Appeal from the Superior Court of the District of Columbia; Hon. Curtis E. von Kann, Trial Judge
Belson and Schwelb, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Schwelb
This case arises out of a brutal assault by a husband on his wife, a beautiful woman who worked as a model and who was severely injured and permanently disfigured as a result of the events which led to the husband's prosecution. On appeal from his convictions for assault with a dangerous weapon (ADW), D.C. Code § 22-502 (1989), mayhem while armed, and malicious disfigurement while armed, id. §§ 22-506, -3202, the husband, appellant Clifford Edwards, contends that there was insufficient evidence to establish that he committed the crime while armed with one or more dangerous weapons. He also claims that his ADW conviction necessarily merges into his mayhem and malicious disfigurement convictions, and, belatedly, *fn1 that his convictions of mayhem and malicious disfigurement also merge.
We hold that the evidence was insufficient to support the jury's finding that Edwards inflicted his wife's injuries while armed, within the meaning of Section 22-3202, when his alleged weapon consisted of one or more fixed or stationary plumbing fixtures against which he hurled his hapless wife. *fn2 We further conclude that under the circumstances of this case, Edwards' assault conviction merges into his conviction of malicious disfigurement. Finally, we hold that Edwards' convictions of mayhem and malicious disfigurement do not merge, because each offense contains an element which the other does not, and because the government proved mayhem which was not malicious disfigurement and malicious disfigurement which was not mayhem. Accordingly, there was no violation of the Double Jeopardy Clause. We therefore affirm in part, reverse in part, and remand for resentencing.
THE TRIAL COURT PROCEEDINGS
Edwards' prosecution arose out of injuries sustained by his wife on the night of January 5-6, 1987. The government's theory of the case was that Edwards assaulted his wife by repeatedly slamming her head against the bathtub, sink and toilet in the bathroom of their apartment.
Mrs. Edwards had no recollection of the specifics of the attack, but the government offered the testimony of two paramedics who responded to a call from the Edwards' apartment on the night of the assault. When they arrived at about 5:00 a.m. on the morning of January 6, they found Edwards sitting quietly on the living room couch. Mrs. Edwards was lying on the floor in a fetal position, bleeding and hysterical. There was a trail of blood on the floor leading from Mrs. Edwards' location to the bathroom. In the bathroom, the paramedics found blood on the sink, on the toilet, on the bathtub, on the floor and on the walls. Photographs of the apartment reflecting these conditions were taken later on the same day and eventually introduced into evidence.
Dr. Peter W. Connole, Mrs. Edwards' physician, testified extensively about her injuries. He related, among other things, that some time shortly before her admission to the hospital on January 6, 1987, Mrs. Edwards had suffered a severe brain contusion, along with lacerations on her face and head. Her left cheekbone was broken, as were the bones that surround her left eye. Mrs. Edwards had also lost portions of several of her teeth. In Dr. Connole's opinion, Mrs. Edwards' head had been struck by, or was pushed against, a hard object, and this was done with "a significant amount of force." He believed that it was highly probable, "somewhere above 80 percent," that her wounds were not self-inflicted. Mrs. Edwards testified that at the time of trial, more than a year after the incident, her left cheek remained "depressed" because she no longer had a left cheekbone, and that her left eye was no longer horizontally aligned. She stated that her vision was now impaired, so that she had to wear eyeglasses. She had not regained full motion in her jaw and was unable to eat fruit, hard candy or other thick foods because these activities caused her pain. Her mental processes were also affected, in that her comprehension had become impaired. Moreover, Mrs. Edwards now had a protrusion on her forehead which reached down between her eyebrows. She explained that these deformities had an effect on her modeling, and asked rhetorically, "How many people want to show pictures of a model, where it is supposed to represent fashion, that has a dented head?"
Edwards did not testify at trial. On the day of the assault, however, he told one of the officers who had responded to the scene to investigate the matter that "he had struck [his wife] with his hand, and whatever she said was true." He declined to elaborate. Several neighbors also testified, and one of them related that she had heard "furniture and things being knocked over," a man cursing, and a woman screaming.
Edwards contended throughout the trial that there was insufficient evidence that the offenses had been committed with the bathroom fixtures as alleged, and that in any event such stationary objects were not dangerous weapons with which Edwards could be armed. Although the trial Judge was plainly troubled by these issues, he concluded, following extensive argument, that the jury could reasonably find that Mrs. Edwards' injuries were inflicted in the manner which the government claimed they were. The Judge also ruled that if Edwards took his wife's head and repeatedly smashed it into the sink or toilet bowl, then these objects were dangerous weapons within the meaning of the statute. The Judge stated, however, that "I think it is a close call on that one."
The jury acquitted Edwards of assault with intent to kill while armed but convicted him of assault with a dangerous weapon, malicious disfigurement while armed and mayhem while armed. This appeal followed.
D.C. Code § 22-3202 (1989) provides in pertinent part as follows:
(a) Any person who commits a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles):
(1) May, if he is convicted for the first time of having so committed a crime of violence in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of ...