Timberlake v. US, No. 97-CF-1849.

• Decision Date: 07 September 2000
• Docket Number: No. 97-CF-1849.
• Citation: 758 A.2d 978
• Parties: Leroy TIMBERLAKE, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: D.C. Court of Appeals

758 A.2d 978

Leroy TIMBERLAKE, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 97-CF-1849.

District of Columbia Court of Appeals.

Argued October 5, 1999.

Decided September 7, 2000.

Richard K. Gilbert, Washington, DC, appointed by this court, for appellant.

Alex J. Bourelly, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Elizabeth Trosman, and Ricardo J. Nunez, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and RUIZ, Associate Judge, and BELSON, Senior Judge.

RUIZ, Associate Judge:

This case presents our first opportunity to substantively construe D.C.Code § 22-723(a) (1996), which makes it a crime to tamper with physical evidence. Section 22-723(a) reads in full:

A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding.

Timberlake argues that the evidence of his concealment of drugs in his mouth in hope of avoiding detection is insufficient as a matter of law to support his conviction under § 22-723 and that the trial court erred in not instructing the jury to that effect.¹ We affirm on the ground that there was additional and sufficient evidence from which the jury could find that Timberlake knew he was the subject of a police investigation while he held the drugs in his mouth. We conclude that the instruction given adequately informed the jury of the elements of the offense and that the failure to give Timberlake's requested instruction, even if error, was harmless.

I.

On February 16, 1995, Sergeant Gerald Neill, an eighteen-year veteran of the Metropolitan Police Department, and Officer Wayne Stancil, a fourteen-year veteran, were in plain clothes and assigned to the First District Vice Unit. Their objective that evening was to identify and arrest drug sellers by making undercover purchases. At approximately eight o'clock in the evening, the officers approached the corner of 16th and D Streets, S.E., in Washington, D.C., an area known for drug trafficking. Shortly after the undercover officers reached the corner, a marked police car drove through the intersection, and an unknown female yelled "five-o," indicating that police were in the area. Officer Neill then saw Timberlake put several plastic bags in his mouth. Suspecting the bags contained narcotics, Officer Neill approached Timberlake and twice asked what he had in his mouth. Timberlake mumbled each response, whereupon Officer Neill identified himself as a police officer and a struggle ensued in which Officer Neill forced Timberlake's head downward to prevent him from swallowing the bags. The struggle, which lasted at least twenty seconds, was joined by Metropolitan Police Officer Michael Jewell who was also in the area as part of the operation. Timberlake eventually spit out two plastic bags containing heroin and cocaine which Officer Jewel recovered.²

II. Standard of Review

When reviewing the denial of a motion for judgment of acquittal, the court "employs the same standard as that applied by the trial court in determining whether the evidence was sufficient to convict." Curry v. United States, 520 A.2d 255, 263 (D.C.1987). The court "must review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine the credibility, weigh the evidence, and draw justifiable inferences of fact, and drawing no distinction between direct and circumstantial evidence." Id. It is not necessary that the government's evidence compel a finding of guilt beyond a reasonable doubt, nor that the government negate every possible inference of innocence. Bullock v. United States, 709 A.2d 87, 93 (D.C.1998). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Reversal of the trial court's denial of appellant's motion for judgment of acquittal is warranted `only where there is no evidence upon which a reasonable [juror] could infer guilt beyond a reasonable doubt.'" Curington v. United States, 621 A.2d 819, 824 (D.C.1993) (quoting Head v. United States, 451 A.2d 615, 622 (D.C. 1982)) (alteration in original).

Analysis

I. Tampering With Physical Evidence

Parsing the language of D.C.Code § 22-723(a), we note that there are three elements of the offense: 1) altering, destroying, mutilating, concealing or removing a record, document, or other object; 2) while a) knowing or having reason to believe that an official proceeding has begun, or b) knowing that an official proceeding is likely to be instituted; 3) with the intent to impair its integrity or availability for use in the official proceeding. The statute defines an "official proceeding" as "any trial, hearing, investigation or other proceeding in a court of the District of Columbia or conducted by . . . an agency or department of the District of Columbia government.. . ." D.C.Code § 22-721(4).

