Don’t Leave Your DNA on a Gun: Constructive Possession of Firearms and Other Issues

Dorsey v. United States (decided February 23, 2017)

The Players: Associate Judges Blackburne-Rigsby, Thompson, and McLeese. Opinion by Associate Judge Thompson. Cecily E. Baskir for Mr. Dorsey. Trial Judge: Anita Josey-Herring.

Facts: As officers, wearing their “POLICE” vests, approached an apartment building to execute a search warrant, they observed Dorsey and two women standing on the balcony. Dorsey “reacted” by entering the apartment. Officers ultimately entered the apartment by using a battering ram after knocking on the door and announcing their presence. Once inside, an officer saw Dorsey exiting the kitchen, the same room where a gun was recovered in a cabinet. The government swabbed the gun for DNA, which yielded a partial DNA profile from a single male contributor. Each of the 8 alleles detected was consistent with Dorsey’s DNA profile. Dorsey was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1: Did the government present sufficient evidence that Dorsey constructively possessed the gun and ammunition?

Holding 1: Yes. First, although there was no evidence that Dorsey lived in the apartment, he was present when the police entered and was the only person seen exiting and in close proximity to the kitchen where the gun was found. Second, Dorsey immediately left the balcony as police approached. Third, the kitchen had “only one way in and one way out,” so that Dorsey did not enter the kitchen just to get to another area of the apartment. Lastly and “[m]ost important[ly],” the partial DNA profile recovered from the gun matched with Dorsey’s DNA profile. This evidence was sufficient to establish Dorsey’s knowledge of the gun’s location and his ability and intent to exercise dominion and control of the gun.

Background 2: On the morning before jury selection, the prosecutor handed defense counsel a handwritten note reading, “Officer Campanale Wesby v. DC – Case No. 12-7127, Sept. 2, 2014.” The Wesby case related to a federal D.C. Circuit decision affirming a federal D.C. District Court summary judgment ruling and subsequent jury verdict in a §1983/false arrest case where Officer Campanale was found liable for unlawfully arresting twenty-one individuals for unlawful entry. After reading the opinion, defense counsel moved to dismiss the case due to the government’s late disclosure of the Wesby case.

The following day, defense counsel moved for a continuance in order to investigate the facts of the Wesby case. The trial court denied the motion, citing an existing ability to cross-examine the officer, including on corruption bias grounds, without needing additional investigation, and a perceived “delay tactic” by Dorsey, who had previously fired two other lawyers.

The government did not call Officer Campanalle until five days after the original disclosure. While the officer acknowledged that he arrested individuals involved in the Wesby case, he denied that he was found liable or that he “lost on appeal.” The parties eventually agreed upon the trial court taking judicial notice of the Officer Campanalle’s unlawful arrests.

Issue 2: Did the trial court’s refusal to grant a continuance violate Dorsey’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), when on the day before jury selection began, the government dropped a “cryptic” disclosure—the name and number of a case involving one of the testifying police officers—that revealed the unlawful arrests of twenty-one individuals for unlawful entry?

Holding 2: The Court did not find a Brady violation or that Dorsey was precluded from effectively using the disclosures in preparation of his defense. In support of its holding, the Court noted (1) Dorsey’s willingness to go forward with trial after having fully reviewed the Wesby opinion, (2) the five days between the disclosure and the officer’s testimony, and (3) defense counsel’s ability to impeach the officer during the trial. Interestingly, the Court also took into account defense counsel’s post-trial failure to “contact[] the attorneys in Wesby to learn of any additional impeaching material” and the failure to present other new information about the Wesby matter that would have “made a difference to the outcome of [Dorsey’s] case.”

Background 3: After the government closed its case, defense counsel notified the trial court that Dorsey needed to secure his own defense DNA expert to testify about “the preservation and collection” of DNA and not to “actual tests.” This came on the heels of an officer’s testimony that he placed the gun on the kitchen counter before putting it into an evidence bag. Since the government’s DNA expert had already testified, Dorsey would need to procure his own expert to “clear up some DNA matters.”

