July 15, 2010
NELSON COX, APPELLANT,
UNITED STATES, APPELLEE.
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 about the pistol hidden under the front passenger seat.*fn6
B. The December 7, 2005 Residential Search
Cox also told the police in his videotaped statement that he had been living at his mother's residence. Two-and-a-half months later, on December 7, 2005, United States Park Police officers executed a search warrant at that location. Throughout the premises, the officers found firearms and ammunition, including bullets of the same type, and bearing the same markings, as those discovered in the pistol seized by Officer Morales during the September traffic stop. Along with the firearms and ammunition, the Park Police also found photographic identification papers and other documents in Cox's name, including mail sent to him at that address. (At the time of the search, Cox was no longer living in the house, as he had been incarcerated as a result of his September arrest.)*fn7
II. The "While Armed" Enhancement
D.C. Code § 22-4502 (a) (Supp. 2009) permits the imposition of enhanced penalties on persons convicted of having committed a crime of violence or a dangerous crime "when armed with or having readily available" a pistol. Cox raises two challenges to his conviction under this statute. First, he contends, the trial court should have granted his motion for judgment of acquittal because the government failed to adduce sufficient evidence to prove he was "armed with" the pistol under the front passenger seat or that it was "readily available" to him while he was carrying the cocaine.*fn8
Second, he argues, the trial court erred in instructing the jury on the meaning of the words "armed with or having readily available" when the jury requested clarification. We address these claims in turn.
A. Sufficiency of the Evidence
"A court must deem the proof of guilt sufficient if, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"*fn9 We must give "'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'"*fn10
In the present case, the sufficiency question is a close one. Cox was not "armed with" the pistol hidden under the seat in front of him; we have held that "armed with" in D.C. Code § 22-4502 (a) "means actual physical possession of the pistol or other firearm."*fn11 And, while Cox was sitting within reach of the pistol, proximity and ease of access alone do not suffice to prove ready availability: we have construed the statute to mean that "in order to have a weapon 'readily available,' one must at a minimum have constructive possession of it."*fn12 To prove constructive possession, the prosecution was required to show that Cox knew the pistol was present in the car, and that he had not merely the ability, but also the intent to exercise dominion or control over it.*fn13
The elements of constructive possession may be established by direct or circumstantial evidence.*fn14 Direct evidence of Cox's possession of the pistol was lacking: Cox did not confess to having possessed the weapon, no witness testified to having seen him with it, and his fingerprints were not found on it. Moreover, as the pistol was not in Cox's plain view, his knowledge and intent cannot be inferred from the mere fact that he was near it.*fn15 Indeed, as Cox argues, the pistol could have been hidden by the front seat passenger, whose suspicious movements Officer Morales observed when he approached the car. The government did not present any evidence at trial as to the relationship between Cox and the front seat passenger (or any other occupant of the vehicle).*fn16
Nonetheless, other circumstantial evidence in addition to the pistol's location close to Cox supported the inference that Cox constructively possessed it. To begin with, as the government argued at trial, the orientation of the pistol on the floor under the seat, with its handle facing the rear, suggested it was the rear-seat passenger, Cox, who had stowed it there. The fact that the pistol was loaded with the same distinctive ammunition that the police subsequently discovered in the house where Cox had been living also helped link the weapon to him. Furthermore, this is a situation where "the additional evidence needed to complete the proof of constructive possession may be furnished by evidence linking the accused to an ongoing criminal operation of which that possession is a part."*fn17 To invoke that principle, "[t]he government must show a connection between the seized article [here, the pistol] and the criminal venture [here, the cocaine distribution activity] in order to enable the jury reasonably to infer the venturer['s] knowledge of the article."*fn18 Such a connection was established at trial by a police drug expert, who testified that drug dealers in the District of Columbia often carry firearms for protection. The expert also testified that the quantity of cocaine found on Cox was not consistent with merely personal use; i.e., it manifested his intent to sell the drugs. The evidence that Cox was a cocaine dealer thus supported the inference that the pistol at his feet belonged to him.*fn19
The evidence that Cox constructively possessed the pistol was hardly compelling, as his acquittals on the possessory counts of the indictment (PFCV, CPWL, UF and UA) attest. We conclude, however, that the evidence in its entirety was just strong enough to permit the jury to consider the question.
