Scarborough v. United States, 84-754.

• Decision Date: 07 August 1985
• Docket Number: No. 84-754.,84-754.
• Citation: 496 A.2d 277
• Parties: Eddie M. SCARBOROUGH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

496 A.2d 277

Eddie M. SCARBOROUGH, Appellant, v. UNITED STATES, Appellee.

No. 84-754.

District of Columbia Court of Appeals.

Submitted May 9, 1985.

Decided August 7, 1985.

Appeal from Superior Court of District of Columbia; Geoffrey M. Alprin, Trial Judge.

Geoffrey D. Allen, Washington, D.C., for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, Leonard E. Birdsong, and Gerald W. Heller, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, NEWMAN and FERREN, Associate Judges.

PER CURIAM:

We affirm appellant's conviction for receiving stolen property (felony), D.C.Code § 22-2205 (1981) — as we conclude we must, see M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971) — on the basis of the second holding of Barkley v. United States, 455 A.2d 412, 415-16 (D.C.1983). However, because we find Barkley unpersuasive authority, and a majority of this division would reverse if free to do so, we express our views in the separate "concurring" opinions below.

FERREN, Associate Judge, concurring:

A jury convicted appellant of one count of receiving stolen property (felony),¹ D.C. Code § 22-2205 (1981), and the court sentenced him to a term of one to three years' imprisonment, with execution of sentence suspended during a three year period of probation. He argues on appeal that the court abused its discretion in denying his motion for a new trial. He cites the court's failure to instruct the jurors that, in order to convict under a single count of receiving two distinct classes of stolen property, they must unanimously agree on what class of items he unlawfully received.² I agree that this omission of a special unanimity instruction violated appellant's Sixth Amendment rights. Therefore, but for binding precedent that compels affirmance, I would reverse and remand for a new trial.

I

Complainant, Bradford Callahan, maintained a body shop in which he engaged in body and fender work as a hobby. On Saturday evening, November 21, 1982, Callahan locked up his shop for the weekend. When he returned Monday morning, he discovered that the locks had been cut off and that various tools and supplies had been stolen. He reported the theft to the police. He then went to see appellant, who worked as a mechanic in the neighborhood to inquire about a car that appellant had wanted him to paint. Appellant advised Callahan that he planned to try painting the car himself, and Callahan asked to see appellant's spray paint gun. Appellant showed him several spray guns, three of which Callahan recognized as his own. Two of the spray guns had Callahan's initials on them; he recognized the third by identifying certain replacement parts that he had just installed. Callahan testified that he had paid $90 for one of the guns and between $125 and $175 apiece for the other two. He further stated that, because the retail value of similar spray guns had increased since he bought his, the spray guns were currently worth more than $100 each. Appellant told Callahan that he had purchased the three spray paint guns from a man who came by the shop and did some work in the neighborhood. Callahan asked appellant to identify this man, and appellant agreed to help Callahan locate him. The search was unsuccessful, but appellant returned the spray guns to Callahan.

A few days later, Callahan spoke to Detective Vacin of the Metropolitan Police Department and told him that he had recovered the spray guns from appellant. Callahan identified appellant from some police photographs, then accompanied Vacin to a nearby garage belonging to Ms. Mazel Smith, where appellant sometimes worked. Appellant stored some of his tools there and had exclusive use of the garage. There, Callahan found a grinder which he identified as his because it had a cracked handle and two cuts in the power court. Callahan testified at trial that the grinder had a current value of at least $150.

At trial, appellant presented separate defenses as to each class of stolen property. He repeated his claim that he had purchased the spray guns in good faith from a man in the neighborhood. He asserted that he had received the grinder from Pensie Thraxton, the woman with whom he lived, who in turn had received it from her father. Appellant's defenses were supported in part by the testimony of Ms. Thraxton and others.

At the close of the evidence, the court discussed proposed instructions with counsel and announced its intention to give the standard unanimity instruction.³ Appellant's counsel neither objected to the court's proposal nor requested a special instruction, and he later advised the court that he was "satisfied" with the instructions. The court accordingly instructed the jury on the elements of the crime and added that "Mr' order to return a verdict, it is necessary that each juror agree to the verdict. Your verdicts must be unanimous."

