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Antoine Rose A/K/A Virgil Johnson v. United States

August 16, 2012

ANTOINE ROSE A/K/A VIRGIL JOHNSON AND MAURICE D. CALLOWAY, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CMD16463-09 & CF2-16461-09) (Hon. Robert E. Morin, Trial Judge)

The opinion of the court was delivered by: King, Senior Judge:

Argued May 22, 2012

Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING, Senior Judge.

Antoine Rose, a/k/a Virgil Johnson,*fn1 who was acquitted of distribution of phencyclidine (PCP), challenges his conviction for simple possession of PCP*fn2 on the ground that, because simple possession is not a lesser-included offense of distribution, the jury should not have been instructed that it could convict him of that offense. He also contends the evidence was insufficient to support the conviction. Maurice D. Calloway challenges his convictions for distribution of PCP,*fn3 one count of possession with intent to distribute PCP,*fn4 and possession of drug paraphernalia,*fn5 on the ground that the trial court erroneously denied his motion to suppress. We affirm all of the convictions.

I. Factual and Procedural Summary

On the evening of July 28, 2009, at approximately 9:05 p.m., two Metropolitan Police Department (MPD) officers set up an observation post in the 3800 block of Ninth Street, Southeast. The officers set up in a wooded area across from a well-lit housing complex. Despite being in a wooded area, the officers‟ view was clear and unobstructed. Using binoculars, they were able to see activity in the complex‟s courtyard and stairway.

The officers observed a vehicle pull up, and watched as the occupants - one of whom was co-appellant Maurice D. Calloway - exited. He walked to a tree in the courtyard and placed an object in the tree‟s branches. Calloway then proceeded to sit and talk with a group of men on the stairs. Shortly thereafter, another car drove up, and Rose exited the rear passenger seat, approached Calloway, and showed Calloway money. Rose went back to the car and conferred with the front seat passenger, and then returned to Calloway. The two men walked to the tree, where Calloway retrieved something and handed it to Rose, and Rose gave Calloway money.*fn6 Rose put a cigarette in his mouth, drew back, and lit the cigarette on his walk back to the car. Rose handed an object to the passenger, and then went to sit with Calloway and the other men on the stairs, and the car drove away. That car was stopped, and the officers recovered a cigarette reeking of PCP from one of the passengers.*fn7 The arrest team moved in on the courtyard, and Calloway and Rose were arrested. A vial containing a liquid later found to be PCP was recovered from the tree. Two packs of cigarettes and $194 in cash were found on Calloway‟s person.

Calloway was charged with and convicted of distribution of PCP, PWID, and possession of drug paraphernalia. He challenges all of his convictions on the ground that the trial court erroneously denied his motion to suppress evidence.*fn8 Rose was charged with but acquitted of distribution of PCP. He was convicted, however, of the lesser-included offense of possession. On appeal, Rose challenges both the instruction that possession is a lesser-included offense of distribution and the sufficiency of the evidence to convict him of possession.

II. Discussion

A. Possession as Lesser-Included Offense of Distribution

The record in this case is less than clear, and by all accounts incomplete. At some point during the course of the trial, not reflected in any of the transcripts, it was apparently agreed that the trial judge would instruct the jury that it could consider, with respect to Rose, the offense of simple possession as a lesser-included offense of distribution. It is unclear whether Rose requested the instruction, but there is nothing in the record indicating that the trial court questioned the giving of that instruction, or that either counsel objected to such an instruction. The record does reveal that the trial court drafted verdict forms reflecting this understanding.*fn9 Additionally, the court‟s instructions to the jury on this point were opaque at best. The court began by stating that both defendants were charged with distribution, and went on to discuss the elements of distribution. The trial judge then discussed the offense of possession with intent to distribute (PWID), and stated that "this only applies to Mr. Calloway." The judge next gave an instruction as to simple possession as a lesser-included offense of PWID. The judge then stated:

Of course, you may find that the government has not proven beyond a reasonable doubt that either defendant*fn10 possessed phencyclidine at all. You should first consider whether the defendant is guilty with intent to distribute phencyclidine. If you find that the defendant guilty by possession with intent to distribute or distribution, do not go on to consider the less[e]r offense of possession. Only if you find the defendant not guilty of the greater offense do you go on to consider the less[e]r offense of possession of phencyclidine.

(Emphasis added.) Except as indicated in italics in the passage quoted above, no instruction was given with respect to possession as a lesser-included offense of distribution. Possession as a lesser-included offense of PWID, however, was explicitly stated by the trial judge. Rose‟s counsel made no objection to the instructions. In closing, Rose‟s counsel urged the jury, "if you are firmly convinced that [Rose] had any ...


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