Appeal from the Superior Court of the District of Columbia (CF2-3676-06) (Hon. John M. Mott, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:
Before OBERLY, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and KING, Senior Judge.
Carlos Eady appeals his convictions for carrying a pistol without a license ("CPWL"),*fn2 possession of an unregistered firearm ("UF"),*fn3 and possession of ammunition ("UA").*fn4 Appellant's convictions were subject to sentence enhancement because appellant had a prior felony conviction,*fn5 and because he had committed an offense while on release.*fn6 Appellant argues that the trial judge committed reversible error by (1) reading the unredacted indictment to the jury, which stated that appellant had a prior felony conviction and had committed the charged offenses while on release, (2) instructing the jury and permitting the prosecutor to argue that appellant had been on release and had committed a prior felony, and (3) providing to the jury written copies of appellant's stipulations regarding his other crimes. We agree with appellant that the jury was unnecessarily and prejudicially informed about appellant's prior felony conviction and other criminal prosecution. We, therefore, reverse and remand for a new trial.*fn7
Appellant's trial was brief , with the presentation of the government's evidence taking only four hours. The government presented evidence that, at approximately 7:30 p.m. on February 24, 2006, at least four police officers, including Detective Angelo Battle and Officer Ivan Jordan, arrived at a house in Northeast Washington, D.C. in response to a 911 call from that location. They knew only that the caller had reported that someone was acting erratically and destroying property at the house. When they entered the house, they found that it was in "disarray" and clothes and furniture were strewn "all over the place." As described by Detective Battle, the house looked like "someone had either dumped some clothes or turned the house upside down." Appellant's mother, Charlene Harris, was inside the house and she spoke to the officers. Harris was "upset" and "agitated" and "was moving around erratically" when the officers arrived. The house was in disarray, she said, because appellant had been extremely upset and angry and had "torn the house upside down looking for his handgun." Harris told Detective Battle that appellant had "flipped the couch over that his younger sibling was on and . . . found a handgun under the couch." Appellant then pointed the gun at Harris, "made some statements," and left the house with the handgun. Harris gave the officer a physical description of her son and asked the officers to find him and "bring him home or make him safe."*fn8
After studying a photo of appellant that was hanging on the wall, the officers left to search for appellant outside. A short time later, Detective Battle saw appellant standing across the street. Detective Battle yelled, "Hey, Carlos," and the group of officers approached appellant. Detective Battle testified that he "[k]ept a neutral conversation with [appellant]" and told him that his mother was "upset" and was waiting for him back at the house. Appellant appeared to be "real agitated" and was surprised that Detective Battle knew his name. Detective Battle testified that, throughout his "small conversation" with appellant, he was "pretty much doing all the talking and [appellant] was just looking at [him], heart beating real fast . . . like excited. Eyes [were] like wide open." In response to appellant's apparent physical distress, Detective Battle put his hand on appellant's chest and asked if he needed any medical attention.
Detective Battle testified that he did not pat appellant down and allowed appellant to walk away. He explained that he "felt pretty secure with the four [other officers]" and did not search appellant because he did not want to "spook" him. Officer Jordan, however, recalled things differently; he testified that the officers did a "protective search" when they encountered appellant on the street and did not find a gun on him.
Detective Battle then hid in a nearby alley and waited to see if appellant would return to look for a gun. Detective Battle was lying on the ground in the alley when appellant came within 20 to 30 feet of him and walked up "real casual" and looked all around him. Appellant then picked up a gun from the ground with his right hand, put the gun in his right pocket, and took a few steps away from Detective Battle. Detective Battle sent out a radio call for the other officers because "[appellant] just picked [the gun] up and I thought it was about to get ugly for both of us." According to Detective Battle, "[t]he neighborhood was completely quiet and you can hear the engines, the police cars revved up and the tires screech . . . . So [appellant], of course he heard the same thing that I heard. He just took the gun back, threw it back on the ground and walked right back out to the same spot where we just stopped him minutes, minutes prior . . . ." Detective Battle estimated that the time that elapsed between when he first saw appellant in the alley and when appellant threw the gun down was "20 to 30 seconds at the max," but that "it sure felt a little quicker than that." When the other officers arrived, Detective Battle told them to secure appellant. He then returned to the area where he had seen appellant toss the gun down and found a Glock lying on the ground.
The gun that Detective Battle found was operable and appellant did not have a license to carry a pistol in the District of Columbia. Officer Ronald Royster testified that he later tested the gun for fingerprints, but no fingerprints were found on either the handle of the gun or on the bullets inside.
Appellant did not testify. His defense was that he did not "carry" or "possess" the gun that Detective Battle saw and that, even assuming that he had picked up the gun, any possession was "innocent" and devoid of criminal purpose. In support of this assertion, defense counsel emphasized Officer Jordan's testimony that the officers had conducted a "pat down" when they first encountered appellant on the street and did not find a gun on him. Counsel also argued that the absence of appellant's fingerprints on the gun Detective Battle found or on the bullets in it indicated that appellant never touched the gun.
