Stacy N. Jones v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 98-CF-1857 S TACY N. J ONES, A PPELLANT v. U NITED S TATES, A PPELLEE Appeal from the Superior Court of the District of C olumbia (F-8391-97) (Hon. Nan R. Shuker, Trial Judge) (Argued March 19, 2002 Decided July 10, 2003) Tracey D. Weaver, Public Defender Service, with whom James K lein, Public Defend er Service, w as on the b rief, for appellan t. David B. Goodhand, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Frederick W. Yette, Assistant United States Attorneys, were on the brief, for appellee. Before TERRY, F ARRELL, and W ASHINGTON, Associate Judges. T ERRY, Associate Judge: After a jury trial, appellant w as convicte d of firstdegree burglary, first-degree sexual abuse, first-degree felony murder, and second- 2 degree murder. On appeal he makes three claims of error. First, he contends that the trial court erred when it ruled that the attorney-client privilege did not require the exclusion of testimony about a conversation that appellant had with his girl friend (at the time), who was an attorney employed by the federal government. Second, appellant argues that the trial court erred wh en it ruled that a search warr ant was supported by probable cause. Finally, for the first time on appeal, appellant maintains that the aggravating factor which the court applied to his sentence for first-degree sexual abuse violated the principles o f Apprendi v. New Jersey, 530 U.S. 466 (2000). We reject the Apprendi argume nt, affirm on the merits, and remand for the sole purpose of vacating a redundant conviction. I On Saturday, March 23, 1996, at about 10:00 a.m., Metropolitan Police officers found D arcie Silver d ead in her apartment after they received a call from her concerned co-workers reporting that she had failed to show up for work. The medical examiner determined that the caus e of death was asphyxia by strangulation; other injuries indicated that she might also have been sm othered . In addition, there were burns around her genital area; pieces of burned newspaper were found in the vicinity of her crotch. A vaginal sw ab reveale d the presen ce of ma le 3 deoxyrib onucleic acid (DNA). In addition, investigators found semen stains on Ms. Silver s nightgown and on a denim jacket recovered from her apartm ent. The DNA evidence was later m atched to appellant throug h testing by the FBI. A police investigation revealed that on Friday evening, March 22, Ms. Silver had dinner with a co-w orker from her job at Bread & Circus, a supermarket in the Georgetown area of the city. She returned to her apartment at approximately 10:00 p.m. and spoke to her father on the telephone from 10:47 p.m. on Friday until 12:03 a.m. on Saturday. Two neighbors in Ms. Silver s apartment building heard a knocking at the front door of the building at about 2:30 a.m . on Saturday. One of the neighbors looked out a window and saw a stocky man with a fair to medium complexion at the door. This description w as similar to that of appe llant, who is a weightlifter and bodybuilder. Both neighbors heard the man respond to the building intercom using the name Darcie. They then heard him say that he had locked him self out of his apartment1 and needed to borrow a telephone. The intercom made a buzzing noise, which unlocked the front door, and the man walked upstairs to the area of Ms. 1 Other evidence sh owed that appe llant lived about a block from Ms. Silver s apartme nt. 4 Silver s apartm ent. About fifteen minutes later, one neighbor heard a crash comin g from Silver s apartm ent, and the othe r heard a loud thum p. II Appellant s primary argument on appeal is that the court erred when it ruled that the attorney -client privilege did not attach to a conve rsation that he had with h is girl friend at the time, Tina Du charme, wh o was also a law yer. After Darcie Silver was murdered, the police interviewed several employees, including appellant, at the Bread & Circus store where Ms. Silver worked. The police requested hair and blood samples from appellant, but he declined to give them. He told the police that his girl friend was a law yer and tha t he wan ted to talk to her first and [he] even invited them to come to [his] house to talk to [them] if they wanted to, but only in her company. Later appellant called his girl friend, Tina Ducharme, a lawyer who worked for the federal government. At the time, she was away on business in San Diego. Appellant left a message at her hotel there, and she returned his call some tim e thereafter. 