Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)
Before Ferren, Acting Chief Judge,* and Wagner, Associate Judge, and Pryor,** Senior Judge.
The opinion of the court was delivered by: Wagner
WAGNER, Associate Judge: Appellant, Earl J. Peoples, was charged in a twenty-two count indictment with various offenses in connection with a fire in the home of James and Ethel Mae Harrison in the 1500 block of D Street, S.E., which resulted in the death of Mrs. Harrison and severe injuries to Mr. Harrison and the other members of their family. Following a jury trial, appellant was found guilty of one count of arson (D.C. Code § 22-401 (1989)), one count of malicious destruction of property (D.C. Code § 22-403 (1989)), one count of felony murder while armed (flammable liquid) (D.C. Code §§ 22-2401, -3202 (1993 Supp.)), one count of second degree murder while armed (D.C. Code §§ 22-2403, -3202 (1993 Supp.)) (the lesser included offense of the charged offense, first degree murder while armed), six counts of assault with a dangerous weapon (D.C. Code § 22-502 (1989)) (the lesser included offenses of six charged counts of assault with intent to kill while armed), five counts of malicious disfigurement while armed (D.C. Code §§ 22-506, -3202 (1989 & 1993 Supp.)) and five counts of mayhem while armed (D.C. Code §§ 22-506, -3202 (1989 & 1993 Supp.)). *fn1 The court sentenced appellant to an aggregate prison term of seventy-three years to life. Appellant argues for reversal on the grounds that the trial court erred in (1) failing to instruct the jury that specific intent to maim is an element of mayhem while armed, (2) denying motions for judgment of acquittal for the offenses of mayhem while armed and malicious disfigurement, and (3) denying a motion for mistrial based on prosecutorial misconduct. Appellant also contends that several of the offenses for which he was convicted merge, requiring that some of the convictions be vacated. We affirm appellant's convictions except that we remand for the trial court to vacate the merged counts consistent with this opinion.
The evidence disclosed that appellant and Bonita Harrison (Miss Harrison) had a romantic relationship for several years prior to the night of the fire and that in October, 1985, they had a son, Earl Peoples, Jr. (Earl, Jr.). Miss Harrison resided with her parents, along with Earl Jr., her sister and brother, Patricia and Michael Harrison, and her nephews, Anthony and Ronald Harrison, Larry Henderson, and Stanley White. Appellant visited Miss Harrison at the family's home, and consequently, he knew the other members of the household who were living there.
In the spring of 1986, the relationship between appellant and Miss Harrison began to deteriorate. In July of that year, appellant threatened to kill Miss Harrison and Earl, Jr. and to blow-up her home and everyone in it if he ever caught her with another man. Appellant had threatened Miss Harrison previously. Patricia Harrison testified that appellant told her that he would kill her sister, Bonita, if he ever caught her "fooling around" or talking to other men. Miss Harrison ended the relationship in August 1986 after appellant chopped off some of her hair and wounded her hand with the scissors. According to Miss Harrison's testimony, during this incident, appellant threw Earl, Jr. on the bed. Subsequently, appellant took Earl, Jr. from the babysitter's home and told Miss Harrison that he had thrown the child into the Anacostia River. However, Miss Harrison found the child at the home of appellant's parents.
Miss Harrison testified that appellant called her the night before the fire and asked to visit. She declined the invitation, but appellant came to her home anyway. While there, he picked up a telephone extension and overheard Miss Harrison speaking first to a female and then to a man on the telephone. After accusing her of speaking with another man, appellant left the house. About 9:00 p.m. that same evening appellant visited a friend, Michael Lee, who lived in the Harrisons' neighborhood. According to Lee, appellant complained that he overheard Bonita Harrison "talking love" with a man on the telephone. Appellant left Lee's house between 2:30 and 3:00 a.m.
Patrice Pitts and her boyfriend, Michael Harrison, Bonita Harrison's brother, testified that they were sitting in a car behind the Harrisons' home at about 6:00 a.m. that same morning when they saw appellant in the alley. Although Miss Harrison's car was parked in front of the house, she and Earl, Jr. were not at home. Both Pitts and Michael Harrison recalled seeing appellant twisting a rag, an event linked by other testimony to the igniting of the fire. Michael Harrison called out to appellant by name and asked him to come to the car. Although appellant said, "Yeah, hold on a minute," he headed toward 16th Street, S.E. Moments later there was an explosion at the Harrisons' home, and Miss Pitts and Michael Harrison saw the house go up in flames. At trial both of these witnesses identified a rag recovered from the vestibule of the home as looking like the one they saw appellant twisting that morning.
Two other people saw appellant near the Harrisons' home at or near the time that the fire erupted. Sherman Hill, a friend of Michael Harrison and Patrice Pitts, testified that while he (Hill) was getting out of his car that morning, he saw appellant. Alisa Owens, one of appellant's friends, testified that at about the time of the fire she saw appellant running by her "real fast" while she was sitting outside her apartment building, which is around the corner from the Harrisons' home. About five minutes later, Miss Owens heard sirens and saw fire trucks around the Harrisons' home.
James Harrison testified that on the morning of the fire he heard his daughter, Patricia, who had been sleeping downstairs, yell that she smelled something burning. When Mr. Harrison went down to investigate, he opened the door, and "something . . . like a bomb went off" and "fire went straight up right over head into the house."
