Appeal from the Superior Court of the District of Columbia (F8752-98) (Hon. Evelyn Queen, Trial Judge)
Before Wagner, Chief Judge, and Terry and Glickman, Associate Judges.
The opinion of the court was delivered by: Wagner, Chief Judge
Appellant, Rufus R. Price, was indicted along with two co-defendants, Alphonso King and Anthony Thompson, on charges of first-degree murder while armed (premeditated) (M I w/a) (D.C. Code §§ 22-2401, *fn1 -3202 *fn2 (1996)); possession of a firearm during a crime of violence (PFCV) (i.e., M I w/a premeditated) (D.C. Code § 22-3204 (b) *fn3 (1996)); first-degree murder while armed-felony murder (purposely) (D.C. Code §§ 22-2401, -3202); possession of a firearm during a crime of violence (i.e., M I w/a--felony murder) (D.C. Code § 22-3204 (b) (1996)); assault with intent to kill while armed (AWIK w/a) (D.C. Code §§ 22-501, *fn4 -3202 (1996)); possession of a firearm during a crime of violence (i.e., AWIK w/a) (D.C. Code § 22-3204 (b)); and carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a) (1996)) - one count as to each co-defendant. In a joint trial, the trial court (Judge Rufus King) granted Price's motion for judgment of acquittal on the felony murder and PFCV counts. The jury returned a verdict of not guilty on the first-degree murder while armed count. A mistrial was granted on the remaining charges for which the jury could not reach unanimous verdicts. Subsequently, Price's co-defendants entered guilty pleas, and Price had a second trial on the following offenses: second-degree murder while armed (M II w/a); PFCV (related to M II w/a); assault with intent to kill while armed (AWIK w/a); PFCV (related to AWIK w/a); and CPWL. The jury returned guilty verdicts against Price on the following charges: assault with a dangerous weapon (ADW), as a lesser-included offense of AWIK w/a; PFCV (related to the ADW, the lesser-included offense of AWIK w/a) and CPWL. They acquitted Price of second-degree murder while armed and AWIK w/a. *fn5 Price argues that the evidence was insufficient to support his convictions of carrying a pistol without a license and assault with a dangerous weapon. We conclude that the evidence was insufficient to prove beyond a reasonable doubt that the pistol Price carried was operable, and therefore, reverse his conviction of carrying a pistol without a license. Otherwise, we affirm the judgment of the trial court.
The charges arose out of the murder of Levar Cunningham, which occurred on November 25, 1998 at about 11:00 p.m. in the area of Eastern Avenue and Sheriff Road, N.E. in the District of Columbia. According to the testimony of Tanina Ashmon, while in the area that night, she saw Price and his former co-defendants, Alphonso Jenkins and Anthony Thompson, each carrying handguns, walking around the neighborhood. She described the weapons as "regular nine's" or ".38," about eight to ten inches long. She heard Alphonso King "ranting and raving about killing everybody on the block." Ashmon, who admitted that she had been out there selling marijuana, followed the men. She saw another man, Michael Moore, whom she knew only as M&M, walking down the street. Then she saw M&M standing between Price, King and Thompson, and she heard Price ask M&M who shot at his car, while King continued a tirade about "niggers in the hood." Ashmon testified that as she continued walking, the "ranting and raving" continued, and then multiple shots rang out. She then ran.
Michael Smith, who lived in an apartment building in the 1900 block of 52nd Street, N.E. at the time, testified that he heard several shots at about 11:15 p.m. that night, and from his window he saw three men running away from Sheriff Road after the shooting stopped. According to Smith, within minutes, more shots rang out, and he noticed a few people hiding behind a car. When the shooting stopped the last time, Smith saw Michael Moore emerge from behind a car and go towards a body.