In this appeal, only the knowledge element of the offense is at issue. Timberlake argues that the government adduced insufficient evidence to prove the charge that he attempted to tamper with physical evidence because his concealment of the drugs preceded his knowledge that an "official proceeding" was likely to be instituted against him, as required by § 22-723(a). The government, on the other hand, argues that after Timberlake heard "five-o," he knew, or had reason to believe, that an official proceeding (i.e., a police investigation) had begun, or was likely to be instituted. Alternatively, the government argues that Timberlake was aware that an official proceeding had begun, or was likely to be instituted, as he struggled with the officers in a continued attempt to conceal the packets of drugs he had placed in his mouth.

As this is a case of first impression in this jurisdiction, both Timberlake and the government direct the court to State v. Jennings, 666 So.2d 131 (Fla.1995), a case with similar facts, in which the Supreme Court of Florida interpreted its law criminalizing tampering with physical evidence.³ In Jennings, law enforcement officers observed Jennings holding what they believed to be a marijuana cigarette. As one of the officers approached Jennings, he observed what he believed to be loose cocaine rocks in one of Jennings' hands. The officer shouted "police," at which time Jennings tossed the rocks into his mouth and swallowed them. Jennings began to choke and the officer took hold of Jennings who broke away and took several steps before he was arrested. The objects Jennings swallowed were never recovered.

The trial court dismissed the tampering count, relying on prior precedent that tossing evidence away in the presence of a law enforcement officer does not constitute tampering under Florida's statute. The Florida Supreme Court reversed the trial court decision, holding that "[a]n affirmative act of throwing evidence away constitutes more than mere abandonment," and that "swallowing an object clearly constitutes altering, destroying, concealing, or removing a `thing' within the meaning of [the statute]." Jennings, 666 So.2d at 133. The court rejected the conclusion of the intermediate appellate court that a police officer "shouting `police' was insufficient, as a matter of law, to put Jennings on notice that he was about to be investigated for the possession of illegal drugs." Id. Having determined that the evidence was sufficient for a jury to find the knowledge requirement was satisfied, the court remanded because "[r]easonable persons could differ as to whether Jennings possessed the requisite knowledge under [the statute]" that an investigation was about to be commenced. Id. at 134. See also State v. Forchin, 684 So.2d 820 (Fla.1996)

(affirming tampering conviction of defendant who swallowed a plastic bag containing white substance after two officers identified themselves as police).

In Commonwealth v. Morales, 447 Pa.Super. 491, 669 A.2d 1003 (1996), a Pennsylvania court was presented with a similar situation.⁴ In Morales, two officers participating in an undercover drug surveillance investigation observed a known heroin dealer participate in a series of drug transactions. As the dealer got into a car with Morales and another buyer to leave the scene, the investigators followed. At the first red light, the officers pulled in front of the suspect's car, jumped out displaying their badges and yelled, "police, put your hands in the air." Id. at 1005. In response, Morales raised his hand to his mouth and placed a light blue packet inside. One officer dove at Morales' throat in an effort to stop him from swallowing, ordering him to "spit out." Morales swallowed the drugs. The court held that Morales' "reaction, by raising his hands to his mouth and placing the light blue glassine packet inside, readily confirms his awareness that the police were involved in some sort of investigation." Id. at 1006.

In both Jennings and Morales the police identified themselves, and were in close proximity to the defendant before he attempted to swallow the drugs, thus clearly making the defendant aware that he was the subject of police investigation. In the present case, Timberlake placed the drugs into his mouth on hearing the shouted warning that a police cruiser was in the vicinity and before becoming aware of the undercover officers' presence. The government does not argue that Timberlake knew of the undercover police officer's presence before he placed the drugs...