Edward Towles v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CF-509

EDWARD TOWLES, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF2-19611-13)

(Hon. Robert I. Richter, Trial Judge)

(Submitted January 6, 2015 Decided June 4, 2015)

Barbara E. Kittay was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney at the time the brief was filed,

and Elizabeth Trosman, John P. Mannarino, Kamliah House, Elana Suttenberg,

and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for

appellee.

Before GLICKMAN and THOMPSON, Associate Judges, and KING, Senior

Judge.

THOMPSON, Associate Judge: After the trial court denied his motion to

suppress and after a stipulated trial, appellant Edward Towles was convicted of

unlawful possession of liquid phencyclidine (“PCP”), carrying a pistol without a

license, unlawful possession of a firearm by a felon, possession of an unregistered

2

firearm, and unlawful possession of ammunition. He argues on appeal that the trial

court (1) erred in denying his motion to suppress and (2) unlawfully imposed a

three-year minimum sentence after ruling that his prior involuntary manslaughter

conviction was a “crime of violence” for purposes of D.C. Code § 22-4503 (b) (1)

(2012 Repl. & 2013 Supp.). For the reasons that follow, we affirm.

I.

At the hearing on the motion to suppress, Jordan Katz, six-year veteran of

the Metropolitan Police Department (“MPD”) gun recovery unit, testified that he,

two other MPD officers, and an Alcohol, Tobacco and Firearms (“ATF”) agent, all

armed, were driving in an unmarked car with its windows down on the evening of

November 6, 2013, near the intersection of Howard Road and Bryan Place, S.E.

All the officers were wearing vests with the word “Police” across the front and

back, in letters that could be read by someone standing outside the car. The

officers and ATF agent were looking for guns but were not acting on any citizen

call or informant tip at that time. Officer Katz testified that the gun recovery unit

had “recovered a lot of guns over the years” in the area and that he personally had

arrested “probably over ten” people with guns in the three or four blocks near

Bryan Place, including a “handful” of people “in the last few months.”

3

Officer Katz, who was sitting in the front passenger seat, saw appellant

walking with another man. Appellant was wearing a “bulky” green coat or jacket,

and his hand was in his right pocket. As the officers’ vehicle got closer to the two

men, Officer Katz saw appellant look over his right shoulder at the officers’

vehicle. Appellant then turned his head away, took his right hand out of the coat

pocket, and put his hand “under his coat toward his right waistband” and “just

moved it around.” Appellant then “cut[] behind” his companion and moved away

from him, turning onto Bryan Place (which runs for only one block) and walking

“much quicker” than he had been when Officer Katz first saw him. Officer Leo,

who was driving, turned the police vehicle onto Bryan Place in order to follow

appellant, and appellant “kept looking back at” the police vehicle as he walked

toward a fence. Officer Katz asked Officer Leo to stop the car, and Officer Katz

and ATF Agent Srivastava both got out of the vehicle.1

Officer Katz began “side stepping” toward appellant and asked him, in a

“normal” tone of voice, whether he had a gun on his right side. Officer Katz

testified that he asked this question because of appellant’s gestures: taking his hand

1

Agent Srivastava moved toward Howard Road, about 18 feet away, closer

to the man who had been walking with appellant.

4

out of the pocket, making a movement at his right waistband (movement that

Officer Katz testified caused him to be concerned that appellant had a gun in his

waistband), breaking away from his friend, and “[e]specially when he went

towards that fence[,]” a movement that caused Officer Katz to think, “he’s going to

take [a gun] out and put it on the fence.”2 In response to Officer Katz’s question,

appellant “took his hand [and] kind of reached it under his coat[,]” and Officer

Katz saw a cell phone clipped to appellant’s belt. Appellant unclipped the cell

phone, held it so that Officer Katz could see it, and said, “[I]t’s just a cell phone.”

As appellant did so, “the right coat pocket of [appellant’s] coat hung over his right

hand” such that Officer Katz “could see that there was something heavy” in the

pocket. Officer Katz thought this heavy object was a gun.3

At that point, Officer Katz started to walk slowly toward appellant.

Appellant “took his right side and turned it away” as if to keep the officer from

seeing it as the officer walked toward him. Appellant also “started to look side to

2

Officer Katz testified on cross-examination that appellant’s “walking

behind” his companion after looking at the officers and “going much quicker in . . .

breaking away[,]” and appellant’s “action with [his] hand . . . reach[ing] to [his]

waistband” made the officer “suspicious.”

