BUTLER v. U.S., 614 A.2d 875 (D.C.App. 1992)
Sean B. BUTLER, Appellant, v. UNITED STATES, Appellee.
No. 89-CF-1149.
District of Columbia Court of Appeals.
Argued June 11, 1991.
Decided July 21, 1992.
Certiorari Denied November 30, 1992.
See 113 S.Ct. 625.
Appeal from the Superior Court, Gladys Kessler, J.
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[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]
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William S. Rhyne, McLean, Va., appointed by this court, for
appellant.
Nancy R. Page, Asst. U.S. Atty., with whom Jay B. Stephens,
U.S. Atty., and John R. Fisher, Roy W. McLeese, III, Debra L.
Long-Doyle, and Barry Wiegand, Asst. U.S. Attys., Washington,
D.C., were on the brief, for appellee.
Before ROGERS, Chief Judge, and TERRY and STEADMAN, Associate
Judges.
TERRY, Associate Judge:
A grand jury charged appellant Butler and a co-defendant[fn1] with
two counts of kidnapping while armed,[fn2] one count of assault
Page 878
with a dangerous weapon (ADW),[fn3] and two counts of first-degree
felony murder while armed.[fn4] Butler was also charged with one
count of first-degree premeditated murder while armed,[fn5] and
carrying a pistol without a license.[fn6] A jury found Butler guilty
on all the charges except first-degree premeditated murder, as
to which he was found guilty of the lesser included offense of
second-degree murder. On appeal he challenges the voluntariness
of a statement he gave to the police, the trial court's
redaction of certain portions of that statement, the court's
refusal to sever his case from that of his co-defendant, the
admissibility of a dying declaration made by the murder victim,
the sufficiency of the evidence as to certain counts, the
instructions on felony murder, and the trial court's sentencing
scheme. We reject all of Butler's claims of error and affirm
the judgment of conviction.
I
Frances White lived in a house on I Street, N.E., with her
eighty-three-year-old grandmother, Rosa White. The grandmother
rented rooms in her house to Michael King, Sterling Queen, and
Carroll Hawkins. Frances White had a strong dislike for Hawkins
because he "felt as though the house was his and he wanted to
rule everything and everybody." On March 29, 1989, White had a
heated argument with Hawkins, but her grandmother intervened
and suggested that she go out for a while to calm herself down.
White agreed and went to visit an aunt.
Early the next morning White returned home with her friend
Gary Stuckey. Another aunt, Gwen Taylor, who also lived in the
house, returned at about the same time. Rosa White was not at
home, however, and some of her clothing was missing. Frances
White learned from King and Queen that her grandmother had
packed some clothes and left in a cab with Hawkins. Worried
about her grandmother, White went to a nearby store to call the
police. There she met appellant Butler, whom she knew from the
neighborhood, and a friend of his, Joseph Cunningham, who
worked at the store as a security guard. Butler and Cunningham
offered to help in the search for White's grandmother and went
back to the house with White.
Shortly thereafter the police arrived in response to White's
call. They questioned all who were present[fn7] and then left,
saying they would be back in a few minutes. Queen then tried to
leave, but Hayes ordered him to stay. When the police returned
to ask more questions, Queen complained that Hayes would not
let him leave. After the police left again, Hayes hit Queen
with Queen's cane because he was angry that Queen had
complained to the police.
White suspected that King knew more about her grandmother's
whereabouts than he was admitting. The assembled group decided
to interrogate him further. They asked him what the grandmother
and Hawkins had been talking about just before they left, and
when King said he had not heard their conversation, Hayes hit
him with his fist. Hayes then handed to Cherry a .32 caliber
pistol[fn8] which he had in his pocket, and Cherry threatened to
"do" King with it "if he didn't tell us what we wanted to
know." Hayes then took the pistol back from Cherry. At about
the same time, White saw Butler reach behind his back and pull
out a short-barreled pistol, which White recognized as a .38
caliber revolver.
King finally mentioned an address where he thought White's
grandmother might have gone, and Taylor, Cunningham, Cherry,
and Stuckey left to see if the grandmother was there. This left
Butler, Hayes,
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and White alone in the house with King and Queen. Queen was
told to keep his eyes shut, and on one occasion when he opened
his eyes, either Hayes or Butler struck him with an object
(Queen thought it was his own cane), causing him briefly to
lose consciousness. His shirt by this time was drenched with
his blood.
White and Hayes moved King into the living room. Butler took
the bullets out of his gun and then held the gun to King's head
while pulling the trigger until the firing mechanism "clicked."
White urged him to stop, saying, "You don't have to put the gun
to his head, don't do that."[fn9] White then went out to get some
cigarettes. As she left the house, she asked Butler not to do
anything else to King "as far as hitting him or anything" until
she returned.
