Appeal from the Superior Court of the District of Columbia Criminal Division (F-12002-94) (Hon. Nan R. Shuker, Trial Judge)
Before Steadman, Reid, and Washington, Associate Judges
The opinion of the court was delivered by: Washington, Associate Judge
After a jury trial, appellant Terrance A. Johnson ("Johnson") was convicted of carrying a pistol without a license ("CPWL"), *fn1 possession of an unregistered firearm, *fn2 and unlawful possession of ammunition. *fn3 On appeal, Johnson contends that the trial court erred when it: 1) instructed the jury that it could find Johnson guilty of CPWL if it found that he had constructive possession of the weapon, 2) maintained a jury note screening procedure that deprived Johnson of the right to be present during all stages of the trial, 3) failed to poll and instruct the jury when it indicated an inability to reach a unanimous verdict, and 4) sentenced Johnson for CPWL in excess of the statutory scheme. Finally, Johnson alleges the Clerk of the Superior Court's failure to process his notice of appeal for five years is a denial of his due process rights. Although most of the issues in this appeal can be addressed summarily, two issues - the procedure for screening jury notes and the legality of Johnson's sentence - require greater discussion. We remand Johnson's sentence for the CPWL conviction to the trial court for re-sentencing in a manner consistent with this opinion, but otherwise affirm his conviction in all respects.
Johnson was arrested on December 7, 1994 in an alley near the 1000 block of E and F Streets, Northwest, in Washington, D.C. Jorge Benitez, who worked in the neighborhood, testified that he saw Johnson park his car in an alley, pull a gun from underneath the driver's seat, and hide it under his coat. Benitez then saw Johnson leave his car in the alley and walk away. Benitez alerted the police and described Johnson to officers, who set up surveillance of the car and broadcast a lookout for an African American man wearing a leather jacket. Approximately thirty to forty minutes later, Johnson came back to the alley with three individuals. At that point, officers approached the group and ordered them to stop at the rear of the car. Every person complied except Johnson, who got into the car, "slid from the driver's side of the vehicle approximately halfway between the driver's seat and the passenger's seat," reached into his jacket, and ducked down.
Police then apprehended Johnson, searched his car, and recovered a .32 caliber Colt automatic handgun loaded with four bullets. Testimony revealed that during the surveillance, no other individuals had approached the car, and none of the other individuals with Johnson was wearing a leather jacket. Johnson was charged with CPWL, possession of an unregistered firearm, and unlawful possession of ammunition. After a jury trial, Johnson was found guilty on all three charges.
At the close of evidence, the trial court instructed the jury that it could find Johnson guilty of CPWL based on either an actual or constructive possession theory. To find Johnson guilty of CPWL under a constructive possession theory, the trial court instructed the jury that it must find that Johnson "knowingly ha[d] both the power and the intent at a given time to control [the weapon]," and that the weapon was "convenient of access to the defendant" and "within his reach." During deliberations, the jury expressed some confusion about the difference between CPWL and possession of an unregistered firearm. In response, the trial court called the jury back into the courtroom and reinstructed the jury on actual and constructive possession. The court informed the jury that the elements of constructive possession for possession of an unregistered firearm and CPWL were different. Whereas a defendant could be found guilty of possession of an unregistered firearm under a constructive possession theory by knowingly having "both the power and the intent at a given time to control it by himself or herself or through another person," the court stated that more was needed for CPWL. The court emphasized that in order for the defendant to be found guilty of CPWL under a constructive possession theory, the jury must find that the defendant not only had constructive possession of the weapon, but that the weapon was conveniently accessible to and within reach of the defendant. The court then gave examples of the difference between the two charges. Johnson contends that the trial court's instructions confused the jury, and prompted it to return a verdict of guilty on this charge.
Although it is a close question whether Johnson properly preserved this issue for appeal, we find that he sufficiently challenged the trial court's inclusion of the constructive possession instruction. We, therefore, review the trial court's instructions for abuse of discretion. See Tyler v. United States, 495 A.2d 1180, 1183 (D.C. 1985) (stating that "[t]he decision on what further instructions, if any, to give in response to a jury question lies within the sound discretion of the trial court").
We see no error in the trial court's instructions. In fact, the trial court correctly stated the law with respect to a CPWL conviction based on a constructive possession theory. See White v. United States, 714 A.2d 115, 119 (D.C. 1998). Although Johnson argues that the jury was somehow confused, there is no record support for his contention. Once the jury was reinstructed, there were no further notes sent to the court indicating any confusion. Because there is no factual support for Johnson's contention that the jury was confused, and because a jury is presumed to follow the trial court's instructions, we find no basis to disturb the jury's verdict. See McCoy v. United States, 760 A.2d 164, 186 (D.C. 2000).
B. Coercion of Jury Verdict
1. Jury Note Screening ...