Appeals from the Superior Court of the District of Columbia; Hon. Luke C. Moore, Trial Judge
Ferren and Terry, Associate Judges, and Belson, Senior Judge.*
The opinion of the court was delivered by: Terry
After a jury trial, all three appellants were convicted of maintaining gambling premises, in violation of D.C. Code § 22-1505 (b) (1989). *fn1 They challenge their convictions on several grounds. All three argue that the evidence was insufficient to support their convictions and that the court erroneously denied their motions for a new trial based on a claim of newly discovered evidence. Bell and Hargraves maintain in addition that the trial court erred in instructing the jury on the elements of the crime, and Bell and Lawson contend that a comment made by the prosecutor in his closing argument substantially prejudiced their rights and require reversal. We reject the contentions of Lawson and Hargraves and affirm their convictions. We agree with Bell, however, that the evidence against him was insufficient to go to the jury, and accordingly we reverse his conviction and direct the entry of a judgment of acquittal.
As a result of numerous citizen complaints regarding the activities at a house located at 2411 S Street, S.E., the police began an investigation in early October 1986. The house was a two-story single-family home in a residential neighborhood, but no one appeared to live there; instead, there was a sign hanging from the front of the house which said "D.C. Bears Athletic Club." In the course of a six-week surveillance, the police saw large numbers of people entering the house in the late evening and early morning hours and leaving around 8:00 or 9:00 a.m. Whenever anyone would knock on the front door seeking entry, the same person -- described in the testimony as a man "with a salt-and-pepper beard nickname was Shorty" -- would open the door and look up and down the street before permitting the visitor to enter.
As a result of their observations and investigations, *fn2 the police obtained a search warrant, which they executed at approximately 3:00 a.m. on November 15. Twenty to twenty-five police officers, some with their guns drawn, approached the house, and Detective Edward Curley knocked on the door. Appellant Bell opened the door in response to the knock but, upon seeing the officers, *fn3 immediately tried to close it. Curley testified that he and other officers "forced the door open . . . rushed in and secured the three floors of the premises." They went through the living room to the dining room, where they found four or five persons, including Ronald Humphries, sitting around a table laden with cards and money. Curley arrested Humphries, searched him, and discovered $8,588 in cash in his pocket. After the house was secured, Curley found a paper bag containing more than $16,000 under Humphries' chair. Detective Curley testified that Humphries said "it was his game and his money."
Curley and several other officers then went upstairs, where they found, in what would have been a bedroom, a felt-covered four-by-eight-foot sheet of plywood which was being used as a gaming table for cards and dice. In a closet in the same room they found numerous boxes of playing cards. The house contained no clothing of any kind, nor any beds.
In the meantime, Detective James Wells and some other officers went to the basement, where they found a bar set up and a sign posted behind it listing prices for individual drinks and half-pint bottles. *fn4 About eighteen persons, including appellants Hargraves and Lawson, were sitting around on chairs and couches, drinking and talking. From the bar the police recovered money, ledgers and other records, and membership cards for the D.C. Bears Athletic Club. Detective Wells forced open a padlocked storage closet and found "about twenty or thirty" bottles of liquor, a quantity of beer, mixers, cups, plates, records, and more membership cards. These cards were signed by Bob Johnson, president of the Club, and appellant Hargraves, who had signed her nickname "beaches" in the space next to the word "Secretary." Nearby Wells found Hargraves' purse containing a key ring with a number of keys on it, including one to the padlock on the storage closet *fn5 and another key to the front door of the house. Detective Wells also searched Lawson and found in his pockets some dice, $504 in cash, and a key which "seemed to be the type of key that was on the key ring that belonged to Ms. Hargraves." A further search of the basement yielded a box of business cards, advertising free crabs at a crab feast sponsored by "Rudie, Bob, Bleach, Sunny, and Mack" and an envelope addressed to "Mr. Rudy Lawson" at the S Street address.
At trial, in addition to Detectives Curley and Wells, the government called Officer George Taylor, who said he had gone to the house in October, about a month before the raid, in response to neighborhood complaints about parking problems created by the Club's patrons. After asking to speak with the person in charge, he discussed the parking situation with Lawson, who had come to the door and identified himself as the executive vice president of the Club. Taylor advised Lawson to "inform his patrons to start parking correctly . . . ."
At the close of the government's case, counsel for each of the defendants moved for a judgment of acquittal. Their motions were all denied.
Counsel for Lawson recalled Detective Curley as a defense witness and questioned him about the facts supporting the search warrant in an apparent attempt to demonstrate that Lawson had no official connection with the Club. He presented no other evidence.
Willie Burton, called by Hargraves as a witness, testified that he was the general manager of the D.C. Bears amateur football team and that Bob Johnson was president of both the team and the D.C. Bears Athletic Club. He testified that Hargraves had no official capacity and only helped out the D.C. Bears organization with "minor things." He also said that he went to the Club twice a week and never saw any gambling. Hargraves herself admitted in her testimony that she had signed the membership cards, but claimed that she had done so only because the regular secretary was unavailable. She explained that she had a key to the locked closet because she was storing supplies there for a birthday party she was giving later that month.