At about 3:30 a.m. four off-duty police officers, including
S.T. Vines, drove into the neighborhood to visit Vines'
brother, who lived across the street from White's house. As
they approached Vines' brother's house, the officers heard
someone moaning and stopped the car. Officer Raymond Harris got
out of the car and saw Butler and Hayes leaving the house where
the moaning had come from. Both Butler and Hayes had guns in
their hands. When Harris pointed them out to his companions,
Butler and Hayes started to run down the street. The officers
pursued them, but they ran into an alley, climbed over a fence,
and disappeared. As they fled, Hayes fired his gun at one of
the officers.
Frances White was returning to the house with her cigarettes
when she heard a shot and saw two of the police officers in a
car in the alley. White then ran inside the house, where she
found King lying on his back, wounded. Butler and Hayes were
gone. King told White, "They shot me." Queen was in the house,
still sitting on the couch with his eyes closed, but he did not
know who shot King. King died later that day from a single
gunshot wound, caused by a bullet from a .38 caliber revolver.
The evidence established that the bullet could not have come
from a .32 caliber gun.
Two days after the shooting, Butler came to White's house and
told her that "his conscience was bothering him about what he
did." Butler then admitted that he had "shot that man." The
police learned that Butler had knowledge of the crime and asked
him to make a statement. Butler gave the police a videotaped
statement on April 3, but he was not arrested until April 26.
II
Butler moved before trial to suppress his videotaped
statement on the ground that it was involuntary. After a
hearing, the court denied his motion. Butler argues that this
ruling was error, contending here, as he did below, that his
statement was coerced by police threats to arrest him if he did
not give a statement.
The hearing on Butler's motion to suppress his statement
began in the morning of the first day of trial, before the jury
was sworn. Detective Willie Jefferson testified that on April
3 he and Detective Julia Crosby went to the house where Butler
lived with his mother and grandmother. According to Jefferson,
Butler agreed to accompany them to the police station and make
a statement. Jefferson said that he and Detective Crosby "would
have left" if Butler had refused to accompany them. Jefferson
also testified that he told Butler at the police station that
he was not under arrest and that he would be free to leave
after he gave a statement. Detective Jefferson stated that
Butler was free to leave at any time during questioning,
although he was never asked whether he had actually told this
to Butler:
Q. Had he told you that he didn't want to talk
to you any longer, what would you have done?
A. Let him get up and walk out. It has happened
before.
Q. And why would you have done that?
A. Because I didn't have anything — I could not
have charged Mr. Butler. I had nothing to charge
him with.
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On cross-examination Jefferson denied telling Butler that he
would be arrested if he did not give a statement, and denied
promising Butler that he "wouldn't be locked up" if he gave a
statement.
Butler's grandmother, Ann Richardson, testified that when the
detectives arrived at her house on the evening of April 3, they
told Butler that he would be arrested if he did not accompany
them to the police station, but that he would not be arrested
if he went with them. Butler himself testified that Detective
Jefferson told him that he would be arrested if he did not go
with them, but that Jefferson promised him that he could go
home that night if he gave a statement at the police station.
After hearing from these three witnesses, the court granted
Butler's motion to suppress his videotaped statement, finding
that the police "made it clear that if [Butler] didn't give a
statement about what occurred, he would be locked up that
night." The court ruled that the statement was involuntary
because it was given only in exchange for a
promise to be released that evening and not to be
locked up, and that's based upon the testimony of
the witnesses and credibility findings of the
court and based upon the statements of [Butler] in
the videotape itself, which makes perfectly clear
that that was the only reason he gave the
statement.
The hearing turned to other matters not relevant to this
appeal. The court then recessed for lunch.
After lunch, the government moved to reopen the suppression
hearing and introduce the testimony of Detective Crosby, who
had not testified that morning. The court granted the motion.
Detective Crosby then testified that she went to Butler's house
with Detective Jefferson. Crosby denied that either of them
told Butler that he would be arrested if he failed to give them
a statement; on the contrary, she said, "we told him that he
was not going to be arrested at that time, that we felt the
case needed further investigation. . . ." She also testified
that she and Jefferson told Butler that he did not have to come
to the police station and give a statement. After Butler gave
his statement at the station, Crosby testified, she and
Jefferson called his mother into the room and "explained to her
that she could take her son home and that we were going to
continue the investigation, and we would let her know if we
were going to charge her son." Detective Crosby admitted on
cross-examination that the prosecutor had told her over lunch
that the court had suppressed the videotaped statement that
morning and that the prosecutor had asked her to testify that
afternoon. She also admitted telling Butler that four off-duty
police officers had identified him as being at the crime scene
when, in fact, none of the officers had done so. She explained,
however, that when she told this to Butler, she believed that
the officers would be able to make such an identification.