3

Officer Katz identified, and the court admitted, Defense Exhibits 3 and 5,

photographs of appellant with the gun in his pocket.

5

side[,]” as if “looking for a way out of here.” Officer Katz, who was standing

about 18 to 20 feet from appellant, said to appellant in a “raised” voice, “[H]ey,

keep looking at me. Keep looking at me.” Officer Katz explained that he said this

because “at this point[,] with everything I’d seen, I figured he probably had a gun”

and “[w]hen he started to look side to side, I’m also thinking he’s about to run

[and] I would like him not to run” or to “try to take the gun and just throw it or

take it out [or] do something else.”4 Officer Katz testified that he next said to

appellant, in a conversational tone, “[C]an I pat you down, make sure you don’t

have a gun[?]” Appellant responded, “[Y]eah, okay[,]” and then “just put his head

down.” Officer Katz walked toward appellant and put his hands out toward

appellant’s waistband, but, before he could touch appellant, appellant said, “I got a

gun.” At this point, Officer Katz pushed appellant’s arms up, and Officer Olszack,

who had just gotten out of the police vehicle, grabbed appellant’s left arm while

Officer Katz held onto appellant’s right arm. At that point, Officer Leo got out of

the police vehicle (Officer Katz having given the “code word for a gun”), came

over, and, as appellant was starting to say, “it’s in my pocket,” touched appellant’s

right coat pocket, where he felt a handgun (later determined to be a small, .32

4

Officer Katz further explained that he did not order appellant to stop, but

“want[ed] to keep his focus on me” because “[w]hen you can see someone’s focus

on you, they might not run away.”

6

caliber semiautomatic weapon).5 The officers then handcuffed appellant. Shortly

afterwards, appellant said, “I got some water[,]” (i.e., PCP) and motioned his head

down toward a breast pocket of his coat. Officer Katz touched the pocket and felt

a vial. The crime scene officers later recovered a vial of PCP and a gun from

appellant’s pockets. Officer Katz testified that at no point during this encounter

did he draw his weapon.

The defense witnesses at the suppression hearing were Richard Carter

(appellant’s cousin and the man who had been walking with appellant that

evening) and appellant himself. Carter testified that he and appellant were walking

in the street down Bryan Place, headed toward the Metro station, when they looked

back, saw a car with police in it, and moved out of the way of the car. As he and

appellant kept walking, someone in the car yelled, “[L]ift your shirts up[,]” and

“Do you all have a gun?” Carter and appellant lifted their shirts. Appellant pulled

his cell phone from his side, showed it to the officers, and said he did not have a

gun. Carter and appellant continued walking together, but an officer got out of the

car and kept asking whether the two men had guns, and the two repeatedly

answered that they did not. The officer asked whether he could search the men,

5

The gun measured about three inches “from the bottom of the handle to

the top.”

7

and both said again that they did not have guns. That officer and one other walked

over to appellant, put his hands up, started searching him, and found a gun on him.

Another officer told Carter to put his hands up and empty his pockets, both without

his consent. Carter, who said that he was “apart from [appellant] when he was

talking to the other officers” but could hear everything the officers were saying,

testified that he never heard appellant give consent to a search or a pat down.

Carter also acknowledged that only one officer, whose gun was not drawn, was

talking to appellant during the beginning of the encounter, before Carter was asked

to empty his pockets.

Appellant testified that he and Carter were walking toward the Metro station

(on a planned route of going past Howard Road to Bryan Place, to Stanton Road

and then Sheridan Road and finally back to Howard Road where the Anacostia

station is located) when they were stopped by the police. According to appellant,

he looked back and observed a “truck with police officers in it” slow down behind

him. He “just kept walking,” with his cell phone in his right hand. After appellant

and Carter turned onto Bryan Place, appellant clipped his phone to his waistband.

He turned around when the police vehicle’s “lights shined.” Someone yelled,

“[D]o you have a gun on your right side[?]” and “Can you lift up your jacket[?]”

At the time, appellant testified, Carter was “beside [appellant] but a little bit [not

8

even a foot] behind.” Appellant testified that he turned, lifted his jacket on the

side, grabbed his phone, showed it to the officers, and told them it was only a

phone. He then continued walking.