Following the jury's verdict, appellant filed a motion for a new trial, asserting that the trial court had erred in failing to instruct the jury that it must unanimously agree on which items of Callahan's property appellant had feloniously received. Appellant argued that it would have been possible for the jury to convict under the court's instruction if, for example, six jurors had believed appellant guilty of receiving the spray guns but not the grinder while the other six had believed him guilty of receiving the grinder but not the spray guns — a nonunanimous verdict as to any of the property. The court denied this motion.

II

In arguing that the court abused its discretion in denying his new trial motion, appellant relies on the following line of cases: Johnson v. United States, 398 A.2d 354, 368 (D.C.1979); Hawkins v. United States, 434 A.2d 446, 449 (D.C.1981); Hack v. United States, 445 A.2d 634, 641 (D.C. 1982); and Davis v. United States, 448 A.2d 242, 244 (D.C.1982) (per curiam). In Hawkins, for example, we said that the Sixth Amendment requirement for a unanimous verdict⁴ requires that "[w]here one charge encompasses two separate incidents, the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty." 434 A.2d at 449 (citation omitted).⁵ Such an instruction is necessary to prevent the possibility that some jurors might vote to convict based solely on one incident while others vote to convict based solely on the other. Id. at 448-49. We have held, moreover, that the failure to give such a unanimity instruction in these circumstances is "plain error of a constitutional magnitude" requiring reversal. Id. at 449; accord Davis, 448 A.2d at 244.

Appellant acknowledges that we have rejected a similar Sixth Amendment "unanimity" claim when the charge of stealing two distinct classes of property was based on a single incident. In Barkley v. United States, 455 A.2d 412 (D.C.1983), appellant was convicted of petit larceny for the theft of various items from complainant's apartment one Thanksgiving Day. Appellant raised separate defenses for these items. He conceded taking one, a stereo amplifier, but defended that taking by a claim of right. He denied participation in the theft of the other items, blaming his codefendant. Id. at 413-14. We rejected appellant's argument that these two classes of thefts were conceptually severable because of appellant's distinct defense theories. We said that the thefts and appellant's alleged participation

are founded in just one set of factual circumstances not separated by time or by intervening incidents. The evidence as to each theory of liability is the same. There was but one offense based on a unitary event, rather than two separable and distinct offenses, as there were in Hack.

* * * * * * *

In the case at hand, the jury was instructed to return a unanimous verdict . . . and there is no indication that they did not, in fact, agree unanimously as to what property appellant stole. However, whatever credence the jury may have accorded appellant's defenses, the jury was at least unanimous in finding that appellant took some of the complainant's property, having some value, without his consent and without right. These are the essential elements of the offense of petit larceny, D.C.Code 1981, § 22-2202, and under these circumstances involving a single uninterrupted event, we conclude that the unanimity requirement is satisfied.⁶ Id. at 415-16 (emphasis in original); see Derrington v. United States, 488 A.2d 1314, 1335-36 (D.C.1985).

Appellant seeks to distinguish Barkley on three grounds: First, the evidence in the present case established that there was a significant interval — Saturday evening to Monday morning — during which Callahan was absent from his garage. Thus, in contrast with Barkley, where the thefts unquestionably took place at one time, it was not unlikely here that, once the garage was burglarized (perhaps as early as Saturday night), more than one discrete theft occurred over the next day or day and a half. Second, contrary to Barkley, the government produced no direct evidence of appellant's presence at Callahan's garage during the weekend, which would permit an inference of a single theft. Finally, the stolen items in this case were recovered from different locations (we do not know about Barkley in this respect), and appellant (as in Barkley) proffered a different, exculpatory explanation as to how he received each; thus, there was evidence tending to rebut the circumstantial evidence of a single theft. According to appellant, therefore, the court should not have based its instructions on the premise that "[t]here was but one offense based on a unitary event, rather than two separable and distinct offenses." Id. at 415.

Appellant's argument is not unpersuasive. It reveals that mischief in Barkley by showing that, unless Barkley is confined to its facts, the "single uninterrupted event" test, id. at 416, will ultimately force the trial...