After hearing from Detective Crosby, the court reversed its
earlier ruling on the suppression motion. The court noted that
the "factual issue at this point [was] whether [Butler] was
told that if he didn't go down to Homicide with the detectives,
that he would be arrested that night." That "simple fact" was
the basis for its earlier ruling, "and that's the fact at issue
now." The court, expressing concern that Detective Crosby had
had an opportunity to discuss her testimony with the prosecutor
after the statement had been suppressed, nevertheless found
Crosby's testimony credible.[fn10] The court also found that both
Butler and his mother were aware that Butler was not under
arrest at the time of the statement, and that neither of them
had been told that Butler would be arrested that night if he
failed to give a statement. The court, noting that these were
factual findings based upon Detective Crosby's testimony,
concluded that Butler's motion to suppress was "not factually
supported" and denied the motion.
Police threats or promises of leniency in exchange for a
statement may,
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but do not necessarily, make the statement involuntary. See
Beasley v. United States, 512 A.2d 1007, 1016 (D.C. 1986),
cert. denied, 482 U.S. 907, 107 S.Ct. 2485, 96 L.Ed.2d 377
(1987); United States v. Robinson, 225 U.S.App.D.C. 282, 289,
698 F.2d 448, 455 (1983). Although voluntariness is an issue of
law for this court to decide on the record, Ruffin v. United
States, 524 A.2d 685, 691 (D.C. 1987), cert. denied,
486 U.S. 1057, 108 S.Ct. 2827, 100 L.Ed.2d 927 (1988); see also Miller
v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d
405 (1985) ("the ultimate issue of 'voluntariness' is a legal
question"), we are nevertheless bound by the trial court's
resolution of conflicting testimony about the circumstances
under which the statement was made. Ruffin, supra, 524 A.2d at
691, citing United States v. Alexander, 428 A.2d 42, 49-50
(D.C. 1981).
There was conflicting testimony about whether the police ever
promised Butler that he would not be arrested if he gave a
statement. The trial court, specifically resolving this
conflict in favor of the government, found as a fact that the
police did not threaten to arrest Butler if he refused to give
them a statement. This factual determination is binding on us.
Ruffin, supra, 524 A.2d at 691; see Martin v. United States,
567 A.2d 896, 907 (D.C. 1989) (appellate court "cannot overturn
or look behind" trial court finding that police officer never
promised to release defendant in exchange for his statement).
Our inquiry does not end here, however, for we must still
determine whether, given the facts on this record, Butler's
statement was voluntary. The record establishes that the police
went to Butler's house, told him he was a suspect, and asked
him to make a statement. At no time was Butler told that he
would be arrested if he refused to make the statement. Butler
argues nevertheless that the fact that he was told he could go
home after he gave the statement shows that the statement was
coerced. We disagree, because there is no evidence that Butler
had any reason to believe that he would not be allowed to go
home if he failed to give a statement.
Butler argues that the trial court's failure to make a
credibility determination with regard to Detective Jefferson,
see note 10, supra, requires reversal. We conclude that the
court did not need to make such a finding. The critical issue
was whether the police promised Butler anything —
specifically, his freedom — in exchange for his statement. The
court found, on the basis of Detective Crosby's testimony, that
they had not. Detective Jefferson's testimony did not
contradict this finding, for he denied promising not to arrest
Butler in exchange for his statement. The court's findings thus
did not depend on Jefferson's testimony.
For these reasons we affirm the denial of Butler's motion to
suppress his videotaped statement to the police.
III
One of the principal issues on appeal is whether the trial
court erred in redacting Butler's statement to such an extent
that he was precluded from introducing parts of it that
supported his defense. Because Butler implicated his
co-defendant Hayes in his statement to the police, the trial
court ordered that the statement be redacted so as to eliminate
any reference to Hayes, thereby foreclosing any
Bruton[fn11] claims that Hayes might raise. See Carpenter v. United
States, 430 A.2d 496, 504 (D.C.) (en banc), cert. denied,
454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981) (redaction of
codefendant's statement is a permissible way of avoiding Bruton
problems). Butler then moved for permission to introduce the
entire statement on the ground that he was entitled to have the
jury hear all of it, not just the damaging portions, under the
"rule of completeness." After a hearing, the court granted
Butler's motion in part and denied it in part, redacting
certain portions of the statement but ordering that other
portions remain unredacted. An edited version of the videotape
containing the final
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additions and redactions was played for the jury and later
admitted into evidence.[fn12]
Butler argues that the trial court erred in failing to allow
him to introduce certain portions of his statement under the
"rule of completeness."[fn13] He specifically contends that the trial
court should have allowed him to introduce (1) his statement
that he saw Hayes place a gun, which Butler identified as a .32
caliber pistol, to King's head and threaten to kill him, (2)
his statement that Hayes fired at a police officer after
leaving the house, (3) his statement that Hayes was a friend of
Frances White, (4) his explanation that he struck Queen because
Queen opened his eyes after he was told to keep them shut, and
(5) his assertion that he never told White he had shot King.