At that point, appellant testified, one of the officers got out of the vehicle

and said, “[S]top,” to appellant. After appellant stopped, the officer repeatedly

asked him whether he had a gun on him or whether he had “anything on [him].”

The officer then said, twice, “[C]an I search you[?]” Appellant both times shook

his head, replied, “[N]o,” and said, “I don’t have nothing.” As the officer then

walked up to appellant, appellant “turned [his right side] to the side a little bit”

because he wanted the officer to leave him alone. The officer grabbed him, pushed

his arms up, put his hands under appellant’s armpits, and said, “I’m going to ask

you again, do you have anything on you[?]” Appellant testified that, at this point,

he admitted to having a gun in his right pocket. The officer “called the code” and

other officers “just bum rushed” appellant. Appellant testified that before the

officer put his hands on him, he never gave the officer permission to touch him,

search him, or pat him down. He would not have done so, he testified, because he

knew he was “dirty” and because he was on parole at the time. He agreed that the

officer never drew his gun and was the only one talking to him during the incident.

9

At the close of the suppression-hearing evidence, Judge Richter credited

Officer Katz’s version of the night’s events, explaining:

[O]bviously I am utterly unable to say with certainty

who’s telling the truth. . . . As I say, I can’t be certain. If

this were beyond a reasonable doubt, I could not, on this

record, credit Officer Katz’s beyond a reasonable doubt.

But I will credit him by a preponderance.

Finding that appellant gave his consent to be patted down before there was any

seizure or search, and that what occurred “happened in the sequence as [Officer

Katz] described[,]” Judge Richter denied the motion to suppress. Appellant

thereafter agreed to a stipulated trial and to incorporating the motions hearing as

the trial record. Judge Richter found appellant guilty on all counts. At the April

25, 2014, sentencing proceeding, Judge Richter ruled that appellant’s previous

involuntary manslaughter conviction6 qualified as a “crime of violence” under D.C.

Code § 22-4503 (b) (1) and that the court was therefore required to sentence

appellant to a mandatory minimum sentence of three years for the felon-in-

possession conviction. This appeal followed.

II.

6

Appellant had previously pled guilty to involuntary manslaughter in

Maryland.

10

In resolving a challenge to the denial of a motion to suppress, we view the

facts and all reasonable inferences therefrom in the light most favorable to the

government as the prevailing party, and we review the Superior Court judge’s

findings of fact only for clear error. Robinson v. United States, 76 A.3d 329, 335

(D.C. 2013). We review de novo the judge’s determination that no Fourth

Amendment violation occurred. Id.

The Fourth Amendment to the Constitution protects individuals from

unreasonable seizures by police. See Terry v. Ohio, 392 U.S. 1, 9 (1968). In

general, any restraint of a person amounting to a seizure is invalid unless justified

by probable cause. See Hawkins v. United States, 663 A.2d 1221, 1225 (D.C.

1995). However, a police officer may conduct an investigatory stop on less than

probable cause provided that, “given the totality of the circumstances . . . the . . .

officer could reasonably believe that criminal activity was afoot.” Duhart v.

United States, 589 A.2d 895, 897 (D.C. 1991) (citing Terry, 392 U.S. at 29-30).

“A seizure does not occur simply because a law enforcement officer approaches a

person on the street and asks him or her questions; the officer may engage in such

encounters without violating the Fourth Amendment if the person approached is

willing to listen and answer questions.” Jackson v. United States, 805 A.2d 979,

11

984 (D.C. 2002) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)). The

“crucial test for determining whether a person has been seized is whether, taking

into account all of the circumstances surrounding the encounter, the police conduct

would have communicated to a reasonable person that he was not at liberty to

ignore the police presence and go about his business.” In re J.F., 19 A.3d 304, 308

(D.C. 2011) (quoting In re J.M., 619 A.2d 497, 499-500 (D.C. 1992)) (internal

quotation marks omitted). There are a number of factors that can indicate that a

seizure has occurred, including, “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544,

554 (1980).

