Beachum v. United States

• Decision Date: 05 May 2011
• Docket Number: No. 10–CF–325.,10–CF–325.
• Citation: 19 A.3d 311
• Parties: Carlton J. BEACHUM, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

19 A.3d 311

Carlton J. BEACHUM, Appellant,

v.UNITED STATES, Appellee.

No. 10–CF–325.

District of Columbia Court of Appeals.

Submitted April 21, 2011.Decided May 5, 2011.

William P. Farley, appointed by the court, was on the brief for appellant.Ronald C. Machen Jr., United States Attorney, with whom Elizabeth Trosman, Chrisellen R. Kolb, Erik Kenerson, and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, Associate Judge, and FERREN and STEADMAN, Senior Judges.RUIZ, Associate Judge:

After the Superior Court denied his pretrial motions, appellant, Carlton J. Beachum, entered into a conditional plea of guilty to one count of unlawful possession of a firearm by a convicted felon, one count of possession of an unregistered firearm, and one count of unlawful possession of ammunition. On appeal, he challenges the trial court's denial of his pretrial motions to suppress evidence and for severance from a co-defendant, as well as the denial of his request for an overnight continuance to produce a defense witness. For the following reasons, we affirm his convictions.

I.

Appellant and his co-defendant, Asia Copeland, were arrested in the 5100 block of Fitch Street, Southeast, on August 26, 2009. At about 1:00 a.m. that night, MPD officers responded to a complaint of loud noise coming from a silver vehicle at 5107 Fitch Street. Upon arriving on the scene, the officers found appellant and Copeland seated on the curb within three feet of a silver Jeep Cherokee, from which loud music was playing. Between appellant and Copeland was an unsealed bottled of Patron tequila and two clear plastic cups smelling of alcohol. An officer asked appellant and Copeland who owned the Jeep, to which Copeland responded that the Jeep and “everything in it” belonged to her. ¹ Another officer shined his flashlight into the left rear passenger seat and observed “the extended clip of a handgun sticking ... out of a tan duffle bag.” Appellant and Copeland were taken into custody, and a crime scene search officer later recovered the firearm.

By indictment dated September 9, 2009, appellant was charged with carrying a pistol without a license, unlawful possession of a firearm by a felon,² possession of an unregistered firearm, unlawful possession of ammunition, unlawful possession of a controlled substance (marijuana), and possession of an open container of alcohol. On October 2, 2009, appellant moved to sever the charges against defendant Copeland, arguing that he had a bona fide need to call Copeland as a witness in his defense. Also on October 2, 2009, appellant moved to suppress evidence and statements obtained from him during his arrest. The government opposed both motions.

On October 30, 2009, the trial court held a hearing on appellant's motion for severance. At the hearing, appellant's counsel proffered that he would seek to call Copeland to testify at trial about the statement she made on the night of the arrest that the Jeep and “everything in it” were hers. Copeland's counsel indicated that Copeland was not willing to testify on appellant's behalf, and the court noted that it could not grant a severance if the co-defendant was unwilling to testify. Appellant then proposed admitting Copeland's out of court statement under an exception to the hearsay rule, either as a statement against penal interest, a present sense impression, or an excited utterance. Asking the parties to brief the issue, the court denied “the motion to sever for now.” ³ The matter was continued until the November 30th trial date.

On November 30, 2009, the government dismissed the charges against appellant of carrying a pistol without a license, possession of a controlled substance, and possession of an open container of alcohol. The court then heard appellant's suppression motion, starting with testimony from appellant to establish his standing to contest the search of the Jeep.⁴ The court found that appellant had some expectation of privacy in the car and, therefore, it allowed appellant to challenge the search. In turning to the legality of the search, the government presented testimony from MPD Officer Thomas O'Donnell, who recounted the circumstances of the search. Officer O'Donnell testified:

As Officer Gomez was asking, you know, who the vehicle belonged to and if there was anything in the vehicle[,] I went around to the driver's side and was shining my light in first the driver's side, the driver's door and then in the back left passenger seat, and the windows were all down ... and right as I shined my flashlight into the rear passenger seat I noticed what I immediately recognized as the extended clip of a handgun sticking straight out of a tan duffle bag.After the government rested, appellant provided a somewhat different account of the search. He testified that he and Copeland were seated in a grassy yard, drinking tequila with a woman named “Vikki,” who was seated inside the silver Jeep.⁵ While they were drinking, a police squad car arrived to investigate loud music coming from another silver vehicle that was parked in front of 5107 Fitch Street.⁶ The squad car left and about ten minutes later, a second set of officers arrived. Appellant testified that four officers “jumped out” and “immediately” began searching the Jeep while another officer handcuffed appellant and Copeland. He stated that his duffle bag in the Jeep had been zipped closed and that it was impossible to see inside it.

