Johnson v. United States, No. 02-CF-742 (D.C. 1/15/2004)
| Decision Date | 15 January 2004 |
| Docket Number | No. 02-CF-742,02-CF-742 |
| Parties | TERRANCE A. JOHNSON, Appellant, v. UNITED STATES, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the Superior Court of the District of Columbia, Criminal Division, (F-12002-94), (Hon. Nan R. Shuker, Trial Judge).
Axel Kleiboemer, appointed by the court, for appellant.
Jessie K. Liu, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Ronald W. Sharpe, Assistant United States Attorneys, were on the brief, for appellee.
Before STEADMAN, REID, and WASHINGTON, Associate Judges.
After a jury trial, appellant Terrance A. Johnson ("Johnson") was convicted of carrying a pistol without a license ("CPWL"),1 possession of an unregistered firearm,2 and unlawful possession of ammunition.3 On appeal, Johnson contends that the trial court erred when it: 1) instructed the jury that it could find Johnson guilty of CPWL if it found that he had constructive possession of the weapon, 2) maintained a jury note screening procedure that deprived Johnson of the right to be present during all stages of the trial, 3) failed to poll and instruct the jury when it indicated an inability to reach a unanimous verdict, and 4) sentenced Johnson for CPWL in excess of the statutory scheme. Finally, Johnson alleges the Clerk of the Superior Court's failure to process his notice of appeal for five years is a denial of his due process rights. Although most of the issues in this appeal can be addressed summarily, two issues — the procedure for screening jury notes and the legality of Johnson's sentence — require greater discussion. We remand Johnson's sentence for the CPWL conviction to the trial court for resentencing in a manner consistent with this opinion, but otherwise affirm his conviction in all respects.
Johnson was arrested on December 7, 1994 in an alley near the 1000 block of E and F Streets, Northwest, in Washington, D.C. Jorge Benitez, who worked in the neighborhood, testified that he saw Johnson park his car in an alley, pull a gun from underneath the driver's seat, and hide it under his coat. Benitez then saw Johnson leave his car in the alley and walk away. Benitez alerted the police and described Johnson to officers, who set up surveillance of the car and broadcast a lookout for an African American man wearing a leather jacket. Approximately thirty to forty minutes later, Johnson came back to the alley with three individuals. At that point, officers approached the group and ordered them to stop at the rear of the car. Every person complied except Johnson, who got into the car, "slid from the driver's side of the vehicle approximately halfway between the driver's seat and the passenger's seat," reached into his jacket, and ducked down.
Police then apprehended Johnson, searched his car, and recovered a .32 caliber Colt automatic handgun loaded with four bullets. Testimony revealed that during the surveillance, no other individuals had approached the car, and none of the other individuals with Johnson was wearing a leather jacket. Johnson was charged with CPWL, possession of an unregistered firearm, and unlawful possession of ammunition. After a jury trial, Johnson was found guilty on all three charges.
At the close of evidence, the trial court instructed the jury that it could find Johnson guilty of CPWL based on either an actual or constructive possession theory. To find Johnson guilty of CPWL under a constructive possession theory, the trial court instructed the jury that it must find that Johnson "knowingly ha[d] both the power and the intent at a given time to control [the weapon]," and that the weapon was "convenient of access to the defendant" and "within his reach." During deliberations, the jury expressed some confusion about the difference between CPWL and possession of an unregistered firearm. In response, the trial court called the jury back into the courtroom and reinstructed the jury on actual and constructive possession. The court informed the jury that the elements of constructive possession for possession of an unregistered firearm and CPWL were different. Whereas a defendant could be found guilty of possession of an unregistered firearm under a constructive possession theory by knowingly having "both the power and the intent at a given time to control it by himself or herself or through another person," the court stated that more was needed for CPWL. The court emphasized that in order for the defendant to be found guilty of CPWL under a constructive possession theory, the jury must find that the defendant not only had constructive possession of the weapon, but that the weapon was conveniently accessible to and within reach of the defendant. The court then gave examples of the difference between the two charges. Johnson contends that the trial court's instructions confused the jury, and prompted it to return a verdict of guilty on this charge.