An encounter between a police officer and an individual may begin

consensually and then, because of the officer’s show of authority or some other

indication that the individual is not free to leave, become a nonconsensual seizure,

which would then require reasonable, articulable suspicion to pass constitutional

scrutiny. See Reyes v. United States, 758 A.2d 35, 38 n.2 (D.C. 2000); Terry, 392

U.S. at 21-22; see also Florida v. Royer, 460 U.S. 491, 498 (1983) (stating that an

individual “may not be detained even momentarily without reasonable, objective

12

grounds for doing so”). “Consent obtained after an illegal seizure is invalid unless

it can be shown that the consent was in fact sufficiently an act of free will to purge

the primary taint of the unlawful seizure.” Hicks v. United States, 705 A.2d 636,

641 (D.C. 1997) (internal quotation marks omitted).

III.

Appellant advances the following claims: that Judge Richter erroneously

denied the motion to suppress; that appellant “terminated the encounter by

continuing on his way” after police first asked whether he had a gun and he

responded by showing his cell phone; that the officers continued with “questions

and demands [that] would not stop until [appellant] demonstrated complete

submission”; that any consent he gave to a search came only after the officers had

“repeatedly demanded permission to search,” thereby effecting an illegal stop and

seizure; that the police encounter (which appellant characterizes as a “prolonged

and unreasonable detention”) “should have ended, long before any such alleged

consent”; and that “the police were not entitled to extend the duration of the

encounter to obtain the alleged consent.” However, appellant is able to make these

arguments only by relying on his and Carter’s hearing testimony instead of on

13

Officer Katz’s credited testimony.7 Appellant emphasizes Judge Richter’s “utter[]

[inability] to say with certainty who’s telling the truth,” argues that Judge Richter

“strained to find [Officer Katz’s testimony] credible,” asks us to consider “how

reluctantly the trial court credited the officer’s testimony over that of appellant and

his cousin,” and makes the troubling suggestion that Judge Richter’s credibility

determination was driven by the judge’s being “most reluctant to denigrate [Officer

Katz’s] credibility[.]”

We therefore begin our analysis by considering appellant’s (implicit)

suggestion that this is one of those rare cases in which we should not defer to the

trial court’s credibility determination. Judge Richter found that Officer Katz was

“a very credible sounding witness” who had “a reason to remember the details”

and who was “more credible” than appellant and Carter. In crediting Officer

Katz’s testimony over that of the defense witnesses, Judge Richter acknowledged

defense counsel’s “very logical” argument that it was “farfetched that someone

who had contraband on them would consent to a search.” The judge observed,

however, that “everyday [sic] I see cases in here where people consent to a search

7

For example, appellant asserts — contrary to Officer Katz’s credited

testimony that the officer “never said anything out the window” — that “[f]rom

inside the police car, Officer Katz shouted to the two men . . . , asking whether

they were carrying guns, and demanding to see under their jackets.”

14

[and it’s] not even contested that they consent[ed].”8 In assessing Officer Katz’s

credibility, Judge Richter also explained that it “b[ore] on the credibility of Katz’s

version” that the officer’s “statement that [appellant’s jacket] pocket looked like it

had something heavy in it” was “supported by [exhibit] number 5” (the photo of

appellant with the gun in his right jacket pocket). Looking at the photo, Judge

Richter observed, “[T]here’s certainly something in there. . . . [T]he picture clearly

reflects that there’s something there.” The judge further remarked that Officer

Katz’s testimony that the object in the pocket “appeared to have some weight” was

“not in any way incredible”; that “even the teeny tiny gun that [appellant]

described would show the weight in the pocket[]”; that the photo depicted

something of a “size . . . consistent with a gun” (though “hardly an outline of a

gun”); and that the “something there” or “weighted object” in the pocket would

have been more visible “in real life” than in the still photo.9 In light of Judge

8

Judge Richter reasoned that appellant’s agreeing to a pat down “could

have been a bluff” or “might have [reflected] a sense that [a pat down] was going

to happen anyway.” We also note that Officer Katz’s credited testimony included

his answer (given in response to defense counsel’s question about whether, on a

regular basis, people refuse to consent to being searched), “You know what, rarely.

It doesn’t happen that often to be honest[.]”

