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James G. Morgan, Appellant v. United States

April 12, 2012

[5]     JAMES G. MORGAN, APPELLANT,
v.
UNITED STATES, APPELLEE.



[6]     Appeal from the Superior Court of the District of Columbia (FEL-7200-99) (Hon. Ann O'Regan Keary, Trial Judge)

[8]     The opinion of the court was delivered by: Ruiz, Associate Judge, Retired

[9]      Argued October 28, 2010

[10]     Before OBERLY, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and FARRELL, Senior Judge.

[11]     While on probation for a manslaughter conviction, appellant was arrested, charged with and prosecuted for possession of marijuana with intent to distribute.*fn2 He was subsequently acquitted after a criminal trial in Superior Court; however, following a show-cause hearing, the trial court revoked his probation based on the same offense. Appellant contends that his due process rights were violated because, at the show-cause hearing, the government's case was inconsistent with the one it presented at the criminal trial in which he was acquitted. We conclude that appellant's due process rights were not violated, and affirm the trial court's revocation of appellant's probation and ordered execution of the previously imposed sentence.

[12]     I.

[13]     In July of 2000, appellant pled guilty to one count of unarmed manslaughter.*fn3 On September 29, 2000, Judge Keary sentenced appellant to "[n]ot less than six years nor more than eighteen years" incarceration, with the execution of the sentence suspended as to all but five years' incarceration, five years of probation, and a $500 fine to be paid to the Victims of Violent Crimes Compensation Fund. At some point thereafter, appellant was released on probation.

[14]     On May 24, 2007, appellant was arrested and charged with possession of marijuana with intent to distribute (PWID). On October 1, 2008, appellant was acquitted of the PWID charge in a bench trial before Judge Rafael Diaz. After appellant's acquittal for PWID, Judge Keary ordered that appellant show cause why his probation should not be revoked.

[15]     At the show-cause hearing, the government presented the testimony of Metropolitan Police Department (MPD) Sergeant Robert Chagnon and MPD Lieutenant Brian Murphy. The officers testified that they were driving in an unmarked police cruiser when they noticed a Honda Accord parked at the curb, with a man, later identified as appellant, sitting in the driver's seat, and another man, later identified as William Truesdale, standing at the driver's side door. As the officers neared the Honda, they saw Truesdale "reposition his body[,] conceal[] his right side and . . . his right hand extend[ed] into the driver's side window." Neither officer could see any object in Truesdale's hand.

[16]    
Sergeant Chagnon and Lieutenant Murphy parked their vehicle and approached the Honda "to investigate." The officers noticed a twelve-pack of beer on the front passenger floorboard, accessible to appellant, with several open bottles inside. The officers arrested appellant for possessing an open container of alcohol*fn4 and "sat [him] down on the curb." Lieutenant Murphy then searched the interior of the Honda. He testified that as he began the search, he smelled the odor of "unburned, fresh marijuana." He then discovered a blue Ziploc bag containing "grass substance which later field-tested positive for marijuana" in the "center console area." At the show-cause hearing, Lieutenant Murphy was asked about the location of the bag in the center console area:

[17]     PROSECUTOR: Can you describe this console area?

[18]     LT. MURPHY: My recollection is the center console runs between the two front seats of the vehicle, it has like a little dip in it, a little well, and there's like an emergency brake on top of there that you pull up. I remember further back, there's a second part of the console.

[19]     PROSECUTOR: When you say "further back," in what direction of the car?

[20]     LT. MURPHY: Towards the rear of the car, there's a second compartment of the center console that actually has a ...


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