5 During their telephone conversation, appellant told Ms. Ducharme about the police interview a t Bread & Circus. Defense counsel moved to exclude any testimony from Ms. Ducharme about that conversation. At a pre-trial hearing on the motion, Ms. Du charme testified that appellant told me that the police had been by his work and had q uestioned h im and se veral other p eople wh o used to w ork with Darcie and had asked for blood samples from several individuals . . . . Ms. Ducharm e s response to appellant s concern w as that obv iously he d idn t have to [provide the police with a sam ple] if they didn t have a warrant. She also asked him, however, why he wouldn t, since it would clear the air. Obviously he didn t have anything to do with [it] or didn t have anything to be concerned abo ut. I didn t understand why he wouldn t just go ahead and do it. Appellant also told her that he had been in Darcie s apartment before, and he questioned whether or not some fingerprints of his w ould be remain ing in th e apartm ent, particularly on some drinking glasses. Ms. Ducharme replied with the common sense advice that probably Darcie had w ashed h er glasse s in the in tervenin g amo unt of tim e . . . . Finally, appellant as ked w hat if he had gone to the bathroom and left some sperm in there? Ms. Ducharme laughed and commented that unless he was masturbating in her bathroom, I really didn t think that would be a concern. Ms. Ducharme testified that appellant never said anythin g about he r representin g him in a criminal matter, nor did she intend to advise appellant as a lawyer, adding, I wasn t qualified 6 to advise anyone on criminal m atters. App ellant, in fact, had never ask ed her to perform any legal work on his behalf. Besides, she said, she was barred by a regulation from representing any private individual either criminally or civilly because she was a government lawyer. Further, she believed the conversation was a typical call between boy friend and girl friend: when either of us had a problem, we w ould ca ll the oth er perso n to ask their adv ice or tell t hem a bout it. Appellant s account of the conversation was different. He stated that he telephoned Ms. Du charme because h e wante d to know what kind of position I would be puttin g mys elf in by . . . giving . . . hair and blood samples. Appellant said that he called her because she s an attorney and that he was seeking legal advice . He testified, I never thought she could be subpoenaed or anything because she was an attorney. On the basis of his prior experience with other attorneys, appellant b elieved their c onversatio n would remain c onfidential. At the close of the hearing, the court ruled that the conversation was not protected by the attorney-client privilege. Accepting Ms. Ducharme s version of the conversation as credible, the court found appellant s testimony incredible because he kept switching around on the witn ess stan d . . . as if he was waiting on which way to go. In addition, the court ruled that the only thing Ms. Ducharme said as a 7 lawyer was that appellant did not have to give the police hair and blood samples, which he had already elected not to do. Otherwise, said the court, the types of questions appellant asked M s. Ducharme were wha t if questions that were more scientific than le gal: They were qu estions abo ut the y re scientific questions. And sh e wasn t a criminal lawyer to begin with. What if I used a glass, would the fingerprints still be there? Not a legal question. What if I w ent to the bathroo m, wou ld I have semen there? That s not a legal question. None of these were lega l questions. T he only leg al question in this thing he already knew the answer to. As a result, the court refused to allow appellant to invoke the attorney-client privilege, and Ms. Ducharme s testimony about the telephone conversation was later introduced into eviden ce at trial. There is no controlling precedent governing our review of a trial court ruling on the application of the attorney-client privilege. In Wend er v. United Services Autom obile Ass n, 434 A .2d 137 2 (D.C . 1981) , in which the appellant claimed that the trial court had erred in allowing the privilege to be waived, we took a de novo approach but did not explicitly state our standard of review. We note that the federal courts are divided over whether a de novo or a clear error standard applies in cases involv ing bot h applic ation an d waiv er of the privileg e. Com pare, e.g ., 8 United States v. Da kota, 197 F.3d 821, 82 5 (6th Cir. 1999) (de novo standard of review applied), and Ralls v. United States, 52 F.3d 223, 225 (9th C ir. 1995) (same), with In re Grand Ju ry Proceeding Im pounded, 241 F.3d 308, 312 (3d Cir. 2001) (clear error standard applied); In re Allen, 106 F.3d 582, 601 (4th Cir. 1997) (clear error review applied to factual determinations); and United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994) (same). Some courts mix