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Cannon v. United States

December 18, 2003; as amended March 2, 2004.

ANTONIO CANNON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (F-81-00) (Hon. Stephen G. Milliken, Trial Judge)

Before Terry and Reid, Associate Judges, and Ferren, Senior Judge.

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

Appellant's petition for rehearing denied March 2, 2004.

Submitted April 23, 2003

Appellant was charged in an indictment with three counts of second-degree theft and one count of receiving stolen property. After a non-jury trial, he was found guilty of one count of second-degree theft, but acquitted of receiving stolen property. *fn1 Appellant was sentenced to 180 days in jail and fined $1000, and was ordered in addition to perform 500 hours of community service.

Execution of the jail sentence was suspended, and appellant was placed on probation for one year. On appeal he makes three arguments: (1) that there was insufficient evidence to convict him of second-degree theft, (2) that the trial court improperly precluded him from presenting surrebuttal testimony to impeach a government rebuttal witness whose testimony had been stricken from the record, and (3) that the court rendered inconsistent verdicts when it found him guilty of second-degree theft while at the same time acquitting him of receiving stolen property. We affirm.

I.

At the time of the events giving rise to this case, appellant was a Metropolitan Police officer. At about 1:00 a.m. on September 19, 1999, he stopped John Cecchi on Greenwich Parkway, N.W., and arrested him for reckless driving. Mr. Cecchi's housemates, Charles Drew and Michael Kelly, were passengers in Cecchi's car. Appellant parked the car himself, rather than having it towed and impounded, since Mr. Cecchi lived just a short distance away on Greenwich Parkway. *fn2 Appellant then took the keys out of the ignition, and from the center console he removed Mr. Cecchi's wallet, driver's license, registration, and his Nokia cellular phone, which was valued at $179.

Appellant took Mr. Cecchi to the Second District police station to process him for reckless driving, but he did not log the items he had taken from Mr. Cecchi's car into the police property book. While at the station, Mr. Cecchi filled out paperwork, providing his name, address, and telephone number. At about 3:00 a.m., appellant released Mr. Cecchi with a citation and returned his property to him, except for the cellular phone. Mr. Cecchi went home and went directly to bed.

Mr. Cecchi awoke around 11:00 a.m. and went outside to check on his car. At that time he discovered that his cellular phone was missing from the center console where he had left it. He immediately called the Second District police station, but was told he would be unable to speak to appellant until 10:00 p.m. when he came on duty. When Mr. Cecchi called back later that evening, appellant told him that he did not have the cellular phone and that it was not in the patrol car. Suspecting that appellant had stolen the phone, Mr. Cecchi declined appellant's offer to take a stolen property report.

Mr. Cecchi did not cancel his cellular phone service, hoping that someone would find the phone and call him. When he received his next bill, however, he noticed that seven calls had been made during the time the phone had been out of his possession. The bill showed that three of these calls, made soon after Mr. Cecchi was released from the station, were to the telephone number of Suzanne Boccia, who later was identified as appellant's former girl friend. The first call was made on September 19 at 5:34 a.m. (while Mr. Cecchi was still asleep), the second call on September 20 at 11:54 a.m., and the third on September 20 at 12:23 p.m. Between the second and third calls to M s. Boccia, a call was also made on Mr. Cecchi's cell phone to Kay Jewelers.

Charles Newsome was a sales representative at the Sprint PCS store in Laurel, Maryland. His job w as to "sell cellular phones to customers and set up their accounts." Mr. Newsome testified that on October 4, 1999, appellant attempted to trade in a Nokia cellular phone for a rebate on a new phone. After checking the phone's serial number in the store's computer, Mr. Newsome informed appellant that it had been reported stolen. Appellant replied that he had found it while working as a bouncer in a night club. Pursuant to store policy, Mr. Newsome confiscated the phone. Appellant then said that he still wanted to proceed with the sale and filled out a credit application. Because of his poor credit, appellant was required to put down a deposit plus the cost of a phone before service could be activated. Appellant replied that he did not have enough money with him to leave a deposit, but that he would return at a later time. He never returned. Meanwhile, after appellant left, M r. Newsome called Mr. Cecchi to tell him that his phone had been found. They arranged for Mr. Newsome to send the phone to another Sprint store in Reston, Virginia, near Mr. Cecchi's place of employment, where he could more conveniently pick it up.

Lieutenant Michael Farish, with whom Mr. Cecchi had lodged the complaint that his phone had been stolen, met with Mr. Newsome on October 9 to show him an array of nine photographs, one of which was a picture of appellant. Mr. Newsome identified appellant from that photograph as the man who attempted to trade in the phone that was reported stolen. Lieutenant Farish obtained a warrant and placed appellant under arrest on October 13. In the course of processing him after the arrest, Lieutenant Farish found in appellant's wallet a business card from Mr. Newsome.

At trial appellant denied stealing the phone. He testified that at 10:45 p.m. on September 19 -- almost twenty-four hours after he had stopped Mr. Cecchi for reckless driving -- he found the cellular phone behind the driver's seat of his police car. He then placed it in his locker instead of logging it into the property book, explaining that his initial failure to log in Mr. Cecchi's property violated police procedures and he did not want to subject himself to disciplinary action. However, between the time Mr. Cecchi was arrested and the time appellant said he found the phone, three other officers had driven the same police car. All three testified that they conducted the required search of the car for contraband and property before their respective shifts, and none of them found a cellular phone in the car. Appellant also stated that he called Mr. Cecchi's parents' house to inform Mr. Cecchi that he had found the phone, but did not leave a message because Mr. Cecchi was "adamant" about not letting his family find out about the ...


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