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Howerton v. United States

February 19, 2009


Appeals from the Superior Court of the District of Columbia (FEL-631--04) (Hon. Rafael Diaz, Trial Judge).

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

Argued March 11, 2008

Before, THOMPSON, Associate Judge, FARRELL, Senior Judge,*fn1 and ISCOE, Associate Judge, Superior Court of the District of Columbia.*fn2

Concurring opinion by Associate Judge THOMPSON at page 18.

On May 13, 2004, a jury convicted appellant Joseph Howerton of the following charges: assault with a dangerous weapon (gun) ("ADW") (D.C. Code § 22-402 (2001)); threatening to injure a person ("felony threat") (D.C. Code § 22-1810 (2001)); carrying a pistol without a license ("CPWL") (D.C. Code § 22-4504 (a) (2001)); possession of an unregistered firearm ("UF") (D.C. Code § 7-2502.01 (2001)); unlawful possession of ammunition ("UA") (D.C. Code § 7-2506.01 (3) (2001)); unlawful possession of drug paraphernalia (D.C. Code § 48-1103 (a) (2001)); and, unlawful possession of a controlled substance (crack cocaine) with the intent to distribute it ("PWID") (D.C. Code § 48-904.01 (2008 Supp.)).*fn3 Appellant challenges his convictions on the weapons charges (CPWL, UF, and UA) on the ground that they were obtained in violation of his rights under, and on the basis of statutory provisions that he asserts were invalid under, the Second Amendment to the U.S. Constitution. He challenges his CPWL conviction on the additional ground that the evidence was insufficient to sustain the charge. As to his drug convictions, appellant contends that joinder of the drug charges with the ADW and threat charges was improper. He also argues that his trial counsel's failure to challenge the joinder or to move for severance amounted to ineffective assistance of counsel, entitling him to relief. We reject appellant's arguments and affirm.


The government's evidence at trial established that at the time of the incidents that led to his arrest, appellant shared an apartment with his girlfriend, Kimberly Harrison, and the couple's then-seven-year-old child. In January 2004, appellant received a paycheck from which an amount had been deducted in payment of court-ordered child support. On January 26, 2004, appellant demanded that Harrison "call them [i.e., the court or other District of Columbia officials] and tell them you don't want [child support]." When Harrison refused, appellant held a gun to her head and told her he was going to kill her. Harrison reported the incident to police, and a warrant issued for appellant's arrest.

On January 28, 2004, police entered the apartment with keys supplied by Harrison and found appellant wearing only his boxer shorts, talking on the telephone in the doorway to the kitchen. Police arrested and handcuffed appellant and had him sit on a couch while they searched the apartment. On the kitchen table, police found what appeared to be (and was later determined to be five grams of) crack cocaine, along with implements used to cut and package the drug for sale. In the bedroom, about 18-20 feet from where appellant had been standing when police entered the apartment, police found a loaded black 9mm Glock handgun, surrounded by appellant's work identification, wallet, and various other possessions, on top of a dresser that appellant used. Harrison identified it as the same gun that appellant had pointed at her on January 26. Police officers found additional ammunition in a drawer of the same dresser.

After a jury found appellant guilty on all charges brought as a result of the incidents described above, the trial court sentenced him, on July 26, 2004, to a total term of twelve years' incarceration, followed by five years of supervised release. The sentence included three years plus a period of supervised release for ADW, one year for CPWL, one year for UF, and one year for UA, all to be served consecutively. Appellant's trial counsel filed a direct appeal.

On May 31, 2005, appellant, with new counsel, moved to vacate judgment and sentence pursuant to D.C. Code § 23-110 (2001), arguing that his trial counsel was constitutionally ineffective for failing to challenge the joinder of offenses under Super. Ct. Crim. R. 8 (a), or to move for severance under Super. Ct. Crim. R. 14. The trial court denied appellant's motion without a hearing. He appealed from that ruling, and on June 9, 2006, we ordered consolidation of the two appeals. The appeals were argued on March 11, 2008. Thereafter, we allowed supplemental briefing by the parties and by amicus Public Defender Service ("PDS") in light of the Supreme Court's decision in District of Columbia v. Heller, __ U.S. __, 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008).*fn4 That briefing was completed on October 30, 2008.


We begin with appellant's argument, which relies on the Supreme Court's opinion in Heller, that his convictions for CPWL, UF and UA were obtained in violation of the Second Amendment.*fn5

A. Standard of Review

Appellant did not raise his Second Amendment claim in the trial court. His failure to preserve the claim means that we will consider it only "under the rubric of plain-error review." Sims v. United States, No. 06-CF-137, 2008 D.C. App. LEXIS 493 (D.C. Dec. 31, 2008). This means that, to prevail, appellant must show that entry of judgment on his weapons convictions "was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public ...

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