This matter is before us for a second time. On February 6, 1995, a divided panel of this court reversed and remanded in part the convictions of appellants Charles Howard and Ronald Willis.
Howard v. United States (Howard I),
I.
In Howard I, based upon an erroneous exclusion of evidence proffered by the defense, we reversed and remanded the convictions of Howard and Willis for assault with intent to murder while armed (AWIMWA). 2 We indicated, initially, that the government could elect to retry the appellants or have the trial court enter judgment of conviction on a lesser included offense identified as assault with intent to kill while armed (AW-IKWA). Moreover, we said that, in the event retrial is elected, “if a jury finds that the third element of AWIMWA — absence of mitigating circumstances — has not been proved beyond a reasonable doubt, the jury may not convict of assault with intent to murder while armed (AWIMWA); it may find guilt only of the lesser included offense of assault with intent to kill while armed (AWIKWA).” However, we amended our opinion on February 23 and March 30, 1995.
In one of the February 23 amendments, we made it clear that “the trial court’s error impacts only the charges of assault with intent to murder while armed.”
In suggesting that the jury could have found guilt of the lesser offense of AWIK-WA, we are not saying that AWIKWA is a necessarily lesser included offense of AW-IMWA. That question has not been conclusively answered. Although, as indicated earlier in the text, the standard criminal jury instructions include the “specific intent to kill” as an element of AWIMWA, as well as of AWIKWA, we have never held that a specific intent to kill is the only species of malice that will qualify for AW-IMWA. If at least one other type of malice qualifies, such as a “specific intent to inflict serious bodily harm” or “a wanton and willful disregard of an unreasonable human risk,” Comber v. United States,584 A.2d 26 , 41 [D.C.1990] (en banc), then it will be possible to commit AWIMWA without committing AWIKWA (which of course requires a specific intent to kill), and thus the latter will not be a lesser included offense of the former....
Howard I, supra,
On December 27, 1995, after receiving legal submissions from the parties, the trial judge entered judgments on two counts of ADW to replace the reversed AWIMWA convictions. Resentencing of Howard and Willis resulted in the same amount of prison time as was imposed for the AWIMWA convictions. 3
Howard and Willis contend that the trial court exceeded the scope of this court’s mandate by allowing the government to elect entry of judgment on a lesser included offense in lieu of retrial on the reversed counts. They argue that the trial court did not have the power to grant relief on its own initiative, on remand, because of the absence of a specific directive from this court.
II.
This case is unique. It involves a decision which was amended sua sponte not once, but twice. The amendments, however, did not change the central conclusion of the majority’s decision in Howard I, that only appellants’ convictions for AWIMWA were impacted by reversible trial error. Hence, we review Howard and Willis’ arguments regarding the mandate in the specific context of this case.
We reiterate the proposition that the trial court must follow the mandate that issues from this court on remand. “[T]he mandate of an appeals court precludes the [trial] court on remand from reconsidering matters which were either expressly or implicitly disposed of upon appeal”
United States v. Miller,
The decision and judgment in
Howard I
constituted the mandate or the “law of the case” on remand.
Miller, supra, 822
F.2d at 832. The trial court’s obligation was to dispose of the matter in a manner consistent with
Howard I.
In entering judgment of conviction for assault with a dangerous weapon, the trial court disposed of the matter in a manner consistent with footnote 10A and textual language in
Howard I
specifying that, unless the government proves the absence of mitigating circumstances, “the jury may not convict of assault with intent to murder while armed (AWIMWA); it may find guilt only of a lesser offense, such as assault with intent to kill while armed (AWIKWA) or assault with a dangerous weapon.”
Howard I, supra,
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed
Notes
. After a jury trial, Howard and Willis were convicted on March 10, 1992, of assault with intent to murder while armed (two counts), in violation of D.C.Code §§ 22-503, -2403, -3202 (1989 & 1994 Supp.); possession of a firearm during a crime of violence (two counts), in violation of D.C.Code § 22-3204(b); carrying a pistol without a license, in violation of D.C.Code § 22-3204(a); possession of an unregistered firearm (two counts), in violation of D.C.Code § 6-2311(a) (1989); and unlawful possession of ammunition (two counts), in violation of D.C.Code § 6-2361(3).
. We also vacated, on merger grounds, one count of the conviction pertaining to the possession of a firearm during a crime of violence.
. With regard to the AWIMWA convictions, the trial court originally sentenced Willis to six to twenty years on each count to run concurrently, and Howard to twenty years under the Youth Rehabilitation Act on each count, also to run concurrently. With respect to their ADW convictions, Willis received three to ten years on each count to run consecutively, and Howard ten years under the Youth Rehabilitation Act on each count, to run consecutively. The change from concurrent to consecutive sentences regarding the AWIMWA convictions, designed to effectuate the trial judge's original sentencing intent, is not separately challenged on appeal.
. Under D.C.App. R. 41(a), “[a] certified copy of the judgment, a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue.”