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District of Columbia Court of Appeals.

March 12, 1998



Before Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge:

David E. Bailey, Jr. was convicted by a jury of two counts of second-degree murder while armed, in violation of D.C.Code §§ 22-2403, -3202 (1996). Bailey was also found guilty of possession of a firearm during a crime of violence (PFCV), § 22-3204(b), and of two counts of carrying a pistol without a license (CPWOL), § 22-3204(a). Bailey's codefendant, Michael K. Little, was convicted [709 A2d Page 709]

of two counts of being an accessory after the fact (AAF) to second-degree murder, § 22-106, and of two counts of CPWOL. Both defendants have appealed from their convictions, and their appeals have been consolidated by order of this court.

Appellate counsel have presented a number of contentions for our consideration, but the only issue requiring plenary discussion is whether the trial judge correctly ruled that Little could properly be convicted of being an accessory after the fact to murder where both decedents were dying, but not yet dead, at the time Little rendered assistance to the murderer. We answer that question in the negative, and therefore conclude that Little's accessoryship convictions must be reduced from AAF to second-degree murder to the lesser-included offense of AAF to assault with a dangerous weapon (ADW). In addition, the government concedes, and we hold, that each appellant's two CPWOL convictions merge with one another. In all other respects, we affirm.



On January 23, 1994, a double-homicide occurred outside the Mirage, a nightclub located in southeast Washington, D.C. The slayings followed a dispute between two rival groups of young men which had begun inside the Mirage earlier that evening. One of the factions, which we shall call the "Bailey group," consisted of the two appellants, Bailey and Little, and two or three of their friends. The Bailey group's adversaries, the "Morton group," included Harold "Peanut" Morton, decedents Gregory Kennedy and Kevin Harrell, and two or three other individuals.

The unpleasantness between the two groups apparently began when Bailey and Morton exchanged angry words which soon escalated to blows. *fn1 Security guards at the Mirage broke up the fracas and escorted Bailey out of the club. The other members of the Bailey group promptly joined Bailey outside. Little and Bailey then walked to a red Nissan 300 ZX which Little had borrowed and which was parked nearby. Little took his seat behind the steering wheel. Bailey sat in the front passenger seat. Meanwhile, Kennedy and Harrell were leaving the Mirage with the rest of the Morton group a short distance behind them.

Prosecution witnesses testified that Little drove the car down the street to the corner at which Kennedy and Harrell were now standing. Bailey extended his arm out of the window and fired at the two men at close range. Immediately after the shots were fired, the car "skidded out" as Little sped off.

Each of the victims was shot three times. Harrell was struck once in the head, once in the heart and lung region, and once in the abdomen. His head snapped back as a result of the impact of the bullets, and he immediately fell to the pavement. Two bullets from Bailey's pistol struck Kennedy in the back, and a third shot hit his hand. According to the testimony, Kennedy ran down the street with blood "gushing" from his mouth, and he collapsed a short time later.

There was no evidence that either victim died before Little drove away. On the contrary, one prosecution witness testified that after the appellants departed, he saw both victims "squirming" and "shaking" on the ground. It therefore appears to be undisputed that both men were still alive when Little initiated his alleged accessorial conduct by transporting the shooter, Bailey, away from the scene.

Officers Brian Carroll and William Chapman of the Metropolitan Police Department were on patrol when they monitored a radio lookout for a red 300 ZX. Four or five minutes later, they saw appellants' car near Interstate 395 and began to follow it. Little, who had apparently noticed the officers, increased his speed and ran through a red light. A lengthy high-speed chase ensued, [709 A2d Page 710]

and there was testimony that Bailey exchanged gunfire with the officers. The pursuit ended when Little was cornered on a dead-end street. During the course of the chase, Bailey threw a 9mm pistol and a .45-caliber handgun out of the car window. The two weapons were subsequently recovered by the police.

