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12/28/90 ROBERT J. REED v. UNITED STATES

December 28, 1990

ROBERT J. REED, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Sylvia Bacon, Trial Judge

Ferren and Schwelb, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Gallagher

Appellant was indicted and convicted of involuntary manslaughter while armed, D.C. Code §§ 22-2405, -3202 (1989 Repl.), and two counts of destruction of property, id. § 22-403 (1989 Repl.). He was sentenced to two terms of three-to-nine years on the destruction of property counts and three years-to-life on the involuntary manslaughter while armed charge, all sentences to run concurrently. Appellant contends on appeal (a) that the evidence does not support the "while armed" portion of the involuntary manslaughter conviction and (b) that the trial court erred when it limited the testimony of appellant's expert. We remand to enter a judgment of conviction for involuntary manslaughter and for resentencing.

I.

Appellant's convictions arise from an incident in which the vehicle he was driving, a Chevrolet Cavalier, left the northbound lane of South Capitol Street, crossed the median, and crashed into a car in the southbound lane. The driver of that car was killed instantly. Two other cars were damaged in the accident. Appellant was found in his car with the back of his seat in a horizontal position. He suffered serious injuries and was taken to a hospital.

A blood test showed that appellant had a blood alcohol content of .152. At trial, appellant testified that he had three beers around 5:30, two more right before he started driving again at about 8:30, and was drinking another beer while he drove. A nurse at the hospital to which he was taken after the accident testified that he had stated to her that he had used alcohol and marijuana about 7:00 that evening. A government expert on accident reconstruction opined that appellant had been driving without lights on, that he had been travelling at a speed greater than 36 miles per hour before he lost control of the car, and the force of the collision caused appellant's seat-back to collapse. The speed limit at the location of the accident was 25 miles per hour.

Appellant's defense was that, as he looked over his shoulder to change lanes, the seat-back of the car fell back and he lost control of the car. A defense expert in accident reconstruction concluded that the seat mechanism was broken and that the failure had occurred before the crash. He sought to support this Conclusion by relying on his own observations of the seat after the accident and a report from General Motors, the manufacturer of the car, to the National Highway Traffic Safety Administrator (NHTSA). The General Motors report contained customer letters to the NHTSA and data from General Motors regarding instances in which the seat-back mechanism had failed. On an in limine motion of the government to exclude this report from evidence, the court ruled that the expert could testify that he had utilized the report in reaching his opinion and give a general description of what the report contained but that he could not testify as to the details of the individual instances contained in the report, unless such were put into issue on cross-examination. *fn1

On direct examination, appellant's counsel elicited from the expert only that he had read a report from General Motors to the NHTSA regarding the seats. After the government completed its cross-examination of the witness, the court called counsel to the bench and noted the limited inquiry. Appellant's counsel indicated that he intended to have the expert describe certain aspects of the study on redirect. Counsel for the government objected. After much Discussion between the court and counsel, the court ruled that the expert could testify that the report was the basis for his Conclusion that the seat mechanism had failed even though he could detect no flaw in the mechanism. When counsel for the government objected that this would compel him to get into individual instances on cross-examination, the court disagreed but held that counsel was free to cross-examine the expert on the facts underlying his Conclusion. On redirect, defense counsel asked the expert about the source of his Conclusion as to two points. The expert replied that he had relied on the General Motors Report, as well as on his own observations.

The trial court instructed the jury on involuntary manslaughter while armed and on criminal negligence. The court instructed that to find appellant guilty of involuntary manslaughter while armed, the jury had to find that appellant inflicted an injury from which the victim died, that the injury was "the result of a course of conduct involving extreme danger of death or serious bodily injury," that the conduct "amounted to recklessness and was a gross deviation from the standard of conduct that a reasonable person should have observed," and that appellant was armed at the time of the offense. On the element of "while armed," the court instructed

The fifth element is the element of being armed at the time of the commission of the offense.

Now a dangerous weapon or deadly weapon is one which is likely to produce either death or great bodily injury. And I instruct you that in appropriate circumstances an automobile may be a dangerous weapon. And in determining whether the automobile in this case was a deadly or dangerous weapon, you consider all the circumstances surrounding its possession and use. *fn2

II.

The enhancement of appellant's conviction for involuntary manslaughter as "while armed" under D.C. Code § 22-3202(a)(1989 Repl.), cannot stand. To allow application of the statute (while armed) to a charge of involuntary manslaughter causes an inherent conflict between the two convictions. On these facts, where the "weapon" involved is an automobile, the inappropriateness of enhancement of an involuntary manslaughter conviction as "while armed" is manifest.

Involuntary manslaughter, the underlying crime for which appellant was convicted, is the unintentional killing of another as a result of a non-criminal act which "creates an extreme risk of death or serious bodily injury" or is a misdemeanor committed in such a way that is particularly dangerous to others. Comber/Hayward v. United States, 584 A.2d 26, slip op. at 41-42 (D.C. 1990) (en banc). Extreme recklessness, or criminal negligence, is defined as the "lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk." United States v. Bradford, 344 A.2d 208, 215 (D.C. 1975); see also Comber, supra at 41-42; United States v. Dixon, 135 U.S. App. D.C. 401, 405-06, 419 F.2d 288, 292-93 (1969) (Leventhal, J., Concurring). The essence of involuntary manslaughter, the factor that ...


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