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Cox v. United States

May 4, 2006


Appeal from the Superior Court of the District of Columbia (F-4077-04) (Hon. Judith E. Retchin, Trial Judge).

The opinion of the court was delivered by: Ferren, Senior Judge

Argued April 5, 2006

Before SCHWELB and FARRELL, Associate Judges, and FERREN, Senior Judge.

At the conclusion of a jury trial, appellant, Milton Cox, was convicted of carrying a pistol without a license ("CPWL"), D.C. Code § 22-4504 (a) (2001), possession of an unregistered firearm ("UF"), id., § 7-2502.01, unlawful possession of ammunition ("UA"), id., § 7-2506.01, unlawful possession of drug paraphernalia ("PDP"), id., § 48-1103 (a), and unlawful possession of a controlled substance (marijuana), id., § 48-1103 (a).*fn1 Appellant contends on appeal that the trial court erred in refusing to admit the testimony of an arresting officer on two grounds: (1) it was hearsay, and (2) its admission in any event was not compelled (as appellant maintains) under the rule of completeness.*fn2 We agree that the trial court erred in both respects, but we conclude that the errors were harmless. Thus, we affirm all convictions.


On a day in July 2003, at around 5:00 p.m., veteran officers Stephen Franchak and Wayne David of the Metropolitan Police Department (MPD) were patrolling in uniform in a marked police car in the vicinity of Rhode Island Avenue and First and T Streets, N.W. They saw a red car driven by a man, later identified as appellant, go through a red light at the intersection of First and T and turn right onto T Street. Because of the traffic, the officers were unable to follow appellant immediately, but they caught up with him as he pulled up to a curb at the corner of North Capital and Seaton Streets, N.W. Officer Franchak asked appellant for his driver's license. A check of the license revealed that it had been suspended.

Officer Franchak ordered appellant out of the car and arrested him.

After removing Bruce Marshall (a co-defendant) from the passenger seat, and Steve Crump and Larry Brown from the back seat, both officers saw the handle of a black-colored, semi-automatic handgun (later found to be loaded) sticking up between the driver's seat and the console. The officers also found two rounds of ammunition in the center console and one large ziploc bag containing numerous small blue ziploc bags in the glove compartment. In the trunk, the officers found ten rounds of ammunition, a handgun holster, and a large black plastic bag containing 110.3 grams of marijuana.

At trial,*fn3 appellant testified that on the day before his arrest he had gone to a firing range in Upper Marlboro, Maryland to practice shooting. After leaving the firing range, appellant said, he placed the loaded gun between the center console and the driver's seat. Appellant denied that one could see the handle protruding up from between the seat and the center console. On his way home from the firing range, according to appellant, he picked up dinner for his family at his mother's request, but upon arriving home he forgot to bring his gun into the house when he brought the dinner in.

Appellant further testified as follows: The next morning, after dropping his mother off at work, he encountered his friend "Marco" while at a convenience store. Marco asked appellant if he would give him a ride to a family member's house. Appellant agreed. When Marco entered appellant's car, he was carrying a black plastic bag. Upon reaching First Street, N.W., appellant saw Brown and Crump and stopped to pick them up. Marco got out of the car and asked appellant to come back later to pick him up. As Marco was leaving the car, appellant asked him to put appellant's Play Station video game system, which was on the back seat, into the trunk, in order to make room for the new passengers. While remaining in the car, appellant opened the trunk with the latch next to the driver's seat, whereupon Marco put the game system in the trunk, closed the trunk, and walked away. Shortly after that, appellant saw Marshall and stopped to pick him up.

After appellant was arrested, the officers placed him on the ground in front of the squad car and began to search the car. Appellant testified that when he saw the officers looking around the driver's seat, he realized that he had left his gun in the car, called to one of the officers (Officer David), and explained that the gun was in the car because he had gone to the firing range the night before and had forgotten about the gun after putting it in the car. Appellant also told Officer David that the gun was registered in Maryland and not in the District of Columbia, and he admitted that he did not have a license to carry a gun in the District of Columbia. Appellant also denied ever possessing or seeing any of the ziploc bags or the marijuana.


During the government's direct examination of Officer Franchak, the prosecutor asked, "Did [appellant] have a permit with him to carry the gun you located in the car?" Officer Franchak responded, "Not to my knowledge." On cross-examination, defense counsel asked Officer Franchak if he had ever checked to determine whether appellant held a Maryland permit for the firearm, to which the officer replied, "No ma'am." On redirect, the prosecutor asked Officer Franchak, "Did [appellant] ever tell you that he had a permit for the gun?" Officer Franchak replied, "Not that I recall, no."

During cross-examination of Officer David, defense counsel requested permission to ask questions of Officer David that were outside the scope of direct. When asked to explain the nature of the proposed inquiry, counsel replied: "The government had asked Officer Franchak whether or not my client ever said that he had a permit for the gun, anything about him having the gun, and that this officer, that my client had that gun in this car because he went to the firing range. It goes to refute that Franchak basically said my client never told anyone about the gun or that he knew it was there or it was -- " After government counsel objected, the trial court ruled: "You can call the witness in your own case. But I don't think a ...

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