Norman N. ALLEN, Appellant, v. UNITED STATES, Appellee.
No. 82-798.
District of Columbia Court of Appeals.
Argued En Banc Jan. 20, 1984. Decided July 19, 1985.
495 A.2d 1145
Affirmed.
Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Joseph E. diGenova, U.S. Atty., and Noel A. Kramer, Asst. U.S. Atty., Washington, D.C., were on the briefs, for appellee.
Before PRYOR, Chief Judgе, and NEBEKER, MACK, NEWMAN, FERREN, BELSON and ROGERS, Associate Judges.
PRYOR, Chief Judge:
In the course of an unsuccessful direct appeal, appellant Norman N. Allen challenged, for the first time, the adequacy of jury instructions at his trial. Allen alleged that the absence of particular instructions, which he had not requested, compelled the finding that one of two assault convictions received was invalid. Because Allen did not urge this contention prior to jury deliberations, as required by court rule, the panel on direct appeal only considered his claim under the plain error standard and the convictions were affirmed. Allen then returned to the trial court and raised his claim once more, this time styled as a motion to correct an illegal sentence. He was denied relief and appealed oncе again to this court. Allen contended in this second appeal that a motion to correct an illegal sentence was an appropriate means to seek relief and also complained that the plain error rule, in the context of an instructional error raised initially on direct appeal, has been inconsistently applied by this court.
We heard argument on April 26, 1983. Because of the importance of the issue presented, we voted sua sponte to rehear the case en banc. Allen v. United States, No. 82-798 (D.C. Oct. 31, 1983) (order);1 see D.C.App. Internal Operating Procedures, Part XI-J (1983) (initial en banc hearing appropriate if “the case is of exceptional importance“). We conclude, for reasons stated herein, that Allen‘s Rule 35 motion was properly denied, and that his convictions and sentence are not otherwise subject to attack in this proceeding. Moreover, we find that this court has applied the plain error rule consistently with respect to instructional challenges raised initially on direct appeal. We, therefore, affirm.
At trial, the government‘s evidence showed that on January 23, 1979, Victor Halbmillion, sixty years old, awoke at 12:30 p.m. and prepared to start his day. When Halbmillion walked to the front of the house to check his mail, he noticed that a light, which was never used was lit and that several possessions were missing. A check of the front door revealed that someone had broken into the house.2 Halbmillion called the Metropolitan Police Department and reported a burglary.
Before the police arrived, Allen entered Halbmillion‘s house thrоugh the broken front door. Upon seeing Halbmillion, he pulled out a pistol and demanded money and valuables. Before Halbmillion could satisfy this request, Allen struck his victim in the face with the pistol. Allen then commanded Halbmillion to get up from the floor, where he had fallen, and directed him towards the rear of the house.
In the kitchen, Allen searched unsuccessfully for some cord with which to bind Halbmillion and threatened to kill Halbmillion if his demands were not met. Halbmillion complained that the pistol whipping had hurt him, and that he was bleeding from the head. He told Allen that there were no valuables in the house. Apparently undeterred, Allen directed Halbmillion at gunpoint into a bedroom and began to search for valuables.
Halbmillion ran out of the bedroom, slamming the door behind him. Allen broke down the door, however, and caught Halbmillion. He forced Halbmillion into a hallway and again began to beat him with the pistol. It was alleged that Allen then struck his victim repeatedly with a “coat tree,” a coat hanger, an ax, and an umbrella. Allen also kicked Halbmillion when he fell to the floor from the force of the attack.
Responding to Halbmillion‘s earlier call, Police Lieutenant Ernest Goodson and Officer John Gray arrived at the house. Upon seeing the officers approach, Allen grabbed the ax and ran to the rear of the house. He attempted to escape through a window, but was confronted by Goodson. Allen was arrested by Gray as he ran from the bedroom; a starter pistol was found in Allen‘s possession.
On February 14, 1979, Allen was charged by indictment with first-degree burglary while аrmed (imitation pistol),
Allen testified at trial. He claimed that his car had overheated on the day in question and that he had approached Halbmillion‘s house for water.4 He alleged that Halbmillion assaulted him after answering the door, and he had merely defended himself. Allen admitted possessing the starter pistol.
