Clyburn v. United States

• Decision Date: 28 June 2012
• Docket Number: 09–CF–1173.,Nos. 09–CF–1165,s. 09–CF–1165
• Citation: 48 A.3d 147
• Parties: Jaroki E. CLYBURN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

48 A.3d 147

Jaroki E. CLYBURN, Appellant,

v.UNITED STATES, Appellee.

Nos. 09–CF–1165, 09–CF–1173.

District of Columbia Court of Appeals.

Argued Nov. 8, 2011.

Decided June 28, 2012.

Sloan S.J. Johnston, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Andrea Hertzfeld, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III and Lindsey Suttenberg, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.^*

REID, Senior Judge:

A jury convicted appellant, Jaroki E. Clyburn, of multiple drug and weapons violations, including unlawful possession with intent to distribute a controlled substance (cocaine) while armed (“PWIDWA”), in violation of D.C.Code §§ 48–904.01(a) and 22–4502(a) (2001). Mr. Clyburn contends that the evidence was insufficient to permit imposition of the enhancement penalty found in D.C.Code § 22–4502(a),¹ because the government's evidencefailed to prove beyond a reasonable doubt that he was armed with or had a firearm “readily available.” We are constrained to agree, and we reverse Mr. Clyburn's PWIDWA conviction and remand his case to the trial court, with instructions to enter judgment of conviction on the lesser-included offense of (unarmed) PWID, and to re-sentence him.²

FACTUAL SUMMARY

The government presented evidence showing that on the evening of October 27, 2006, an undercover officer of the Metropolitan Police Department (“MPD”), Marvin Washington, was part of a buy-bust operation, in the Northeast quadrant of the District of Columbia. Officer Washington approached a man in the 1600 block of Montello Avenue and asked for a “smoke,” meaning crack cocaine. The man walked with Officer Washington to the 1100 block of Queen Street. After telling Officer Washington to wait, the man proceeded to the front door of an apartment building. Someone, who later was identified as Mr. Clyburn, exited the apartment building. Officer Washington gave Mr. Clyburn $40.00 in pre-recorded funds, and in exchange, Mr. Clyburn handed the officer a “tan rock substance.” Mr. Clyburn returned to the apartment building, and specifically to Apartment No. 1. Officer Washington's undercover partner, who was on the other side of Queen Street, observed the transaction and alerted members of the arrest team.

MPD Officer James Boteler was a member of the arrest team for the buy-bust operation. Upon receiving the lookout broadcast, he proceeded to the four-unit, two-story apartment building from which Mr. Clyburn exited during the drug transaction with Officer Washington. Officer Boteler entered the building, noticed that the door to Apartment No. 1 “was opening,” and he realized that the man in the doorway matched the description given by the lookout broadcast. Officer Boteler grabbed Mr. Clyburn's arm and was pulled into the apartment as Mr. Clyburn sought to return to his apartment. The officer placed handcuffs on Mr. Clyburn and another officer took charge of him.

Officer Boteler described the layout of Mr. Clyburn's apartment. The living room, which was immediately inside the front door, contained an L-shaped couch, a coffee table and a book shelf. The living room “opened up” into a dining area with a large fish tank and a dining room table. The dining area, which “also acted as a hallway, ..., led to a kitchen and then kind of a storage area behind that.” The bathroom and a bedroom with a bed and a closet were off to the left.

To make sure no other people were in the apartment, Officer Boteler conducted a protective sweep by walking through each room and calling out, “Police. Anybody in here?” The officer passed through the living room where he had handcuffed Mr. Clyburn, and proceeded to the dining room/hallway area, continued to the kitchen and a storage area, back tracked past a bathroom, and entered the bedroom. He looked under the bed “to make sure nobody was hiding under the bed.” He noticed a “large black-colored assault rifle.” Upon seeing a closed closet door, he drew his weapon, and again called out, “Police.” He opened the closet door and on the shelf he observed a live ammunition clip belonging to an assault rifle. He decided to obtain an emergency search warrant, and he asked other officers to secure the apartment. On cross-examination, Officer Boteler acknowledged that he never saw Mr. Clyburn touch the assault rifle or the ammunition that was seized from the apartment.

