Foote v. US

• Decision Date: 25 January 1996
• Docket Number: No. 94-CM-1597.,94-CM-1597.
• Citation: 670 A.2d 366
• Parties: Charlie M. FOOTE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

670 A.2d 366

Charlie M. FOOTE, Appellant, v. UNITED STATES, Appellee.

No. 94-CM-1597.

District of Columbia Court of Appeals.

Argued December 14, 1995.

Decided January 25, 1996.

H. Montee Wynn, Jr., Washington, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Cynthia D. Walicki-Chan, Assistant United States Attorneys, were on the brief, Washington, for appellee.

Before TERRY, SCHWELB and KING, Associate Judges.

SCHWELB, Associate Judge:

Following a bench trial, Charlie M. Foote was convicted of unlawful possession of cocaine¹ and of possession of drug paraphernalia with intent to use (PDP).² On appeal, he contends, inter alia, that the trial judge erred in denying his demand for a jury trial.³ We affirm.

I. BACKGROUND

On August 18, 1994, Officer Ronzelle Baker was in a marked police cruiser patrolling an area of northwest Washington, D.C. Baker observed Foote, who was on the sidewalk, display a small, clear ziplock bag to an unknown man and woman. Baker was aware that cocaine is normally packaged in ziplock bags of this kind, and the area in question is known for a high volume of unlawful drug activity. Officer Baker therefore suspected that unlawful activity might be afoot.

Upon noticing the police cruiser, Foote placed the ziplock bag inside a potato chip bag which he was holding in his left hand. Officer Baker got out of the cruiser, approached Foote, and grabbed Foote's left hand. From Foote's hand, Baker recovered the potato chip bag, as well as a green ziplock bag containing what turned out to be cocaine residue. Inside the potato chip bag, Baker found a clear ziplock bag, presumably the one which Foote had been displaying when Baker first observed him. The clear ziplock bag contained several rocks of crack cocaine. Foote was arrested, and a search incident to his arrest resulted in the recovery from his person of drug paraphernalia (specifically two crack pipes).

Foote was charged by information with two misdemeanor offenses, namely unlawful possession of cocaine and PDP. Foote's attorney moved unsuccessfully to suppress the cocaine and paraphernalia. See note 3, supra. Foote also demanded a jury trial on the cocaine possession count, but the trial judge denied the motion. At the conclusion of a non-jury trial, the judge convicted Foote of both charged offenses and imposed an aggregate sentence of incarceration for 180 days. This appeal followed.

II. FOOTE'S RIGHT TO A JURY TRIAL

On appeal, Foote presents three separate theories in support of his claim that he was entitled to a jury trial. We conclude that none of them has merit.

A. Aggregation.

Foote argues that his demand for a jury trial should have been granted because the aggregate maximum period of incarceration for the offenses with which he was charged exceeds 180 days. He points out that a defendant charged with a single offense for which such punishment is authorized has a constitutional right to a jury trial. See, e.g., Blanton v. City of N. Las Vegas, 489 U.S. 538, 542, 109 S.Ct. 1289, 1292-93, 103 L.Ed.2d 550 (1989). Foote asserts that there is no principled distinction in this regard between his own case and Blanton. Cf. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974).

Defense counsel explicitly advised the trial judge, however, that he was not making the "aggregation" argument which Foote now seeks to present on appeal. Accordingly, even if we assume without deciding that the issue is properly before us at all, cf. Byrd v. United States, 502 A.2d 451, 453 (D.C.1985), our review is for "plain error." Under that standard, Foote must establish that by failing, on his own initiative, to apply the aggregation principle, the judge made a "plain" or "obvious" error, see United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993), and that this error resulted in a miscarriage of justice. Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc). Foote has made no such showing.

The aggregation issue is presently before this court, sitting en banc, in Burgess v. United States, No. 95-CM-1352 (argued Nov. 2, 1995). At the time the trial judge ruled on Foote's jury demand, however, the issue had been resolved in this jurisdiction squarely against Foote's position. See authorities cited in Foster v. Canan, 661 A.2d 636 (D.C.1995) (per curiam). The trial judge was without authority to overrule binding appellate precedent, and his failure to do so was not plain error.