Bailey testified in his own defense. He asserted that he had shot the decedents in self-defense. Bailey claimed that at the conclusion of the affray inside the Mirage, he heard a member of the Morton group suggest to "Peanut" Morton that they "handle this outside." See also note 1, supra. Bailey understood from his adversaries' remarks that once he was on the street, members of the Morton group would try to shoot him. According to Bailey, his fear for his safety became even more pronounced after both groups had left the club. He claimed, contrary to the prosecution testimony, that two "dudes" identified with the Morton group ran towards the 300 ZX while the car was standing still. Bailey testified that one of the "dudes" yelled: "[T]here they go right there, get the guns . . . let's get them." Bailey claimed that he then saw the "big dude fiddling with something" that he (Bailey) believed to be a handgun. Apprehending that he was about to be shot, Bailey took preemptive action and fired at the two "dudes," who turned out to be Harrell and Kennedy. *fn2

Bailey also testified that the two handguns recovered by the police belonged to him, and that Little had no connection with them. He denied shooting at the officers during the chase. Bailey claimed that he threw the weapons out of the car window in order to induce the officers to stop firing at him and at Little. *fn3



A. Background.

In his initial charge to the jury, the trial judge set forth the elements of accessory after the fact to murder, in accordance with Redbook *fn4 Instruction No. 4.01, as follows:

[T]he government must prove beyond a reasonable doubt . . . one, that the offense of murder had been committed; two, that the defendant knew that the offense of murder had been committed; three, that knowing that the offense had been committed, the defendant helped the person who committed it; and four, that the defendant did so with the specific intent to hinder or prevent that person's arrest, trial and punishment or punishment. The underlying offense to this charge of being an accessory after the fact is the offense of murder as that offense has been defined in the preceding instructions.

Although the judge's use in this instruction of the words "had been committed" indicated that the murder must precede the accessorial acts, the judge did not specifically focus on the question whether Little could be convicted of AAF to murder for conduct which occurred after a decedent was fatally shot but before the decedent died.

During the course of their deliberations, the jurors adroitly detected the problem and made several requests for elaboration of the foregoing instruction. In a note to the judge, they inquired:

Does Little have to know that an actual death occurred to be charged with accessory after the fact or can one be an accessory after the fact if one only knows that a serious injury (not death) has occurred (as the definition for 2nd degree murder use[s] death or serious injury)?

(Emphasis in original.)

The trial judge heard extensive argument from counsel regarding the appropriate response to this "remarkably intelligent question." Little's attorney urged the judge to instruct the jury that "Little necessarily had to know that when he hit the gas and released the clutch, somebody was dead." The [709 A2d Page 711]

judge remarked that there was authority in the treatises for the position that the decedent must be shown to have been dead at the time of the accessorial acts, and he commented that the "Court of Appeals could go either way on this one." The judge ultimately instructed the jury, however, in accordance with United States v. McCoy, 721 F.2d 473, 474-75 (4th Cir. 1983), cert. denied, 466 U.S. 940, 104 S.Ct. 1918, 80 L.Ed.2d 465 (1984), that "in an accessory after the fact to murder case the defendant must have had knowledge that the victim . . . was dead or dying at the time he rendered the assistance." (Emphasis added.) *fn5 Little was subsequently convicted of two counts of being an accessory after the fact to second-degree murder while armed.

Little claims that because Kennedy and Harrell were still alive at the time that he transported Bailey from the scene, the evidence did not support Little's conviction for AAF to murder. Little also challenges the trial judge's re-instruction to the jury on this issue. Little's contentions raise a question of law. Accordingly, we review the judge's disposition de novo.

B. The elements of the offense.

In the District of Columbia, the offense of accessoryship after the fact is the subject of a statute which was enacted in 1901, and which provides as follows:

Whoever shall be convicted of being [an] accessory after the fact to any crime punishable by imprisonment shall be punished by a fine or imprisonment, or both, as the case may be, not more than [one-half] the maximum fine or imprisonment, or both, to which the principal offender may be subjected.