The rule of completeness allows a party, once part of a
document or recorded statement has been introduced into
evidence, to seek admission of other parts of that same
statement " 'in order to secure for the tribunal a complete
understanding of the total tenor and effect of the
[statement].' " Warren v. United States, 515 A.2d 208, 210
(D.C. 1986) (quoting 7 J. WIGMORE, EVIDENCE § 2113, at 653
(Chadbourne rev. 1978)). This common law rule has been codified
in Rule 106 of the Federal Rules of Evidence.[fn14] See United States
v. Sutton, 255 U.S.App.D.C. 307, 330, 801 F.2d 1346, 1369
(1986). The federal courts have generally interpreted the rule
to require that a statement be admitted in its entirety "when
this is necessary to explain the admitted portion, to place it
in context, or to avoid misleading the trier of fact." United
States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) (citations
omitted).
But the rule "is not absolute." Warren, supra, 515 A.2d at
210. This court has made clear that the denial of a request to
introduce additional portions of a statement under the rule of
completeness should be reversed only if the trial court has
abused its discretion. Id. at 210-211. Ten years ago the Eighth
Circuit articulated the standard by which rule of completeness
arguments are to be measured: "The rule of completeness is
violated . . . only where admission of the statement in its
edited form distorts the meaning of the statement or excludes
information substantially exculpatory of the declarant." United
States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982). This
standard has been adopted by several of the federal circuits.
See, e.g., United States v. Benitez, 920 F.2d 1080, 1086-1087
(2d Cir. 1990); United States v. Long, 900 F.2d 1270, 1279 (8th
Cir. 1990); United States v. Alvarado, 882 F.2d 645, 651
(2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114,
107 L.Ed.2d 1021 (1990); United States v. Thuna, 786 F.2d 437,
441 n. 7 (1st Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100,
93 L.Ed.2d 50 (1986); United States v. Dorrell, 758 F.2d 427,
435 (9th Cir. 1985). We find it reasonable and adopt it here
for the District of Columbia.
Butler challenges the trial court's refusal to allow the jury
to hear five specific portions of his videotaped statement to
the police. First, he maintains that the court should have
allowed him to introduce the portion in which he said that
Hayes had held a gun to King's head and threatened him. This
statement, however, was not
Page 883
"substantially exculpatory" of Butler, for it is undisputed
that Hayes' gun was not the murder weapon; thus the fact that
Hayes might have threatened King with a gun was essentially
irrelevant to the issue of whether Butler shot and killed King
with a different gun some time thereafter. Furthermore,
introduction of this portion of Butler's statement would have
violated Hayes' rights under Bruton and the Confrontation
Clause of the Sixth Amendment. In deciding whether to admit
redacted portions of a statement which implicates a
codefendant, the trial court may properly balance the interest
of the declarant in introducing the complete statement against
the co-defendant's Sixth Amendment rights. United States v.
Alvarado, supra, 882 F.2d at 651. Because nothing in this
redacted portion is "substantially exculpatory" of Butler, and
because its introduction would have infringed Hayes' rights, we
find no abuse of discretion in its exclusion.
Second, Butler asserts that the jury should have been allowed
to hear the part of his statement in which he said that Hayes
shot at the police officers after leaving the house. We see no
abuse of discretion. At most, this remark established that
Hayes had a gun, a largely uncontested fact, and that he shot
at the police officers. Its omission neither exculpated Butler
nor distorted the rest of his statement. The remark was not at
all relevant to the issue of whether Butler shot King.
Third, Butler challenges the excision of his comment that
Hayes was a friend of Frances White. Nothing about this comment
was "substantially exculpatory" of Butler, nor did its deletion
distort the rest of Butler's statement. Moreover, Butler could
not have been prejudiced by this deletion because the
government introduced other evidence that Hayes and White were
friends.
Fourth, Butler argues that the trial court's exclusion of his
explanation of why he struck Queen (namely, because Queen
opened his eyes after being ordered to keep them shut)
distorted his admission that he struck Queen because it left
the jury with the impression that he was the sort of person who
would attack someone else without reason. In United States v.
Dorrell, supra, the Ninth Circuit rejected a similar argument
by a person convicted of trespassing on government property for
an unlawful purpose. The defendant in that case had confessed
to entering a military base to destroy missiles, but stated
that his actions were motivated by his strong political and
religious beliefs. On appeal he challenged the trial court's
removal of that explanation for his actions from his written
confession. The appellate court held:
[R]emoving Dorrell's explanation of the political
and religious motivations for his actions did not
change the meaning of . . . his confession . . .
[and] did not alter the fact that he admitted
committing the acts with which he was charged. . .
. [His] motivation did not excuse the crimes he
committed.
758 F.2d at 435. We adopt the same reasoning in this case.
Butler's reason for striking Queen was not a legal
justification for the assault, and was therefore irrelevant to
any issue properly before the jury. The trial court did not
abuse its discretion in excluding this portion of Butler's
statement.
