Mack v. U.S., No. 08-CF-603.

6 A.3d 1224

Horry MACK, Appellant,

v.UNITED STATES, Appellee.

No. 08-CF-603.

District of Columbia Court of Appeals.

Argued Oct. 13, 2010.

Decided Nov. 4, 2010.

Daniel I. Weiner, with whom Anjan Choudhury, David A. Handzo, and J. Alex Ward, Washington, DC, were on the brief, for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whomRonald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Assistant United States Attorney were on the brief, for appellee.

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

FISHER, Associate 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)). ¹ He now challenges his conviction for carrying a dangerous weapon (CDW),² 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,³ 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. Pricefell 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, ⁴ 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.⁵ "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 § 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, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed."

As framed by appellant, the issue in this case "is whether carrying an inherently lawful object for the lawful purpose of self-defense is prohibited by D.C.Code § 22-4504(a)." We think it would be more accurate to ask "whether the statute permitted appellant to carry a deadly or dangerous weapon, capable of being concealed on or about his person, in anticipation of a future need to use it in self-defense." However phrased, the question presented is one of law, which we review de novo. See Appleton v. United States, 983 A.2d 970, 977 (D.C.2009) ("Where the question of whether a jury instruction was proper is a legal question, ... we review the instruction de novo.") (citing Wilson-Bey v. United States, 903 A.2d 818, 827 (D.C.2006) (en banc)); Holloway v. United States, 951 A.2d 59, 60 (D.C.2008) ("As this appealraises a question of statutory interpretation, our review is de novo.").

" 'As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.' " Minor v. United States, 623 A.2d 1182, 1184-85 (D.C.1993) (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)) (emphasis added). However, " '[a] requested instruction is not appropriate if, as a matter of law, the defendant would not be entitled to the defense.' " Jones v. United States, 999 A.2d 917, 922 (D.C.2010) (quoting Barnhardt v. United States, 954 A.2d 973, 976 (D.C.2008)).

It is well-established that the CDW statute applies not only to "inherently dangerous" objects, but also to ordinary items which are "likely to produce death or great bodily injury by the use made of [them]." Wright v. United States, 926 A.2d 1151, 1154-55 (D.C.2007) (quoting Scott v. United States, 243 A.2d 54, 56 (D.C.1968)). When the object "has some useful natural purpose (other than to inflict injury)," Wright, 926 A.2d at 1155, the government must prove that the defendant's "purpose in carrying [the] object was its use as a deadly or dangerous weapon...." Monroe v. United States, 598 A.2d 439, 441 (D.C.1991) (quoting In re S.P., 465 A.2d 823, 826 (D.C.1983)). However, "[p]roof of an intent to use [the weapon] for an unlawful purpose is not an element of the offense." Scott, 243 A.2d at 56 (citing United States v. Shannon, 144 A.2d 267 (D.C.1958)).

Here there is no doubt-indeed, Mr. Mack does not dispute-that he carried the ice pick for use as a weapon. Nevertheless, appellant asks us to recognize a right to carry a dangerous weapon on the streets of the District of Columbia as a precautionary measure, in anticipation of the need to use it in self-defense. We have never recognized such a sweeping exemption from the statute's prohibition.⁶ Indeed, doing so now would be inconsistent with prior, binding authority. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). We therefore conclude that the trial court did not err in denying the proposed instruction.

B. Wilson, Dandridge, and Cooke

Although the CDW statute announces a flat prohibition on carrying a pistol without a license and on carrying deadly or dangerous weapons that are capable of being concealed on or about one's person, this jurisdiction has long recognized "that one is not guilty of carrying an unlicensed gun during the period it is actually used in self-defense...." Cooke v. United States, 107 U.S.App. D.C. 223, 224, 275 F.2d 887, 888 (1960); see also Wilson v. United States, 91 U.S.App. D.C. 135, 136, 198 F.2d 299, 300 (1952) ("The exigencies of the occasion justified Wilson in obtaining a weapon and using it in his self-defense...."). However, "this doctrine is inapplicable where one anticipating harm carries a pistol in public for a period of time before the actual danger arises." Hurt v. United States, 337 A.2d 215, 217 (D.C.1975) (describing the circuit court's holding in Cooke ); see also Dandridge v. United States, 105 U.S.App. D.C. 157, 265 F.2d 349 (1959); Wilson v. United States, 91 U.S.App. D.C. at 136, 198 F.2d at 300 (recognizing that Wilson could lawfully be convicted of carrying a pistol without a license if the weapon was "on or about his person" before the disorderly group attacked him).

Dandridge presented a scenario quite similar to the one before us now. There, the defendant had been convicted of carrying a dangerous weapon but he was acquitted of committing an assault with the same weapon. On appeal, Dandridge asserted that the trial court erred in refusing...