Carry v. United States

• Decision Date: 01 August 1977
• Docket Number: No. 8816.,8816.
• Citation: 377 A.2d 40
• Parties: Robert A. CAREY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

377 A.2d 40

Robert A. CAREY, Appellant, v. UNITED STATES, Appellee.

No. 8816.

District of Columbia Court of Appeals.

Argued March 9, 1976.

Decided August 1, 1977.

Linda Kay Davis, Public Defender Service, Washington, D. C., for appellant; Frederick H. Weisberg, Public Defender Service, Washington, D. C., also entered an appearance.

Timothy J. Reardon, III, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. McMullin, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, YEAGLEY and MACK, Associate Judges.

NEBEKER, Associate Judge:

Appellant was convicted after a jury trial of one count of carrying a pistol without a license, in violation of D.C.Code 1973, § 22-3204. On appeal, he argues that the trial court erred in (1) refusing to instruct the jury on the defense of innocent possession, and (2) denying the motion to suppress the gun seized from him by the police. We affirm the judgment of conviction.

I.

At about 3:10 p. m. on the day in question, two men entered a laundry establishment and robbed two women. A third man remained outside. When they fled, a report of the offense was made and an initial police radio broadcast, a "tentative lookout flash", ensued. Police in vehicles came to the scene. Among them was an Officer Galante, but he was not the first on the scene because he testified that he saw two "old clothes tac" officers leaving when he arrived at 3:20 p. m. Officer Galante was the only officer who responded to the scene to testify at the suppression motion hearing.

Officer Galante got a description of the suspects from one of the women, but neither he nor his partner broadcast it. It took about fifteen or twenty minutes — that is, until 3:35 or 3:40 p. m. — for him to get that description as the women were "pretty hysterical." It is this description which forms the fulcrum for appellant's challenge to the lawfulness of his arrest. He contended at the hearing on the motion, and does so on appeal, that it established that an earlier broadcast description was sufficiently inaccurate to invalidate his arrest. He also contends that he and his two companions did not sufficiently match the description received to permit their arrest.

The description given Officer Galante was:

Subject number one was a Negro male, thin, medium complexion, wearing a green nylon ski jacket; subject number two was a Negro male, six foot, medium complexion, wearing dark brown three-quarter length coat. No further description.

The woman was unable to describe a third suspect.

Meanwhile, two other officers were cruising in an area a few blocks from the scene. At 3:23 p. m. they received a broadcast description respecting this robbery. According to a transcription of this broadcast, the description was for

number one Negro male armed with a hand gun and in a green jacket . . . Number two Negro male 18 to 19 5 foot 8 light brown complexion dark troussers [sic] plaid shirt, number three Negro male brown complected ¾ beige coat mustach [sic] last seen from Sheriff towards Eastern 1523. . . . [3:23 p. m.]

The officers began looking for such a group and within fifteen minutes they observed appellant and his companions walking away from the reported scene. They were about seven blocks in distance from that address. They were the only group of three seen as described and they fit the description broadcast.

Appellant was wearing a green army field jacket which was closed. One of his companions also wore a green army field jacket which was open, revealing a multicolored shirt; the third wore a corduroy "medium to dark" brown or tan three-quarter length coat. All three men wore dark pants and had mustaches. One officer testified that they appeared to be "20 to 21, possibly 22" years old. When asked if they did not appear to be "much older than [18 to 19]," he responded, "Not too much, to me. . . ." The other officer was not questioned about the apparent ages of the three, contrary to Appellant's Brief, at 4 & 31. Rather, the thrust of the questions put to him was as to their actual ages. As to age, the topic was ended with, "Isn't it in fact true they were substantially older than that [19 or 20]?" That officer responded, "I'd say they would be about 24." As appellant notes in his brief (at 4, n. 7), he was then 24 years old.