B. Adequacy of the Court's Instruction on Ready Availability
The trial court's initial instruction with respect to the "while armed" element of PWID while armed mirrored the standard jury instruction on the subject in common use in the District of Columbia.*fn20 It simply told the jury that it had to determine whether Cox "was armed with or had readily available a pistol," without defining the terms "armed with" and "readily available." Cox did not object to the omission. We held in Guishard that failure to define the terms used in the "while armed" instruction was not plain error.*fn21
During deliberations, though, the jury sent the trial court a note inquiring whether the term "'readily available' . . . mean[t] easily accessible or ha[d] anything to do with knowledge." Without taking the bench and discussing the note with counsel, the court replied to the jury in writing, telling it only to "give the words the ordinary meaning they would have in everyday conversation."
From the trial court docket entries, it appears that a substitute judge may have handled the matter from chambers because the trial judge was on leave when the jury sent its note. Regardless of what happened, the judge did not proceed correctly: "the jury's message should have been answered in open court, and defense counsel should have been given an opportunity to be heard before the trial judge responded."*fn22 The government properly acknowledges that, under the circumstances, Cox did not forfeit his claim by his failure to make a contemporaneous objection on the record to the court's re-instruction of the jury. Thus, the claim is not subject to the strictures of plain error review.
We agree with Cox that the trial court erred not only procedurally, but -- more importantly -- in the substance of its response to the jury note. Decisions regarding re-instruction of a jury are committed to the trial court's discretion, but when a jury sends a note indicating its confusion with the law governing its deliberations, "the trial court must not allow that confusion to persist; it must respond appropriately."*fn23 This means that "[w]hen a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy."*fn24 The jury note clearly evinced confusion as to whether easy accessibility alone is enough to prove that a pistol is "readily available" within the meaning of the enhancement statute. As we explained in addressing the sufficiency of the evidence, it is not: although "readily available" and "easily accessible" are synonymous in common parlance,*fn25 as used in the statute, "readily available" is a term of art that incorporates the requirements of constructive possession (one element of which is knowledge on the defendant's part). The trial court therefore erred in telling the jury to give the words "readily available" their "ordinary meaning" in "everyday conversation." Instead, to clear up the jury's confusion, the court should have re-instructed it with "concrete accuracy" on the specialized legal meaning of "readily available" -- in other words, on the government's burden to prove that Cox knew the pistol was present and had not only the ability, but also the intent, to exercise dominion or control over it.
The jury acquitted Cox of the possessory offenses pertaining to the pistol, apparently rejecting the prosecution argument that he constructively possessed the weapon. Unless the jury was behaving irrationally (which we have no reason to suppose), its verdict implies that it found Cox guilty of PWID "while armed" only because it labored under the misunderstanding, fostered by the trial court's erroneous reply to its inquiry, that the pistol could be "readily available" to Cox even if he did not constructively possess it. We therefore cannot say with the requisite "fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [jury's] judgment was not substantially swayed by the error."*fn26 Cox is entitled to relief from his conviction of PWID while armed.
Our conclusion affects only the "while armed" component of the offenses of conviction. We have no reason to overturn Cox's convictions for the lesser-included offense of (unarmed) PWID and for committing that felony offense while on release in another case.*fn27
In light of the trial court's instructional error, we reverse Cox's conviction of PWID while armed and remand for further proceedings consistent with this opinion. On remand, the government may choose to accept entry of a judgment of conviction on the lesser-included offense of (unarmed) PWID, in which case the trial court will need only to re-sentence Cox (and, possibly, make a clerical correction to the second count of conviction). Alternatively, the government may seek to retry Cox.*fn28
The parties have not briefed, and consequently we do not reach, the question of whether double jeopardy principles would forbid such a retrial in light of Cox's acquittal on the PFCV, CPWL, and UF counts involving the same pistol.*fn29
Reversed and remanded.