D.C.Code § 22-106 (1996).

Section 22-106 does not contain a definition of an accessory after the fact. Accordingly, in conformity with Section 1 of the 1901 Code, D.C.Code § 49-301 (1997), *fn6 "we look to the common law for an understanding of the substantive definition of the offense." Heard v. United States, 686 A.2d 1026, 1029 (D.C. 1996); see also Outlaw v. United States, 632 A.2d 408, 411 (D.C. 1993), cert. denied, 510 U.S. 1205, 114 S.Ct. 1326, 127 L.Ed.2d 674 (1994) (citing cases). Section 49-301 "leaves the common law to fill in where statutes are silent." Day v. United States, 682 A.2d 1125, 1129 (D.C. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1435, 137 L.Ed.2d 542 (1997).

"The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified." United States v. Jackson, 528 A.2d 1211, 1215 (D.C. 1987) (citing, inter alia, D.C.Code § 49-301). Maryland authorities expounding the common law of that state constitute powerful precedent in this jurisdiction, *fn7 and this court has followed Maryland case law in identifying the four substantive elements of AAF:

(1) A completed felony must have been completed by another prior to the accessoryship;

(2) The accessory must not be a principal in the commission of the felony;

(3) The accessory must have knowledge of the felony; and

(4) The accessory must act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes.

Outlaw, supra, 632 A.2d at 411 (quoting Howell v. State, 62 Md. App. 278, 489 A.2d 55, 58 (1983)).

Little contends that the prosecution did not prove the first of these elements, because the murder of the decedents had not been [709 A2d Page 712]

completed at the time Little is alleged to have engaged in the accessorial conduct by transporting Bailey from the scene and by thus attempting to help Bailey to escape. Little also claims that the trial judge incorrectly instructed the jury that Little could properly be convicted as an accessory after the fact to murder even if the underlying murder was incomplete — that is, even if the victim was "dying" but not "dead." Little relies heavily on early common law commentaries cited in Outlaw, supra, 632 A.2d at 411 n. 8, which we discuss at pp. 712-713, infra. The government argues, on the other hand, that the older common law rule has been superseded by more recent authorities, including, in particular, McCoy, supra, 721 F.2d at 474-75.

C. The case law and the commentaries.

The question before us, namely, whether a defendant may be convicted of being an accessory after the fact to murder on the basis of actions taken while the decedent was still alive, was presented to this court less than five years ago in Outlaw, supra, 632 A.2d at 410-11. Although we disposed of Outlaw on other grounds without expressly deciding that question, we cited some of the relevant authorities *fn8 and provided a frame of reference for further analysis:

Although we need not and do not take any position on the issue, we do note as a matter of historical fact, not focused upon by counsel, that the District's statute has remained unchanged at least since the beginning of the century, see 31 Stat. 1337, ch. 854, § 909 (1901), and that it has been construed as consistent with the common law. . . . As the government has acknowledged in its well-researched and scholarly brief,

the early common-law commentators almost invariably take the view that a defendant may not be convicted as an accessory after the fact to murder unless the victim was dead at the time the defendant committed the acts of assistance. See, e.g., I HALE, PLEAS OF THE CROWN 621 (1st Amer. ed. 1847); 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 38 (Chitty ed. 1826); II W. HAWKINS, PLEAS OF THE CROWN 448 (Curwood ed. 1824).

632 A.2d at 411 n. 8.

The authorities cited in the Outlaw footnote establish that under the common law which was in effect in 1901, when the District's AAF statute was enacted, Little could not have been successfully prosecuted as an accessory after the fact to a murder if the decedent was alive at the time Little provided Bailey with assistance. *fn9 In order to adopt the position urged upon us by the government, we would have to hold that Little may properly be convicted in 1994 of [709 A2d Page 713]

accessoryship after the fact to murder even though the conduct in which he engaged would not have constituted commission of that crime when the AAF statute was enacted, and even though the statute has not been amended in any pertinent respect in the near-century that has elapsed since then.