Finally, Butler maintains that the trial court should not
have kept the jury from hearing that he denied admitting to
White that he had shot King. The trial court was initially
inclined to let this part of the statement in, saying, "It has
to come in. It may not be convincing, but it is, in fact, his
denial." Eventually, however, the court ruled that it would not
restore the denial to the redacted statement if the jury could
learn from other evidence that Butler had denied confessing the
crime to White. The government later elicited that information
from Detective Jefferson. Since this evidence was before the
jury, Butler was not prejudiced by the redaction of the denial
from the videotaped statement, and he is not entitled to
reversal on this ground.
IV
Butler contends that the government failed to introduce
sufficient evidence to
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support his convictions of kidnapping, assault with a dangerous
weapon, and carrying a pistol without a license. These
contentions are meritless.
A. Kidnapping
Kidnapping includes the seizing, confining, or detention of
another. D.C.Code § 22-2101 (1989). "The involuntary nature of
the seizure and detention is the essence of the crime of
kidnapping." Head v. United States, 451 A.2d 615, 624 (D.C.
1982) (citing cases).
Butler was convicted of kidnapping both King and Queen. He
now contends that there was insufficient evidence that either
King or Queen was involuntarily transported, and that his
conviction must therefore be reversed. This contention is
without merit because "[a]sportation is not an essential
element of the kidnapping statute." Catlett v. United States,
545 A.2d 1202, 1215 n. 29 (D.C. 1988), (citation omitted),
cert. denied, 488 U.S. 1017, 109 S.Ct. 814, 102 L.Ed.2d 803
(1989).[fn15]
B. Assault with a dangerous weapon
Butler argues that he should not have been convicted of
assaulting Queen with a dangerous weapon because the evidence
showed only that Hayes struck Queen with a cane. The government
argues, in response, that Butler admitted in his videotaped
statement that he had hit Queen because Queen had disobeyed his
order not to look at him. As the government points out in its
brief, even though Queen could not recall who hit him in the
head (because his eyes were closed), Butler could.[fn16] Queen
testified that either Hayes or Butler told him, "I'm not
telling you any more, keep your eyes off me." He replied,
"Okay, okay, okay," and turned his eyes away. At that point, he
said, he was struck in the head with an object, and the blow
knocked him out. The government contends that Queen's
testimony, coupled with Butler's admission that he struck
Queen, was sufficient to permit the jury to find Butler guilty
of assault with a dangerous weapon.
The difficulty with this argument is that the indictment
alleges that Butler and Hayes assaulted Queen "with pistols,"
and there is no evidence that the object used by one of them to
strike him in the head was a pistol. Butler never mentioned
either a cane or a pistol in the pertinent part of his
videotaped statement, and the only relevant testimony from
Queen identified the weapon as his own cane, not a gun:
Q. Did you ever get hit with a gun?
A. I don't think so, no.
Q. Do you have any idea what it was that you
were hit with?
A. No, I think it was my cane.
It could perhaps be argued that the identity of the weapon
was not an essential element of the offense, but the government
does not make such an argument. Besides, if it did, we would
have to consider whether proof that the weapon was a cane when
the indictment charged a pistol was a material or non-material
variance, an issue which could turn out to be quite
complicated. We prefer instead to look at the other evidence in
the record concerning Butler's use of a gun. Viewing the record
as a whole, we conclude that there was ample evidence that both
Butler and Hayes used their guns "in a menacing and threatening
manner" toward King and Queen when they were trying to find out
where Frances White's grandmother had gone, so that each could
"reasonably . . . believ[e] that the weapon might be
immediately used against him. . . ." CRIMINAL JURY INSTRUCTIONS
FOR THE DISTRICT OF COLUMBIA, No. 4.12 (3d ed. 1978). This
evidence, we hold, was sufficient
Page 885
to support Butler's conviction of assault with a dangerous
weapon. See Robinson v. United States, 506 A.2d 572, 574-575
(D.C. 1986); Williamson v. United States, 445 A.2d 975, 978-979
(D.C. 1982).[fn17]
C. Carrying a pistol without a license
Butler contends that there was insufficient evidence to
support his conviction of carrying a pistol without a license
because the evidence showed only that he "possessed" the
pistol, but not that he "carried" it. He maintains that there
was no evidence that he "carried the pistol into the rooming
house or from place to place within it." Butler misunderstands
the term "carry" as it relates to the offense of carrying a
pistol without a license.
Conviction of carrying a pistol without a license requires
proof of "(1) carrying an operable pistol, (2) without a
license, and (3) with intent to do those two acts." Tucker v.
United States, 421 A.2d 32, 34-35 (D.C. 1980) (citation
omitted). The defendant must carry the pistol "openly or
concealed on or about his person." D.C.Code § 22-3204 (1989).
