Appeal from the Superior Court of the District of Columbia (CF2-18521-09) (Hon. Jennifer M. Anderson, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge:
Before RUIZ, Associate Judge, and FERREN and STEADMAN, Senior Judges.
After the Superior Court denied his pretrial motions, appellant, Carlton J. Beachum, entered into a conditional plea of guilty to one count of unlawful possession of a firearm by a convicted felon, one count of possession of an unregistered firearm, and one count of unlawful possession of ammunition. On appeal, he challenges the trial court's denial of his pretrial motions to suppress evidence and for severance from a co-defendant, as well as the denial of his request for an overnight continuance to produce a defense witness. For the following reasons, we affirm his convictions.
Appellant and his co-defendant, Asia Copeland, were arrested in the 5100 block of Fitch Street, Southeast, on August 26, 2009. At about 1:00 a.m. that night, MPD officers responded to a complaint of loud noise coming from a silver vehicle at 5107 Fitch Street. Upon arriving on the scene, the officers found appellant and Copeland seated on the curb within three feet of a silver Jeep Cherokee, from which loud music was playing. Between appellant and Copeland was an unsealed bottled of Patron tequila and two clear plastic cups smelling of alcohol. An officer asked appellant and Copeland who owned the Jeep, to which Copeland responded that the Jeep and "everything in it" belonged to her.*fn1 Another officer shined his flashlight into the left rear passenger seat and observed "the extended clip of a handgun sticking . . . out of a tan duffle bag." Appellant and Copeland were taken into custody, and a crime scene search officer later recovered the firearm.
By indictment dated September 9, 2009, appellant was charged with carrying a pistol without a license, unlawful possession of a firearm by a felon,*fn2 possession of an unregistered firearm, unlawful possession of ammunition, unlawful possession of a controlled substance (marijuana), and possession of an open container of alcohol. On October 2, 2009, appellant moved to sever the charges against defendant Copeland, arguing that he had a bona fide need to call Copeland as a witness in his defense. Also on October 2, 2009, appellant moved to suppress evidence and statements obtained from him during his arrest. The government opposed both motions.
On October 30, 2009, the trial court held a hearing on appellant's motion for severance. At the hearing, appellant's counsel proffered that he would seek to call Copeland to testify at trial about the statement she made on the night of the arrest that the Jeep and "everything in it" were hers. Copeland's counsel indicated that Copeland was not willing to testify on appellant's behalf, and the court noted that it could not grant a severance if the co-defendant was unwilling to testify. Appellant then proposed admitting Copeland's out of court statement under an exception to the hearsay rule, either as a statement against penal interest, a present sense impression, or an excited utterance. Asking the parties to brief the issue, the court denied "the motion to sever for now."*fn3 The matter was continued until the November 30th trial date.
On November 30, 2009, the government dismissed the charges against appellant of carrying a pistol without a license, possession of a controlled substance, and possession of an open container of alcohol. The court then heard appellant's suppression motion, starting with testimony from appellant to establish his standing to contest the search of the Jeep.*fn4
The court found that appellant had some expectation of privacy in the car and, therefore, it allowed appellant to challenge the search. In turning to the legality of the search, the government presented testimony from MPD Officer Thomas O'Donnell, who recounted the circumstances of the search. Officer O'Donnell testified:
As Officer Gomez was asking, you know, who the vehicle belonged to and if there was anything in the vehicle[,] I went around to the driver's side and was shining my light in first the driver's side, the driver's door and then in the back left passenger seat, and the windows were all down . . . and right as I shined my flashlight into the rear passenger seat I noticed what I immediately recognized as the extended clip of a handgun sticking straight out of a tan duffle bag.
After the government rested, appellant provided a somewhat different account of the search. He testified that he and Copeland were seated in a grassy yard, drinking tequila with a woman named "Vikki," who was seated inside the silver Jeep.*fn5 While they were drinking, a police squad car arrived to investigate loud music coming from another silver vehicle that was parked in front of 5107 Fitch Street.*fn6 The squad car left and about ten minutes later, a second set of officers arrived. Appellant testified that four officers "jumped out" and "immediately" began searching the Jeep while another officer handcuffed appellant and Copeland. He stated that his duffle bag in the Jeep had been zipped closed and that it was impossible to see inside it.
In announcing its findings, the court credited the testimony of Officer O'Donnell, and found that "the gun was in plain view and that the officer was able to see it by shining his flashlight into the car . . . ." The court accordingly denied appellant's motion to suppress. Appellant then agreed to a conditional plea of guilty to one count of unlawful possession of a firearm by a convicted felon, one count of possession of an unregistered firearm, and one count of unlawful possession of ammunition. On February 16, 2010, the court sentenced appellant to twenty-four months' incarceration for unlawful possession of a firearm by a felon, twelve months' incarceration for possession of an ...