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Proctor v. United States

Court of Appeals of Columbia District

October 26, 2017

Jerome Proctor, Jr., Appellant,
United States, Appellee.

          Submitted May 19, 2016

          Amended October 26, 2017 [*]

         Appeal from the Superior Court of the District of Columbia (CF2-10780-14) Hon. Lynn Leibovitz, Trial Judge.

          Richard S. Stolker was on the brief for appellant.

          Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, Laura Crane, and Daniel J Lenerz, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby [**] and McLeese, Associate Judges, and Reid, Senior Judge.


          Reid, Senior Judge

         A jury convicted appellant, Jerome Proctor, Jr., of misdemeanor possession with intent to distribute marijuana (less than one half pound) ("PWID"), in violation of D.C. Code § 48-904.01 (a)(1) (2012 Repl); unlawful possession of a firearm (prior conviction) ("FIP"), in violation of D.C. Code § 22-4503 (a)(1) (2012 Repl); possession of a large capacity ammunition feeding device, in violation of D.C. Code § 7-2506.01 (b) (2012 Repl); and possession of drug paraphernalia, in violation of D.C. Code § 48-1103 (a).[1] For the reasons stated below, we affirm Mr. Proctor's drug and drug paraphernalia convictions, but we reverse his FIP and ammunition feeding device convictions.


         The government presented evidence primarily through its main witness, Officer James Love of the Metropolitan Police Department ("MPD"). Officer Love testified that on June 18, 2014, he and other officers were in plain clothes in an unmarked car when they noticed a vehicle with a non-working brake light. The vehicle came to a halt in front of 4877 F Street, in the Southeast quadrant of the District of Columbia, and the officers conducted a traffic stop.[2] The driver of the vehicle identified himself as Jerome Proctor. Officer Love noticed a "very strong odor of marijuana, " coming from the vehicle. Mr. Proctor informed Officer Love that he had "just smoked" marijuana. The officers asked Mr. Proctor and the passenger in the front seat to exit the vehicle.[3]

          Following the exit of the occupants, the officers searched the car.[4] The search of the center console revealed a sandwich bag with a green weed substance, $270, mail bearing Mr. Proctor's name, and an identification card for Mr. Proctor. In the backseat, Officer Love noticed a black, plastic carry-out bag - the type of bag that "you can't see inside of it" - that contained a green weed substance, and a digital scale.

         Not long after the stop of the car that Mr. Proctor was driving, Officer Herbert Nicholls, one of the officers involved in the search of the car, obtained a warrant to search the F Street residence.[5] Officers Love and Nicholls, and other MPD officers executed the warrant approximately three hours after the traffic stop. Several females and males were in the home, including Ms. Johnson.[6] When the officers reached the third floor of the home, they entered one of the bedrooms (bedroom one).[7] Officer Love removed the mattress from the bed and noticed a CVS bag. He "basically dumped the bag out . . ., dumped it out onto the ground." Inside was a blanket wrapped around a Glock 9 millimeter handgun, "children's drawings"[8] with the name Jerome Proctor, mail from the SunTrust Bank addressed to Jerome A. Proctor, Jr. at the F Street address, and some currency. The magazine inside the gun contained fifteen cartridges and another cartridge was in the chamber of the gun. On the dresser in the bedroom was an identification card for Ms. Johnson. Inside the closet an officer saw male and female clothing, as well as two bags containing green weed and empty sandwich bags. A male's jacket contained currency in different denominations.[9]

          Sherri Tupik, a chemist with the Drug Enforcement Agency testified that the bags recovered from the car driven by Mr. Proctor, and the bag recovered from bedroom one contained marijuana.

         The trial court qualified Officer Michael Jewell as "an expert in the distribution, use and pricing of marijuana in the District of Columbia and in the relationship between guns in (sic) the drug trade in the District of Columbia." Officer Jewell acknowledged that he did not participate in the arrests in this case and had no first-hand knowledge about the facts of this case. He stated that the amount of marijuana recovered from the closet in bedroom one amounted to 28.6 grams, or an ounce which would sell for $150 on the street. Counsel for Ms. Johnson asked whether he had seen an ounce "used as personal use"; he replied, "Sure." With respect to the marijuana discovered in the car, Officer Jewell asserted that the amount taken from the console was 27.8 grams, which also would be sold on the street as an ounce. The amount discovered in the black, plastic bag in the back seat amounted to 249 grams (226 grams would be one-half of a pound), or about 9 ounces; it would be sold at a price between 6 and $700 wholesale. Officer Jewell has seen individuals with that amount of marijuana for personal use, but not very often. He testified that depending on the amount of money a drug dealer is making and how comfortable a drug dealer is where the sales are being made, "a lot of time there's a gun present somewhere around where that dealer is, " to protect the money and the stash.