The trial court properly instructed the jury as to these
elements.
Butler offers no support, and our research has revealed none,
for his contention that one who "carries" a pistol must
transport it "from place to place."[fn18] The evidence showed that
Butler had a pistol on his person, which he pulled out and used
to threaten King. Nothing more was required under section
22-3204.
V
Frances White testified that when she returned to the house,
she found King lying on his back, gravely wounded, and that
King kept saying, "Weanie [White's nickname], help me, help me,
Weanie, help me. They shot me, Weanie, help me." When defense
counsel objected to this testimony, the parties discussed at a
bench conference whether the part in which he said "They shot
me" should be admitted as a dying declaration. Counsel for the
co-defendant Hayes pointed out that, in order to make the
statement admissible, King had to be aware that he was dying.
The trial court replied, "He'd just been shot, and he was
saying, 'Help me, help me, help me.' He seemed pretty aware to
me." Addressing the prosecutor, the court said, "You have to
establish that he knew he'd been shot," and then admitted the
statement. Butler contends that the trial court erred in doing
so.
"To make out a dying declaration, the declarant must have
spoken without hope of recovery and in the shadow of impending
death." Shepard v. United States, 290 U.S. 96, 99, 54 S.Ct. 22,
23-24, 78 L.Ed. 196 (1933). There is no requirement that the
declarant actually state that he knows he is going to die; such
knowledge may be inferred from the nature and extent of the
declarant's wounds. McFadden v. United States, 395 A.2d 14, 16
(D.C. 1978); accord, Lyons v. United States, 606 A.2d 1354,
1359 (D.C. 1992). Butler asserts that the court's statement
that the government must prove Butler "knew he'd been shot"
reflected an erroneous understanding of the law on dying
declarations. That assertion, however, ignores the court's
remark just a moment earlier that King "seemed pretty aware to
me" — i.e., aware that death was imminent — at the time he
told White that "they shot me." Reading the court's two
comments together, we are satisfied that the court had a
correct understanding of the law, as set forth in Shepard and
McFadden, when it ruled that King's statement was admissible.
Our review of this ruling is limited. See E. CLEARY,
McCORMICK ON EVIDENCE § 282 at 830, § 53 at 135 n. 4 (3d ed.
1984) (trial judge's decision on the "preliminary fact
Page 886
question of consciousness of impending death" will be affirmed
if it is "reasonably supported by the evidence"); McFadden,
supra, 395 A.2d at 16 (affirming because "[t]he record . . .
supports the trial court's conclusion that [the decedent] knew
death was imminent"). The court's ruling in this case is
reasonably supported by the evidence. At the time he made the
statement, King had just been shot, had struggled to his knees,
and then had fallen back to the floor. He died a few hours
later. These circumstances provide a sufficient basis for the
court to conclude that King was aware of his imminent death.[fn19]
VI
A person is guilty of felony murder if that person (1)
inflicted a fatal injury upon the victim (2) while perpetrating
or attempting to perpetrate one of six felonies enumerated in
D.C.Code § 22-2401 (1989), one of which is kidnapping. See Head
v. United States, supra, 451 A.2d at 625; Waller v. United
States, 389 A.2d 801, 807 (D.C. 1978), cert. denied,
446 U.S. 901, 100 S.Ct. 1824, 64 L.Ed.2d 253 (1980). The trial court
instructed the jury that it could find Butler guilty of felony
murder if it found (1) that he inflicted a fatal injury on
Michael King and (2) that he did so while perpetrating or
attempting to perpetrate the offense of kidnapping. CRIMINAL
JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.22(A) (3d
ed. 1978). Butler contends that the court erred in refusing to
instruct the jury that it must find, in addition to these two
elements, that the killing was "in furtherance of the purpose
to commit the kidnapping." We hold that the instruction was
properly refused.
The requirement that the killing take place "in furtherance
of" the underlying felony (as opposed to "during" or "in the
course of" the underlying felony) applies only to aiders and
abettors of the actual killer. See CRIMINAL JURY INSTRUCTIONS,
supra, No. 4.22(C).[fn20] When one of the parties to a felony commits
a killing "outside the scope of the felonious crime which the
parties undertook to commit," the aiders and abettors of the
felony cannot be convicted of felony murder. United States v.
Heinlein, 160 U.S.App.D.C. 157, 169, 490 F.2d 725, 737 (1973).