Allen was found guilty of four of the indictment‘s six counts; he was acquitted of two counts of possessing a dangerous weapon (ax, coat hanger). He was sentenced to concurrent terms of ten to forty years imprisonment on the first-degreе armed burglary and assault with intent to commit robbery counts. He was also sentenced to concurrent terms of five to fifteen years imprisonment for assault with a dangerous weapon (imitation pistol)5 and one year imprisonment for possessing a dangerous weapon (imitation pistol)—to be served consecutively to the ten to forty year sentences. Allen noted his appeal.
The government had argued on direct appeal that the convictions, based on separate and distinct acts, should stand. It was noted that Allen did not request a Bates instruction, did not object to the instructions that were given, and did not object when he was sentenced. This failure to act, it was urged, amounted to a forfeiture of the point on appeal. Furthermore, the government noted that the prosecutor had highlighted the separate evidence supporting each distinct count of the indictment for the jury during summation, and that this evidence compelled a finding of separate and distinct acts. After taking the case under advisement, the panel issued its judgment affirming Allen‘s conviсtions. In the final paragraph of its unpublished opinion, the panel stated:
We do not reach the question of whether the conduct involved in the two charges was “separate and distinct,” thus permitting conviction on each under Bates v. United States, D.C.App., 327 A.2d 542 (1974). Appellant has raised this issue for the first time on appeal and we thus need not and do not consider it.
Allen v. United States, supra, at 3.
Allen then filed a motion, pursuant to
The court has already concluded that there was ample evidence to support the
convictions as separate and distinct offensеs. Obviously, there was sufficient evidence on each charge to go to the jury. Any objections to alleged defects in the court‘s instructions should have been raised at trial. This court cannot speculate as to possible defects in verdicts supported by the evidence. Moreover, it would appear from the record that this issue was briefed and argued in the District of Columbia Court of Appeals and the convictions were affirmed. A stronger showing is required on collateral attack than to warrant an order for a new trial on direct appeal. See Session v. United States, D.C.App., 381 A.2d 1, 2-3 (1979) (Yeagley, J., concurring).
The relief sought by Allen was, therefore, denied.
II
Allen sought post-conviction relief under
We have held that an “illegal sentence” is one “at variance with the controlling sentencing statute,” Prince v. United States, 432 A.2d 720, 721 (D.C. 1981) (per curiam), or “‘illegal’ in the sense that the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum provided....” Robinson v. United States, supra, 454 A.2d at 813. Allen‘s motion, however, did not challenge the sentence as illegal on either of these grounds. Rather, his contention was founded solely upon the precursory claim that, in the absence of a Bates instruction, the ADW conviction had merged with the AWICR conviction. Because one of the convictions should have been vacated, it was urged, the resultant sentence was illegal and could be remedied under
A review of existing authority undercuts this position. It is settled that
We are not persuaded to the contrary by Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); United States v. Golay, 560 F.2d 866 (8th Cir. 1977); and Bayless v. United States, 288 F.2d 794 (9th Cir. 1961) (per curiam), cases which Allen cites. In Heflin v. United States, supra, 358 U.S. at 416, the appellant was convicted and sentenced consecutively under, inter alia, two sections of the Federal Bank Robbery Act for taking property by force and violence and receiving the same property. The Court reversed the sentence under
Contrary to Allen‘s apparent reading, these cases do not hold that
The issue presented by the instant case involves a matter of proof, not statutory ambiguity. Allen has long since conceded that the prosecutor introduced sufficient evidence at the trial to support two convictions, based upon two separate and distinct assaults. He admits that the conviсtions would not merge if the jury had been expressly instructed under Bates v. United States, supra. The sentence itself, which is not in excess of the statutory limit and was entered by the court with jurisdiction over the case, is not illegal simply because the jury instructions may have been inadequate. It may not, therefore, be attacked on that ground under
III
Allen‘s complaint is, in reality, a challenge to his conviction on the ADW count. The linchpin of Allen‘s argument is that it was error for the court to omit a Bates instruction from its charge to the jury. For if the jury had been given such an instruction, it is conceded, separate convictions for AWICR and ADW would be appropriate. Since Allen did not request a Bates instruction, his position must be that the court should have given the instruction sua sponte.
The trial court has no general duty to instruct the jury sua sponte. Johnson v. United States, 387 A.2d 1084, 1088 (D.C. 1978) (en banc). It is counsel‘s responsibility to request that the court give desired instructions.