their standards of review depending on the is sue pre sented . See Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998) (reviewing factual findings for clear error and purely legal questions de novo, but noting that waiver of attorney-client privilege, a question of state law, is reviewed de novo). In the case at bar, the court heard testimony about the nature and substance of the conversation between appellant and his one-time girl friend, Ms. Ducharme. It made a credibility determination about the contents of the conversation and a factual finding that Ms. Ducharme was not acting as an attorney, but as a friend. On this record we see no reason to depart from our usual standard of review for factual findings by a trial cou rt; i.e., we must uphold that court s deter mination of the facts unless it is plainly wrong or without evidence to support it. D.C. Code § 17-305 (a) (2001); see Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (en banc) (trial court s factual findings are accorded considerable deference and are reviewed 9 under a clearly errone ous sta ndard (citing, inter alia, D.C. Code § 17-305)). In particular, a trial court s findings of fact relevant to the essen tial elements of a claim of [attorney- client] privilege will not be ove rturned unless c learly er roneou s. United States v. Evans, 113 F.3d 1457 , 1461 (7th Cir. 1997) (citations o mitted). This standard of review places a heavy burden on appellant. Because appellant has not show n that the trial cou rt s factu al findin gs we re clearly errone ous or, in the words of our statute, plainly wro ng, we u phold the court s rejection of his claim of privilege.2 The attorney-client privilege is the oldest of the established privileges for confidential communications. 8 WIGMORE, E VIDENCE § 2290 (McNaughton rev. 1961) (hereafter W IGMORE). Its main pu rpose is to en courage fu ll and frank communication between attorneys and their clients. See, e.g., Wender, supra, 434 A.2d at 1373. N evertheless, c ourts constru e the attorney -client privilege narrowly to protect only th ose pu rposes which it serves . Id. at 1373-1374. Thus the privilege applies only in the following circumstances: 2 We therefore need not rule defin itively in this case on the more difficult issue of what standard of review to apply to a purely legal trial court ruling on a claim of privile ge, i.e., whether to consider the matter de novo or to review the ruling for clear error (or even, as the government suggests in its brief, for abuse of discretion). 10 (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance perman ently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 W IGMORE § 2292.3 The burden of proving that the attorney-client privilege shields a particular communication from d isclosur e rests w ith the pa rty asser ting the p rivilege . In re Lindsey, 331 U.S. App. D.C. 246, 252, 148 F.3d 1100, 11 06 (1998 ); In re Am picillin 3 For another formulation of the attorney-client privileg e, see United States v. United Shoe Machinery Corp., 89 F. S upp. 35 7, 358-359 (D. Mass. 1950) (Wyzansk i, J.): The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing prima rily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed a nd (b) not w aived by th e client. See also R ESTATEMENT (T HIRD) OF THE L AW G OVERNING L AWYERS § 68 (2000). 11 Antitrust Litigation, 81 F.R.D . 377, 394 (D .D.C. 197 8). This m eans that the party asserting the privilege must clearly show that the communication was made in a professional legal capacity. SEC v. Gulf & Western Industries, Inc., 518 F. Supp. 675, 683 (D.D .C. 1981). In general, A merican decisions agree that the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistanc e. Rep orter s N ote, R ESTATEMENT (T HIRD) OF THE L AW G OVERNING L AWYERS § 72 (2000). Whether a purpose is significantly that of obtaining legal assistance or is for a nonlegal purpose depends upon the circumstances, including the extent to which the person performs legal and n onlegal w ork, the nature of the communication in question, and whether or not the person had previously provided legal assistance relating to the same matter. Id. comment c. In the case of someone seeking advice from a friend who is also a lawyer, the lawyer-friend must be giving advice as a lawyer and not as a friend in order for the privileg e to attac h. Patten v. Glover, 1 App. D.C. 466, 476 (1893) (advice deemed not confide ntial when lawyer w as consulte d as a friend ); Evans, 113 F.3d at 1459 (no privilege when attorney told a friend that he could not act as the friend s attorney); United States v. Tedder, 801 F.2d 1437, 1442-1443 (4th Cir. 1986) 12 (privilege did not attach when defendant, an attorney, admitted perjury to a friend who worked