Appeal from the Superior Court of the District of Columbia. (Hon. Wendell P. Gardner, Jr., Trial Judge).
Before Steadman, Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: During a search of Floyd Woodfolk's home, police found a 9 mm semiautomatic Luger ("Tech 9") with a loaded magazine in a white plastic bag near Woodfolk's bedroom. In test-firing the gun to determine operability, it was discovered that the magazine found in the gun was defective in that it failed to properly feed bullets into the chamber of the gun; however, when a new properly functioning magazine was inserted, the gun readily fired multiple rounds.
The jury found Woodfolk guilty of possession of a prohibited weapon (machine gun) in violation of D.C. Code § 22-3214(a); possession of an unregistered firearm in violation of D.C. Code §§ 6-2311(a) and 6-2376; and unlawful possession of ammunition in violation of D.C. Code §§ 6-2361 and 6-2376. *fn1 However, notwithstanding the jury verdict, the trial court entered a judgment of acquittal on the charge of possession of a prohibited weapon (machine gun). It ruled that the gun with its defective magazine did not meet the statutory definition of a "machine gun" under D.C. Code § 22-3201; viz., "any firearm which shoots automatically or semiautomatically more than 12 shots without reloading."
Before us are cross-appeals. The government challenges the trial court's legal interpretation of the statutory definition of a machine gun, as applied to the facts here. Woodfolk challenges the trial court's evidentiary ruling admitting as an excited utterance the 911 tape of the telephone call from Woodfolk's girl friend which led to the police search. *fn2 We hold that the trial court erred in entering the judgment of acquittal and reinstate the jury verdict of guilty on the count of possession of a prohibited weapon (machine gun). We affirm Woodfolk's other convictions as well.
On May 25, 1991, at 9:48 a.m., a woman named Wendy Carter called 911 from a house in Southeast D.C. Ms. Carter told the dispatcher that she would like to have police sent to her boyfriend's house, because she wanted to leave. When the dispatcher asked whether Ms. Carter's boyfriend wouldn't let her go, Ms. Carter responded, "No -- he, he owns a gun." She answered yes when the dispatcher asked if she had seen the gun. The dispatcher then asked, "So he has a gun on you?" and Ms. Carter replied, "He's here and he owns a gun. I want to leave and I'm scared he might do something to me." She identified her boyfriend as Floyd Woodfolk, and when the dispatcher asked for a description, Ms. Carter said, "...could you please hurry?" The dispatcher then relayed the information to several police officers, who responded to the call.
When the police arrived, Ms. Carter met them at the front door. She was wearing bedroom attire and appeared to be scared and nervous. Ms. Carter asked the officers to find the gun and led them down to the basement. When they got downstairs, the officers saw Woodfolk lying in bed, in a makeshift bedroom area that was partially partitioned off from the rest of the room. The room contained a crib for the couple's baby, who was in the home, and there was a large amount of women's clothing strewn about. After a continued search of some minutes, following various suggestions of Ms. Carter, the officers found the white bag, inside of which was the gun, containing a magazine loaded with 18 rounds of 9 mm ammunition, near the bedroom area under the rear of the interior steps leading down into the basement.
On October 9, 1991, Officer David Proulx test-fired the gun, using the magazine that had been recovered from Woodfolk's home. Officer Proulx found that the weapon was operable in the sense that it could fire a single bullet, but that the magazine would not feed properly for semi-automatic repetition. He concluded that the magazine probably had a bent lip.
A few days later, Officer Walter Dandridge of the firearms section of the Criminal Investigations Division performed a second test-fire of the gun. In order to complete this test, Officer Dandridge removed the magazine that was found with the gun, and used another magazine made for that type of weapon, which was in the firearms section's collection. Officer Dandridge fired the gun for 13 consecutive shots without reloading. He testified at trial that there was no question that the gun was capable of firing 13 rounds when it was equipped with a magazine that functioned properly.
D.C. Code § 22-3214(a) outlaws the possession of certain specified weapons, including "any machine gun." *fn3 A machine gun is defined for purposes of the prohibited weapons statute as "any firearm which shoots automatically or semiautomatically more than 12 shots without reloading." D.C. Code § 22-3201(c). Woodfolk in substance makes the argument, which the trial court accepted, that the magazine must be considered an integral part of the firearm itself. On that theory, he invokes, as did the trial court, our holding in Curtice v. United States, 488 A.2d 917 (D.C. 1985). That case involved a pistol with a defective spring that prevented the pistol from firing. Although the problem was readily rectified by simply stretching the spring, we held that since it required expert knowledge to diagnose what the defect was and since no evidence was presented to show that the defendant had such knowledge, the government had failed to prove beyond a reasonable doubt that the pistol was "operable."
We cannot agree that as a matter of law, a magazine must be deemed an integral part of a machine gun so that the "expertise" test of Curtice is determinative. *fn4 Officer Dandridge, who was qualified as an expert on the subject of firearms testing, testified that a magazine was not an integral part of the machine gun itself but rather an accessory. He testified that when buying a machine gun, one often will get two magazines to go with the weapon. Similarly, Officers Lucas and Baxter, who responded to the radio run, *fn5 testified without objection that the magazine was not a part of the gun but was separate. Officer Baxter described the magazine as "just a reservoir for holding ammunition." Officer Lucas said that the magazine was "an accessory, separate in itself." Other testimony and pictures shown to the jury also demonstrated the ready removability and separate nature of the magazine.
Congress enacted D.C. Code § 22-3214(a) in 1932, prohibiting the mere possession of certain weapons, "to enforce drastically a prohibition against carrying particularly dangerous weapons within the District of Columbia." Worthy v. United States, 420 A.2d 1216, 1218 (D.C. 1980). The legislative intent was to strengthen the existing law and tighten controls over the possession of dangerous weapons. United States v. Parker, 185 A.2d 913, 914 (D.C. 1962). We explained the legislature's rationale by stating that "the weapons listed in subsection (a) are so highly suspect and ...