Wheeler v. U.S.

• Decision Date: 16 August 2007
• Docket Number: No. 01-CF-271.,No. 01-CF-387.,01-CF-271.,01-CF-387.
• Citation: 930 A.2d 232
• Parties: Anthony D. WHEELER, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

930 A.2d 232

Anthony D. WHEELER, Appellant v. UNITED STATES, Appellee.

No. 01-CF-271.

No. 01-CF-387.

District of Columbia Court of Appeals.

Argued March 22, 2005.

Decided August 16, 2007.

Jennifer C. Daskal, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

Rochelle E. Rubin, Assistant United States Attorney, for appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, Barbara J. Valliere, and Burke W. Kappler, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ, Associate Judge, and KING and TERRY,^* Senior Judges.

RUIZ, Associate Judge:

Appellant challenges his conviction on a number of weapons charges, claiming several errors in the instructions given to the jury concerning fingerprint evidence. We hold that an instruction to the jury that the lack of fingerprint evidence cannot, as a matter of law, constitute reasonable doubt impermissibly invaded the jury's exclusive province to weigh the evidence as a whole against the standard of reasonable doubt, and requires reversal even under the high standard for plain error review. We also agree that the instruction that the police had "no duty" to collect fingerprint evidence should not have been given in this case. We, therefore, reverse appellant's conviction on the weapons charges, and remand the case to the trial court.¹

I.

On August 27, 1997, members of the Metropolitan Police Department (MPD) received an anonymous tip that someone in the vicinity of 6315 Georgia Avenue was in possession of a firearm. The anonymous tipster did not describe the person he claimed to have a gun, but said that the person was near a red four-by-four truck. As MPD officers responded, they discovered that the address corresponded to a carwash, and when they arrived, saw appellant within arm's reach of an unoccupied red truck that was coming out of the carwash with the engine running and the doors locked. One officer testified that when he first saw appellant, he had his hand on the truck and "some type of object wrapped in a cloth or some type of rag." The officer looked away while he parked the police cruiser, and when he again saw appellant, he no longer had an object in his hand, and was walking away from the truck. Another officer, however, testified that she did not see appellant holding a wrapped object in his hand nor did she see him actually touching the truck. A third officer testified that he saw appellant pull back his hand from near the truck, and then walk away, but did not see an object in his hand.

Appellant was initially frisked for weapons, and this search did not reveal any contraband. When asked whether the truck was his, appellant twice said that it was not. When the officer said that the truck would be ticketed and towed, however, appellant admitted that it did indeed belong to him. As the officers went into the carwash office to speak with employees there, appellant tried to run from the premises. He was apprehended, handcuffed, and placed in a police car.

Because the doors of the truck were locked, the officers called for a supervisor. When the supervisor arrived, he peered through the heavily tinted windows of appellant's truck, and saw a gun in the car; two other officers who looked in also saw a gun. The police contacted appellant's mother, the registered owner of the truck. When she arrived and unlocked the truck, the officers seized a semi-automatic gun (a Mach 11) that was in plain sight on the driver's side of the armrest of the front seat. The gun was loaded, and later determined to be operable. Police dusted the weapon, magazine, and bullets, but were unable to recover any fingerprints.

At trial, appellant presented the testimony of two employees of the carwash who stated that he was a regular customer. They explained the routine followed at the carwash, and both employees testified that although they had cleaned and driven the truck immediately before the police arrived, they did not see a weapon in the vehicle. Appellant also testified on his own behalf. He explained that he had taken the truck to be washed, but that when the truck was initially returned to him it was still dirty, and he summoned an employee to complain. That employee, according to appellant, got into the truck and backed it into the area where it was parked when the police arrived. After making a phone call, appellant looked around for this employee, but was unable to find him. Appellant testified that, as the police arrived, he was talking to some acquaintances who were in a blue truck. He did not respond to the police inquiries as to who owned "the truck," because he was unsure of what truck — the blue one or the red one — they were referring to. He also denied any connection to the gun found in his vehicle. During cross-examination appellant was impeached with the fact that he had provided a false name to the police during the booking process. In rebuttal, the government also called into question appellant's testimony by recalling one of the arresting officers, who testified that when he approached appellant there was no blue truck in the vicinity, nor was the appellant talking to anyone.