Although it is a close question whether Johnson properly preserved this issue for appeal, we find that he sufficiently challenged the trial court's inclusion of the constructive possession instruction. We, therefore, review the trial court's instructions for abuse of discretion. See Tyler v. United States, 495 A.2d 1180, 1183 (D.C. 1985) ().
We see no error in the trial court's instructions. In fact, the trial court correctly stated the law with respect to a CPWL conviction based on a constructive possession theory. See White v. United States, 714 A.2d 115, 119 (D.C. 1998). Although Johnson argues that the jury was somehow confused, there is no record support for his contention. Once the jury was reinstructed, there were no further notes sent to the court indicating any confusion. Because there is no factual support for Johnson's contention that the jury was confused, and because a jury is presumed to follow the trial court's instructions, we find no basis to disturb the jury's verdict. See McCoy v. United States, 760 A.2d 164, 186 (D.C. 2000).
Johnson argues that the trial court's screening procedure for jury notes "flawed the entire proceedings below" and coerced the jury's verdict.4 Specifically, Johnson refers to the manner in which the trial court handled a note it received from the jury on May 14, 1997. The note was never provided to the court or the parties because the clerk returned the note to the jury after reviewing its contents. The court had previously instructed the courtroom clerk to screen all notes from the jury to determine whether the notes contained inappropriate information concerning the jury's numerical division on the defendant's guilt or innocence. The clerk was apparently instructed to return such a note to the jury and inform the jury that the court could not read the note. On May 14, the clerk apparently received such a note and returned it to the jury with the court's message. The court neither allowed counsel to read the note nor read the note itself. The court, however, did inform the parties that a note had been sent that contained information inappropriate for the court to know. The courtroom clerk informed the court and the parties that other than the inappropriate information, the note also contained the jury's request to go home at that point and to continue deliberating the following Monday. The court and parties then discussed how to proceed in light of the jury's note. Although Johnson conceded at oral argument that the note most likely contained polling information indicating the jury's numerical division, he argues that the court's screening procedure denied him his right to be present during all stages of the trial.5 See Super. Ct. Crim. R. 43 ("Rule 43").
Because Johnson failed to challenge the trial court's screening process at trial, we review this issue for plain error. See Jones v. United States, 813 A.2d 220, 223 (D.C. 2002). "The error must be (1) `obvious or readily apparent,' and `clear under current law'; and (2) `so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Hasty v. United States, 669 A.2d 127, 134 (D.C. 1995) (quoting Foreman v. United States, 633 A.2d 792, 795 (D.C. 1993)).
Upon review of the record, we do not find that plain error resulted from the trial court's jury note screening procedure. Even assuming that the court's failure to provide the May 14 note to counsel was an error of law, the error was not "so clearly prejudicial to substantial rights" as to jeopardize the fairness of the trial. Hasty, 669 A.2d at 134.
Johnson relies on Smith v. United States, 542 A.2d 823 (D.C. 1988), for the proposition that the court's failure to disclose the May 14 note deprived him of the right to be present at all stages of the trial and requires reversal of his conviction in this case. Although we held in Smith that the court's failure to inform the defendant of the jury note (that indicated a numerical split among the jurors) was error, our decision to reverse the judgment in that case was based on the prejudice we perceived Smith to have suffered because of the court's subsequent action. In Smith, we held that it was conceivable that the court's failure to inform the jury that it had not read its note before delivering a Winters6 anti-deadlock instruction would lead the jurors in the minority to believe that the instruction was aimed at them, thus resulting in a coerced verdict. Nothing in Smith suggests, however, that absent the court's actions in response to the note, we would have reversed the judgment in that case.
Similarly, in Foster v. George Wash. Univ. Med. Ctr., 738 A.2d 791 (D.C. 1999), a civil...
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