9

Judge Richter was not persuaded by defense counsel’s argument that

Officer Katz — the same officer who was found in Robinson v. United States, 76

A.3d at 331, to have violated the defendant’s Fourth Amendment rights when he

frisked him without reasonable articulable suspicion — gave testimony that

reflected the officer’s new modus operandi of claiming that he had obtained

(continued…)

15

Richter’s foregoing reasoning, we cannot agree that he “strained” to find Officer

Katz credible.10

Appellant highlights Judge Richter’s statement that “if a judge finds a police

officer incredible these days, if I were to make that finding, there’s a big price to

pay. He’s almost useless to the police department thereafter.” Appellant appears

to imply that the judge thereby revealed that, for policy reasons, he was crediting

the police officer’s testimony over that of the lay witnesses — an approach that

would have amounted to accepting the police officer’s testimony simply because

(…continued)

consent to a search. Judge Richter also rejected appellant’s argument that Officer

Katz’s testimony was inconsistent with the statements he wrote in his Gerstein

affidavit.

10

Judge Richter did explain that, in his estimation, the witness(es) on both

sides had motives to lie. He observed that appellant was “facing [a] certain lengthy

jail term if it’s found that he did not consent” and thus had “a rather potent motive

to say he didn’t consent.” Carter, Judge Richter observed, “may or may not have

been in a position to hear . . . what everybody was saying” and also had “a motive

to try to protect his cousin and close friend.” At the same time, Judge Richter

acknowledged that it was “more than theoretically possible that [Officer Katz]

could be out there searching people and then later saying they consented even

though they didn’t.” He observed that Officer Katz’s “motive[s] to lie would be

[that] he wants to make as many cases as he can[,] has to protect himself and avoid

being found to have acted illegally”; “doesn’t want to get in trouble”; and “wants to

get guns off the street either for his own purposes or for the community purposes.”

On balance, however, reasoning that these were the officer’s “only” motive to lie,

Judge Richter concluded that the officer had “less motive to lie” and was “more

credible.”

16

he is a police officer. Such an approach, of course, is contrary to the standard

instruction given to jurors when they are the fact-finders, an instruction that applies

equally to trial judges: “In no event should you give either greater or lesser weight

to the testimony of any witness merely because s/he is a police officer.”11 A close

reading of the transcript makes us confident, however, that Judge Richter’s

statement did not signal an abdication of his duty to make a genuine credibility

determination, one unaffected by consideration of factors such as the police

department’s needs. Judge Richter made the statement in question in response to

defense counsel’s assertion that there is no “downside” for a police officer who

testifies untruthfully, because officers are rarely prosecuted for perjury. We read

Judge Richter’s statement as a demurrer that, while the risk of any witness’s being

prosecuted for perjury is “close to zero” and “the risk of [an officer] being caught

. . . lying is probably not tremendous[,]” there nevertheless is a downside and thus

a deterrent for an officer who lies on the stand: the risk of being rendered

“useless” to the MPD and thus of jeopardizing the officer’s continued employment

as an officer. We discern nothing improper about Judge Richter’s statement and

no reason not to defer to his credibility determination.

11

Criminal Jury Instructions for the District of Columbia, No. 2.207 (5th

ed. rev. 2013).

17

Deferring to Judge Richter’s credibility-based findings, we cannot accept

appellant’s premise that he “terminated the encounter by continuing on his way”

after Officer Katz first asked whether he had a gun and he responded by showing

his cell phone; that Officer Katz continued with “questions and demands [that]

would not stop until [appellant] demonstrated complete submission”; that any

consent appellant gave to a search came only after the officers had “repeatedly

demanded permission to search,” thereby effecting an illegal stop and seizure; and

that the police encounter “should have ended, long before [the] alleged consent.”

Judge Richter acknowledged that if — as appellant asserts on appeal — Officer

Katz had “many times” asked appellant “do you have a gun,” that behavior “could

rise to a point of seizure.” However, Judge Richter credited Officer Katz’s

testimony that “there was not [such] repeated haranguing[.]” and found that what

occurred “happened in the sequence as [Officer Katz] described.”

Conducting our de novo review, we are satisfied that the encounter between

Officer Katz and appellant had not evolved into a stop or seizure either at the point

when Officer Katz asked appellant, in a “normal” tone of voice, whether he had a

gun on his right side and appellant showed the officer the cell phone that had been

clipped to his waistband; or before Officer Katz saw something heavy (that the

18

officer had good reason to believe was not a cell phone)12 in appellant’s right

jacket pocket; or before appellant acted as if he was trying to hide something from

the officer when he “blad[ed]” his right side away as the officer approached him. 13

Accordingly, Officer Katz’s immediately subsequent act of asking appellant

whether he could pat him down to make sure he did not have a gun 14 did not

12

Officer Katz testified that “[a] lot of times when you see that[, i.e.,

something heavy in a pocket,] it’s a cellphone [but I was] looking at him holding a

cell phone.”