In Heinlein the court reversed the felony murder convictions of
two aiders and abettors of a rape (David and Frank Walker) on
the ground that the jury should have been instructed that the
Walkers would not be liable for the killing of the rape victim
by the third rapist (Heinlein) if they found that the killing
was an unexpected response by Heinlein to being slapped by the
victim. As the court said, "The D.C. felony-murder statute is
addressed in terms only to the person who kills while
perpetrating a felony. Accomplices . . . are exposed to first
degree murder accountability by reason of the aiding and
abetting statute." The accomplice who aids and abets is
criminally liable for a killing by the principal only if the
killing is done "in furtherance of the common design or plan to
commit the [underlying] felony, or [is] the natural and
probable consequence of acts done in the perpetration of the
felony." Id. at 167, 490 F.2d at 735. Thus the government must
prove that the killing was done in furtherance of the
underlying felony when it seeks to make an aider and abettor
who did not actually do the killing liable for felony murder.
In such a case the court must give an appropriate
Page 887
"furtherance" instruction. See, e.g., Long v. United States,
124 U.S.App.D.C. 14, 20-21, 360 F.2d 829, 835-836 (1966).[fn21] There
is no requirement in the law, however, that the government
prove the killing was done in furtherance of the felony in
order to convict the actual killer of felony murder; hence the
actual killer is not entitled to a "furtherance" instruction.
The evidence showed that Butler was the actual killer. He was
seen with a gun in his hand that was probably the murder weapon
and later confessed to White that he had "shot that man."
Indeed, Butler does not challenge his second-degree murder
conviction, an essential element of which is that he in fact
killed Michael King. There was therefore no need for the trial
court to instruct the jury on Butler's potential guilt of
murder as an aider and abettor, and hence no need to instruct
that the killing must have been committed "in furtherance of"
the underlying felony of kidnapping.
VII
The jury found Butler guilty as charged on six counts of the
indictment (counts B, C, D, F, G, and I) and guilty of
second-degree murder as a lesser included offense under a count
charging first-degree premeditated murder (count E).
Anticipating that some of the convictions might merge and have
to be vacated, the trial court devised two sentencing schemes,
"Alternative A" and "Alternative B."
Under Alternative A, which the court said would prevail if
this court made no changes, Butler received twenty years to
life for the felony murder of King (count F), based on the
underlying felony of kidnapping King while armed. Concurrently
with this sentence, the court imposed a term of one year for
carrying a pistol without a license (count I). Butler was
sentenced to ten to thirty years for kidnapping Queen while
armed (count C), to run consecutively to the sentence for
felony murder. Finally, the court sentenced him to a term of
one to ten years for assaulting Queen with a dangerous weapon
(count D), to run concurrently with the sentence for kidnapping
Queen while armed. The court did not impose any sentence for
kidnapping King while armed (count B) or for second-degree
murder (count E) because they merged with the felony murder
conviction based on the kidnapping of King (count F). See
Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63
L.Ed.2d 715 (1980) (felony murder merges with underlying
felony); Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991)
("When there is only one killing, the defendant may not be
convicted of more than one murder"). The court also observed
that the felony murder conviction based on the kidnapping of
Queen (count G) merged with the conviction of kidnapping Queen
(count C). Garris v. United States, 465 A.2d 817, 823 (D.C.
1983) ("where one killing is involved, and the government
advances alternate theories of felony murder based upon more
than one underlying felony, the accused may not be convicted of
more than one felony murder"), cert. denied, 465 U.S. 1012, 104
S.Ct. 1013, 79 L.Ed.2d 243 (1984).
Under Alternative B, Butler received fifteen years to life
for second-degree murder (count E). Consecutive to this
sentence were concurrent sentences of fifteen years to life for
kidnapping Queen while armed (count C), ten to thirty years for
kidnapping King while armed (count B), one to ten years for
assaulting Queen with a dangerous weapon (count D), and one
year for carrying a pistol without a license (count I). No
sentence was imposed on either of the two felony murder
verdicts (counts F and G). Butler maintains that Alternative B
is illegal in certain respects.
Page 888
We do not consider this argument, however, because the court in
fact sentenced him under Alternative A, not Alternative B. He
lacks standing to challenge a sentence that was not actually
imposed.
As to Alternative A, Butler argues that his sentence for the
felony murder of King and the kidnapping of Queen must merge.
This contention is without merit. Under Whalen and its progeny,[fn22]
felony murder merges with the underlying felony, but only that
felony, and the trial court may impose a sentence for either
the murder or the underlying felony, but not both. In this case
the underlying felony was the kidnapping of King, not the
kidnapping of Queen, which was an entirely separate crime. We
therefore hold that the kidnapping of Queen (count C) and the
felony murder of King based on the kidnapping of King (count F)
did not merge, and that the trial court could and did properly
impose sentences on both counts.
Finally, we reject Butler's argument that the two kidnapping
convictions merged with the murder and assault convictions.
See, e.g., Nelson v. United States, 601 A.2d 582, 598-599 (D.C.
1991). There was evidence that both King and Queen were
detained for a significant period of time before King was
murdered, and Queen's detention continued after he was
assaulted. These detentions "cannot be deemed . . .
co-extensive or a necessary incident to [the other crimes of
assault and murder.]" Sinclair v. United States, 388 A.2d 1201,
1208 (D.C. 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026,
59 L.Ed.2d 77 (1979).
VIII
For the foregoing reasons, the judgment of conviction is
Affirmed.