At the close of the evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. At the same time, copies of such requests shall be furnished to adverse parties. The Court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the Court shall instruct the jury after the arguments are completed. No
party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. [Emphasis added.]
See also
Allen urges that his default should not have limited review by the panel on direct appeal to a plain error review because review under this higher standard is not uniformly enforced in this jurisdiction whenever defaults occur. In essence, he argues that the plain error rule is invoked arbitrarily. We find this argument unpersuasive.
Our review of the cases involving
As noted, the plain error standard is a higher hurdle for an аppellant seeking reversal than is the harmless error standard. Allen was thereby penalized for his failure to comply with
In this regard, the Supreme Court has stated that “[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obviоus, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); see also Young v. United States, supra, 105 S.Ct. at 1046-47. This statement of the plain error rule, which is similar to our Watts articulation, helps to explain why instructional errors not raised at trial will not be disturbed on appeal if, for example, evidence of guilt is overwhelming, Green v. United States, supra, 440 A.2d at 1008; Hall v. United States, supra, 383 A.2d at 1090; cf. Bunter v. United States, supra, 245 A.2d at 842 (illegally seized evidence), or counsel‘s failure to object can be viewed as a tactical choice. See Jones v. United States, supra, 477 A.2d at 242; Bennett v. United States, supra, 375 A.2d at 504. For in such cases, it can hardly be maintained that the alleged error effected a “miscarriage of justice.” Adams v. United States, supra, 302 A.2d at 234.
Conversely, the strong language of the plain error rule also facilitates appreciation of why certain instructional errors, which touch upon fundamental constitutional principles or call into question the integrity of the verdict, will constitute plain error. For example, in cases where
We review in detail the application of the plain error standard to
In previous cases, we have expressly observed that this court will review an instructional challenge raised initially on direct appeal, but only under a plain error standard. Seе, e.g., Morris v. United States, 469 A.2d 432 (D.C. 1983); Hawkins v. United States, supra, 434 A.2d at 449; Gilbert v. United States, 395 A.2d 1 (D.C. 1978); Hall v. United States, supra. However, in a number of cases we have characterized our approach differently. In those cases, we have stated that this court has the discretion not to consider an instructional challenge, raised for the first time on direct appeal. See, e.g., Devone v. United States, supra, 401 A.2d at 973; Headen v. United States, 373 A.2d 599, 602 (D.C. 1977); Carmichael v. United States, supra, 363 A.2d at 304 & n. 3; Anthony v. United States, 361 A.2d 202, 204 (D.C. 1976). In practice, this language is just another means of expressing the same principle. Its use typically indicates that the court did consider the merits of appellant‘s claim and found no plain error in the trial court‘s failure to give a particular instruction, and therefore no grounds for reversal. For example, in Devone, where we said “we may decline to consider the [instructional] error asserted for the first time on appeal,” we cited Watts, thereby showing that we were applying the plain
We take this opportunity to make clear that under plain error review, this court necessarily must consider as part of such a review the merits of a challenge to instructions raised for the first time on appeal. However, while this court will consider such a challenge, we reiterate that an instructional error raised initially on direct appeal will constitute reversible error only where the error complained of is so clearly prejudicial to the complainant‘s substantial rights as to jeopardize the very fairness and integrity of the trial.
Upon review of this matter, we conclude, for the reasons stated above, that on this record it is implicit in the language of the panel‘s decision that the court considered the merits of appellant‘s claim and found no plain error in the trial court‘s failurе to give a Bates instruction sua sponte.15
Accordingly, we affirm the trial court‘s denial of appellant‘s Rule 35 motion.
So ordered.
MACK, Associate Judge, dissenting:
The majority‘s position, stated simply, is that in ruling on Allen‘s direct appeal a division of this court did consider Allen‘s claim that two of the offenses charged in the indictment merged,1 and rejected this claim, finding no plain error. The court also holds that even if the division had not considered this issue, Allen would have been foreclosed from raising it subsequently by way of a Rule 35 motion. Since I believe that the first conclusion is wrong as a matter of fact, and the second as a matter of law, I must dissent.
