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Mack v. United States

November 4, 2010

HORRY MACK, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CF3-26672-06) (Hon. Neal E. Kravitz, Trial Judge).

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

Argued October 13, 2010

Before GLICKMAN and FISHER, Associate Judges, and PRYOR, Senior Judge.

On November 30, 2006, appellant Horry Mack stabbed Joseph David Price with an ice pick, inflicting injuries from which Price later died. Appellant claimed at trial that he acted in self-defense, and the jury acquitted him of second degree murder while armed, manslaughter while armed, and possession of a dangerous weapon with intent to use it unlawfully against another (PPW (b)).*fn1 He now challenges his conviction for carrying a dangerous weapon (CDW),*fn2 asserting that the jury instructions misconstrued the statute and that convicting him of CDW under these circumstances violated his Second Amendment rights. We disagree, and affirm.

I. The Factual and Procedural Background

Viewed in a light most favorable to appellant,*fn3 the evidence showed the following. On November 30, 2006, appellant Mack was walking home from the neighborhood grocery store after purchasing some styrofoam plates for his godmother. Mr. Price, whom appellant Mack had seen before but did not know, began to follow Mr. Mack, saying, "Somebody gonna give me something, I'm gonna fuck you up." Mr. Price jumped in front of Mr. Mack, blocking the alley that led to Mr. Mack's house, and began to assault him. Although Mr. Mack testified about Mr. Price's aggressive behavior, he never suggested that he saw Mr. Price with a weapon. Mr. Mack managed to break free and went through the alley and into his house. Encountering Curtis McClean, one of his house mates, inside, Mr. Mack mentioned that he had "had a scrap." When McClean inquired why appellant did not ask for help, appellant responded, "I have it under control."

A few minutes after Mr. Mack arrived home, his godmother told him that he had purchased the wrong items and instructed him to go back to the store to replace them. Mr. Mack explained, "I picked up an ice pick out of the drawer on my way out . . . . And once I got to the back door and opened it, kind of like looked out, I slid it in my pocket . . . [h]andle down." "I picked it up just in that he may have somebody out there, it may be more than one person; I was afraid."

Mr. Mack exited back into the alley and soon was approached by Mr. Price, who resumed his assaultive behavior. Mr. Mack attempted to get away, but he saw Mr. Price step back and move his hands around the area of his pockets. Fearing that Mr. Price had a weapon, Mr. Mack grabbed the ice pick and stabbed him in the heart. Mr. Mack never claimed to have actually seen Mr. Price with a weapon, and police never found one. Mr. Price fell into a coma, and he died on March 4, 2007.

At trial, defense counsel proposed an addition to the jury instruction on the charge of carrying a dangerous weapon (CDW). The proffered supplement read, in pertinent part:

When a person carries an item that can be used as a deadly or dangerous weapon [such as a knife or ice pick], but uses that item only during the exercise of actual self-defense, that person is not guilty of the offense of carrying a deadly or dangerous weapon.

After extended discussion, the trial court declined to add this language to its jury instructions.

The court read the standard Redbook instructions for the offense of CDW,*fn4 which told the jury that the government was required to prove "that the defendant intended to use the object as a dangerous weapon . . . . Some objects may be used as tools or for other useful purposes. The law does not prohibit carrying those objects for those purposes. Therefore, the Government must prove that the defendant intended to use the object as a dangerous weapon."

The court also explained how the law of self-defense applied to the CDW charge.*fn5

"When a person picks up and uses a dangerous . . . weapon during the actual exercise of self-defense . . . , that person is not guilty of carrying a dangerous weapon . . . during the period of actual self-defense.""On the other hand, if a person unlawfully carries . . . a dangerous . . . weapon and then at a later time [ ] uses the weapon in actual self-defense, then that later lawful use does not by itself make the earlier carrying or possession of the weapon [ ]lawful." The jury found Mr. Mack guilty of CDW. He now asserts that the trial court committed reversible error when it refused to include the proposed supplemental instruction.

II. Construing the Statute

A. Appellant Presents an Issue of Law

"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks and citation omitted). D.C. Code ยง 22-4504 (a) (2001), the statute on which we focus here, provides that "[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, ...


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