Appeal from the Superior Court of the District of Columbia; (Hon. John H. Bayly Jr., Trial Judge)
Before Rogers, Chief Judge, and Farrell, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Appellant Louis Campos appeals his conviction of carrying a pistol without a license, D.C. Code §§ 22-3204 (1992 Cumm. Supp.), -3206 (1989 Repl.), on the ground that the trial Judge erred by failing to instruct the jury on appellant's defense theory. We affirm.
At approximately 9:00 p.m. on December 22, 1990, Officer Karen Daniels responded to a look-out call for a man with a gun in the vicinity of 1112 M Street, N.W. When she reached the corner of 11th and M streets, Officer Daniels spotted appellant leaning against a light pole. *fn1 She got out of her patrol car, approached appellant, who only understood Spanish, and asked him to take his hands out of his pockets. *fn2 When appellant removed his hands from his pockets, he pulled out two beers, which he dropped to the ground, and he proceeded to place his hands back into his pockets. Officer Daniels then frisked appellant and she removed a silver .22 caliber Derringer, loaded with .22 caliber bullets, from appellant's left blue jeans pocket. During a later stationhouse search, the police recovered ten additional .22 caliber bullets from appellant's right pocket, but they found no fingerprints on either the gun or the ammunition. The gun was operable and appellant did not have a license to possess it. *fn3
Appellant testified that he was not feeling well on the night he was arrested and that, after awaking from a nap at around 8:30 p.m., he took a medical prescription for his eyes and went to the corner of 11th and M to hail a taxi. *fn4 While waiting for a taxi, at approximately 8:55 p.m., two latin youths, one white and one black, came up to him. One placed two beer cans in his pockets and the other put something heavy into two of his pants pockets. According to appellant, he was unable to look in his pockets before the police came because they arrived "very fast," only one to five minutes later.
During the Discussion of the instructions to be given to the jury, defense counsel requested an instruction on the defense theory of the case. Counsel asked the trial Judge for:
specifically tailored instruction . . . that if the jury determines after reading the instruction on intent that did not voluntarily come into contact with this weapon . . . that he merely had custody, and that mere custody of the weapon is not sufficient to constitute possession. And if he didn't have possession, then that -- the government has not established the fourth element of the statute.
The trial Judge refused to give the requested instruction on the grounds that the law recognized no distinction between custody and possession, and that the purpose of such an instruction would be served by the instruction on general intent. When the trial Judge stated that defense counsel could not argue to the jury that appellant "was merely a custodian or didn't have any intent on the basis that there is a distinction between custody which requires one kind of intention and possession which requires another," defense counsel asked for a clarification. Defense counsel asked the Judge whether "Your Honor ruling that I cannot argue to the jury that did not voluntarily come into contact with this gun?" Counsel noted "That is the premise of my defense." In response, the trial Judge stated "You can do that. But you can't argue to the jury that custody is one thing and possession is another thing." In other words, the trial Judge explained:
you may mount a defense to this that there was an involuntary possession in the sense that it was put into his pocket and he couldn't stop them from doing it or that he didn't know that it was being done to him or whatever other argument you want to make. But when it comes to giving the instruction, I won't give you something special along the lines of what you just asked for.
Defense counsel stated that he understood.
It is well established that a defendant is entitled to a properly requested defense theory instruction provided the instruction "would defeat the theory of the prosecution," Williams v. United States, 337 A.2d 772, 774 (D.C. 1975), and is "fairly raised by the evidence . . . however weak that evidence may be." Carter v. United States, 531 A.2d 956, 959 (D.C. 1987) (citations and internal quotations omitted); see also Goddard v. United States, 557 A.2d 1315, 1316-17 (D.C. 1989); Graves v. United States, 554 A.2d 1145, 1147 (D.C. 1989); Stack v. United States, 519 A.2d 147, 154 (D.C. 1986); Montgomery v. United States, 384 A.2d 655, 660 (D.C. 1978); Belton v. United States, 127 U.S. App. D.C. 201, 206, 382 F.2d 150, 155 (1967). *fn5 Likewise, however, a trial Judge may refuse to give an instruction that has "no factual or legal basis." Carter, supra, 531 A.2d at 959 (citing Taylor v. United States, 380 A.2d 989, 994-995 (D.C. 1977); Rhodes v. United States, 354 A.2d 863, 864 (D.C. 1976)). In addition, the Judge need not give the instruction in the precise language that is requested, Stack, supra, 519 A.2d at 154 (citations omitted), or "rehearse the evidence, especially where the effect would be . . . to give special emphasis to the defendant's testimony." Montgomery, supra, 384 A.2d at 660 (quoting Laughlin v. United States, 128 U.S. App. D.C. 27, 34, 385 F.2d 287, 294 (1967), cert. denied, 390 U.S. 1003, 20 L. Ed. 2d 103, 88 S. Ct. 1245 (1968)).
To support a conviction for carrying a pistol without a license in violation of § 22-3204, the government must prove beyond a reasonable doubt that the defendant carried an operable pistol on or about the person, was not licensed to carry the pistol and intended to "do the acts which constitute the carrying of a pistol without a license." D.C. Criminal Jury Instructions No. 4.81 (A)(4) (1978); Tucker v. United States, 421 A.2d 32, 34-35 (D.C. 1980). *fn6 This standard implies that the government must demonstrate that a defendant had either actual or constructive possession of the unlicensed pistol. Tucker, supra, 421 A.2d at 35. For this purpose there is no significant legal distinction between possession and custody. Cf. United States v. Spears, 145 U.S. App. D.C. 284, 293, 449 F.2d 946, 955 (1971) (possession in robbery statute does "not depend on the niceties of property law," and means "nothing more than custody or control") (citations omitted). But, it is ...