The officers approached the three men, identified themselves, and told them of the reported robbery. Appellant had his hands in his pockets and he was told to remove them. As appellant was being frisked, his right arm stiffened and it had to be forced aside in order for the officer to continue the frisk. The officer felt what he thought to be a gun in the right front pocket of appellant's coat. A search into the pocket revealed a loaded .22-caliber derringer. Appellant explained that he had just found the gun in his recently burglarized apartment and that he was going to the police station to turn it in and report the burglary. The three were then transported to the scene of the robbery where the victims reported that they were not the ones who committed the robbery. Appellant was then charged with carrying a pistol without a license (D.C. Code 1973, § 22-3204).

Appellant argued in a motion to suppress evidence that the search was incident either to an arrest made without probable cause, or to a stop and frisk when the police officers had no reasonable grounds for believing appellant was engaged in criminal activity. The motion was denied by an order, in which the trial court found that the three men substantially matched the description of the robbery suspects given on the police radio run, and that a limited search for weapons was justified based on the report that one of the suspects was armed. After a jury trial, appellant was found guilty of illegally carrying the pistol and was subsequently sentenced to two-to-ten years' imprisonment. The sentence was suspended and appellant was placed on probation for five years. This appeal followed.

II.

Appellant's request for an instruction on "innocent possession"¹ was based upon his trial testimony, substantially corroborated by his two companions and his wife, as to events beginning late on the evening of November 26, 1973. At that time, appellant, with the help of his two friends, began the task of moving his family and their possessions from his apartment to his father's home. Leaving appellant's wife and children at his father's home, the three men returned to the apartment building at about 1:30 a. m. Approaching the building, appellant heard a noise "like a door slamming" and noticed that the lights in his first-floor apartment were on and the door was ajar. He had turned off the lights and locked the door when leaving the apartment. Appellant could not immediately ascertain whether any possessions were missing, since the apartment was in disarray and he was not certain about what had already been moved. He did notice that the television and the stereo component set were not in the apartment. He called his wife (from an outside public pay phone) and ascertained that she had the TV but not the stereo set. Searching among the boxes for the component set, he came upon a brown paper bag on top of one of the boxes. Inside the bag was a loaded pistol which he showed to his friends. His friends left the apartment for the night but appellant slept there. It was then approximately 2 a. m., November 27th.

Upon returning to appellant's apartment some time before noon on the 27th, appellant's friends found that appellant still had the gun and had not yet reported the burglary or the gun to the police. Appellant testified that he was considering keeping the gun. After a discussion in which his friends reminded him of his probationary status and that it was illegal for him to have a gun, appellant decided to give the gun to the police. He and his companions testified that they left the apartment at about 3 p. m. and were enroute to the precinct to turn in the gun and report the burglary when they were stopped by the police.

The trial court ruled that the defense of innocent possession was not available as a matter of law upon the facts of this case. This ruling stemmed from the court's conclusion that even if the jury completely credited the testimony of appellant and his witnesses, all of whom claimed appellant was carrying the gun on the street for the sole purpose of turning it in at the nearest police station, the defense was not available to appellant because he had admittedly found the gun in his apartment and not on the street, and because he thereafter intentionally carried the gun on the street. The trial court said that there might be instances where a special instruction should be given, but ruled this was not such a case.

We note at the outset that D.C.Code 1973, § 22-3204, is a statute of general intent, and that proof of intent to use a weapon for an unlawful purpose is not an element of the crime. Mitchell v. United States, D.C.App., 302 A.2d 216, 217 (1973). We note further that exceptions to this construction are limited. One exception which has been recognized is possession for self-defense. Id. See also Wilson v. United States, 91 U.S.App.D.C. 135, 136, 198 F.2d 299, 300 (1952).

Appellant would assert another defense, that of innocent possession. The possibility of such a defense was acknowledged by this court in Mitchell v. United States, supra at 218, and discussed at some length in Hines v. United States, D.C.App., 326 A.2d 247 (1974).² Hines held that the defendant was not entitled to a jury instruction as to the defense of innocent or momentary possession where his admitted purpose in carrying an allegedly newfound pistol was to show it to his girlfriend. The court implied that it might have reached a different result had appellant's asserted purpose been civic minded and with an intent to aid law enforcement, e. g., where a "pistol was picked...