Thus, what was presented to the jury was a circumstantial case that appellant possessed the firearm found in the truck he had driven to the carwash. The government's theory was that appellant had been holding the gun, wrapped in a rag, when the police car arrived, but that appellant disposed of the gun by placing it in the truck before the police officer approached him. The defense established that several other persons had access to the truck after appellant surrendered control to the carwash employees, who testified that there was no gun in the vehicle at that time. There was no physical evidence, such as fingerprints, which linked appellant to the gun found in his car.

The government requested, and the trial judge gave, the following instruction to the jurors:

There has been some testimony regarding the failure of the police to retrieve fingerprints from the evidence in this case. As to this evidence, you are instructed that the Government is under no duty to conduct fingerprint tests. Second, the government is not required to negate all possible inferences of innocence before one can be found guilty of an offense beyond a reasonable doubt. In that regard, the absence of any fingerprint evidence, standing alone, does not constitute reasonable doubt as to the firearm charges here.

Defense counsel objected to the second sentence of the instruction, arguing that it was irrelevant as the police had tried to obtain fingerprint evidence. The trial judge rejected this argument, ruling that the instruction was "an accurate statement of the law." Counsel for appellant further argued that "I don't know that it is correct to suggest that it's a statement of the law. I mean, there is no law that says they have to or don't have to, so how could it be a statement of the law?" The judge replied that the instruction was supported by the cases cited by the government.²

The jury returned guilty verdicts on all the weapons charges: Carrying a Pistol Without a License (CPWL), in violation of D.C.Code § 22-3204(a);³ Possession of an Unregistered Firearm (UF), in violation of D.C.Code § 6-2311(a); Unlawful Possession of Ammunition (UA), in violation of D.C.Code § 6-2361(3). This timely appeal ensued.

Before this court, appellant renews his challenge to the "no duty" instruction. He also argues, for the first time on appeal, that the third and fourth sentences of the instruction impermissibly encroached on the jury's province as sole finder of fact, in violation of his right to a jury trial under the Sixth Amendment, and misdescribed the reasonable doubt standard, in violation of his Fifth Amendment due process rights.

II. The "No Duty" Instruction

In reviewing a challenge to a jury instruction that was preserved at trial, the central question for this court is whether it is an adequate statement of the law, and whether it is supported by evidence in the case. See Leftwitch v. United States, 251 A.2d 646, 649 (D.C.1969); Spade v. United States, 277 A.2d 654, 656 (D.C.1971). This court reviews the trial court's decision to give a requested jury instruction for abuse of discretion, viewing the instructions as a whole. See Edwards v. United States, 721 A.2d 938, 944 (D.C. 1998).

In its instructions to the jury, the court stated that "[t]here has been some testimony regarding the failure of the police to retrieve fingerprints from the evidence in this case. As to this evidence, you are instructed that the Government is under no duty to conduct fingerprint tests." Appellant's challenge to this instruction is twofold. First, he contends that the "no duty" instruction was irrelevant on the facts of this case, as there was evidence that the police had dusted the gun, magazine, and bullets found in the truck. Moreover, he argues that it misstated the law, because an internal regulation, MPD General Order 304.8(I)(E)(1) (Feb 24, 1991), required officers to "request a latent fingerprint examination in those case[s] where, through investigation or information from a reliable source, they have developed a suspect to a particular crime or series of crimes."

Recent cases involving the "no duty" instruction, and its use in this case, suggest that we should take the opportunity to discuss it in a comprehensive manner. The purpose of the "no duty" instruction is to counter an inference that evidence that could have been — but was not — collected and presented to the jury would have undermined the government's case or been favorable to the defense. See Greer v. United States, 697 A.2d 1207, 1211-12 (D.C.1997). Conceptually, it is the opposite of a missing evidence instruction. Cf. Graves v....