Brown v. U.S., No. 85-1099.

• Docket Nº: No. 85-1099.
• Citation: 542 A.2d 1231
• Case Date: May 12, 1988
• Court: Court of Appeals of Columbia District

542 A.2d 1231 Reginald BROWN, Appellant,
v.
UNITED STATES, Appellee. No. 85-1099. District of Columbia Court of Appeals. Argued April 3, 1987. Decided May 12, 1988.

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Mark Stier, Washington, D.C., for appellant.

David M. Gaouette, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell and Thomas F. McCarthy, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, TERRY and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant Reginald Brown was charged with one count of possession of marijuana and one count of possession of phencyclidine (PCP). D.C.Code § 33-541(d) (1986 Supp.). The jury returned a partial verdict finding him guilty of possessing marijuana, but before it had reached agreement on the PCP count the trial judge declared a mistrial on that count when one juror became ill. Brown seeks reversal of his conviction because the trial court failed sua sponte to give a special unanimity instruction, denied motions for a judgment of acquittal and to suppress evidence, and excluded hearsay statements and evidence of the condition of the arrest scene a week after the incident. We agree that the trial judge should have given the jury a special unanimity instruction. Scarborough v. United States, 522 A.2d 869 (D.C. 1987) (en banc). Because the error was not harmless beyond a reasonable doubt, we reverse and remand for a new trial.

Police officers observed Reginald Brown smoking a cigarette and recovered the remains

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of the cigarette immediately upon arresting him. Chemical tests found that the cigarette contained marijuana.¹ The police officers also saw Brown discard two tinfoil packets immediately before his arrest. Chemical tests found that the tinfoil packets contained marijuana sprayed with PCP. The trial judge instructed the jury: ". . . it is necessary that each juror agree to the verdict. Your verdict must be unanimous."

"The Sixth Amendment gives to a defendant the right to have his fate decided by a unanimous verdict" Owens v. United States, 497 A.2d 1086, 1092 (D.C. 1985), cert. denied, 474 U.S. 1085, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986); see also Super.Ct. Crim.R. 31(a). "There is no danger of a nonunanimous verdict when one charge encompasses only a single incident." Owens, supra, 497 A.2d at 1093. When one count of an indictment encompasses two separate incidents, however, the danger of a nonunanimous verdict arises. Derrington v. United States, 488 A.2d 1314, 1335 (D.C. 1985). In Scarborough, supra, 522 A.2d at 873, this court explained:

[T]he unanimity issue under a single count of an information or indictment does not turn only on whether separate criminal acts occurred at separate times (although in some cases it may); it turns, more fundamentally, on whether each act alleged under a single count was a separately cognizable incident — by reference to separate allegations and/or to separate defenses — whenever it occurred.

The court held that a special unanimity instruction was required in Scarborough because the defendant presented separate defenses to a single count charging receipt of different items of stolen property in a single burglary. 522 A.2d at 873. Previously the court had held that a special unanimity instruction is required when a defendant is charged in a single count with possessing different batches of a single controlled substance at the same time. See Davis v. United States, 448 A.2d 242, 244 (D.C. 1982); Hack v. United States, 445 A.2d 634, 641 (D.C. 1982).

In the instant case, the marijuana in the cigarette and in the tin foils constituted legally separate incidents to which Brown presented different defenses. The marijuana in the tinfoil packets was laced with PCP; that in the cigarette was not. Brown claimed that the government failed to prove the cigarette contained a usable amount of marijuana² and that someone else had discarded the tinfoil packets. Thus, the two batches of marijuana constituted legally separate incidents "by reference to separate defenses," Scarborough, supra, 522 A.2d at 873. Therefore,³ the trial judge should have given a special unanimity instruction informing the jury that to convict Brown of the marijuana count it had to agree unanimously either that he

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possessed the cigarette or that he possessed the tinfoil packets (or both).

In Scarborough the court distinguished between legal incidents and factual incidents. Id. at 873. Although there were separate legal incidents here, by reference to different defenses, there were not separate factual incidents because the evidence showed that Brown possessed both batches of drugs at the same time. Thus the government could not have charged Brown with more than one count of possession of marijuana because the simultaneous possession of the marijuana in the cigarette and the marijuana in the tinfoil packets constitutes only a single criminal offense. Briscoe v. United States, 528 A.2d 1243, 1246 (D.C. 1987) (batches of marijuana found at same time in kitchen and bedroom not chargeable as separate offenses). See also Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (simultaneous transportation of two women in interstate commerce for immoral purposes constitutes only one violation of the Mann Act); Cormier v. United States, 137 A.2d 212, 216-17 (D.C. 1957) (simultaneous carrying of two pistols constitutes only one offense under D.C.Code § 22-3204). Indeed, because the simultaneous possession of two separate quantities of the same controlled substance constitutes only one criminal act, there would ordinarily be no unanimity problem if some jurors believed that Brown possessed only the marijuana in the cigarette and others believed he possessed only that in the packets. See Briscoe, supra, 528 A.2d at 1246. A unanimity problem arises on the particular facts of this case because Brown asserted different defenses to the two quantities and because of the lack of a verdict on the PCP count.

The remaining question is whether the error was harmless beyond a reasonable doubt. Scarborough, supra, 522 A.2d at 873; Hack, supra, 445 A.2d at 641. Considering the error in the context of the entire trial, see Davis, supra, 448 A.2d at 243-44 (examining prosecutor's opening and closing arguments and trial court's instructions in order to determine whether lack of special unanimity instruction constituted plain error), we conclude that it was unlikely the jury unanimously agreed that all of the elements of possession of the cigarette had been proved beyond a reasonable doubt. The prosecutor and defense counsel both told the jury in their closing arguments that the remains of the cigarette did not contain a usable, amount of marijuana and, therefore, constituted insufficient evidence of possession. The relevant instruction to the jury stated only that the government had to prove "the defendant possessed some measurable amount of a controlled substance," and that the arguments of counsel were not evidence. In the absence of further clarification, all twelve jurors could hardly have ignored the prosecutor's concession on usable amount.

Similarly, we are unable to conclude that the jury unanimously agreed Brown possessed the marijuana in the tinfoil packets. The evidence showed the marijuana in the tinfoil packets was...