as an attorney and colleague in the same law firm, even though other attorneys at the firm had advised the defendant regarding potential criminal charges); G & S Investments v. Belman, 145 Ariz. 258, 265, 700 P.2d 1358, 1365 (Ariz. Ct. App. 1984) (lawyer was consulted as a business advisor, not as a lawyer, and thus no priv ilege attache d; privilege h inges upo n a client s be lief that he is consulting a lawyer in that capa city (emphasis added)). The nature of the relationship is a factu al ques tion for th e trial cou rt to deci de. See Gronewold v. Gronew old, 304 Ill. 11, 17, 136 N.E. 489, 492 (1922) (whether someone is acting as an attorney is a question of fact to be d etermined by the cou rt ); Rubin v. State, 325 Md. 552, 567, 602 A.2d 677, 684 (1992) (testimonial conflicts about the scope and purpose of the attorney-c lient relationship are for the [trial] court to resolve ). Finally, the relationship between attorney and client hinges on the client s intention to seek lega l advice and his belief th at he is co nsulting an attorn ey. 8 W IGMORE § 2302; W EINSTEIN S F EDERAL E VIDENCE § 503.11 [1] (2d ed. 19 98). In this case the government argues that the conversation in question was not privileged because Ms. Ducharme was not a criminal lawyer; because, as a government employee, she was barred by a regulation from representing appellant or any other individual in a private capacity; and because she believed that she was 13 speaking to appellant as his girl friend and not as a lawyer.4 These arg uments fa ll short, however, because the intent of the person seeking advice is assessed from that person s viewpo int, not that of the attorne y. See 8 W IGMORE § 2302. The issue ultimately is what appellant believed when he was seeking advice and w hether his belief about the confidentiality of the conversation was reasonable. W EINSTEIN S F EDERAL E VIDENCE § 503.11 [1]; see United Sta tes v. Denn is, 843 F.2d 652, 657 (2d Cir. 1988) ( The key . . . to whether an attorney/client relationship existed is the intent of the client an d wheth er he reaso nably und erstood the conference to be confidential ). Thus Ms. Ducharme s understanding of the conversation and of why appellant had called her is relevant only to whether appellant reasonably believed he was consulting h er as an attorn ey, with the protections th at such a rela tionship provides. Guided by these principles, we agree with the trial court that appellant failed to make the clear showing necessary to establish that his conversation with Ms. Ducharme was w ithin the protecti on of th e attorne y-client privileg e. We note that 4 During the evidentiary hearing, defense counsel attempted to impeach Ms. Ducharme with her grand jury testimony. Before the grand jury, Ms. Ducharme initially testified that she gave appella nt advic e as a la wyer, but then stated a few mom ents later that appellant had called her as his girl friend. The trial court presum ably considered this discrepancy but nevertheless found Ms. Ducharme credible. 14 the trial court foun d appellan t s testimony incredible, in p art, because he appea red to have tailored his testimony to fit the legal standard for the privilege, which counsel and the court had discussed in front of him during the h earing. Th e court said to defense co unsel: It s the court s observation that [appellant is] very bright. And I was especially fond o f his answer to coun sel s last question about whether . . . he heard me. Then counsel and I . . . had this legal discussion, at which time your client then answered the question, he didn t understand the concept. It s as if we helped him answer the question, the two of us. In addition, the court ruled that the que stions appellant asked M s. Ducharme were not legal questio ns. The court noted that appellant knew his rights when he refused to provide blood and hair samples to the police. According to Ms. Ducharme, whose te stimony th e court expressly credited, appellant did not inquire about his right not to giv e sample s without a warrant, but instead asked scientific questions about whether or not his fingerprints might remain on a glass or whether his semen and hair might be discovered in the bathroom. While such concerns about bad facts might fall within the privilege if they were expressed in a communication within a clearly established attorney-client relationship, we con clude, like the trial court, that ap pellant failed to establish that, 15 as a matter of fact, such a relation ship ex isted be tween him an d Ms. D ucharm e. We see no reason to upset the c ourt s conc lusion, wh ich rested larg ely on its determination that Ms. Ducharme was credible and that appellant was not. We find no error in that determination.5 III Appellant next contends that the North Carolina search warrant was based on false or reckless statemen ts in the affidav it by the detective seeking the warrant and that the warrant was not supported by probable cause. Although appellant initially refused to give the police a blood sample, the police ultimately obtained one from him in N orth Carolina after serving him there with a search w arrant. 