The trial court admonished defense counsel for not providing Rule 16 expert notice, but nonetheless, said that she would sign a voucher if Dorsey could not afford the expert. Calling the expert, however, would be conditioned on Dorsey’s ability to have the expert prepared to testify by the following morning. The next day, defense counsel told the trial court that the expert was unavailable for the day and could only testify the following day. The trial court denied the request to delay the trial.

Issue 3: Did the trial court abuse its discretion by denying Dorsey a mid-trial continuance to secure the presence of a defense DNA expert to rebut the government’s DNA evidence?

Holding 3: No. The trial court made sure that the reason for not having previously secured the expert was not financial; the court was legitimately concerned about defense “delay tactics”; the defense had no other witnesses and would have wasted an entire day; the government would have had to consult with its own expert again; and, defense counsel did not give the trial court a reason that Dorsey would be prejudiced. Assuming arguendo that the trial court erred, the error was harmless.

Background 4: The trial court gave Dorsey a three-year mandatory minimum sentence for being convicted of unlawful possession of a firearm after a prior conviction for a crime of violence. Dorsey argued that the trial court’s determination that his 1999 Maryland conviction for first-degree assault was a “crime of violence” was a matter for the jury. Alternatively, Dorsey argued that the trial court committed plain error by concluding that a Maryland first-degree assault was equivalent to a D.C. aggravated assault conviction to qualify for the three-year sentence.

Issue 4: Did the trial court commit constitutional error in not submitting Dorsey’s prior Maryland conviction to the jury to determine whether he was subject to the three-year mandatory minimum, and if no constitutional violation occurred, did the trial court commit plain error by determining that the Maryland first-degree assault was the equivalent of the D.C. aggravated assault?

Holding 4: No and no. The Court found that under Apprendi v. United States, 530 U.S. 466 (2000), the fact of a prior conviction does not need to be submitted to the jury to be proved beyond a reasonable doubt. In this case, because the increase in Dorsey’s penalty resulted from a “legal analysis concluding that the elements of a prior predicate crime match[ed] those of the type of offense that the penalty statute establishe[d] as the trigger for the enhanced penalty, the court’s determination [was] not the type of factual finding” that would have necessitated submission to the jury. The Court determined that “as a matter of law,” the elements of first-degree assault in Maryland are subsumed within the scope of serious bodily injury in D.C.’s aggravated assault.  JW

Read full opinion here.

Possession of Drug Paraphernalia Can Be Based on Fake Drugs, as Long as the Defendant Believed Them To Be Real Drugs

Kamonte J. Lesher v. United States (decided December 1, 2016)

Players: Associate Judges Thompson and McLeese, Senior Judge Ruiz. Ian Williams for Mr. Lesher. Trial judge: Truman A. Morrison, III.

Facts: In a search of a row house, officers found several bags containing a "green weed-like substance," $2300 in cash, empty ziplock bags, and a scale.  They found several documents with Mr. Lesher's name in the same room.  Police also searched Mr. Lesher, who was just inside the doorway of that room, and found a green weed-like substance on his person.  There was testimony that the green weed-like substance smelled like marijuana, and that it was packaged in a manner consistent with distribution rather than personal use.

Issue: Does a conviction for possession of drug paraphernalia (PDP) require proof that that defendant actually possessed a controlled substance?

Holding: No. D.C. Code § 48-1103(a)(1) requires only possession of drug paraphernalia with intent to use it in connection with a controlled substance and does not require the presence of a controlled substance, whether actual or fake.  The evidence of the smell of the green weed-like substance, the way in which it was packaged, and the fact that it was hidden supported an inference that Mr. Lesher believed that the substance was marijuana. Testimony from a drug expert supported the further inference that Mr. Lesher intended to use the scale and bags to weigh and package a substance he believed to be marijuana.  This was sufficient to show that the scale and bags were "intended for use" in connection with marijuana, regardless of whether or not the green weed-like substance actually was marijuana.

Of Note:  The Court also held that there was sufficient evidence of constructive possession, the government need not prove that the substance was actually a controlled substance for a conviction of attempted possession with intent to distribute, and that evidence of a field-test performed on the green weed-like substance was, at most, harmless error.  DG

Read full opinion here.