Tim May, who qualified as an expert witness in fire investigations, testified that the fire started in the vestibule of the home after a flammable liquid accelerant had been poured on the floor. He testified that a partially burned rag had been recovered from the vestibule which could have been used as a wick to ignite the fire. It was Mr. May's opinion that the fire had been set intentionally because his investigation revealed that a flammable liquid ignited by an open flame had been used to start the fire. He also explained that the fire first smoldered in the vestibule enclosure, consuming most of the oxygen there before erupting into the house when an inflow of oxygen caused a backdraft explosion.
Janet Carpenter, one of appellant's close friends, testified that she questioned him about the fire days later, and he admitted that he had set the fire in such a way that no one would know who did it. Mrs. Eddie Mae Harrison died as a result of injuries sustained in the fire. James Harrison, Anthony Harrison, Patricia Harrison, Larry Henderson, and Stanley White suffered severe burns. *fn2
In evaluating appellant's insufficiency of the evidence arguments, the nature and effect of the victims' injuries is significant; therefore, we recount them in some detail. Dr. Michael Boyajian, who treated Anthony Harrison, Larry Henderson, and Stanley White, testified that Anthony Harrison suffered second and third degree burns over 55 percent of his body, including deep burns to his scalp, face, and neck. Anthony Harrison underwent four operations in October 1986 and doctors had to remove all of the cartilage in both of his ears. His face was permanently deformed, and he will never have hair again. He suffered permanent scarring and relatively minor, but somewhat measurable, limitations of motion in his fingers and elbows. Anthony Harrison testified that he can no longer stretch his arm out all the way or play football, although he can play basketball and baseball.
Dr. Marion Jordan, James Harrison's treating physician, testified that he sustained "27-1/2 percent second[,] and possibly third degree[,] burns" on his buttocks and arms and that he is scarred permanently. Dr. Jordan also testified that this victim sustained impairments of his bodily functions as a result of the burns. He explained that the severe scars resulting from the second degree burns have a tendency to draw and contract, thereby closing off the sweat and oil glands and resulting in a long-term problem with production of oil, which gets trapped and causes acne-type sores. *fn3 Dr. Jordan testified that the burn across James Harrison's back from shoulder to shoulder has impaired his motion.
Dr. Jordan testified that Patricia Harrison suffered second and third degree burns over 39 percent of her body, including her legs, arms, torso, and hands. She had at least five operations involving surgical incisions of the burn injuries and skingrafting. According to Dr. Jordan, Patricia Harrison's scarring resulted in permanent impairment of her sweat and oil glands and hair roots. He also stated that the burns to her hands and arms extended across joints, including the knee and elbow, and that significant scarring has impaired the functioning of those joints. Patricia Harrison testified that as a result of the burns she sustained she is no longer able to grip or hold things the way she did before, and therefore, she is unable to work at her previous occupation as a hair stylist.
Larry Henderson, who was an infant when the fire occurred, sustained second and third degrees burns over 20 percent of his body, particularly the upper part. According to his treating physician, Dr. Michael Boyajian, Larry has permanent scars, although he has otherwise recovered from his injuries. Lana Harrison, Larry's aunt, testified at trial and pointed out his injuries to the jury. She also testified that the doctor wanted to do more skin grafting on Larry to release the pressure from the scarring and to smooth the skin.
Stanley White sustained second degree burns to his lower extremities, and he will have permanent scars as a result. He testified that as a result of his injuries, particularly those to his knees and ankles, he has difficulty playing sports. Dr. Michael Boyajian testified that Stanley's burns healed without any operations.
Appellant argues that the trial court erred in failing to instruct the jury that specific intent to maim is an element of the crime of mayhem. The elements of this offense are not prescribed by the applicable statute, which simply sets forth the penalty for its commission. *fn4 See D.C. Code § 22-506. This court has held that absent a statutory definition of a crime, the common law definition for the offense controls. *fn5 Perkins v. United States, 446 A.2d 19, 23 (D.C. 1982) (citing Clark v. United States, 418 A.2d 1059, 1061 (D.C. 1980)). In Perkins, after tracing the genesis of the crime of mayhem, this court concluded that specific intent is not an element of the offense. *fn6 446 A.2d at 24-25.
Nevertheless, appellant argues that this court is at liberty to address anew whether specific intent was intended by the legislature as an element of mayhem under D.C. Code § 22-506 and whether pertinent laws in Maryland, incorporated into the District of Columbia law by D.C. Code § 49-301, mandated a specific intent element for the crime. Appellant contends that any language in Perkins purporting to define mayhem is dicta because the only issue before the court was whether malicious disfigurement, also covered by D.C. Code § 22-506, requires specific intent. It is true, as appellant points out, that the issue raised by the appellant in Perkins was whether the trial court erred in refusing to instruct the jury that specific intent is an element of the offense of malicious disfigurement. 446 A.2d at 21. However, the government had countered that argument by contending, inter alia, that under § 22-506, mayhem and malicious disfigurement had "merged into a single class of general intent crimes, differentiated only by the type of injury inflicted." 446 A.2d at 24. In rejecting the government's argument, this court concluded in Perkins that § 22-506 is a sentencing statute which incorporates two discrete ...