6 In the course of his investigation, Detective Anthony 5 The government argues that even if there was error in the admission of the conversation, the error was harmless because the case against appellant was strong, noting in particular th e DNA evidence and the testimony of the two neighbors. Given our conclusion that the conversation between appellant and Ms. Ducharme was not protected by the attorney-client privilege, we need not reach this issue. 6 At the time the warrant was executed, appellant was inca rcerated in a North Carolina ja il. 16 Patterson prepared an affidavit in the District of Columbia in support of an application for a warrant. The affidavit summarized the significant facts discovered during the police investigation, including the discovery o f Darcie S ilver s body in her apartment and its condition, the accounts of the two neighbors who heard someone entering the apartment building in the middle of the night, and the fact that appellant knew Ms. Silver from her work. The affidavit further stated that appellant had been arrested for two similar crimes committed in North Carolina, one a murder and the other an ass ault. In both o f those incide nts the victims were white women. 7 In addition, both crimes involved choking of the victims. A judge of the Superior Court of the District of Colum bia signed the affidavit before D etective Patterson left for North Carolina.8 Detective Patterson then took the District of Columbia affidavit and presented it to the authorities in North Carolina. There he was told by a police officer that the affidavit and warrant would have to be prepared on North Carolina forms. Patterson testified that he transcribed the contents of the District of 7 The record reveals that appellant was black and that Darcie Silver was white. 8 It appears from Detective Patterson s testimony that no warra nt was ac tually issued in the District of Columbia. All that happened here was that Patterson comple ted the wa rrant affidavit a nd a Sup erior Cou rt judge sign ed it. 17 Colum bia affidavit onto the North Carolina forms ve rbatim an d then, after a N orth Carolina police office r asked him if there was any thing mo re that [he] w anted to put in [the] warrant, added another paragraph about similarities he had noticed between a shoe prin t found at on e of the crim e scenes in N orth Caro lina 9 and a marking found on a toile t seat in D arcie Sil ver s ap artmen t. Before he left for North Carolina, the authorities there transm itted the shoe print to Detective Patterson by fax. Police in the District of Columbia had remove d the toilet seat from Silver s apartment to preserve it as evid ence, and Detective P atterson had looked at it. Howeve r, he did not compare the print and the marks on the toilet seat side-by-side, but instead relied on his memory when he noted the similari ty in his a ffidavit. A North Carolina judge reviewed the North Carolina affidavit, ruled that there was enough information in it to support a finding of probable cause, and issued a search warrant for the blood sample. Prior to trial, appellant filed a motion to suppress the blood sample, arguing that the warran t was not su pported b y probab le cause an d that the state ment in the affidavit about sim ilarities between the shoe print and the marks on the toilet seat 9 By this time appe llant had plea ded guilty to murder in North Carolina. The shoe print was foun d at the scene of that m urder. 18 was either false or made in reckless disregard of the truth.10 After a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (allowing the su bject of a warrant to challenge the veracity of the underlying affidavit after the warrant has been executed), the trial court ruled th at the detectiv e s stateme nt in the affida vit about the similarity between the shoe print and the marks on the toilet seat was not knowin gly false or made in reckless disregard of the truth, and that, in any event, there was sufficient information in the affidavit, separate from the information about the shoe print, to support a finding of probable cause. We review a decision to deny a Franks motion like the denial of any other motion to suppress evidence. That is, we view the evidence in the light most favorable to the govern ment (the party that pre vailed in the tria l court), draw ing all reasonab le inferences in the government s favor, but we examine de novo the trial court s legal co nclusio ns. See, e.g ., Davis v. United States, 759 A.2d 665, 669 (D.C. 2000). 