Edward Towles v. United States

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
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.