13

Cf. Brown v. United States, 983 A.2d 1023, 1025 (D.C. 2009) (holding

that there was no seizure where a police officer walked up to the defendant, spoke

in a normal tone, did not place her hand on her gun, did not make any threatening

gestures, and asked, “Do you have any guns, drugs, or narcotics on you?”; the

defendant replied, “I’m not doing anything. I’m counting my money”; the officer

repeated her question; and the defendant responded by reaching into her purse and

handing the officer a brown pill bottle).

14

At what appears to have been the contemporaneous point when Officer

Katz, using a raised voice, told appellant, “[K]eep looking at me. Keep looking at

me[,]” there may have been a seizure because, at least arguably, a reasonable

person would have understood from the officer’s emphatic directions that he was

not free to turn away, “ignore the police presence[,] and go about his business.”14

Brendlin v. California, 551 U.S. 249, 261 (2007); cf. In re J.F., 19 A.3d at 306-11

(concluding that when officers stopped a young man and his companion, asked the

young man a series of questions, and gave him a direct order to remove his hands

from his pockets before asking him if he was willing to be searched, there was a

seizure). We do not decide the point, however, because neither in his motion to

suppress, nor in the argument before Judge Richter, nor in his brief to this court,

did appellant argue that appellant was seized for Fourth Amendment purposes

when Officer Katz uttered those commands. We also do not decide whether, by

the time Officer Katz uttered those commands, he had reasonable articulable

suspicion that appellant was armed. The government so argued in its written

opposition to appellant’s motion to suppress physical evidence, but the prosecutor

(continued…)

19

amount to prolonging appellant’s “detention.” When appellant then said “[Y]eah,

okay[,]” and further acknowledged having a gun and told the officer that he had

PCP, those further statements gave the officers probable cause to arrest him and to

search him incident to arrest. Therefore, the court did not err in denying the

motion to suppress.

IV.

Appellant additionally contends that the trial court erred when it determined

that his 2010 Maryland involuntary-manslaughter conviction was a “crime of

violence” for purposes of D.C. Code § 22-4503 (b) (1), a determination that

increased the mandatory minimum penalty for his possession charge from one year

to three years.15 Appellant argues that, unlike a previous conviction of voluntary

(…continued)

did not make this argument to Judge Richter, did not disagree when Judge Richter

observed, “[Y]ou’re not arguing that . . . everything that was described r[o]se to the

level of articulable suspicion[,]” and did not object when Judge Richter said, “I

don’t think at any point [the officer’s suspicion] rose to the level of an articulable

suspicion under Terry[,]” and the government also did not make this argument in

its brief to this court.

15

Section 22-4503 (b) (1) provides that “[a] person who violates subsection

(a) (1) of this section [by being a felon in possession] shall be sentenced to

imprisonment for not more than 10 years and shall be sentenced to imprisonment

for a mandatory-minimum term of 1 year, unless she or he has a prior conviction

(continued…)

20

manslaughter, a previous conviction of involuntary manslaughter does not support

a sentencing enhancement under § 22-4503.16 We disagree.

D.C. Code § 22-4501 (1) (2012 Repl.) provides that “[f]or the purposes of

this chapter [including § 22-4503], the term[] ‘[c]rime of violence’ shall have the

same meaning as provided in § 23-1331 (4).” In turn, D.C. Code § 23-1331 (4)

states:

(…continued)

for a crime of violence other than conspiracy, in which case she or he shall be

sentenced to imprisonment for not more than 15 years and shall be sentenced to a

mandatory-minimum term of 3 years” (emphasis added).

16

We explained in Comber v. United States, 584 A.2d 26 (D.C. 1990), that:

[V]oluntary manslaughter is a killing committed with an

intent to kill or do serious bodily injury, or with a

conscious disregard of an extreme risk of death or serious

bodily injury, where the presence of mitigating factors

precludes a determination that the killing was

malicious. . . . In contrast, where a killing is not

committed with a specific intent to kill or do serious

bodily injury, or in conscious disregard of an extreme

risk of death or serious bodily injury, there is no question

that the killing was without malice. However, even such

an unintentional or accidental killing is unlawful, and

thus constitutes involuntary manslaughter, unless it is

justifiable or excusable.

