Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)
Before Terry and Farrell,* Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Senior Judge Mack.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant pleaded guilty to involuntary manslaughter while armed, D.C. Code §§ 22-2405, -3202 (1989 & 1994 Supp.). The factual basis for the plea, in essence, was that he was "playing with" a loaded pistol in the company of others when it accidentally fired and struck Eric King in the head, killing him. Appellant now contests the enhanced ("while armed") portion of his sentence, contending that under Reed v. United States, 584 A.2d 585 (D.C. 1990), there is an "inherent conflict," id. at 588, between the lack of awareness of risk implicit in involuntary manslaughter *fn1 and the awareness of risk of harm to others through use of a dangerous weapon required by the "while armed" enhancement provision of D.C. Code § 22-3202 (a)(1). Unpersuaded by this contention, we affirm. *fn2
Appellant was charged with, among other things, second-degree murder while armed. At the plea proceeding, where he indicated his desire to plead guilty to involuntary manslaughter while armed, the government proffered facts demonstrating that on August 8, 1989, appellant and his friends were teasing the 16-year-old King, an admitted homosexual. The proffer stated that while appellant and his companions "were attempting to get the decedent to reveal his private parts," appellant pulled out a loaded pistol and "was aiming it at the decedent when the gun went off[,] striking the decedent in the head." Appellant's counsel stated a slightly different version of events: appellant had taken out the pistol and had "not pointed it at the decedent specifically[,] but it was positioned and he was just fiddling with it in such a way that it was pointed in the general direction of the decedent" when it discharged. Responding to questions from the court, appellant admitted that he had pulled a gun from his pocket and held it in his hand when it went off, firing a bullet that struck and killed King. He acknowledged, in the court's words, that the death "was a result of a course of conduct involving extreme danger of death or serious bodily injury," and that he "acted very carelessly and very recklessly." Upon acceptance of his plea, appellant was sentenced to a prison term of ten to thirty years pursuant to the enhancement provision of § 22-3202 (a)(1).
Section 22-3202 provides in relevant part:
(a) Any person who commits a crime of violence, or a dangerous crime[,] in the District of Columbia when armed with or having readily available any pistol or other firearm . . . or other dangerous or deadly weapon . . .
(1) May . . . be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to life imprisonment
For purposes of this statute, § 22-3201(f) defines a "crime of violence" to include "manslaughter." The statute does not distinguish between kinds of manslaughter - voluntary or involuntary. Indeed, as we explained in Comber v. United States, 584 A.2d 26, 37 n.8 (D.C. 1990) (en banc), the statute punishing manslaughter itself draws "no . . . distinction between voluntary and involuntary manslaughter in the District of Columbia." See D.C. Code § 22-2405 ("whoever commits manslaughter shall be punished . . . by imprisonment not exceeding 15 years . . ."). Nevertheless, the distinction is ingrained in our law, as Comber demonstrated. Involuntary manslaughter, which alone concerns us here, is an "unintentional or accidental killing" committed " the absence of circumstances of justification or excuse . . . ." Comber, 584 A.2d at 47-48. It includes "two categories of unintentional killing," roughly labelled "criminal negligence involuntary manslaughter" and "misdemeanor involuntary manslaughter." The first, which was the basis for appellant's plea of guilty, applies to "one who unintentionally causes the death of another as the result of non-criminal conduct," where that conduct "both creates 'extreme danger to life or of serious bodily injury,' and amounts to 'a gross deviation from a reasonable standard of care.'" Id. at 48 (citation omitted). The required mental state for this "involuntary reckless manslaughter," id. at 49, as we later pointed out in Reed, supra, is "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." Reed, 584 A.2d at 588 (quoting United States v. Bradford, 344 A.2d 208, 215 (D.C. 1975)). *fn3
Appellant seizes on this "lack of awareness of risk" in arguing that Congress, in enacting § 22-3202, could not have intended to enhance punishment for conduct involving "risks of which a defendant was unaware." Correctly pointing out that the purpose of the statute is to deter certain armed crimes, he argues that "it would not serve the purpose of deterrence to punish conduct which was unintended or merely negligent." But this argument meets an obvious difficulty at the outset, which is that Congress, presumptively aware of the common-law bifurcated definition of manslaughter in the District of Columbia, Comber, 584 A.2d at 35, nonetheless wrote no such distinction into the enhancement statute, instead employing the unitary term "manslaughter." As used in this statute, the term is not ambiguous any more than it could be said to be ambiguous in § 22-2405, punishing (unarmed) "manslaughter" - without differentiation -by imprisonment for up to fifteen years. We therefore must enforce § 22-3202 according to its plain language, as including manslaughter without further distinction, unless this is one of the "rare cases" in which "literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (citation and internal quotation marks omitted). See also Bulls v. United States, 490 A.2d 197, 200 (D.C. 1985). Appellant attempts that demonstration by reliance on Reed, supra, but fails.
In Reed this court held, in the circumstances there presented, that "the two parts of the charge" of involuntary manslaughter while armed were "contradictory," 584 A.2d at 590, in "inherent conflict" with one another, id. at 588, so that the legislature could not have intended § 22-3202 to enhance the defendant's manslaughter conviction. But the court made clear that it was "on these facts" that "the inappropriateness of enhancement of an involuntary manslaughter conviction as 'while armed' is manifest." Id. The defendant was charged with involuntary manslaughter of the criminal negligence variety in that he recklessly drove his automobile across a median strip and killed the driver of another car. In concluding "that an automobile is not a dangerous weapon for the purposes of [§ 22-3202 (a)(1)] when operated with gross negligence," the court relied on the established principle that, "while certain objects are weapons by design, for instance, a handgun or a switchblade, other objects become weapons only when there is some general intent for them to be a weapon." Id. (emphasis added). *fn4 An automobile, whose normal use is transportation, thus becomes a weapon only when "driven with the purpose of injuring another . . . ." Id. at 589. Of course, "a specific intent to use an object offensively" is not required; "use of an object with reckless disregard of the risk [of injury is] sufficient to enhance a conviction under § 22-3202." Id. at 590. But, the court reasoned,
reckless disregard of a risk requires an awareness of the risk created and a conscious disregard thereof. . . . In the instant case, appellant was charged only with involuntary manslaughter, the killing of another as the result of conduct which created a risk to others that the defendant should have been aware of but was not. Because a car is not designed as a weapon, appellant's conviction can be enhanced only if a jury could infer from the circumstances that appellant was aware that his manner of using the car was likely to result in injuries to others. The charge against ...