Moreover, the courts of other jurisdictions are sharply divided on the question whether a defendant in Foote's position is constitutionally entitled to a jury trial. Compare United States v. Lewis, 65 F.3d 252 (2d Cir.), petition for cert. filed, No. 95-6465 (U.S. Oct. 20, 1995), with United States v. Coppins, 953 F.2d 86 (4th Cir.1991). Under these circumstances, the judge's failure to conclude, sua sponte, that Foote was entitled to a jury trial because the aggregate incarceration for the two charged offenses exceeded 180 days was not "obviously" wrong, there was no miscarriage of justice, and there was no plain error.

B. The Legislative History of the Misdemeanor Streamlining Act.

Foote also relies on the history of the Misdemeanor Streamlining Act of 1994 (MSA),⁴ in which the Council reduced to 180 days the maximum period of incarceration for many misdemeanor offenses. According to Foote, the legislative history establishes that the MSA did not represent a judgment by the Council that the streamlined offenses were "petty" rather than "serious." Cf. Blanton, supra, 489 U.S. at 543, 109 S.Ct. at 1293. Foote contends, on the contrary, that the MSAa constitutes a "naked attempt to eliminate the right to trial by jury." In support of this thesis, Foote points to various statements in the MSA's legislative history to the effect that its purpose was to reduce the length of sentences for various crimes to make them non-jury demandable, see, e.g., COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 10-98, at 3 (Jan. 26, 1994), and that its practical effect would not be to reduce the punishment actually meted out to misdemeanants.

The government argues that Foote's contentions with respect to the history of the MSA were not raised in the trial court, and that the issues raised on appeal in that regard are therefore subject to review only for plain error. In response, Foote relies on a very vague allusion to the issue in his oral argument to the trial court⁵ and on an even more oblique comment in his written "Jury Demand."⁶ But even if we assume, without deciding, that Foote has adequately preserved the issue for review — a questionable assumption at best — his claim must fail on the merits, for this court rejected an almost identical argument in Stevenson v. District of Columbia, 562 A.2d 622, 623 n. 1 (D.C.1989) (per curiam). We conclude that Stevenson is controlling.

C. Collateral Penalties.

Foote next contends that the legislature⁷ has "packed" the offenses of unlawful drug possession and PDP with penalties, other than incarceration, which are so severe that these offenses cannot be "petty" for purposes of the Sixth Amendment's guarantee of the right to jury trial. He asserts that persons who unlawfully possess a controlled substance are subject to residential eviction,⁸ forfeiture of assets,⁹ revocation of driving privileges,¹⁰ exclusion or deportation from the United States,¹¹ ineligibility for federal benefits,¹² and enhanced periods of incarceration for repeat offenders.¹³

Foote brought some, but not all, of these statutes to the attention of the trial court. His counsel wrote in his jury demand that

the existence of other statutory penalties — such as the forfeiture provisions of 33 D.C.Code 552(a) — reflects a legislative determination that possession of cocaine is a serious offense. Citing Blanton.

During the pretrial hearing, Foote's attorney stated that

other people in this jurisdiction if they're convicted of simple possession can be ... denied housing benefits, can be kicked out of their federally financed housing, ... can be denied the right to a driver's license.

The government contends that, where any specific statutory provision on which Foote now relies was not individually brought to the trial judge's attention, the plain error standard applies with respect to Foote's argument based on that provision. We discern potential merit in the government's position, for it is unreasonable to expect the trial judge to search the many volumes of the District of Columbia Code (and, perhaps, of the United States Code too) for provisions relevant to Foote's contentions. Foote responds, however, that because he identified in the trial court the basic issue he now presents on appeal, and because he "created a record" of additional statutory penalties, "the plain error standard is the incorrect one to apply." We need not conclusively resolve the applicability vel non of the plain error doctrine,¹⁴ because even if we assume that Foote sufficiently preserved for review the issue of collateral penalties, and even if we therefore consider all of the statutes cited to this court as part of our de novo review of the trial judge's legal conclusions, Foote's substantive contentions must fail.

In Blanton, the Supreme Court considered the question whether a person charged under Nevada law with driving under the influence of alcohol (DUI) was entitled to a jury trial. 489 U.S. at 539, 109 S.Ct. at 1291. The maximum penalty for DUI was imprisonment for six months¹⁵ and a $1,000 fine. The Nevada statute also required the automatic suspension of a convicted defendant's driver's license for 90 days. Repeat offenders were subject to increased penalties. Id. at 539-40, 109 S.Ct. at 1291-92.

The Supreme Court held that the defendants were not entitled to a jury trial. Id. at 539, 109 S.Ct. at...