Allen was convicted of, inter alia, assault with intent to commit robbery—while armed with an imitation pistol—and assault with a deadly weapon (using the same imitation pistol). Under our case law, normally these two offenses would merge, requiring vacation of one оf the convictions. E.g., Leftwich v. United States, 460 A.2d 993, 997 & n. 3 (D.C. 1983). Instead, the trial court imposed consecutive sentences.
On his direct appeal Allen urged this court to reverse and remand to the trial court with instructions to vacate one of the convictions. The government maintained that by charging Allen separately with assault with intent to commit robbery while armed (AWICRw/A) and assault with a dangerous weapon (ADW), it intended to refer to separate confrontations between Allen and the complainant, and that consecutive sentences were appropriate because the government had introduced distinct evidence in support of each count. The government so claimed even though the indictment makes no such distinction between the two counts, and the judge did not instruct the jury that each count was supported by separate facts. Allen contеnded that from the face of the indictment and the jury verdict there is no way to be sure that the jury understood that the two counts referred to separate incidents; and given the fact that no attempt was made by the trial court to separate out for the jury the evidence relating to each count, by way of an instruction, the jury may well have simply cumulated the evidence and returned verdicts of guilty on the two counts based on the same evidence. In those circumstances, the imposition of consecutive sentences on the two counts was error. The government responded that the burden was upon Allen to seek an instruction that would insure that the jury understood that separate incidents were involved. It urged the division on direct appeal to find no plain error in the trial court‘s failure sua sponte so to instruct the jury.
We do not reach the suggestion of whether the conduct involved in the two charges was “separate and distinct,” thus permitting conviction on each under Bates v. United States, 327 A.2d 542 (D.C. 1974). Appellant has raised this issue for the first time on appeal and we thus need not and do not consider it.
By its plain language the division indisputably—and erroneously—decided that it did not even have to entertain Allen‘s claim. The majority‘s conclusion to the contrary here—that by use of the language “we thus need not and do not consider” the issue, what the division meant to say is that it actually had considered the claim but rejected it—is certainly convenient, but turns clear language on its head.2 Since, according to the majority, this court disposed of the claim on the merits on the direct appeal, there is no avenue open to Allen for a collateral attack upon the sentence or the underlying convictions on this basis. Resting upon a faulty premise, this jerry-built conclusion is both unsound and unfair.
The majority goes on to say that even if the issues had not been addressed by the division in its opinion on the direct appeal, this court could not now consider it in any event, because Allen has used the wrong vehicle to raise the question. Allen challenged the imposition of consecutive sentences for the AWICRw/A and ADW convictions by way of a Rule 35(a) “motion to correct illegal sentence” filed with his sentencing judge following his direct appeal. In its discussion of this issue, the majority does not mention our decision in Harling v. United States, 460 A.2d 571, 572, 574 (D.C. 1983), in which we entertained a challenge by way of an appeal from a denial of a Rule 35 motion to the imposition of consecutive sentences for ADW and armed robbery, and we vacated the ADW conviction. The majority distinguishes a multitude of similar cases, stating that they all involved dual convictions based on a single act. This is a distinction without a difference, since this is precisely what Allen is contending—that an uninstructed jury returned two convictions based upon a single, undifferentiated, mass of evidence, and very possibly upon a single event, and that the two convictions therefore merged. The idea that we may only entertain these merger questions through the vehicle of a Rule 35 motion when the government concedes in advance that the evidence is undifferentiated, which the majority seems to imply by its holding, nоt only is unworkable but would require mind-reading skills from the defendant and his counsel.
Putting aside the question of the appropriateness of the Rule 35 vehicle, it is indisputable that we are not bound by the title of the motion and that we may consider it as filed under our collateral attack statute,
Reaching the merits, the conclusion is inescapable that the jury was given no hint that the AWICRw/A and ADW counts represented separate incidents. As the majority notes, the issue here “involves a matter of proof,” supra at 1150; and the government contends that after adducing proof of two incidents for the jury—an initial assault in the complainant‘s hallway with an imitation pistol, followed by a second, later assault with the pistol, along with a coat hanger and an axe—it connected each incident separately to the AWICRw/A and ADW counts. In other words, the government maintains that it was clear to the jury that the AWICRw/A count referred only to the first assault where only an imitation pistol was used, and that the ADW count referred to the incident a few minutes later, in which multiple weapons were used. A review оf the record reveals not only that this assertion is false, but that the government‘s presentation confused even the trial judge, who based his instructions to the jury on both the AWICRw/A and ADW counts on the same underlying evidence until corrected by the government. At the risk of being tedious, I think it necessary to detail the circumstances surrounding what the majority describes as a mere “instructional error.” In explaining the AWICRw/A count, the trial judge said:
Now, here, ladies and gentlemen, the Government relies upon several types of assaults, the striking with the pistol or the imitation pistol, the alleged striking with the ax, the hanger..... [Y]ou may consider in regards to this charge whether any weapon was used....
