Lowery v. United States, No. 06-CM-1195.

• Decision Date: 09 September 2010
• Docket Number: No. 06-CM-1195.
• Citation: 3 A.3d 1169
• Parties: Samuel C. LOWERY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

3 A.3d 1169

Samuel C. LOWERY, Appellant,

v.UNITED STATES, Appellee.

No. 06-CM-1195.

District of Columbia Court of Appeals.

Argued Oct. 27, 2009.

Decided Sept. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Enid Hinkes, appointed by the court, for appellant.

Bridget Fitzpatrick, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time, Roy W. McLeese III, Assistant United States Attorney, Florence Pan, Assistant United States Attorney at the time, and Jennifer A. Kerkhoff and Elizabeth Gabriel, Assistant United States Attorneys, were on the brief, for appellee.

Christine A. Monta, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief amicus curiae, in support of appellant.

Before GLICKMAN, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

FISHER, Associate Judge:

Appellant Samuel Lowery was convicted of one count of attempted possession of an unregistered firearm, D.C.Code §§ 7-2502.01(a), 22-1803 (2001), after Deputy U.S. Marshals found a handgun in the apartment where he was staying. He argues, for the first time on appeal, that this application of the District of Columbia's pre- Heller firearms law was unconstitutional as applied to him. See District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). He also maintains that a statement he made to a deputy marshal should have been suppressed. Unpersuaded by his arguments, we affirm.

I. Background

Appellant lived in an apartment in Southeast D.C. that was rented by Kenny Goodin, who fell behind on the rent. On June 13, 2006, eight deputy marshals went to the apartment to evict Mr. Goodin. When the deputies entered, they found only appellant and had him sit on a sofa, but did not handcuff him or draw their weapons, while they searched the apartment for safety reasons. In the one room that had a bed, a deputy found a handgun under the mattress. The deputy asked appellant if the gun was his. Appellant responded that he “ha[d] held the gun but he had never shot it, and it wasn't his.” The deputies also found appellant's clothes and identification near the bed and, in the kitchen, a signed note from appellant to the landlord stating that appellant had been taking care of the apartment. Concluding that appellant was the sole occupant and that the pistol was his, the deputy arrested appellant.

Appellant moved to suppress his statement, alleging that he was in custody while seated in the living room and that the statement was the product of an un- Mirandized custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied the motion, concluding that the deputy marshals had a right to search the premises both for safety and inventory purposes, and finding that appellant was not in custody when he made the statement. After a bench trial, the court found that appellant knowingly, intentionally, and voluntarily possessed the handgun, having found constructive possession based on the statement to the deputy, evidence that appellant occupied the bedroom, and the note to the landlord. The court also found, based on a Certificate of No Record of Firearms Registration, that appellant had not registered the handgun. Finding that all of the elements of the offense had been proven, the court found appellant guilty beyond a reasonable doubt.

II. The Second Amendment Claim

A. Plain Error Review

1. Allocation of the Burden of Persuasion

When an appellant presents an issue which he did not raise in the trial court, we review, if at all, for plain error, ¹ whether the alleged error is non-constitutional or constitutional in nature.

Simmons v. United States, 940 A.2d 1014, 1022 (D.C.2008) (non-constitutional error); Moore v. United States, 927 A.2d 1040, 1060-61 (D.C.2007) (constitutional error). “Under the test for plain error, appellant first must show (1) ‘error,’ (2) that is ‘plain,’ and (3) that affected appellant's ‘substantial rights.’ Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” In re D.B., 947 A.2d 443, 450 (D.C.2008) (quoting Thomas v. United States, 914 A.2d 1, 8 (D.C.2006)) (quotation marks and citations omitted); see United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This “ ‘is and should be, a formidable’ ” burden. Comford v. United States, 947 A.2d 1181, 1189 (D.C.2008) (quoting (Kevin) Hunter v. United States, 606 A.2d 139, 144 (D.C.1992)).

