Before Terry and Farrell, Associate Judges, and Abrecht, Associate Judge, Superior Court of the District of Columbia.*fn*
The opinion of the court was delivered by: Abrecht, Associate Judge
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Appeal from the Superior Court of the District of Columbia Hon. Noel Anketell Kramer, Trial Judge
Concurring opinion by Associate Judge Farrell at p. ----.
In this appeal of his conviction of possession of cocaine, D.C. Code § 33-541 (d) (1996), appellant Vincent White claims a violation of his right to a jury trial and evidentiary insufficiency. Holding that the trial court erred in not sending the possession charge to the jury as a lesser-included offense as required by our decisions in Simmons v. United States, 554 A.2d 1167, 1171 (D.C. 1989), and Chambers v. United States, 564 A.2d 26, 27 n.1 (D.C. 1989), we reverse. However, holding that the evidence was clearly sufficient, we remand for a new trial.
Appellant Vincent White was charged with a co-defendant in a five-count indictment with possession of cocaine with intent to distribute it while armed in violation of D.C. Code § 33-541 (a)(1) (1998) and § 22-3202 (1996), possession of a firearm during a dangerous crime in violation of D.C. Code § 22-3204 (b) (1996), carrying a pistol without a license in violation of D.C. Code § 22-3204 (a) (1996), possession of an unregistered firearm in violation of D.C. Code § 6-2311 (a) (1995), and unlawful possession of ammunition in violation of D.C. Code § 6-2361 (3) (1995). Trial began before a jury.
At the close of the government's evidence, the trial court granted White's motions for judgment of acquittal on possession of cocaine with intent to distribute and possession of a firearm during that dangerous crime. The court denied motions for judgment of acquittal on all the other counts and on the lesser-included offense of simple possession of cocaine. White began presenting his defense case to the jury by calling his first witness.
The next day, counsel discussed with the court ways to expedite the case in light of the approaching holiday weekend (President's Day). The prosecutor asked whether the drug charge would be in front of the jury or just the court. The court asked defense counsel about the need for the jury to decide misdemeanor charges carrying maximum sentences of 180 days in jail.*fn1 Defense counsel stated his preference to have the jury decide, but opined that the law permitted the court to take the issue away from the jury. The court remarked that the drug charge would take time away from the jurors' focus on the gun charges which they had to decide. The prosecutor agreed.
The court noted that a jury must determine a defendant's guilt of all lesser-included offenses of each count going to the jury, under Superior Court Criminal Rule 31 (c) as construed in Simmons v. United States, supra, 554 A.2d at 1171. However, the court did not recall, and counsel did not bring to the court's attention, the fact that this court in a footnote in a later case extended Simmons to require jury resolution of lesser-included offenses even when the greater charge is not before the jury. Because all counsel agreed that the court had the authority to reserve to itself consideration of whether appellant was guilty of the misdemeanor offense of possession of cocaine, the court chose to do so in order that counsel could complete their presentations to the jury before the weekend recess.
Appellant White and his co-defendant rested their cases on the weapon offenses before the jury and made closing arguments. The court instructed the jury and excused it for the weekend.
While the jury deliberated on the gun charges, the court heard more defense evidence on the drug charge. White and his mother testified. White denied knowledge of the cocaine. The court questioned him extensively. In due course, the court found him guilty of possession of cocaine, and the jury returned verdicts of not guilty on the pistol and ammunition charges.
Appellant White contends, and we agree, that the court erred in withdrawing the drug charge from the jury's consideration in mid-trial. White also maintains that the court erred in denying his motion for judgment of acquittal on the possession of cocaine charge. On that point, we disagree.
The jury issue in this case cannot be distinguished from Chambers, supra, 564 A.2d at 27 n.1. Once a jury trial has begun, only the jury is allowed to find ...