Hack v. United States
| Citation | 445 A.2d 634 |
| Decision Date | 06 May 1982 |
| Docket Number | No. 80-1383.,No. 80-1391.,80-1383.,80-1391. |
| Parties | Rudolph HACK, Jr., Appellant, v. UNITED STATES, Appellee. Jimmie V. OWENS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Bruce E. Coolidge, Washington, D. C., appointed by this court, for appellant Hack.
Vincent A. Jankoski, Washington, D. C., appointed by this court, for appellant Owens.
Richard A. Stanley, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Mary A. McLaughlin, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.
Before KERN, NEBEKER and BELSON, Associate Judges.
Following a jury trial, appellants were found guilty of two counts of possession of dangerous drugs (phenmetrazine and phencyclidine), D.C.Code 1973, § 33-702(a)(4), and two counts of possession of narcotics (heroin and marijuana), D.C.Code 1973, § 33-402. Each appellant contends that his conviction should be reversed on several grounds. We reverse appellant Hack's conviction for possession of phenmetrazine and heroin, and we affirm as to the other two counts against him and as to all counts against appellant Owens.
The charges against appellants Rudolph Hack, Jr., and Jimmie V. Owens arose from the series of events surrounding their arrests on the afternoon of May 6, 1980. Police officer Harold Smith, on duty in Southeast Washington with Officer Randolph Batty, observed appellant Owens standing by a car in a parking lot and conversing with its occupant. Because it appeared to Officer Smith that Owens may have been involved in a drug transaction, the two officers followed Owens in their unmarked car as he walked down the street.
Near the corner of two streets, Owens sat down on a low wall and placed a small yellow plastic bag in the grass behind him. Shortly after this, appellant Hack, who had not yet been noticed by the officers, walked behind Owens, picked up the bag, and began to examine it as he continued walking down the street. The officers then emerged from their car. When Hack noticed that Officer Batty was following him, he took several evasive steps in an apparent attempt to flee and threw the plastic bag into a storm drain.
An on-the-scene examination of the bag retrieved from the storm drain revealed eleven tinfoil packets which Officer Batty suspected to contain marijuana treated with phencyclidine ("PCP"). The officers then arrested Owens and Hack and conducted a patdown of each for weapons. A transport car arrived to drive appellants to the precinct. Appellants sat in the back seat, each handcuffed with his hands behind his back, while one officer drove and another officer rode beside him in the front seat.
After appellants left the car, one of the officers noticed a small manila envelope wedged between the seat cushions where appellant Hack had been sitting. Inside was a substance which he believed to be marijuana. The officer then pulled up the back seat, and a plastic package fell to the floor underneath the side of the seat where appellant Owens had been sitting. This package contained a plastic syringe, nine packets of white powder and nine pills.
Laboratory tests confirmed that the substance in the yellow plastic bag was marijuana sprayed with PCP, that the substance found in the manila envelope was marijuana, that the white powder in the plastic package was heroin, and the pills in the package were phenmetrazine. Each appellant was charged with four counts of possession.
Appellant Hack contends that the trial court's failure to sever the trials of the two defendants was reversible error. He attacks his conviction on the counts of possessing heroin, phenmetrazine, and PCP on grounds of insufficiency of evidence. As to the marijuana possession count, appellant maintains that the trial court committed plain error by giving instructions which permitted a non-unanimous verdict on this charge. We address each of these contentions separately.
Hack maintains that his trial was improperly joined with that of appellant Owens and that such joinder resulted in prejudice to him and therefore warranted severance. We find that it was proper to try the co-defendants together and that there was no prejudice requiring severance.