[fn1] Butler's co-defendant, Antoine Hayes, has separately appealed
from his conviction. Although the two appeals would normally be
consolidated and heard together, we have deferred consideration
of Hayes' appeal, No. 89-CF-626, pending a ruling by the trial
court on his motion for collateral relief under D.C.Code §
23-110 (1989).
[fn2] D.C.Code §Â§ 22-2101 and 22-3202 (1989).
[fn3] D.C.Code § 22-502 (1989).
[fn4] D.C.Code §Â§ 22-2401 and 22-3202 (1989).
[fn5] D.C.Code §Â§ 22-2401 and 22-3202 (1989).
[fn6] D.C.Code § 22-3204 (1989). An additional ADW count was
dismissed before trial.
[fn7] The assembled throng included Antoine Hayes and Chris Cherry,
who had come in shortly before Frances White left to call the
police.
[fn8] White identified it as a .32 caliber pistol because Hayes
"said it was a .32."
[fn9] While all this was going on, Queen was still sitting on the
couch with his eyes closed.
[fn10] The court specifically found Crosby to be "a credible
witness," but expressly declined to make a credibility finding
as to Jefferson's testimony.
[fn11] Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968).
[fn12] The jury apparently did not get a transcript of the redacted
statement.
[fn13] Butler also contends that the trial court erred in failing to
sever his trial from that of his codefendant, maintaining that
severance was required "[b]ecause [he] was entitled under the
rule of completeness to the introduction of most of the
portions which had been redacted. . . ." In the trial court,
however, although he sought severance on other grounds, he
failed to assert this particular ground, and thus we do not
consider it now. See Miller v. Avirom, 127 U.S.App.D.C. 367,
369-370, 384 F.2d 319, 321-322 (1967). In any event, the
success of his severance argument depends on the success of his
challenge to the trial court's ruling on his "rule of
completeness" motion, which he did adequately preserve for
appellate review.
[fn14] Rule 106 provides:
When a writing or recorded statement or a part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
[fn15] Butler does not contend, nor could he on this record, that
there was insufficient evidence that King and Queen were
involuntarily detained. There was testimony that Butler held a
gun on King while asking him questions, and that Hayes and
Butler were "guarding [King] like a prisoner." Queen testified
that he was ordered to stay when he tried to leave the house.
The jury could reasonably conclude from this and other evidence
that both King and Queen were held against their will.
[fn16] In one part of the videotaped statement which the jury heard,
Butler said, "[W]hen I ask [Queen], don't look at me, and then
. . . he opened his eyes, and then I hit him one time."
[fn17] The jury was properly instructed in accordance with Robinson,
supra, 506 A.2d at 574.
[fn18] The government need only prove that the defendant either
actually or constructively possessed the pistol in order to
prove that he or she "carried" it, as that term is used in
D.C.Code § 22-3204. See Brown v. United States, 546 A.2d 390,
394 (D.C. 1988) (constructive possession requires showing of
"dominion and control" over pistol). It is clear from the
evidence that Butler exercised actual control over the weapon.
[fn19] The government contends that the statement was also admissible
as an excited utterance. Although the government is probably
correct, see, e.g., Lyons v. United States, supra, 606 A.2d at
1358; Young v. United States, 391 A.2d 248, 250 (D.C. 1978), we
need not decide the point because we conclude that the
statement was properly admitted as a dying declaration.
[fn20] Instruction No. 4.22(C), captioned "When there are multiple
defendants," states:
If two or more persons, acting together, are perpetrating
or attempting to perpetrate [a felony] and one of them, in
the course of the felony and in furtherance of the common
purpose to commit the felony kills a human being, both the
person who committed the killing and the person or persons
who aided and abetted in the felony are guilty of murder in
the first degree. [Emphasis added.]
By contrast, the felony murder instructions applicable to
principals or single defendants, Nos. 4.22(A) and (B), do not
contain the words "in furtherance of".
[fn21] In Long one defendant (Huff) waited in the car while his
co-defendants committed an armed robbery, in the course of
which they shot and killed their victim. They returned to the
car, and "Huff drove the car away from the scene, fully aware
of what had taken place." 124 U.S.App.D.C. at 20, 360 F.2d at
835. In affirming Huff's conviction of felony murder, the court
noted that the jury had been correctly instructed "that they
were permitted to find Huff an aider and abettor if they
believed his driving of the getaway car assisted in the flight
of the culprits." Id. at 21, 360 F.2d at 836.
[fn22] E.g., Thacker v. United States, supra, 599 A.2d at 63; Catlett
v. United States, supra, 545 A.2d at 1218-1219; Adams v. United
States, 502 A.2d 1011, 1026 & n. 22 (D.C. 1986).
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