Submitted May 19, 2016
Amended October 26, 2017 [*]
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
Blackburne-Rigsby [**] and McLeese, Associate Judges,
and Reid, Senior Judge.
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
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.
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. 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
Following the exit of the occupants, the officers searched
the car. 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.
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. 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. When the officers reached the third floor
of the home, they entered one of the bedrooms (bedroom
one). 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" 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
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.
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 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." 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.
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.
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.
Search and Seizure
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.
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
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.
of the Evidence
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 ...