Defendants may be joined for trial where they are charged with participating "in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Super.Ct. Cr.R. 8(b). The government's evidence at trial demonstrated that Hack and Owens' possession of the PCP in the yellow plastic bag was part of a common scheme.1 Hack and Owens clearly participated in the "same series of acts or transactions" which constitute the offense of possession, and hence their joinder was proper.2
The trial court may order the severance of properly joined defendants if "it appears that a defendant or the government is prejudiced by the joinder." Super. Ct.Cr.R. 14. The appellant has an affirmative burden of proving prejudice from a failure to sever. Cunningham v. United States, D.C.App., 408 A.2d 1240, 1243 (1979); Clark v. United States, D.C.App., 367 A.2d 158, 160 (1976). Our review of the trial court's refusal to sever is limited to a determination of whether the broad discretion entrusted to it was abused. Williams v. United States, D.C.App., 382 A.2d 1 (1978); Jackson v. United States, D.C.App., 329 A.2d 782 (1974), cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 (1975).
Appellant Hack has not demonstrated any prejudice resulting from his joint trial with Owens. Hack does not allege, and has not shown, that he was harmed by any conflicting and irreconcilable defenses,3 nor has he demonstrated that evidence of his complicity in the crime was de minimis when compared to that of Owens' involvement.4 Furthermore, there is no evidence in the record that the trial court was unaware of or misapplied the legal principles governing severance. We conclude that the court did not abuse its discretion in failing to order severance.
Appellant Hack also contends that the government's proof of possession of heroin and phenmetrazine (that had been recovered from underneath the seat in the police cruiser where Owens had been seated) was insufficient to support his conviction for possession of these substances. The court may reverse on grounds of insufficiency only "if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Curley v. United States, 81 U.S.App.D.C. 389, 392-93, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). Because, there is no evidence to support such a conclusion of guilt, we reverse as to these two counts.
Possession of a forbidden substance is an essential element of the offenses of which appellant was convicted. See United States v. Staten, 189 U.S.App. D.C. 100, 104, 581 F.2d 878, 882 (1978). At trial, the government presented its case against appellants on alternative theories of actual and constructive possession. Actual possession has been defined as the ability of an individual "to knowingly exercise direct physical custody or control over the property in question," while constructive possession exists "where a person is knowingly in a position or has the right to exercise dominion and control over the item." United States v. Hubbard, D.C.App., 429 A.2d 1334, 1338 (1981).
Appellant Hack was not able to exercise direct physical control over the package containing the heroin and phenmetrazine. The government's evidence demonstrated that this package had been concealed on appellant Owens' side of the vehicle. Although the government presented evidence that it is possible that a handcuffed individual could remove something from his clothes and conceal it in a seat, the only reasonable inference from this possibility is that Owens had actual possession.
In addition, the government presented no evidence from which the jury could reasonably conclude that Hack had constructive possession of heroin and phenmetrazine. One convicted of possession must have some appreciable ability to guide the destiny of the illegal substance, United States v. Staten, supra 189 U.S.App.D.C. at 105, 581 F.2d at 883; the record reveals no evidence of such an ability. Mere presence at the scene, association with one in possession, or proximity to the drugs do not in themselves substantiate a finding of constructive possession, Id. We note that "presence, proximity, or association may establish a prima facie case of drug-possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part." Id. at 107, 581 F.2d at 885. Here, however, the jury could reasonably infer that appellants Hack and Owens were involved in a common scheme involving possession of the substance in the yellow bag, but there was no evidence indicating that possession of heroin or phenmetrazine were part of an ongoing operation involving Hack.5 The mere fact that Hack was involved in possession of PCP and marijuana does not support a finding that he knew heroin and phenmetrazine were in the package, found in the police car after both appellees had been searched, and had the right to exercise control over such drugs. Hack's conviction on counts of possession of these substances was therefore not supported by sufficient evidence and must be reversed.
Hack further contends that there was insufficient evidence for the jury to find knowing and culpable possession of PCP. He argues that his possession of the yellow plastic bag was too momentary to support a conviction, as he had physical possession for only 15 to 30 seconds. A reasonable inference from the circumstances surrounding his contact with the bag, however, is that Hack intended to have possession of the bag and would have maintained...
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