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07/16/90 MATTER T.M. AND MATTER J.T.M.

July 16, 1990

IN THE MATTER OF: T.M., APPELLANT, AND IN THE MATTER OF: J.T.M., APPELLANT


Appeals from the Superior Court of the District of Columbia; Hon. Robert M. Scott, Trial Judge

Rogers, Chief Judge, Schwelb, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

This is an unpleasant and melancholy case involving teenagers, guns, a huge stash of crack cocaine, some truly bizarre rental arrangements, and a productive search pursuant to a warrant. It had its inception in a justified and court-approved police intrusion into what used to be known as an Englishman's castle, effected with the aid of that unrelenting law enforcement tool for securing entry into crack houses and other establishments of like ilk, the battering ram. Following a joint trial, T.M. and J.T.M., both juveniles, were adjudicated delinquent for possession of an unregistered firearm, D.C. Code § 6-2311 (1989), and unlawful possession of ammunition, id. § 6-2361. They were acquitted of possession of cocaine with the intent to distribute it. Id. § 33-541 (1988). On appeal, both juveniles argue that the evidence was insufficient to support the finding of guilt of the firearm and ammunition charges. We reverse.

I

At trial, the prosecution adduced evidence that in April 1988, Francis S. James was the sole tenant of apartment 406 at 2705 Thirteenth Street in northeast Washington, D.C. *fn1 The apartment has a living room and two bedrooms. On or about April 3, 1988, he "rented" the apartment to "Jobba" (to whom he had been introduced by a neighbor named "Terry") for an indefinite period. The rent was to be twenty-five dollars. Mr. James related that he then left and did not return until April 9. On that day, he again "rented" the apartment, this time to T.M. and J.T.M. for twenty-five dollars, and to "Chris" and "Russ" for twenty-five dollars and some cocaine. That was the first time he met T.M. and J.T.M.

Mr. James testified that at one point on April 9 he left the apartment for a brief period. When he returned, Russ opened the door, which led into the living room. Mr. James observed a .357 magnum in Russ' waistband. He also saw a sofa which had a .45 pistol lying on one end and J.T.M. asleep on the other. *fn2 Mr. James testified that he told an older person in the room to remove the guns. Mr. James left later that day to stay with a girlfriend.

On April 12, 1988, officers executed a search warrant at Mr. James' apartment. They entered the apartment by using a battering ram. Finding no one in the living room, they proceeded to the middle bedroom. Near the wall of that bedroom, in front of the closet, the officers saw a closed oatmeal box, which was later found to contain 129 bags of cocaine. On a television tray next to the window, there was a pie plate with some white powder and a razor blade on it; the powder field-tested positive for cocaine. Later analysis would reveal a fingerprint on the pie plate which belonged to one of the persons found in the bedroom, but not to either of the appellants. The officers also saw a firearm, subsequently identified as a .45 pistol, lying on top of an open overnight bag in front of the closet, next to the oatmeal box. The pistol was not loaded. A clip of .45 ammunition, containing seven rounds, was observed lying next to the pistol. Another clip with four rounds was lying about two feet away.

There were six people in the middle bedroom, including a girl in her teens who had hidden in the bedroom closet. The five who were in the bedroom itself included T.M. and J.T.M. Two officers testified that when they entered the bedroom, the occupants were attempting to hide underneath blankets and clothes that were strewn about the room. All five were approximately the same distance from the pistol, but there was at least one person between J.T.M. and the weapon.

The entire apartment was described as "messy," with items of clothing scattered on the floor. A search of the living room revealed a loaded .357 magnum and several bags of crack cocaine. In the rear bedroom, the officers found a seventh person and several rounds of .22 ammunition.

At trial, T.M. and J.T.M. offered a photograph which was identified as having been taken by a police crime scene photographer. *fn3 The picture showed the open gym bag with a shaving kit lying where one of the government's photographs had shown the pistol to be; no weapon was visible in the respondents' picture. In addition, in the respondents' photograph, the oatmeal box was uncovered, contrary to the government's photographic evidence and the testimony of the government agents. During the government's case-in-chief, the photograph was used to impeach an officer who had related that nothing had been moved before the pictures were taken.

The Judge found the evidence sufficient to prove guilt on the weapon and ammunition charges, but not with respect to the drugs:

I find each of these defendants on the basis of their location in that room, when the police came in and the gun being in plain sight and within easy access of anybody in that room, to be guilty of possession of a gun that had not been registered as required by law.

I find them not guilty of the charge of possession of cocaine with the intent to distribute it.

I find them also guilty of possession of ammunition that would fit that .45, because it's ...


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