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Barnes v. United States

October 12, 2000

KENNETH M. BARNES, APPELLANT,
V.
UNITED STATES, APPELLEE.



Before Steadman, Farrell, and Glickman, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge

Appeals from the Superior Court of the District of Columbia

(Hon. A. Franklin Burgess, Jr., Trial Judge)

Argued September 12, 2000

Found guilty by a jury of possession with intent to distribute cocaine (PWID) and unlawful possession of ammunition, and by the court of unlawful possession of drug paraphernalia, Barnes challenges the sufficiency of the evidence supporting his PWID conviction and contends that the trial court erroneously denied his post-trial motion under D.C. Code § 23-110 (1996) alleging ineffective assistance of counsel. We affirm.

I.

A.

Executing a warrant based partly on information obtained from a confidential informant, police entered a rowhouse at 1335 5th Street, N.W., in which Barnes lived together with his wife and three children, including her teen-age nephew. Barnes's sufficiency argument contests the evidence that he constructively possessed the sixteen ziplock bags of cocaine which the police found in the kitchen of the house. *fn1 In the closet of an upstairs bedroom occupied by the two adults, the police found drug distribution paraphernalia in a shoebox, including an electronic scale and plate (containing apparent narcotics residue), razor blades, a strainer, a piece of cardboard, and ziplock bags. A bag containing loose and boxed ammunition was found in a dresser drawer in the same bedroom. Additional empty ziplock bags and paraphernalia were discovered in the medicine cabinet in the first floor bathroom and beneath a bed in another bedroom containing male clothing. When the police entered the house they found Barnes lying with his eyes open on an upstairs bed, fully clothed, wearing a baseball hat and sneakers. He had $392 in cash in his pockets, as well as a set of house keys and a pager. The seized cocaine had a street value of $1200-1500. Barnes admitted residing in the house and that he was unemployed. At trial, he denied possessing the cocaine but admitted that the drug distribution paraphernalia (and ammunition) were his, purported evidence of an earlier time when he had intended to sell drugs but was talked out of it by his wife.

B.

This evidence was sufficient to establish Barnes's possession of the drugs, jointly or individually. *fn2 His occupancy of the house as only one of two adults living there; his admitted ownership of the tools of cocaine distribution found in the bedroom in which he slept; the discovery of additional paraphernalia elsewhere in the house; his possession of a pager and a sizeable amount of currency although (otherwise) unemployed; and the circumstances in which the police found him - all combined to support the jury's conclusion that he had knowledge of and exercised dominion and control over the cocaine. See, e.g., Hicks v. United States, 697 A.2d 805, 807 n.3 (D.C. 1997); Davis v. United States, 623 A.2d 601, 603-04 (D.C. 1993); Williams v. United States, 604 A.2d 420, 421 (D.C. 1992). *fn3

II.

Barnes's second contention is that the trial judge erred in determining that he was not prejudiced, within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), by his trial attorney's failure to call the father of Barnes's wife (Samuel Taylor) as a witness to explain how the cocaine happened to be in the kitchen. At the evidentiary hearing on the § 23-110 motion, Taylor testified essentially that he had found the drugs in a playground while cleaning it up (in January) for a baseball game, then put them in his daughter's house intending to get some money for them later. The trial judge assumed that the attorney had been deficient under Strickland in not interviewing Taylor or otherwise exploring his availability as a witness. *fn4 The judge nonetheless found that Taylor's testimony was "extremely . . . implausible and would have been found so by the jury," both for intrinsic reasons *fn5 and because it was contradicted significantly by testimony which the defense did present from his ex-wife, Ann Taylor, at trial.

A.

Under the second - or prejudice - prong of Strickland, "the errors of counsel [need not] be shown by a preponderance of the evidence to have determined the outcome," but neither is it "enough for the defendant to show that the errors had some conceivable ...


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