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UNITED STATES v. JOHNSON

July 8, 1991

UNITED STATES OF AMERICA
v.
CARMELITA JOHNSON, TYRONE E. BRAWNER



The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION.

 On June 4, 1991, Carmelita Johnson was convicted of possession with intent to distribute 5 or more grams of cocaine base and of knowingly, intentionally and unlawfully making available for use a building for the purpose of storing, distributing or using a controlled substance. Co-defendant Tyrone Brawner, who has been convicted of a drug offense before this Court in recent months, was convicted of possession with intent to distribute cocaine base; using or carrying a firearm during the course of a drug trafficking offense; and unlawful possession of a firearm in interstate commerce by a felon. Both defendants renew their respective motions for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, and also move for a new trial pursuant to Federal Rule of Criminal Procedure 33. Upon consideration of the Defendants' Motions, the Government's response thereto, the applicable law and the record herein, the Court denies the Defendants' Motions.

 II. BACKGROUND.

 As part of an undercover operation, the Washington Metropolitan Police purchased drugs at a residence located at 73 "O" Street in the District of Columbia on February 15, 1991. Later on that same evening, at approximately 11:30 p.m., the police executed a search warrant at this address. Upon entering the house, the police found Ms. Carmelita Johnson lying face-down on the kitchen floor. Also on the kitchen floor was Mr. Terry Hooks. *fn1" Mr. Tyrone Brawner was found in an upstairs bedroom with his infant son. *fn2" Police detained a fourth individual leaving the house, but this person was not arrested.

 Although there is some discrepancy in the parties' versions of the testimony given at trial, most of the critical facts are undisputed. There is no dispute that Ms. Johnson leased the premises at 73 "O" Street, and that it was her primary place of residence. *fn3" There is also no dispute that the police recovered a small sack containing a.9mm Smith & Wesson pistol and a black leather pouch containing over 12 grams of crack cocaine from the two closets in the upstairs bedroom in which Mr. Brawner was found at the time of the arrest. Further, the parties agree that the police found numerous items of drug paraphernalia, such as new and used crack pipes and ziplock bags, *fn4" strewn throughout the house. A razor blade and plate were found on top of the kitchen refrigerator. Police officers at the scene observed Mr. Brawner looking out of both the front and rear upstairs windows immediately prior to the time when police entered the premises.

 Detective David Stroud, whom the Court qualified as an "expert" for purposes of giving testimony about drug trafficking, testified for the Government. Detective Stroud explained the uses of the various drug paraphernalia to the jury and also explained that drug dealers often prey upon weak people with drug habits, especially women, in order to obtain the use of their homes in exchange for money or drugs. According to another government witness, a person who was detained at the house on the night of the arrest told the police that he came to the house with Mr. Hooks to obtain a gun from Mr. Brawner.

 Ms. Johnson renews her motion for judgment of acquittal, arguing that the evidence was insufficient to support the jury's verdict. She also asserts that the indictment was fatally flawed because it does not allege that she "managed or controlled" the premises which she was leasing. Finally, Ms. Johnson seeks a new trial because the Court's failure to strike a statement made by Detective Stroud about the tendency of drug dealers to prey upon weak addicts, especially women, prejudiced her and was offered without any basis in the evidence.

 Mr. Brawner reasserts his motion for judgment of acquittal on the basis that the evidence is insufficient to show actual or constructive possession of either the gun or the drugs. Mr. Brawner also requests a new trial because the hearsay testimony given by a government witness, i.e., that one of the detainees went to the house with Mr. Hooks to borrow Mr. Brawner's alleged gun, was unduly prejudicial and should have led to a mistrial.

 III. THE MOTIONS FOR JUDGMENT OF ACQUITTAL MUST BE DENIED AS THERE WAS SUFFICIENT EVIDENCE UPON WHICH THE JURY COULD HAVE FOUND THESE DEFENDANTS RESPONSIBLE FOR THE CRIMES CHARGED.

 The Court must deny a motion for judgment of acquittal when, "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." United States v. Poston, 284 U.S. App. D.C. 125, 902 F.2d 90, 94 (D.C.Cir. 1990) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). Courts accord great deference to juries and allow the jury's determination to stand even when the court may have reached a different conclusion. "When a reasonable mind might fairly have a reasonable doubt of guilt or might fairly have none, the decision is for the jury to make." United States v. Herron, 185 U.S. App. D.C. 403, 567 F.2d 510, 514 (D.C.Cir. 1977); see also United States v. Harrison, 289 U.S. App. D.C. 220, 931 F.2d 65, 71 (D.C.Cir. 1991) ("We do not determine whether we would find guilt beyond a reasonable doubt, but only whether a reasonable jury could find guilt beyond a reasonable doubt"). This standard recognizes that courts give "full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 898 (D.C.Cir. 1977); see also United States v. Sutton, 255 U.S. App. D.C. 307, 801 F.2d 1346, 1358 (D.C.Cir. 1986). Because the jury is entitled to draw reasonable inferences from the evidence presented, "there is no requirement of direct evidence against the defendant; the evidence may be entirely circumstantial." Poston, supra, 902 F.2d at 94, n. 4; see also United States v. Simmons, 213 U.S. App. D.C. 343, 663 F.2d 107, 108 (D.C.Cir. 1979). In short, courts review a jury's determination "very deferentially." Harrison, supra, 931 F.2d at 71.

 Ms. Johnson and Mr. Brawner renew their motions for judgment of acquittal. Both contend that the evidence adduced at trial does not support the verdicts rendered against them. Specifically, Ms. Johnson argues that the mere "ownership" *fn5" of the house cannot constitute an adequate basis for inferring that she had actual or constructive possession of the drugs, nor does it prove that she had any knowledge of the activities taking place within the premises when she was not present. Mr. Brawner claims that there was insufficient evidence to support the jury's finding that he had either actual or constructive possession of the drugs or the gun. The Court considers each of the Defendants' claims in turn.

 A. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT MS. JOHNSON'S CONVICTIONS.

 The jury convicted Ms. Johnson of possession with intent to distribute 5 or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and with knowingly and intentionally making available for use a building for the purpose of distributing, storing or using a controlled substance in violation of 21 U.S.C. § 856(a). Upon careful review of the evidence and ...


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