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Cox v. United States

July 15, 2010


Appeal from the Superior Court of the District of Columbia (F-5427-05) (Hon. Robert R. Rigsby, Trial Judge).

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

Argued June 2, 2009*fn1

Before GLICKMAN, KRAMER and OBERLY, Associate Judges.

After a jury trial, appellant Nelson Cox was convicted of two crimes: (1) possession with intent to distribute a controlled substance, cocaine, while armed,*fn2 and (2) the commission of that offense (a felony) while on release in another case.*fn3 He was acquitted of a number of other offenses: possession of a firearm during a crime of violence (PFCV); carrying a pistol without a license (CPWL); four counts of possession of an unregistered firearm (UF); and eight counts of unlawful possession of ammunition (UA). The counts on which Cox was convicted, as well as the PFCV and CPWL counts and one count each of UF and UA, stemmed from his arrest in a traffic stop. The remaining UF and UA counts resulted from a subsequent police search of Cox's mother's residence.

Cox raises a bevy of challenges to his convictions. Only one of his claims entitles him to any relief. We hold that the trial court responded erroneously to a jury note seeking clarification of the phrase "while armed with or having readily available a pistol" in the instruction on possession with intent to distribute cocaine (PWID) while armed. The court did not dispel the jury's evident confusion as to the meaning of the term "readily available." By telling the jury to give the words their "ordinary meaning . . . in everyday conversation," the trial court permitted the jury to convict Cox simply because a pistol was within his reach, even if he was unaware of the weapon's presence or lacked the intent to exercise dominion or control over it. As we cannot deem the error to have been harmless, appellant's conviction of PWID while armed cannot stand.

I. Factual Background

A. The September 17, 2005 Traffic Stop

On September 17, 2005, United States Park Police Officer Frank Morales stopped a car with windows tinted more darkly than District law permits. Officer Morales and his partner, Officer Cynthia Barrett, approached the car while a third police officer, Officer James Knapp, arrived to back them up. As Officer Morales came up on the driver's side of the vehicle, he noticed the front seat passenger bend over and move his hands at or below knee level.

Upon addressing the driver to tell him the reason for the stop, Officer Morales smelled alcohol on the driver's breath and asked him to step out of the car to take a sobriety test. The driver agreed to do so and asked whether he was going to be searched, explaining that he had a BB gun in his waistband. At Officer Morales's directions, the driver removed the gun and placed it atop the vehicle. The front seat passenger did not have any weapons on his person.

Meanwhile, appellant Cox, who was sitting in the seat behind the front passenger, had been ordered to put his hands where the officers could see them. Despite that order, Cox allowed his hand to drop toward his waistband. Worried that Cox was reaching for a gun, Officer Morales directed him to pull his hand back up. Cox complied, but as Morales tried to communicate with Officer Knapp, Cox again allowed his hand to drop. Morales then ordered him out of the car and began to pat him down for weapons.

During the pat down, Officer Morales's "hand went over [what was] immediately apparent to [him] [as] a bag of narcotics" concealed in an extra pocket in Cox's jacket. (We quote the testimony, credited by the trial court, that Morales gave in the hearing on Cox's evidence suppression motion.) The bag was about "two inches long, maybe a little over an inch wide and full" of what Morales identified as crack cocaine. The officer testified that he did not squeeze or manipulate the bag, but knew at once what it was, since he had felt similar objects "over a hundred times easy." Morales proceeded to seize approximately sixty ziplock plastic bags containing an off-white rock-like material. This cocaine, as later testing confirmed it to be, was the subject of the PWID while armed count on which Cox was convicted.*fn4

After placing Cox under arrest, the police searched the car. Underneath the front passenger seat, Officer Morales found a Taurus .38 caliber revolver lying on the floor behind the lever used to move the seat forward or backward. The handle of the pistol was facing the rear of the car, where Cox had been seated. The pistol was loaded with distinctive, two-toned hollow-point bullets. The police later test-fired the weapon and determined that it was operational. The "while armed" enhancement of the PWID count on which Cox was convicted related to this pistol, as did the PFCV and CPWL counts and one of the UF counts, on each of which Cox was acquitted.*fn5

At the police station, Cox gave a statement on videotape in which he said he had found the drugs and put them in his pocket, intending either to sell them to a crack user or to give them away. Cox did not admit to having known ...

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