Id. at 47-48 (citation omitted).

21

The term “crime of violence” means aggravated assault;

act of terrorism; arson; assault on a police officer

(felony); assault with a dangerous weapon; assault with

intent to kill, commit first degree sexual abuse, commit

second degree sexual abuse, or commit child sexual

abuse; assault with significant bodily injury; assault with

intent to commit any other offense; burglary; carjacking;

armed carjacking; child sexual abuse; cruelty to children

in the first degree; extortion or blackmail accompanied

by threats of violence; gang recruitment, participation, or

retention by the use or threatened use of force, coercion,

or intimidation; kidnapping; malicious disfigurement;

manslaughter; manufacture or possession of a weapon of

mass destruction; mayhem; murder; robbery; sexual

abuse in the first, second, or third degrees; use,

dissemination, or detonation of a weapon of mass

destruction; or an attempt, solicitation, or conspiracy to

commit any of the foregoing offenses.

D.C. Code § 23-1331 (4) (2012 Repl. & 2013 Supp.) (emphasis added).

As originally enacted in 1932, the provision now codified as D.C. Code §

22-4501 (previously codified as D.C. Code § 22-3201) contained its own definition

of “crime of violence,” which included “[m]urder, manslaughter, rape, mayhem,

maliciously disfiguring another, abduction, kidnapping, burglary, housebreaking,

larceny, any assault with intent to kill, commit rape, or robbery, assault with a

dangerous weapon, or assault with intent to commit any offense punishable by

imprisonment in the penitentiary” (emphasis added). Act of July 8, 1932, 47 Stat.

650, § 1 (1932). D.C. Code § 22-3201 was amended multiple times in the decades

after its original enactment through the addition of various other offenses deemed

22

to be “crimes of violence,” but the term “manslaughter” — unmodified by any

adjective — remained on the list. In Morris v. United States, 648 A.2d 958, 959

(D.C. 1994), this court squarely addressed whether “manslaughter” as included in

§ 22-3201 included involuntary manslaughter and held that it did. Morris had

argued that Congress, in drafting the provision, could not have intended for

“manslaughter” to include involuntary manslaughter; more specifically, he argued

that Congress “could not have intended to enhance punishment for conduct

involving risks of which a defendant was [un]aware.” Id. at 960 (internal quotation

marks omitted). We disagreed, reasoning that “Congress, presumptively aware of

the common-law bifurcated definition of manslaughter in the District of Columbia,

nonetheless wrote no such distinction into the enhancement statute, instead

employing the unitary term ‘manslaughter.’” Id. at 960 (citation omitted).

Meanwhile, in 1970, Congress added another definition of “crime of

violence” to the D.C. Code, in a subchapter pertaining to “Release and Pretrial

Detention.” Act of July 29, 1970, Pub. L. 91-358, § 210 (a), 84 Stat. 642-43, 650

(1970). That definition, codified as the original § 23-1331 (4), included within the

term “crime of violence” the following offenses:

murder, forcible rape, carnal knowledge of a female

under the age of sixteen, taking or attempting to take

immoral, improper, or indecent liberties with a child

23

under the age of sixteen years, mayhem, kidnapping,

robbery, burglary, voluntary manslaughter, extortion or

blackmail accompanied by threats of violence, arson,

assault with intent to commit any offense, assault with a

dangerous weapon, or an attempt or conspiracy to

commit any of the forgoing offenses[.]

§ 210 (a), 84 Stat. at 650 (emphasis added) (quoted in United States v. Edwards,

430 A.2d 1321, 1364-65 (D.C. 1981)). The original § 23-1331 definition also went

through several amendments, but its reference to only “voluntary manslaughter”

remained in all its iterations until 2006.

In 2006, the Council of the District of Columbia passed the Omnibus Public

Safety Amendment Act of 2006 (the “2006 Act”). The 2006 Act shortened § 22-

4501 (a) to the modern language that directs the reader to § 23-1331 (4). The 2006

Act also modified § 23-1331 (4), in effect blending the definitions of “crime of

violence” that had been included in former sections 22-4501 (a) and 23-1331 (4).