In announcing its findings, the court credited the testimony of Officer O'Donnell, and found that “the gun was in plain view and that the officer was able to see it by shining his flashlight into the car....” The court accordingly denied appellant's motion to suppress. Appellant then agreed to a conditional plea of guilty to one count of unlawful possession of a firearm by a convicted felon, one count of possession of an unregistered firearm, and one count of unlawful possession of ammunition. On February 16, 2010, the court sentenced appellant to twenty-four months' incarceration for unlawful possession of a firearm by a felon, twelve months' incarceration for possession of an unregistered firearm, and twelve months' incarceration for unlawful possession of ammunition, all sentences to run concurrently. Appellant filed a timely notice of appeal on March 15, 2010.

II.

Appellant challenges the trial court's denial of his pretrial motion for severance, his pretrial motion to suppress, and his request during the suppression hearing for an overnight continuance to allow a second witness to testify.⁷ The government responds that appellant's guilty plea did not properly preserve these issues, and therefore, he has waived them on appeal.

As we have often explained, “[a] defendant who enters a guilty plea ordinarily waives all non-jurisdictional defects in the proceedings below on appeal.” Collins v. United States, 664 A.2d 1241, 1242 (D.C.1995) (citing United States v. Gines, 964 F.2d 972, 977 (10th Cir.1992); United States v. Caperell, 938 F.2d 975, 977 (9th Cir.1991)). However, pursuant to Superior Court Criminal Rule 11, a criminal defendant, “[w]ith the approval of the Court and the consent of the government,” “may enter a plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” ⁸ Super. Ct.Crim. R. 11(a)(2). The requirement of a written reservation helps to “document that a particular plea was in fact conditional, and will identify precisely what pretrial issues have been preserved for appellate review.” Demus v. United States, 710 A.2d 858, 859 (D.C.1998) (quoting Advisory Committee Notes to Rule 11, Fed. R.Crim. P., 97 F.R.D. 245, 283 (1983)). A defendant's “[f]ailure to specify a particular pretrial issue in the written plea agreement will preclude raising that issue on appeal.” Collins, 664 A.2d at 1242.

Here, appellant entered into a written plea agreement whereby he reserved “his right to appeal the motion,” yet there is no clear indication in the plea agreement as to which motion was the subject of his written reservation. As a consequence, appellant argues that all three pretrial motions—his motion for severance, his motion for suppression, and his request for a continuance—are within the scope of his reservation and thus properly preserved for appeal. The government, contrarily, asserts that none of appellant's motions has been preserved for our review. We think the appropriate course lies somewhere in between the two, as the record seems clear that the parties certainly intended that denial of at least one pretrial motion would be preserved for appeal.

In certain cases, we have eased the precise procedural formalities of Rule 11(a)(2) where the purpose of the rule was nonetheless effectuated. In Casey v. United States, 788 A.2d 155 (D.C.2002), we emphasized that “[t]he purpose of enforcing the written requirement is to avoid uncertainty about the pretrial ruling reserved for appeal and to assure that all parties and the court had agreed.” Id. at 157 (citing Demus, 710 A.2d at 859). There, the defendant's plea agreement did not include a written reservation specifying the adverse pretrial ruling, but we determined that the purpose of the requirement that the reservation be in writing was met because the “transcript show[ed] clearly that all parties agreed that the plea was conditional and that the suppression issue was the only issue reserved.” Id. at 158. Similarly, in In re Peak, the appellant entered a conditional guilty plea reserving “her right to appeal the legal issues to date,” which was signed by her, her counsel, the private prosecutor,⁹ and the trial judge. 759 A.2d at 616. We determined that the conditional plea was effective to preserve challenges to all the adverse pretrial rulings, despite the general terms of the reservation, because the parties all assented to the...