After a full afternoon and a morning of deliberation, the jury convicted appellant on all counts: CPWL, UF and UA.
II. Evidence of Other Crimes
The indictment charged appellant with committing four offenses, including one count of CPWL (with a sentencing enhancement due to a prior felony conviction), and one count of committing a crime while on release for another pending criminal case. The trial court, the prosecutor, and defense counsel discussed the charges against appellant and defense counsel stated his understanding that the crime of committing an offense while on release is an "enhancement," not a separate offense. However, believing that "anything that's a factual matter that has an impact on sentencing has to be decided by the jury," the trial court admitted evidence, permitted argument, and instructed the jury concerning appellant's prior felony conviction and that he had been on release in another criminal case when he committed the CPWL offense charged in this case. The government concedes, and we agree, that evidence and argument that related to these two points - appellant's prior conviction and release status when he committed the charged CPWL offense - served no legitimate purpose in the jury's consideration of appellant's guilt of the charged offenses.
The trial court's reasoning was based on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), where the Court considered another type of sentencing enhancement, for a hate crime (purpose to intimidate victim because of race). Apprendi's rule protects the defendant's rights under the Fifth and Sixth Amendments by requiring that any fact that "increases the maximum penalty for a crime" be disclosed by indictment, submitted to trial by jury, and proven beyond a reasonable doubt. Id. at 476.
One of the offenses with which appellant was charged, CPWL, is punishable at three different levels of severity. See D.C. Code § 22-4504 (a).*fn9 The lowest penalty is imprisonment of up to one year and a fine of up to $1000. D.C. Code §§ 22-4504 (a) & 22-4515, however, under § 22-4504 (a)(2), the penalty for CPWL is enhanced to imprisonment of up to ten years and a fine of up to $10,000 if the defendant has previously been convicted of the same offense in the District of Columbia, or of a felony in the District or in any other jurisdiction. The Supreme Court established in Apprendi that the fact of a prior conviction does not have to be submitted to the jury's consideration before the judge may enhance the sentence. See id. at 490. ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (emphasis added.)); Criminal Jury Instructions for the District of Columbia, No. 8.100, cmt. ( 5th ed. 2011) (noting that, under Apprendi, the "government must prove to the jury beyond a reasonable doubt the aggravating circumstances . . . except for those circumstances that involve prior convictions"); see generally Sanders v. United States, 809 A.2d 584, 599-602 (D.C. 2002) (explaining procedures required for enhancement of sentence). Thus, the trial court's premise that the jury had to find that appellant had a prior conviction was clearly erroneous.
Similarly, D.C. Code § 23-1328*fn10 does not create a separate offense, but is a sentencing enhancement provision that adds a consecutive term of imprisonment of one to five years for felony offenses (ninety to one hundred eighty days for misdemeanors) committed while on release for another offense, pursuant to D.C. Code § 23-1321. See Tansimore v. United States, 355 A.2d 799, 803 (D.C. 1976) ("By its very terms, the provisions of [D.C. Code §] 23-1328 [committing an offense while on release] become operational only after a trial and after the accused has been found guilty."). Although we have said that the government must prove - and the defendant must be allowed to counter - the defendant's release status before the judge may enhance the sentence, see id. at 803-04, we have also commented that "[t]he fact that one was on release during the commission of a crime for which he is convicted merely serves to enlarge the penalty and is, therefore, a sentencing matter within the exclusive jurisdiction of the trial judge." Id. at 803. We have not had occasion to revisit the views expressed in Tansimore to decide whether, post-Apprendi, in a case where the defendant disputes that he was on release status, the question must be submitted to the jury.
We need not decide that question here because in this case defense counsel informed the court that appellant agreed to stipulate that he was on release for another criminal case at the time of the charged CPWL offense.*fn11 See Apprendi, 530 U.S. at 488 (explaining that in Almendarez-Torres v. United States, 523 U.S. 224 (1998), defendant had admitted he had three prior convictions that, under 8 U.S.C. § 1326 (b)(2), authorized the judge to increase sentence based on "recidivism"). Thus, in light of appellant's stipulation, the Constitutional bases for Apprendi - the defendant's rights under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth - were not implicated in appellant's trial.*fn12 That stipulation, moreover, also made it unnecessary to advise the jury of a prejudicial fact that played no part in the jury's consideration of the charged crimes, and was relevant only to sentencing. See Old Chief v. United States, 519 U.S. 172, 191-92 (1997) (where defendant was willing to stipulate to felon status at time of charged offense - an element of the crime - "only reasonable conclusion" where admission of evidence of type of felony was "likely to support conviction on some improper ground" was that "risk of unfair prejudice did substantially outweigh the discounted probative value" of the evidence). Thus, it was clear error to admit it as evidence in the trial.
During voir dire of the jury pool, the trial court informed the prospective jurors that appellant had been charged with "carrying a pistol without a license with an alleged prior felony" and "an offense committed during release allegedly on another case." The trial judge ...