See Omnibus Public Safety Amendment Act of 2006, D.C. Laws 16-306 (Act 16-

482), §§ 223, 224 (Oct. 17, 2006). This new (and now current) version of § 23-

1331 (4) dropped the term “involuntary manslaughter,” which had been part of §

23-1331’s definition of “crime of violence” since 1970, and replaced it with the

term “manslaughter.” Id. § 224.

24

Appellant is correct that because Morris interpreted a different provision (§

22-3201), it does not resolve the issue of whether the definition of “crime of

violence” contained in the current § 23-1331 (4) and incorporated by reference into

the current § 22-4501 includes both voluntary and involuntary manslaughter.

However, for the following reasons, we are not persuaded by appellant’s argument

that the 2006 Act “caused an unintentional omission of the word ‘voluntary’” when

it amended § 23-1331 (4).

The Council chose to incorporate elements from both the old § 22-4501 (f)

and the old § 23-1331 (4) in order to create the new § 23-1331 (4). Seeking to

“harmonize” the two provisions,17 the Council included almost the entirety of the

old § 22-4501 (including the unmodified term “manslaughter”) into the new

definition of “crime of violence,” excluding only the crimes of “abduction” and

“housebreaking.” Compare D.C. Code § 23-1331 (4) (2012 Repl. & 2013 Supp.)

with D.C. Code § 22-4501 (f) (2001). The Council also picked up and

incorporated into the new § 23-1331 (4) terms that had been used only in the

former § 23-1331 (4), including “carjacking,” “cruelty to children in the first

degree,” “sexual abuse in the . . . third degree[],” and “an attempt, solicitation, or

conspiracy to commit any of the foregoing offenses.” Compare D.C. Code § 23-

17

D.C. Council, Report on Bill 16-247 at 19 (Apr. 28, 2006).

25

1331 (4) (2012 Repl. & 2013 Supp.) with D.C. Code § 23-2331 (4) (2001 & 2004

Supp.). The 2006 Act also added the crimes of “gang recruitment, participation, or

retention by the use or threatened use of force, coercion, or intimidation,” which

had not been in either previous definition of “crime of violence.” Omnibus Public

Safety Amendment Act of 2006, § 224.

The Council appears to have acted quite deliberately in choosing which

elements of the prior definitions to retain; it showed itself quite capable of

selecting the term “voluntary manslaughter” from the old § 23-1331 rather than the

term “manslaughter” from the old § 22-4501 if that had been what it intended. The

backdrop for the 2006 Act was the 1993 decision in Morris,18 and the Council

chose to use the term that, for over a decade prior to this amendment, had been

interpreted to refer to both voluntary and involuntary manslaughter.

“Our primary goal [in statutory construction] is to ascertain and give effect

to the intent of the legislative body that drafted the language.” Owens v. United

States, 90 A.3d 1118, 1121 (D.C. 2014) (quoting Tenley & Cleveland Park

18

“Ordinarily, [the Council] may be presumed to know the construction

which has been given to prior statutory provisions, and to know their history, when

it incorporates them into later legislation.” Smith v. United States, 597 A.2d 377,

382 n.11 (D.C. 1991) (quoting Office of People’s Counsel v. Public Serv. Comm’n,

477 A.2d 1079, 1091 (D.C. 1984)).

26

Emergency Comm. v. District of Columbia Bd. of Zoning Adjustment, 550 A.2d

331, 334 n.10 (D.C. 1988)). Here, we are bound by that statutory intent as

indicated by the plain language of § 23-1331 (4), given that we cannot say that

interpreting the term “manslaughter” to include both voluntary and involuntary

manslaughter “produces absurd results[,]” “leads to an obvious injustice[,]” or

undermines “the legislative purpose of the statute as a whole.” Dobyns v. United

States, 30 A.3d 155, 159 (D.C. 2011) (internal quotation marks omitted). We

therefore agree with the trial court’s interpretation that involuntary manslaughter is

a “crime of violence” under § 23-1331 (4) and for purposes of § 22-4503 (b) (1),

and we reject appellant’s argument that Judge Richter erred in imposing a

mandatory minimum sentence of three years because of appellant’s prior

involuntary manslaughter conviction.

For the foregoing reasons, the judgment of the trial court is

Affirmed.