Just because there’s a stolen phone in a store you work at doesn’t make you guilty of receiving stolen property

David J. Brown v. United States (decided December 10, 2015)

Players: Associate Judges Blackburne-Rigsby and Thompson, Senior Judge Reid.  Opinion by Judge Reid.  Cecily E. Baskir for Mr. Brown.  Trial Judge: John McCabe.

Facts: Martha Bass was walking down North Capitol Street when someone grabbed her cell phone and ran off.  Using a GPS tracker on the phone, Ms. Bass and the police located the phone at an electronics repair shop.  David Brown opened the door.  After the police told him they had reason to believe a stolen phone was in the store, he went to the back of the store, brought out Ms. Bass’s phone, and asked if that was what they were looking for.  After initially telling the police the phone had arrived earlier that day in the shop and providing an invoice for the phone, he eventually told the police that he had fabricated the invoice in order to protect the store, that he knew who had brought the phone to the store, and would help the police if they did not arrest him.  

When Mr. Brown failed to make good on his promise of assistance, the police obtained a search warrant for the shop and located an additional stolen phone.  This phone belonged to Mary Register, who told the police her phone had been stolen over a month before the search warrant was executed.  The government presented no evidence at trial as to precisely who owned the store, and there was testimony that numerous people worked there and brought various pieces of property on to the premises. 

Issue 1:  Did the trial court abuse its discretion in denying Mr. Brown’s Batson challenge to the prosecution’s use of six of seven preemptory strikes against black venire members?

Holding:  No.  The defense did not meet its burden of persuasion that the race-neutral explanations given by the prosecution were pretextual.  With the exception of one strike, the defense made only the conclusory assertion that most of the strikes (six out of seven) were against black venire members.  With respect to a strike justified on the basis of the venire member’s prior criminal conviction, the trial court did not err in finding that the stricken individual was sufficiently differently situated from other venire members who had been the victim of a crime or who had relatives who had been convicted of a crime.  Finally, the DCCA rejected Mr. Brown’s argument on appeal that the trial court abused its discretion because the prosecution’s race-neutral reasons were primarily based on the body language and demeanor of the stricken venire members.

Issue 2: Was there sufficient evidence that Mr. Brown: (1) knew or had reason to believe Ms. Bass’s phone was stolen, and (2) had knowledge and constructive possession of Ms. Register’s phone.

Holding: As to (1), yes.  There was competent evidence that Mr. Brown admitted knowing Ms. Bass’s phone was stolen to the police when he admitted to producing the fake invoice.  As to (2), no.  The government failed to prove beyond a reasonable doubt that Mr. Brown constructively possessed Ms. Register’s phone or that Mr. Brown knew or had reason to believe the phone was stolen.  The evidence did not establish how the phone came to be in the store, and there was evidence that the items in the store were controlled by multiple people who worked there.

Note: The DCCA also reversed Mr. Brown’s conviction for trafficking in stolen goods because the trafficking statute requires the government to prove two or more instances of receipt of stolen property.  CP

Read full opinion here.

"Emergency Aid" Exception Did Not Justify Warantless Entry and No Exception to the Exclusionary Rule Applies, Court Splits on Sufficiency of the Evidence of Possession of Guns Found in Apartment

Jamel Evans v. United States (decided August 6, 2015)

Players: Associate Judges Beckwith and McLeese, Senior Judge Ferren. Opinion by Judge McLeese, concurring opinion by Judge Ferren, opinion concurring in part and dissenting in part by Judge Beckwith.  Murray Kamionski for Mr. Evans.  Trial Judge: John McCabe

Facts: Police responded to Jamel Evans’s 911 call to report an assault and found Mr. Evans, who was bleeding from the head, and Shantay Taylor, who had blood on her clothes, arguing in the parking lot of an apartment building. Ms. Taylor said that Mr. Evans had punched her several times; Mr. Evans said that Ms. Taylor had hit him, scratched him, and assaulted him with an ashtray while in his apartment. Neither indicated that anyone else was involved in the altercation or present in the apartment. As other officers talked to Mr. Evans and Ms. Taylor, Officer Wendt arrived and upon seeing blood outside the open door of Apartment 201, entered and went through each room of the apartment. In one bedroom he saw a gun inside an open closet and .38 caliber ammunition on a dresser; in the second bedroom he saw no contraband.