Michael Moore testified that he lived in the area and was a close friend of Levar Cunningham, the decedent. He testified that they had a cookout that evening which Cunningham attended. Moore testified that sometime after the event ended, some men came into the area, and Cunningham told him to run, and both of them ran to the top of 52nd Street. Moore recounted that while on 52nd Street and Sheriff Road, he saw Price, King and Thompson, whom he knew from the neighborhood, walking towards him. He heard Price "discussing something that went on some days before." Moore testified that King and Thompson appeared to be upset about something, while Price was cordial and appeared to be "just laid back with it." According to Moore, after the discussion ended, King, who had a black semi-automatic Baretta, shot Cunningham. He testified that Thompson also had a semi-automatic weapon, and Price had a revolver. Moore testified that both Thompson and King were pointing their weapons, while Price had his weapon at his side. He further testified that when the shot was fired at Cunningham, Price appeared to be surprised. After Cunningham was shot, he and Price ran in different directions. Moore testified that he heard additional shots, but he could not tell who was firing them because he ran down the street and hid behind a car on Sheriff Road. After the shooting, Moore went back to the area where he saw Cunningham, who was on the ground with a fatal gunshot wound to the head. The police arrived within minutes; however, Moore did not tell the police that he had witnessed the shootings until two or three years later.
There was evidence that eleven shell casings were recovered from the area where the three armed men were located at the time of the shootings. Six of the cartridge casings were determined to be .38 Winchester casings, which were fired from the same semi-automatic handgun; the five others were fired from the same .45 caliber semi-automatic handgun. The police also recovered a copper bullet jacket with some markings, but the government's expert witness, Torin Suber, testified that he could not determine exactly what type of weapon it came from, although he thought it was a .45 based on its weight. The expert testified that he could not determine what type of weapons were used to fire additional bullet fragments and a mutilated copper bullet jacket. There was testimony that shell casings are emitted from semi-automatic weapons upon firing, but not from revolvers. According to Moore's testimony, King and Thompson were carrying semi-automatic weapons, while Price had a revolver. The police searched for other ballistic evidence in the area of Sheriff Road and 52nd Street, but none was found.
Price argues that the evidence was insufficient to support his conviction for carrying a pistol without a license because there was neither direct nor circumstantial evidence to prove that the weapon he allegedly carried was operable. *fn6 The government responds that sufficient evidence, direct and circumstantial, was presented to establish that the pistol that Price carried was operable, although the weapon was not shown to have been fired at the time of the commission of the offenses or recovered and test fired thereafter.
The essential elements of the offense of carrying a pistol without a license are: "(1) carrying an operable pistol; (2) without a license; and (3) with the intent to do those two acts." Curington v. United States, 621 A.2d 819, 823 (D.C. 1993) (citing Tucker v. United States, 421 A.2d 32 (D.C. 1980)). Price does not contest the proof of possession and that he had no license to carry a pistol. He argues only the lack of proof that the weapon was operable. We have held that when the accused is charged with carrying a pistol without a license under D.C. Code § 22-3204 (a), the government must prove that the weapon was operable. Anderson v. United States, 326 A.2d 807, 811 (D.C. 1974), cert. denied, 420 U.S. 978 (1975); see Curtice v. United States, 488 A.2d 917, 918 (D.C. 1985). While the statute itself does not specify that operability is an element of the offense, we have so interpreted it, consistent with the purpose of this provision and the overall statutory scheme. See Strong v. United States, 581 A.2d 383, 387-88 (D.C. 1990); see also Morrison v. United States, 417 A.2d 409, 412 (D.C. 1980) (citations omitted).
The government argues that the pistol's operability can be inferred from circumstantial evidence. It contends that evidence that a defendant displayed a weapon in a manner intended to back up his demands and have the victim believe the weapon was capable of discharge is sufficient to permit the jury to infer that the weapon is capable of discharging a bullet. Indeed, we have held that operability may be proved by direct or circumstantial evidence. Key v. United States, 587 A.2d 1072, 1074 (D.C. 1991). Price challenges the sufficiency of the facts and circumstances to prove operability in this case. He argues that in addition to the absence of any evidence that he actually fired the pistol, there was evidence that he did not point or fire the weapon.
In support of its position, the government relies upon this court's decisions in Morrison, supra and Bartley v. United States, 530 A.2d 692 (D.C. 1987). In Morrison, we affirmed a conviction for carrying a pistol without a license where the defendant's weapon was not recovered and was not fired during the commission of the armed burglary and armed robbery for which he was also convicted. 417 A.2d at 412-13. There, we held that the circumstances of the offenses were such as to permit a jury to infer that the pistol Morrison carried was operable nevertheless. Id. at 413. That evidence showed that Morrison kept the male victim at bay by pointing the gun at him as he lay prone on the floor of one room, while his two armed cohorts searched for valuables in a bedroom occupied by two female victims. Id. One of Morrison's ...