135 U.S.App.D.C. 401, 405-06, 419 F.2d 288, 292-93 (1969) (Leventhal, J., concurring). The essence of involuntary manslaughter, the factor that distinguishes it from other types of homicides, is the defendant's lack of awareness of the risk to others from his conduct when he should have been aware of the risk. See Comber, supra at 48-49; Bradford, supra, 344 A.2d at 215 n. 22.

D.C.Code § 22-3202(a)(1) (1989 Repl.) provides that:

(a) Any person who commits a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm ... or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machine-gun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles):

(1) May, if he is convicted for the first time of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment....

Crime of violence is defined in D.C.Code § 22-3201(f) (1989 Repl.) and includes manslaughter.³ "Dangerous or deadly weapon" is not defined by the statute.

While § 22-3202 includes manslaughter, and there is no question that an automobile can be a dangerous weapon, see Mitchell v. United States, 399 A.2d 866, 870 (D.C. 1979) (assault with intent to kill while armed); Johnson v. United States, 386 A.2d 710 (D.C.1978) (assault with a dangerous weapon), we conclude that an automobile is not a dangerous weapon for the purposes of the statute when operated with gross negligence (as in involuntary manslaughter.)

While certain objects are weapons by design, for instance, a handgun or a switchblade, other objects become weapons only when there is some general intent for them to be a weapon. For instance, if an individual carries a bat to the baseball field for a game, the bat is certainly not a weapon. However, if the individual should swing the bat purposely at another, the bat then becomes a weapon. Similarly, a car driven for purposes of transportation is not a weapon, but a car driven with the purpose of injuring another definitely is a weapon.

In interpreting the phrase "dangerous or deadly weapon," the courts in this jurisdiction, in the context of various statutes using the phrase, have noted this distinction between objects that are inherently "weapons" and those which become weapons only by their manner of use. We construe the law, and believe it only accords with the common meaning of "weapon," to allow enhancement under § 22-3202 in the case of an instrument that is not designed to be a weapon only if it can be inferred from the circumstances that the defendant was aware that his manner of use of the instrument made it an instrument likely to cause injury to others.

In the context of D.C.Code § 22-502 (1989 Repl.), assault with a dangerous weapon, the United States Court of Appeals for the District...