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HARMAN v. U.S.

September 3, 1998

CHARLES R. HARMAN, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, CURTIS E. VonKANN, J. [718 A2d Page 115]

Before Steadman and Reid, Associate Judges, and Belson, Senior Judge.

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

This case presents the issue as to whether a person who is acquitted of a crime by reason of insanity may be conditionally released from St. Elizabeths Hospital before he is paroled on a concurrent criminal sentence. The trial court granted appellant's motion for a conditional release but required, inter alia, that the Parole Board grant him parole from his criminal sentence prior to his actual release. We affirm.

FACTUAL SUMMARY

In 1974, appellant Charles R. Harman was convicted of the July 30, 1973 murder of Diane J. Zilenski. After a bifurcated jury trial, he was found not guilty by reason of insanity of second degree murder while armed and assault with intent to commit rape while armed. However, he was convicted of first degree burglary while armed. Harman was committed to St. Elizabeths Hospital under D.C.Code § 24-301(d)(1) (1996) on the murder and attempted rape charges, and sentenced concurrently to incarceration for a period of fifteen years to life on the burglary charge. After Harman's direct appeal, this court affirmed the trial court's judgment as to the murder, assault and burglary charges. Harman v. United States, 351 A.2d 504 (D.C. 1976), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976).

Since his 1974 trial, Harman has been a resident of St. Elizabeths Hospital. Although the Hospital certified in 1980 and 1982 that, under § 24-301(e), he was no longer in need of hospitalization, the trial court denied his petition for release. His subsequent efforts between 1982 and 1992 to gain unconditional or conditional release failed. In addition, he was denied parole in 1988, 1991 and 1995, and is not eligible for consideration again until January 2000.

On January 25, 1993, Harman filed a motion for conditional release pursuant to § 24-301(k). In an extensive November 14, 1994 memorandum decision, containing findings of fact and conclusions of law, the trial court determined that Harman proved by a preponderance of the evidence that he was medically eligible for conditional release, *fn1 provided he met certain conditions prior to his release, including the grant of parole from his first degree burglary while armed conviction. After the Parole Board denied his request for parole in January 1995, Harman filed a motion for reconsideration on June 30, 1995, challenging the parole condition. The trial court denied the motion and Harman filed a timely appeal.

ANALYSIS

Harman argues that he is legally entitled to exercise his statutory conditional release privilege *fn2 even though he has not been [718 A2d Page 116]

granted parole from his criminal conviction. He maintains that because St. Elizabeths Hospital has had actual custody over him for twenty years, and he has never been incarcerated in a penal institution, the Hospital has the authority, without usurping the Parole Board's power, to grant him limited access to the community for the purpose of seeking work and spending time with his wife at their residence. The government contends that Harman's appeal should be barred because he initially agreed that his release should be conditioned on a grant of parole. In the alternative, the government asserts that unless Harman is granted parole, he may not be released conditionally from St. Elizabeths Hospital under the District's work release and furlough statutes; and further, that the trial court did not commit plain error in conditioning Harman's release on a grant of parole from his criminal conviction. In his reply brief, Harman claims that his appeal is not barred because it is taken from a second motion, his motion for reconsideration, and not from his original motion for conditional release from custody. He also asserts that the government has waived its claim that the work release and furlough provisions are applicable to him because this claim was not raised in the trial court; and further, that the work release statutes do not apply to him since he is not in the actual custody of the Department of Corrections. "We review the trial court's legal conclusions de novo." Budoo v. United States, 677 A.2d 51, 54 (D.C. 1996).

We turn first to the procedural claims raised by the government and Harman. Citing Brown v. United States, 627 A.2d 499, 508 (D.C. 1993), the government contends that Harman's appeal should be barred because the position he has taken on appeal regarding parole as a condition for his release differs from that which he took in the trial court. Although Harman agreed to the parole condition in his original motion for release, in his motion for reconsideration, filed after he was denied parole, he asserted the invalidity of the parole condition. However, this issue need not detain us because, even assuming Harman's argument has merit, he is not entitled to a conditional release from St. Elizabeths until he has been granted parole on his criminal conviction. We reject Harman's contention that the government's work release and furlough arguments may not be heard on appeal because they were not raised in the trial court. Generally, it is true that issues not raised in the trial court will not be heard on appeal. Hall v. United States, 343 A.2d 35, 37 (D.C. 1975). However, the government did raise the work release statute in its opposition to Harman's motion for reconsideration; and the issue raised by Harman requires an interpretation of several statutory provisions, including the work release and furlough statutes. Furthermore, "[f]his court may affirm a decision for reasons other than those given by the trial court." Adams v. United States, 502 A.2d 1011, 1015 n. 2 (D.C. 1986) (citations omitted).

We turn next to the principal issue as to whether an insanity acquittee may be given a [718 A2d Page 117]

conditional release from St. Elizabeths Hospital before being granted parole from his criminal conviction. Because Harman is both an insanity acquittee committed to the legal and actual custody of St. Elizabeths Hospital, and a convicted prisoner committed to the legal custody of the Department of Corrections, we are faced with an interpretation of provisions set forth in three separate chapters of Title 24 of the D.C.Code. Chapter two relates to the Parole Board's authority. Chapter three concerns persons acquitted of criminal charges by reason of insanity; and chapter four pertains to persons sentenced for criminal convictions. Chapters two and four reflect public safety factors, and chapter three manifests treatment factors as they relate to a St. Elizabeths Hospital patient. Harman claims entitlement to conditional release under chapter three so that he may be ensured adequate treatment in the least restrictive environment; and the government insists that he may not be released conditionally from St. Elizabeths Hospital under chapters two and four without parole.

This court adheres to the proposition " 'that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them. . . .' " Luck v. District of Columbia, 617 A.2d 509, 514 (D.C. 1992) (quoting United States v. Freeman, 44 U.S. (3 How.) 556, 564-65, 11 L.Ed. 724 (1845) (other citations omitted)). See also 2B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51.03, at 138 (5th ed. 1991) ("Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object."). If statutes conflict, our task is to reconcile them if possible. As we said in Gonzalez v. United States, 498 A.2d 1172 (D.C. 1985): "[W]e have a duty to make every effort to reconcile allegedly conflicting statutes and to give effect to the language and intent of both." Id. at 1174 (quoting District of Columbia v. Smith, 329 A.2d 128, 130 ...


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