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Howard v. United States

February 3, 2005; as amended February 14, 2005

VASHON HOWARD, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F-536-96) (Hon. Harold Cushenberry, Jr., Trial Judge)

Before Wagner, Chief Judge, and Reid, Associate Judge, and Steadman, Senior Judge.*fn1

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

Argued May 6, 2004

After a jury trial in April 2002, appellant Vashon Howard was convicted of possession of marijuana with intent to distribute while armed, in violation of D.C. Code §§ 48-904.01 (a)(1) (2001), 22-4502 (2001), and carrying a pistol without a license, in violation of D.C. Code § 22-4504 (a) (2001). On appeal, Mr. Howard primarily contends that the trial court: (1) erred in denying his motion for judgment of acquittal because the evidence was insufficient beyond a reasonable doubt to convict him on a theory of constructive possession of marijuana; and (2) in handling the issue pertaining to the Fifth Amendment privilege of potential defense witnesses, the trial court "failed to protect his Sixth Amendment [r]ight" to present a defense. Unpersuaded by these, and other arguments, which we dispose of summarily, we affirm the trial court's judgment.

FACTUAL SUMMARY

The record on appeal shows that on December 27, 2001, at approximately 6:45 p.m., Officers Anthony Greene and Orvin Boyd of the Metropolitan Police Department ("MPD") were on surveillance duty in the Southeast quadrant of the District of Columbia at a concealed observation post situated in a unmarked van parked in the 4300 block of Third Street. This area was under observation because of its reputation as a high marijuana trafficking and sales area.

The officers initially observed Mr. Howard, Dwayne Adams, and D.D. (a juvenile) lollygagging and horse playing together in this area. The distance between the observation post and the three men was approximately 25 to 30 feet. From his position in the rear of the van, Officer Greene observed D.D. and an unidentified man engage in an exchange of a small object for cash, and moments later saw Mr. Howard participate in an exchange of a small plastic object, which he removed from his coat pocket, for cash with another unidentified man. Meanwhile, from his position in the driver's seat, Officer Boyd watched Mr. Adams as he removed "a larger bag . . . out of his coat," and went to the front of the vehicle parked immediately in front of the police observation van. Officer Boyd could see only "a shadow," but noticed that Mr. Adams did not have the larger bag when he walked back across the street, and stood in close proximity to D.D. and Mr. Howard.

While Officer Boyd was observing Mr. Adams, Officer Greene, believing the exchanges to be narcotics sales, issued look-outs for all involved in the transactions. The look-out for Mr. Adams was based upon Officer Boyd's observation. The arrest teams responded to the look-outs and proceeded to the scene. The men became suspicious when the arrest team arrived and took flight. The buyers in both transactions ultimately eluded police capture.

Officer Boyd noticed that Mr. Adams and D.D. "[s]tayed on the sidewalk," but saw Mr. Howard as he "stepped over [a] rail" onto a grassy area and "something c[a]me from his person, an object" which the officer could not identify.*fn2 Officer Boyd used his police radio to say, "he just dropped something." Officer Shumac, a member of the arrest team, who had caught sight of "three men walking away" as he arrived on the scene, observed Mr. Howard "step[] over" a "silver pole" or a railing and "walk[] in the grassy area." He looked as D.D., who was walking on the sidewalk, "dropped [a] clear plastic bag, which appeared to [Officer Shumac] to contain several ziplocs of a greenish weed substance." Later the officer discovered that the "clear plastic sandwich baggie . . . contained three individual ziplocs of a greenish weed substance." Officer Shumac retrieved the bag from the sidewalk and continued to follow the three men. Mr. Howard "ma[d]e a motion," and "a shiny object appeared in the air and dropped maybe a step away from him at his feet." In response to Officer Boyd's radio statement that Mr. Howard "just dropped something," Officer Shumac reportedly said, "oh, I see it, I see it, I see it. A blind man could have seen that, something like that."*fn3 Officer Shumac "yelled" at another officer to stop Mr. Howard. Officer Perkins, a member of the arrest team, stopped Mr. Howard by tackling him.

At some point, Officer Shumac looked in the grassy area where Mr. Howard had dropped the "shiny object" which the officer suspected was a handgun. He saw a semi-automatic handgun. Approximately one foot from the handgun was "a clear ziploc [containing] a greenish weed substance." This ziploc bag was "[s]imilar in size," and the marijuana was "similar" in color to that handled by D.D. and Mr. Howard during their transactions with the unidentified men. It was also similar in size and color to the ziplocs retrieved from a bag in the front bumper of the vehicle parked immediately in front of the police observation van, where Officer Boyd saw Mr. Adams removing a bag from his coat. Officer Craig, who arrived on the scene in a vehicle driven by Officer Shumac, testified that after he exited the vehicle and "approached the sidewalk and grassy area . . ., [he] observed what appeared to be a black handgun laying on the grass area next to a small ziploc which contained a green weed-like substance which appeared to be marijuana." After the gun was "secured" on the ground and other officers had arrived on the scene, Officer Craig assisted Officer Shumac as Officer Shumac recovered the "stash," consisting of 16 individual ziploc bags of a green weed-like substance, from the bumper of the van parked in front of the police observation vehicle. The "shiny" object turned out to be a .9mm semi-automatic handgun.

During the recovery of the contraband, Officer Greene positively identified Mr. Howard, D.D., and Mr. Adams based upon their physical features and clothing, and the men were arrested. A search of Mr. Howard incident to his arrest produced no illegal narcotics, but a large sum of currency was found. The currency was given to Mr. Howard's girlfriend who had arrived on the scene. After being arrested, and while awaiting transport to police facilities for processing, Mr. Howard commented to Mr. Adams, "every time I'm up here f**king with you, I get hemmed up."

On March 27, 2002, the government filed a two-count indictment against Mr. Howard. One count charged him with possession with intent to distribute marijuana while armed, and the other with carrying a pistol without a license. At his jury trial in April 2002, the government presented: (1) physical or documentary evidence including the 9mm gun, photographs depicting a semi-automatic handgun and near it a clear ziploc bag containing a greenish weed substance, and the ziploc bags of marijuana seized from the front bumper of a van parked at the crime scene; (2) testimonial evidence from the MPD observation and arrest teams; (3) expert testimony from MPD Officer Mark Stone, who described the practice of drug trade and sales in the District of Columbia and the component roles individuals play in selling drugs as a joint venture: the "runner," the "holder," and the "enforcer"; and (4) a stipulation, establishing that Mr. Howard had a prior conviction for carrying a pistol without a license and that he did not have a license to carry a weapon.

Mr. Howard's defense was that he possessed no marijuana, and that D.D. possessed and threw the gun in Mr. Howard's direction. To support this position, Mr. Howard presented several witnesses. Andre McMillan testified that he saw D.D. "fumbling for something" and [t]hen he dropped a black object." Ms. Bennett said D.D. "stepped in front of [Mr. Howard] and tossed the gun into the grass." Ms. Cox asserted that D.D. "threw an object over the pole" or railing. Mr. Howard also sought the testimony of others, including Mr. Adams, and D.D., to demonstrate that D.D. possessed the gun. Mr. Adams and ...


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