“[P]lacing the burden on the appellant is one of the essential characteristics distinguishing plain error from harmless error.” United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir.2005). Thus, appellant bears the burden of persuasion on each of the four prongs of the plain error standard. Samad v. United States, 812 A.2d 226, 230 (D.C.2002). First, appellant must show error. McCullough v. United States, 827 A.2d 48, 55 (D.C.2003) (“appellant bears the burden of first establishing ... a deviation from the legal rule”). Second, appellant must show plain error. Comford, 947 A.2d at 1189 (“appellant must demonstrate ... that the error was ‘clear’ or ‘obvious' ” (citation omitted)). Third, appellant must show prejudice. United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (“[T]he defendant who sat silent at trial has the burden to show that his ‘substantial rights' were affected.”); Olano, 507 U.S. at 734, 113 S.Ct. 1770 (on plain error review “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.”); Duvall v. United States, 975 A.2d 839, 847 n. 9 (D.C.2009) (“[T]he appellant bears the burden ... to show that the alleged error affected his substantial rights.”). And fourth, “we will not reverse unless the defendant makes the additional showing of either a miscarriage of justice, that is, actual innocence; or that the trial court's error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” Mozee v. United States, 963 A.2d 151, 159 (D.C.2009) (quotation marks and citation omitted) (quoting, inter alia, Olano, 507 U.S. at 736, 113 S.Ct. 1770).

Moreover, it is inherent in the nature of plain error review that appellant must make that showing based on the record on appeal: “ ‘[I]t is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred....’ ” In re D.M., 993 A.2d 535, 542 n. 16 (D.C.2010) (quoting Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982)); see also Comford, 947 A.2d at 1190 (“Appellant has not attempted the ‘formidable’ task of showing plain error, and we do not find it on the present record.”); (Terrance) Johnson v. United States, 840 A.2d 1277, 1281 (D.C.2004) (affirming after review for plain error because appellant “failed to show that any prejudice flowed from that error, and we can discern none from the record.”); Bellamy v. United States, 810 A.2d 401, 406 & n. 7 (D.C.2002) (applying Cobb and finding no plain error).

“The import of a silent record depends on which party bears the burden of production and persuasion on this question.” United States v. Williams, 559 F.3d 607, 611 (7th Cir.2009). “If the standard is plain error, ... then it is [the appellant] who bears the burden of production and persuasion, ... and a silent record works to his detriment.” Id. See, e.g., United States v. Dorman, 488 F.3d 936, 943 (11th Cir.2007) (“On this record, Dorman cannot satisfy his burden to establish a due-process error, let alone a plain error.”); United States v. Petrozziello, 548 F.2d 20, 22 (1st Cir.1977) ( “We cannot find plain error on this silent record.”), abrogation on other grounds recognized in United States v. Goldberg, 105 F.3d 770, 775-76 (1st Cir.1997).

In Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Supreme Court applied the plain error standard to a situation like this “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal....” Id. at 468, 117 S.Ct. 1544; see (Lydia) Clarke v. United States, 943 A.2d 555, 556 (D.C.2008). In these circumstances, Johnson held, “it is enough [to satisfy the second prong of the plain error standard] that an error be ‘plain’ at the time of appellate consideration.” Id. at 468, 117 S.Ct. 1544. But Johnson did not shift the burden of persuasion-on plain error review appellant still must establish all four prongs. See, e.g., Little v. United States, 989 A.2d 1096, 1100-01 (D.C.2010) (“Appellant does not demonstrate [post- Heller ] that the constitutional error is ‘plain’ as the CPWL, UF, and UA laws pertain to his conduct.”); Howerton v. United States, 964 A.2d 1282, 1288 (D.C.2009) ( “It ... is not plain [post- Heller ], ... either that the particular statutes under which appellant was prosecuted and convicted [including the UF statute] are facially unconstitutional or that these statutes have been invalidated.”); Thomas, 914 A.2d at 5, 8 (although Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), “dramatically transformed Confrontation Clause jurisprudence” which applied at the time of trial, “appellant must show” the four prongs of plain error).

2. The Viola Exception

This allocation of the burden of persuasion on plain error review is the rule in the District and in the federal circuits-with one exception of uncertain authority. After Olano, but prior to Johnson, the Second Circuit held that where “the source of plain error is a supervening decision,” the government should bear the burden of showing a lack of prejudice to the defendant. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), abrogation on other grounds recognized in United States v. Zichettello, 208 F.3d 72, 99 n. 13 (2d Cir.2000). This “modified plain error rule”...