West v. US, 89-CF-417.

• Docket Nº: No. 89-CF-417.
• Citation: 659 A.2d 1260
• Case Date: June 15, 1995
• Court: Court of Appeals of Columbia District

659 A.2d 1260

Thomas WEST, Appellant,
v.
UNITED STATES, Appellee.

No. 89-CF-417.

District of Columbia Court of Appeals.

June 15, 1995.

Allen W. Levy, Public Defender Service, Washington, DC, for appellant on the Suggestion of Death.

James Klein and David Reiser, Public Defender Service, Washington, DC, for appellant on the Supplement to Suggestion of Death.

Jay B. Stephens, U.S. Atty. at the time the Suggestion of Death was filed, and John R. Fisher, Asst. U.S. Atty., Washington, DC, for appellee.

Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and BELSON, Senior Judge.

ON MOTION FOR SUGGESTION OF DEATH

BELSON, Senior Judge:

Counsel for appellant Thomas West has filed a suggestion of appellant's death. This filing requires us to determine whether in a criminal case the death of an appellant,

659 A.2d 1261

whose conviction had already been affirmed on direct appeal by a division of this court but whose petition for rehearing en banc was pending at the time of death, should prompt this court to dismiss the petition and the appeal, and remand the case to the trial court to vacate the conviction and order the abatement of the prosecution. We hold that a deceased petitioner who has had the benefit of his appeal of right before he died and was left at the time of his death with only the opportunity to petition for discretionary further review is not entitled posthumously to a remand for abatement of the proceedings

Appellant was convicted in Superior Court of distribution of a controlled substance, D.C.Code § 33-541(d) (1993), and possession with intent to distribute a controlled substance, D.C.Code § 33-541(a)(1) (1993). His conviction was affirmed by a division of this court. West v. United States, 604 A.2d 422 (D.C.1992). Appellant filed a timely petition for rehearing en banc, which stayed issuance of the mandate until disposition of the petition. D.C.App.R. 41(a). The full court unanimously joined in an order denying the petition for rehearing en banc, unaware that four days earlier counsel had filed a suggestion of appellant's death and requested that the court deny the petition for rehearing en banc, dismiss the appeal and remand the case to the Superior Court for vacation of appellant's conviction. The suggestion of death and related requests for relief were certified to this motions division for consideration.

Appellant argues that this court's ruling in Howell v. United States, 455 A.2d 1371 (D.C. 1983) (en banc), supports his contention that his conviction should be abated ab initio, pointing out that in Howell we stated that "when the defendant dies before he has exhausted his right of appeal" the underlying conviction should be vacated and the prosecution abated ab initio. Id. at 1372. We disagree.

Consideration of the procedural background of Howell, quite different from that of the present case, clarifies why our holding there does not support appellant's contention. A division of this court reversed Howell's conviction for possession of marijuana and remanded the case with directions to suppress the marijuana evidence. Id. Upon learning of the division's decision, appellant's counsel tried to telephone Howell, only to learn that he had been murdered some five months before the division opinion issued. Id. Upon being notified of that fact, government counsel filed a suggestion of death. Id. Over the objection of Howell's counsel, the division vacated its opinion reversing the conviction and dismissed the appeal, nunc pro tunc. Id. The en banc court took a different view, ordering not only that the appeal be dismissed, but also that the case should be remanded to the trial court so that the conviction could be vacated and the prosecution abated by reason of death. Id. at 1373.

In reaching our decision in Howell, we relied on the Supreme Court's decision in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), a case in which the Court dismissed a petition for certiorari that was pending at the time the petitioner died. In its brief opinion in Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was pending, the Supreme Court had disposed of the case by granting the petition for certiorari, vacating the judgment below, and remanding...