10 [O]ur role is to ensure that the trial court had a substantial basis for It later turned o ut, after an FBI Laboratory analysis, that the marks on the toilet seat might not be footprints after all, and in any event could not be precisely identifie d. The analyst reported that the marks may be glove impressions rather than footwear impressions. If they are footwear impressions, they are too limited to enab le a dete rmina tion of b rand na me or manu facture r. 19 concluding that probable cause existed. Parker v. United States, 601 A.2d 45, 49 (D.C. 1991) (citation om itted). To challenge [ an] affidavit successfully, the defendant must meet by a preponderance of the evidence, a four-pron g test: (1) the affidavit contained false statements, (2) the false statemen ts were m ade know ingly and intentio nally or with a reckless disregard for the truth, (3) the false statements were material to the issue of probable cause, and (4) without the false statements, the affidavit is insufficient to establish probable cause. If the d efendant m eets all four prongs, the warrant must be voided and its fruits suppressed. Dailey v. United States, 611 A.2d 963, 966-9 67 (D .C. 199 2) (citatio ns om itted). In this case, however, w e need not reach the q uestion of whether D etective Patterson s statement was false or reckless because we ho ld that the affida vit was suff icient to support a finding of probable cause even if the statements that were the subject of the Franks hearing are excluded from con sideration; in o ther word s, appellant s argume nt does no t meet the fo urth prong of the test. 11 11 In considering a challenge to the validity of a warrant, we accord deference to the decision of the judge or magistrate who issued the wa rrant. Bynum v. United States, 386 A.2d 684, 686 (D.C. 1978). Our task in the instant case is simply to determ ine wheth er there wa s a substantia l basis in the su pporting af fidavit to conclude that the blood sample would identify appellant as the perpetrator of the crime. See Chavez-Quintanilla v. United States, 788 A.2d 564 , 567 (D.C. 2002 ). 20 The affidavit of Detective Patterson12 stated that Darcie Silver was murdered by strangulation . It also identified a ppellant as a co-worker at Bread & Circus and as a neighbor who lived a short distan ce away from Silv er s apartm ent, establishing that the two knew each other. Witnesses at Silver s apartment building identified a potential suspect as a stocky man who called Darcie by name at th e front door of the building . Finally, the affid avit included facts about app ellant s arrest on two separate occasions in North Carolina for two sim ilar crimes: an assault on a woman by choking her and dragging her to a secluded area and a murder of a woman by choking her and beating her to death . We hold that all of these facts, taken together, were sufficient to enable a reasonable and prudent officer to believe that appellant was guilty of murdering Darcie Silver, without even considering the statement about the similarity o f the footprint a nd the m arks on the toilet seat. 12 Because there is no copy of the North Carolina affidavit in the record, we rely on the District of Columbia affidavit (which is in the record) and the unchallenged testimony of the detective that he copied the language in the District of Colum bia affidavit verb atim on th e North C arolina form. The government argues that the signature of a District of Colum bia judge a t the bottom of the affidav it indicates a finding of probable cause by that judge. W e are reluctant to go that far. Because no warrant was ever issued in the District of Columbia, the signature of the judge indicates only that the judge was performing an oath-administering function for the police, not making an independent finding of probable cause. 21 Appellant s argume nts to the con trary go too far. He con tends that we should look at the statements about the arrests for other similar crimes in isolation, without linking them to the facts that the victim and the perpetrator knew each other and lived in close proximity. There are cases, to be sure, some of which appellant cites, which hold that facts about other crimes committed by the subject of a warrant, standing alone, do not establish probab le cause . In this instance, howeve r, the statements about other crimes do not stand alone, but must be considered along with other facts that were properly before the North Carolina judge. In the same vein, appellant attempts to distinguish all the crimes from each other by nitpicking at the details, e.g., the distant