The government then objected, stating that it intended the AWICRw/A to encompass only assault with an imitation pistol, and that the indictment mentioned only an imitation pistol as the weapon used in this count. An imitation pistol was used in both incidents, however, and the government‘s objection to the court‘s instruction was not based on the fact that the AWICRw/A count was intended only to encompass the “first” assault. Moreover, it is plain from the trial judge‘s response and his corrected instruction that he did not understand the government to be objecting on this basis. The court first correctly noted that the AWICRw/A count in the indictment is “ambiguous“; it does not refer to the first assault and it plausibly could be read to encompass both assaults, inasmuch as the language used is assault with intent to commit robbery while “armed with a dangerous weapon, that is, an imitation pistol.” As the Judge pointed out, the indictment “doesn‘t necessarily say that the assault was committed with a pistol.” It could bе read to cover assaults with other weapons, as the Judge initially construed it, and therefore to cover the second of the government‘s two incidents as well, where weapons other than an imi-
[S]ince this is the Government‘s indictment, I will modify my instructions with respect to the assault to commit robbery while armed. The Government is contending, ladies and gentlemen, on this count, that the assault—or, it‘s pitching its case on the assault solely on the use of the pistol, no other weapon, with respect to this particular charge.... Now, I‘m constrained to tell you, therefore, that with regard to assault with intent to commit robbery while armed, this charge does not include the use of any other weapon or instrumentality. So, it must stand or fall on the use of the pistol or the imitation pistol.
It is apparent that the court at this point was still laboring under what the government must term a “misconception“: that the AWICRw/A count encompassed the entire sequence of events, involving separate assaults with three different weapons, but that the government had chosen for some reason to “stand or fall” on the use of the imitation pistol—whether during the “first” or “second” assault—in this count. The court‘s “confusion” on the question of the relation of the AWICRw/A count to the evidence, however, was a true reflection of an ambiguous indictment and an ambiguous presentation by the government. In addition, the court‘s understanding of the government‘s case, as reflected in its instructions, mirrors the jury‘s likely misperception of the relаtionship between the counts and the evidence.
In considering claims identical to Allen‘s, we have held that although two convictions of this type would normally merge as a matter of law, we will not find merger if two conditions are satisfied: first, the two counts in the government‘s indictment must clearly charge the defendant with criminal acts arising out of two distinct incidents; and second, the trial court must instruct the jury that the two counts represent independent offenses, distinct in time and circumstances. Davis v. United States, 367 A.2d 1254, 1270 (D.C. 1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 114 (1977); see Bates v. United States, 327 A.2d 542, 547 (D.C. 1974); Dixon v. United States, 320 A.2d 318, 321 (D.C. 1974). This approach is necessary to foreclose the possibility that the jury will inadvertently return two convictions based on identical conduct, representing in effect but a single offense, and in addition to insure that the jury will be unanimous as to the predicate facts underlying each separately chаrged incident.
Neither one of the Davis conditions is satisfied here. The indictment does not charge separate incidents, and the trial court did not instruct on separate incidents because it did not understand this to be the government‘s position. The majority concedes that “in cases where there is particular danger of ‘jury confusion,’ a sua sponte instruction may be required.” Ante at 1152. It apparently has overlooked the fact that the overriding issue in this case is that very danger.
The government would have this court shift the entire burden to meet the Davis responsibility to the defendant. I believe that both the government and the trial court bear corresponding burdens, and that their failure to meet their respective obligations in this case, with the result that appellant may well have been sentenced twice for the same conduct, rises to the lеvel of plain error. I accordingly dissent.
Deborah STARLING, et al., Appellants, v. JEPHUNNEH LAWRENCE & ASSOCIATES, Appellee.
No. 84-723.
District of Columbia Court of Appeals.
Submitted March 26, 1985. Decided July 19, 1985.