Notwithstanding the Outlaw footnote, there is no dispositive District of Columbia precedent on the question before us. The cases elsewhere are divided, but a majority of the courts have adhered to the traditional common law rule, *fn10 with only a minority holding to the contrary. *fn10 The commentators are virtually unanimous in their adherence to the rule advocated by Little. *fn10

Notwithstanding what we perceive to be the overwhelming weight of authority, the [709 A2d Page 714]

government argues that the common law rule is irrational and ought to be revised. Discerning a trend among state legislatures in support of its position, see, e.g., II MODEL PENAL CODE AND COMMENTARIES, § 242.3, cmt. 3, at 228 (1980), the government asks the court to shape the common law of the District accordingly and to affirm Little's convictions. We are not persuaded, however, that our construction of a 1901 statute, the text of which has remained unchanged in pertinent respects for almost a century, should be affected by legislative developments in other jurisdictions.

Indeed, as we have noted, the government is asking us, in prosecutions for accessoryship after the fact to murder, to apply Section 22-106 today to conduct which that statute did not reach at the time of its enactment. If the legislature were to amend the statute on the date of this opinion to conform to the government's position as to what the law should be, then the application of the new rule to Little would assuredly run afoul of the Constitution's proscription against ex post facto laws. Cf. Williams v. United States, 569 A.2d 97, 100 (D.C. 1989).

Assuming, without deciding, that this court's "inherent power to alter or amend the common law," United States v. Jackson, 528 A.2d 1211, 1216 (D.C. 1987); Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.App. D.C. 351, 354-55, 187 F.2d 357, 360 (1950), permits us to expand, by judicial decree, the scope of a statutory criminal offense, our authority to do so must be exercised with restraint, lest we intrude upon the prerogatives of the legislative branch and the liberties of the citizen. Accordingly, we decline the government's invitation to amend the venerable common law rule, either as to Little or as to defendants who may be charged with accessoryship after the fact to murder in cases yet to come. Sharing the Supreme Court's "instinctive distaste against men [and women] languishing in prison unless the lawmaker has clearly said they should," United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971) (quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 196, 209 (1967)), we conclude that the legislature, and not the court, should decide whether the common-law rule, which is by no means a "capricious obstacle to a prosecution," cf. Jackson, supra, 528 A.2d at 1220, *fn11 should be retained or revised. Justice Holmes said it well:

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.

McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931).

D. The lesser-included offense.

The government argues, in the alternative, that if we retain the common law rule as set forth in the commentaries, we should remand the case to the trial court with instructions to reduce Little's accessoryship convictions to AAF to an appropriate lesser-included offense. We agree. As we recently noted in Willis v. United States, 692 A.2d 1380, 1383 (D.C. 1997), [709 A2d Page 715]

federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense [quoting Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 1250, 134 L.Ed.2d 419 (1996) ]. The same principle is applicable to this court.

Assault with a dangerous weapon is a lesser-included offense of second-degree murder while armed. Hebron v. United States, 625 A.2d 884, 885-86 (D.C. 1993). *fn12 The felony of ADW had been completed when Bailey fired his pistol at the decedents, and the shooting occurred before Little transported Bailey away from the scene. *fn12 The jury having convicted Little of the greater offense of AAF to murder while armed, it necessarily found him guilty of the lesser-included offense of AAF to ADW. Under these circumstances, there is no need for a new trial.



Little and Bailey claim, the government concedes, and we hold, that each appellant's CPWOL convictions merge. Cormier v. United States, 137 A.2d 212, 217 (D.C.Mun. 1957). None of the other contentions presented to us by Little *fn13 or by Bailey *fn13 warrants reversal, and all of both appellants' [709 A2d Page 716]

remaining convictions are affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.

So ordered.

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