locations, the difference between a bumping noise heard at one scene and a crash at another, and the amount of clothing the deceased victims were wearing when the b odies were found (nude versus partially clothed). We see no basis for distinguishing the three cases from each other on the basis of such minutiae. These details do not obscure the basic facts, which we conclude were sufficient to support a finding of probable cause. Each of the three crimes involved a violent assault on a woman who was choked by her assailant; two of those victim s, including D arcie Silver, die d as a result. IV 22 Appellant s final argum ent, raised for th e first time on appeal, is that his sentence on the first-degree sex abuse co unt violates the principle of Apprendi v. New Jersey, 530 U.S. 466 (2000). At the sentencing hearing, the government urged the court to impose a life sentence without parole under D.C. Code § 22-4120 (a)(3) (1996), 13 which allows a court to increase a life sentence to life without parole for certain sex abuse crimes if th e victim su stained serio us bodily injury as a result of the offense. At the conclusion of the hearing, the court sentenced appellant to life without parole on the first-degree sexual abuse count, noting that Ms. Silver had suffere d an u gly dea th. Apprendi holds that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonab le doubt. 530 U .S. at 490 . Apprendi forecloses the imposition of punishment greate r . . . than that authorized by the jury s guilty verdict. Keels v. United States, 785 A.2d 672, 685 (D.C. 2001) (citation om itted). However, [w]hen the substantive legal inquiry for finding criminal culpability is identical to that required to establish a factor making the offender eligible for incr eased pu nishmen t, a jury s assessment that an offender has committed certain conduct beyond a 13 Recodified as D .C. Code § 22-3 020 (a)(3) (2001). 23 reasonab le doubt serves a dual purpose to convict that offender of the crime and to establish the qualifying factor. Id. In this case the jury found appellant g uilty of both first-degree sexual abuse and second-d egree m urder. The maxim um auth orized punishment for first-degree sexual abuse is life imprisonm ent. D.C. Code § 22-4102 (199 6).14 The enhancement statute, section 22-4120, authorizes a court to expand a life sentence to life without p arole if it finds that certain aggravating factors exist. Subsection (a)(3) states one such aggravatin g factor: if the victim sustained serious bodily injury as a result of the offense. Serious bodily injury is defined in section 22-4101 (7)15 as bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impair ment o f the fun ction of a bodily mem ber, org an, or m ental fac ulty. The elements of second-degree murder, which the jury found beyond a reasonab le doubt, are (1) that the defendant inflicted an injury or injuries upon the deceased from which the deceased died; (2) that the defendant, at the time he so 14 Recodified as D .C. Code § 22-3 002 (2001). 15 Recodified as D .C. Code § 22-3 001 (7) (2001). 24 injured the deceased, acted with malice; and (3) that the defendant did not injure the deceased in the he at of pas sion ca used b y adeq uate pro vocatio n. See Turner v. United States, 459 A.2d 1054, 1057 (D.C. 1983). The first element of seconddegree murder is co-extensive with the definition of serious bodily injury in that the jury must find that the victim suffered injuries from which she died. That finding necessarily includes a corollary finding that the victim s injuries involved a substantial risk of death ; indeed, the jury in a murder case has to find actual death, not just a substantial risk of it, in order to return a guilty verdict. Th erefore, because the jury found beyond a reasonable doubt that appellant committed all the elements of second-degree m urder, the sentence that the cou rt imposed did not violate Apprendi; the murder verdict itself established the aggravating factor beyon d a reas onable doubt. Keels, 785 A.2d at 685. V Appellant cannot be convicted of both first-degree felony murder and second-degree murd er of the same victim . See Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991) ( [w]hen there is only one killing, the defendant may not be convicted of more than on e murder (citation om itted)). Likewise, appellant s felony murder conviction m erges with the underly ing felony, in this case first- 25 degree sexual abuse. See id. We therefore remand this case to the trial court w ith directions to vacate the felony murder conviction. In all other respects, the judgment of conviction is affirmed. Affirmed on the merits, remanded in part for further proceedings.
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