Police subsequently obtained a search warrant based on information about the altercation, the discovery of the firearm and ammunition, and Ms. Taylor’s statement that Mr. Evans had bagged up marijuana in the apartment that morning. In the first bedroom (described as messy with an unmade bed), police found a shotgun in a closet containing men’s clothing and found .38-caliber ammunition and a pill bottle labeled “Yvette Murray” on top of a dresser. In the second bedroom, on top of an animal cage, they found a rifle, 9-mm ammunition, and an XL men’s jacket with six ziplocks of marijuana in the pocket. Somewhere in the apartment was a judicial summons for “Christina Brunson” with the apartment’s address. Mr. Evans was convicted of attempted possession of both guns and the .38-caliber ammunition.

Issue 1: Did Officer Wendt’s initial warrantless search fit within the “emergency aid” exception to the warrant requirement?

Holding 1: The warrantless entry violated the Fourth Amendment and the “emergency aid” exception did not apply. Without deciding whether police needed probable cause or only a reasonable basis to believe that entry was necessary to provide emergency aid to an injured occupant or to protect an occupant from immediate injury, the Court held that even under the “reasonable basis” standard, the police lacked adequate reason to believe that immediate entry was necessary to provide emergency aid. Officer Wendt did not have a specific reason to believe that an unknown third party was in the apartment and needed immediate help because the accounts of Mr. Evans and Ms. Taylor did not suggest that anyone else was inside and Mr. Evans’s bleeding head accounted for the blood outside the apartment.

Issue 2: Was the evidence nonetheless admissible under the “independent source” doctrine because the items were seized pursuant to a subsequent search warrant?

Holding 2: No. The Court held that “procedural unfairness” precluded affirmance based on the “independent source” theory because the government had not argued it at trial and the trial court therefore had not made the factual findings relevant to the theory. The Court also declined to conclude in the first instance that the officers would have gotten a warrant independent of the initial entry because the record was not clear and the Court could not decide an issue of fact, particularly where Mr. Evans had not had the opportunity to develop a record on the issue. Finally, the Court concluded that a remand would be inappropriate because the government bore the burden to prove admissibility and did not deserve a second bite at the apple.

Issue 3: Was the evidence nonetheless admissible under the “good faith” exception?

Holding 3: No. The Court held that the “good faith” exception was inapplicable under Smith v. United States, 111 A.3d 1 (D.C. 2014), because the search warrant was based on information obtained in the unlawful entry and did not operate to attentuate that illegality.

Issue 4: Was the evidence sufficient to find beyond a reasonable doubt that Mr. Evans constructively possessed the guns and ammunition?

Holding 4: Yes. Judge McLeese concluded for the Court that the evidence was sufficient to find that Mr. Evans possessed the items because he described the apartment as his, he and Ms. Taylor (but no one else) had been in the apartment shortly before police arrived, the items were in plain view inside the bedrooms, both bedrooms contained men’s clothing, there was no evidence that any other man had control over the apartment, there were no women’s clothes in the apartment, and a reasonable factfinder could conclude that Mr. Evans lived in the first bedroom and that the clothes in the closet were his. Judge Ferren, in a concurring opinion, offered a more simple path to the same conclusion: a factfinder generally may infer that a person constructively possesses items in his home, and here, no facts diluted that inference.

Concurring/Dissenting Opinion: Judge Beckwith joined the majority’s Fourth Amendment rulings and also agreed that the evidence was sufficient to support Mr. Evans’s conviction for possession of the firearm and ammunition in the first bedroom, but disagreed that it was sufficient to show that he constructively possessed the gun in the second bedroom. Judge Beckwith pointed out that the second gun was not in Mr. Evans’s bedroom, was not in plain view, and was not recovered in proximity to Mr. Evans’s personal items, and she noted that evidence linking Mr. Evans to the first gun was insufficient to surmount the circumstances casting doubt upon his possession of the second gun.

Of Note: The decision has useful language about the procedural unfairness of affirming on alternative grounds not asserted in the trial court.  SS

Read full opinion here.