         After the government rested its case, the trial court denied its motion to admit firearms and ammunition registration certificates because the government failed to lay the proper foundation for the admission of business records. Mr. Proctor and Ms. Johnson moved for judgment of acquittal on those two counts (counts 4 and 5), UF and UA, and the trial court granted their motions. Following discussion, the trial court denied Mr. Proctor's motion for judgment of acquittal as to all other charges. With respect to Ms. Johnson, the court granted the motion for judgment of acquittal on the PWID charge because there was no evidence to connect her to the car and no evidence that she was the owner of the house. With respect to the charge of possession of a firearm during a crime of violence, the court stated, "that I would have to grant as well because even with the marijuana in the closet, it would not be applicable."[10] The trial court also granted Ms. Johnson's motion for judgment of acquittal with regard to the drug paraphernalia charge, and hence, Ms. Johnson was "excuse[d]" from the case. The trial court informed the jury that "[Ms. Johnson's] charges are no longer a part of the case, " and the jury "should not speculate" about the legal reasons for her departure as a codefendant.

         The defense presented three witnesses. Ms. Johnson, a special police officer, testified that she was on the third floor when the police entered her home. Others who occupied the home besides herself and Mr. Proctor were her brother, his girlfriend, Mr. Proctor's mother, and Mr. Proctor's younger brother and sister. She stated that she bought the 9 millimeter Glock so that she could "get [her] credentials to become an armed special police officer." When she heard the police downstairs in the house on the day of the search, she wrapped the gun in the blanket and put it in a CVS bag under the bed; the bag contained her son's schoolwork. The mail addressed to Mr. Proctor was never in the bag; it was under the bed. On cross-examination, Ms. Johnson claimed that Mr. Proctor had shown her how to load the gun. She acknowledged that she had told a police officer that she moved the gun back and forth between her car and the F Street home, and earlier on the day of the incident she had moved the gun from the car to the house.

         Quintin Buckmon, the passenger in the car driven by Mr. Proctor, was initially arrested in this matter, but his case was dismissed. He stated that he bought the marijuana that was in the car, and that the scale found in the car belonged to him. Tanya Hall, who occupied another bedroom on the third floor, had a sixteen-year-old and a twelve-year-old child who also occupied the F Street home. She testified that she and her children used a closet in bedroom one because the closet in her room was small. She stored her marijuana in the closet in bedroom one, and she and her young daughter and son would watch TV in that bedroom.


         The Search and Seizure

         Mr. Proctor argues that, based on his pre-trial probable cause contention, the trial court "erred in admitting evidence seized from a sealed container in the back seat of the car driven by [him] at the time of his arrest, and in admitting evidence seized pursuant to a search warrant of his bedroom." He asserts that, "[e]ven if not specifically framed as a motion to suppress, this [c]ourt should determine that the evidence obtained in violation of the Fourth Amendment was improperly admitted in evidence, and reverse [his] conviction under the plain error standard.

         The law of this jurisdiction clearly states that, "A motion . . . to suppress evidence shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion." D.C. Code § 23-104 (a)(2) (2012 Repl.); see also Super. Ct. Crim. R. 12 (b)(3). Moreover, "[f]ailure to file a motion to suppress before trial is treated as a waiver of any claim that the evidence was unlawfully seized, absent a showing of exceptional circumstances." Olafisoye v. United States, 857 A.2d 1078, 1085 (D.C. 2004) (citation omitted); see also Super. Ct. Crim. R. 12 (d). If no exceptional circumstances are shown, as here, there is a waiver, and "we are precluded from considering th[e] argument on direct appeal." Watley v. United States, 918 A.2d 1198, 1200 (D.C. 2007) (citation omitted).

         During his probable cause hearing, Mr. Proctor's counsel "ask[ed] the [c]ourt not to find possession with the intent to distribute marijuana, but simple possession of marijuana." Counsel raised no explicit argument regarding suppression of items seized from the car or the bedroom. At the plea hearing following his indictment on seven counts, Mr. Proctor reserved "all of [his] Fifth and Sixth Amendment rights, " but not his Fourth Amendment rights. Subsequently, he did not file a motion to suppress prior to trial. Hence, he clearly waived any challenge to the search and seizure, and we do not consider his search and seizure claim.

         Sufficiency of the Evidence

         The Parties' Arguments

         Mr. Proctor contends that the evidence was insufficient beyond a reasonable doubt to sustain his FIP and his possession of a large capacity feeding device convictions. He argues that although he shared bedroom one with Ms. Johnson, she owned the F Street home and "[h]e was not present [in the home] at the time of the premises search." He also contends that the factors this court has recognized as connecting a defendant to the contraband in a constructive possession case ("evidence linking the accused to an ongoing criminal operation of which the possession is a part, attempts to hide or destroy evidence, other acts evincing consciousness of guilt such as flight, and evidence of prior possession of contraband") are not "present in the instant case." He claims that the government did not "prove beyond a ...

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