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Sheldon Hargrove and Ronald Johnson v. United States

November 15, 2012

SHELDON HARGROVE AND RONALD JOHNSON, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CF3-3934-09 & CF3-11977-08) (Hon. Robert E. Morin, Trial Judge)

The opinion of the court was delivered by: Farrell, Senior Judge:

Argued October 31, 2012

Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and FARRELL, Senior Judge.

A jury found appellant Ronald Johnson guilty of assault with a dangerous weapon (ADW), threats, and related firearms offenses, and appellant Sheldon Hargrove guilty of carrying a pistol without a license (CPWL) and other firearms offenses. Hargrove, a retired Metropolitan Police Department (MPD) police officer, contends mainly that the trial judge erred in refusing to allow him to raise the statutory defense to CPWL for a retired MPD officer carrying a pistol he has "registered." D.C. Code § 22-4505 (b) (2001). Hargrove argues that his registration of the pistol in Maryland met the terms of the statutory exception. Johnson contends that the judge committed plain error by not giving a special unanimity instruction requiring the jury to specify which of three possible assaultive events was the basis for his ADW conviction, and by allowing the prosecutor to make improper statements in rebuttal argument. We affirm as to both defendants.

I.

Johnson‟s ADW conviction arose from his shooting of Tyrone Hector in late May of 2008, following an argument over money that Hector believed Johnson owed him for work done on Johnson‟s behalf. Hargrove, according to the evidence, brought to the scene the .380 caliber semiautomatic pistol that Johnson used to shoot Hector.*fn1 We discuss the relevant facts more fully in treating Johnson‟s claim of a faulty instruction.

Hargrove had been an MPD officer from 1982 through his retirement in November 2007. After retiring, he worked for a contractor who furnished courtroom marshals for the U.S. Marshals Service in federal district court. In 1997, Hargrove bought and registered in Maryland the .380 caliber semiautomatic pistol at issue in this case. He did not register the pistol in the District of Columbia and had no license to carry it here, but testified that he had believed his status as a retired MPD officer, and the Maryland registration, allowed him to carry it in the District.

Although D.C. Code § 22-4504 (a) makes it a crime to "carry within the District of Columbia a pistol[] without a license issued pursuant to District of Columbia law," § 22-4505 (b) makes that prohibition inapplicable "to a police officer who has retired from the [MPD], if the police officer has registered a pistol and it is concealed on or about the police officer." At trial Hargrove sought to raise this exception in defense to the CPWL charge, over the prosecutor‟s objection that § 22-4505 (b) must be read conjointly with provisions of Title 7 of the D.C. Code ("Firearm Control Regulations") governing the registration of firearms in the District. Those provisions, the prosecutor argued, made Hargrove‟s registration of the pistol in Maryland beside the point. The trial judge agreed and barred the defense based on the statutory exception.

Hargrove renews the claim of exemption on appeal, pointing to what he says is the plain language of § 22-4505 (b) excepting from CPWL‟s reach a retired MPD officer who "has registered a pistol," simpliciter, regardless of in which jurisdiction.*fn2 We conclude, though, that the exception derives necessary meaning from the cognate provisions of Title 7 governing firearms registration in the District, and that these make Hargrove‟s position untenable.*fn3

Section 22-4505 (b) stems from the same enactment by the D.C. Council that, in Title 7 of the D.C. Code, established both the privilege of a retired MPD officer to register and carry a pistol and the limitations on that privilege. The exception was part of the Handgun Possession Amendment Act of 1992,*fn4 the purpose of which was "to permit officers who have retired from the [MPD] to register and carry a pistol" (1) for their own protection against criminal offenders whom they had confronted while on active duty*fn5 and (2), so that based on their "training and experience," they could act as an "additional force on the streets" enhancing public protection by "responding to criminal emergencies that occur in their presence." Report, supra note 5, at 2.

Therefore, besides creating the CPWL exception, and to carry out the purpose of allowing retired officers "to register and carry a pistol," id., the 1992 Act amended the registration provisions of Title 7 of the D.C. Code in several related ways. First, new D.C. Code § 7-2502.01 (a)(2) (2001) provided that "[a firearm] registration certificate*fn6 may be issued . . . [i]n the discretion of the Chief of Police, to a police officer who has retired from the [MPD]." Second, § 7-2502.02 (a), generally prohibiting registration of a pistol, was amended to make the ban inapplicable to "[a] police officer who has retired from the [MPD]." Section 7-2502.02 (a)(4)(B). Further, new § 7-2502.07 (f) specified that, "[i]n the discretion of the Chief of Police, a registration certificate may be issued to a retired police officer who is a resident of the District of Columbia for a pistol and ammunition which conforms to the [MPD] General Orders and Policies"; but new § 7-2502.07 (g) added that, "[w]hen the retired police officer ceases to be a resident of the District of Columbia the registration certificate expires." Lastly, new § 7-2502.07 (h) confirmed that "[n]othing in this unit shall create an entitlement to a registration certificate for a retired police officer."

As this court has long recognized, statutory provisions in pari materia "must be read in light of" one another. In re L.M., 5 A.3d 18, 19 (D.C. 2010).

The correct rule of interpretation is, that if divers [sic] statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law.

United States Parole Comm'n v. Noble, 693 A.2d 1084, 1087 (D.C. 1997), adopted en banc, 711 A.2d 85 (D.C. 1998) (quoting United States v. Freeman, 44 U.S. (3 How.) 556, 564-65 (1845)). The nexus intended between § 22-4505 (b)‟s exception and Title 7‟s amended registration provisions is unmistakable. The latter specify the means of permitting a retired MPD officer "to register and carry" a pistol, but also the preconditions and limitations of the privilege. It is conditioned first by residency -- registration expires of its own force on the officer‟s relocation from the District -- and, more importantly, by the discretion invested in the Chief of Police to grant or deny registration to the retired officer. Those limitations cannot be reconciled with a reading of § 22-4505 (b) that would bring registration of a pistol anywhere, by whatever licensing authority exercising its own discretion, within the exception of § 22-4505 (b). That section, drawing meaning from the statutory company it keeps, follows the historic practice by which "[r]egistration typically required that a person ...


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