Appeal from the Superior Court of the District of Columbia (F-6330-97) (Hon. Harold Cushenberry Jr., Trial Judge)
Before Schwelb, Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
After a jury trial, appellant Keith Thomas was convicted *fn1 of: (1) carrying a pistol without a license, in violation of D.C. Code § 22-3204 (a) *fn2 ("CPWL"); (2) possession of an unregistered firearm, in violation of D.C. Code § 6-2311 (a); *fn3 and (3) unlawful possession of ammunition, in violation of D.C. Code § 6-2361 (3). *fn4 On appeal, Mr. Thomas contends that the trial court erred in its response to a jury note requesting clarification of a constructive possession jury instruction because the judge implicitly told the jury it could consider a theory of joint constructive possession that was not supported by legally sufficient evidence. *fn5 We agree, and hold that the error was sufficiently prejudicial to require reversal.
The record on appeal shows that on August 6, 1997, around 3:20 a.m., Metropolitan Police Department Officers Dexter Martin and Lawrence Walker, were assigned to a plain clothes unmarked unit. Officer Martin testified that he was seated in the front passenger side of an unmarked car, and Officer Walker was driving at a very low speed in the Barry Farms area of Stevens Road, Southeast. Officer Martin had patrolled that area for eleven and one-half years. The officers "were flagged down by a subject," later identified as Anton Parker, who "gave [them] the signal" by "put[ting] his two fingers up and . . . his hands [in a particular position]." *fn6 Also present on the scene were Mr. Thomas, and two other men located five to ten feet behind Mr. Thomas.
When Mr. Parker saw Officer Martin, "he gritted his teeth and he said `Oh sh-t, that's Dex'[,] looking over his right shoulder." *fn7 Mr. Parker also "threw . . . down . . . an unknown small object." *fn8 Officer Martin watched "Mr. Thomas immediately thr[o]w from his right hand a silver metal object to the ground, directly to the ground." The object turned out to be a gun.
Officers Martin and Walker got out of the unmarked car, and moved in the direction of the four men. Simultaneously, Mr. Parker walked over to Officer Martin, shook his hand, and asked: "Hey, what's up Dex?" Officer Martin saw a handgun on "the right side of [Mr. Parker's] pants." All four men were directed to get behind the unmarked vehicle "and place their hands behind their heads." Mr. Thomas and Mr. Parker were arrested.
In his closing argument at trial, defense counsel emphasized that: "There were three people out there that could have disposed of that gun, discarded that gun besides Mr. Thomas . . . . We certainly have evidence about Mr. Parker discarding something from his hand but that was never found according to Officer Walker. What was it?" The prosecutor's rebuttal recognized that, "Mr. Parker may have thrown something on the ground, . . ." but stressed that there was no gun in his hand.
The trial judge's final instructions to the jury included an explanation of both actual and constructive possession. After deliberating for a time, the jury sent a note to the judge raising questions about the "definition of possession, actual and constructive." The note also read:
[I]f the actual thing that was witnessed is described as an object and later determined to be a gun, then does that object then become a gun in the actual - underlying actual sense or a constructive sense? Can more than one person have constructive possession?
Following discussion of the note with defense counsel and the prosecutor, the trial judge told the jury that he could repeat his instructions regarding actual and constructive possession. With respect to the portion of the note quoted above, the trial judge informed the jury:
I really can't answer the question for you . . ., because if I did I would be finding the facts for you. And I can't do that. You have to make your own determinations with respect to these facts and I can't provide any information to you with respect to that question.
The final question ask[s]: Can more than one person have constructive possession of a thing? And the ...