After Officer Boteler returned to the apartment with the search warrant, MPD Officer Edward Hansohn, another member of the arrest team, removed a Comcast bill bearing Mr. Clyburn's name, from the dining room table, the loaded assault rifle from underneath the bed, and the ammunition clip from the closet. In addition, he seized empty Ziploc bags and numerous disposable gloves. Officer Boteler retrieved identification cards from the bedroom which bore Mr. Clyburn's name. MPD Officer Walter Gilmore, yet another member of the arrest team, took from a table in the apartment two grams of a white rock-like substance, a razor blade, glass plate and two Ziploc bags, all with white residue. The government stated in closing argument that these items were found in the kitchen. MPD Investigator James Tyler testified that he and another officer found $116.00, including the $40.00 in pre-recorded funds, on the coffee table in the living room.

The government's expert witness, Detective George Thomas, was not familiar with the facts of Mr. Clyburn's case. His testimony concentrated, in part, on the distribution and packaging of narcotics, including “the manner in which narcotic dealers distribute narcotics in the District of Columbia and the pricing.” Detective Thomas did not discuss the connection between gun possession and a drug transaction.

At the close of the government's case, defense counsel moved for judgment of acquittal on all counts, especially the PWIDWA charge. The trial court denied the motion, essentially on the grounds that a reasonable trier of fact could conclude that Mr. Clyburn owned the assault rifle, or that it was “in his possession or under his control” because the government's evidence established that the apartment belonged to Mr. Clyburn, “he was the sole occupant,” and the assault rifle “was lying under the bed.” Therefore, “the evidence and the circumstances indicate that [jurors] can conclude [the rifle] was in his possession or under his control.”

Mr. Clyburn called as his sole witness Investigator Tyler. Defense counsel sought to impeach his earlier testimony relating to Officer Washington's identification testimony.

The jury returned a guilty verdict on the PWIDWA count, as well as on the charges of unlawful distribution of cocaine, possession of a firearm during a crime of violence or dangerous offense, unlawful possession of a firearm, unlawful possession of ammunition, and failure to appear in court (Bail Reform Act violation).

ANALYSIS

With respect to his challenge to the sufficiency of the evidence relating to the enhancement penalty, Mr. Clyburn argues that under our case law, “ ‘carrying on or about’ and ‘armed with or readily available’ are equivalent concepts.” Thus, “a firearm would be readily available to an individual only in circumstances where he carried the firearm on or about his person—that is, when the firearm was ‘near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive.’ ” He maintains that in his case, “[t]he government adduced no evidence of drug possession outside of the living room area, which was just inside the front door of the apartment,” and the rifle which was in the bedroom under the bed was not “readily available.” Thus, Mr. Clyburn asserts that this court should “vacate his PWIDWA conviction, and remand to the trial court to enter judgment on the lesser-included offense of PWID and to resentence [him] accordingly.”

The government maintains that “carrying on or about the person” and “armed with or having readily available” are not equivalent concepts under our case law, and that there is only “dicta” to the contrary. Furthermore, the government argues that when the evidence is considered in the light most favorable to the government, and given justifiable inferences and the jury's right to weigh the evidence, “the evidence was sufficient to permit a reasonable jury to find that [Mr. Clyburn] had a loaded assault rifle ‘readily available’ to him under his bed only one room away from where he possessed cocaine in his one-bedroom apartment.” Therefore, the government contends, the evidence was sufficient to sustain the enhancement penalty.

Under the applicable standard of review governing a sufficiency challenge, we “view [ ] the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact.” Ball v. United States, 26 A.3d 764, 768 (D.C.2011) (quotation marks omitted and alteration in original). But, “we review the trial court's decision de novo ” where the meaning of a statutory phrase or term—here “having readily available any pistol or firearm” during “a dangerous crime”—is at issue. Tippett v. Daly, 10 A.3d 1123, 1126 (D.C.2010) (en banc).

“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.” Id. (quotation marks omitted). We examine the plain meaning of a statute first, “construing words according to their ordinary meaning.” Columbia Plaza Tenants' Ass'n v. Columbia Plaza Ltd. P'ship, 869 A.2d 329, 332 (D.C.2005). “The literal words of [a] statute, however, are not the sole index to legislative intent, but rather, are to be read in the light of the statute taken...