Clyburn v. United States

48 A.3d 147, 2012 WL 2504879, 2012 D.C. App. LEXIS 312
CourtDistrict of Columbia Court of Appeals
DecidedJune 28, 2012
DocketNos. 09-CF-1165, 09-CF-1173
StatusPublished
Cited by3 cases

This text of 48 A.3d 147 (Clyburn v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clyburn v. United States, 48 A.3d 147, 2012 WL 2504879, 2012 D.C. App. LEXIS 312 (D.C. 2012).

Opinions

REID, Senior Judge:

A jury convicted appellant, Jaroki E. Clyburn; of multiple drug and weapons violations, including unlawful possession with intent to distribute a controlled substance (cocaine) while armed (“PWID-WA”), in violation of D.C.Code §§ 48-904.01(a) and 22-4502(a) (2001). Mr. Cly-burn contends that the evidence was insufficient to permit imposition of the enhancement penalty found in D.C.Code § 22-4502(a),1 because the government’s evi[149]*149dence failed to prove beyond a reasonable doubt that he was armed with or had a firearm “readily available.” We are constrained to agree, and we reverse Mr. Clyburn’s PWIDWA conviction and remand his case to the trial court, with instructions to enter judgment of conviction on the lesser-included offense of (unarmed) PWID, and to re-sentence him.2

FACTUAL SUMMARY

The government presented evidence showing that on the evening of October 27, 2006, an undercover officer of the Metropolitan Police Department (“MPD”), Marvin Washington, was part of a buy-bust operation, in the Northeast quadrant of the District of Columbia. Officer Washington approached a man in the 1600 block of Montello Avenue and asked for a “smoke,” meaning crack cocaine. The man walked with Officer Washington to the 1100 block of Queen Street. After telling Officer Washington to wait, the man proceeded to the front door of an apartment building. Someone, who later was identified as Mr. Clyburn, exited the apartment building. Officer Washington gave Mr. Clyburn $40.00 in pre-recorded funds, and in exchange, Mr. Clyburn handed the officer a “tan rock substance.” Mr. Clyburn returned to the apartment building, and specifically to Apartment No. 1. Officer Washington’s undercover partner, who was on the other side of Queen Street, observed the transaction and alerted members of the arrest team.

MPD Officer James Boteler was a member of the arrest team for the buy-bust operation. Upon receiving the lookout broadcast, he proceeded to the four-unit, two-story apartment building from which Mr. Clyburn exited during the drug transaction with Officer Washington. Officer Boteler entered the building, noticed that the door to Apartment No. 1 “was opening,” and he realized that the man in the doorway matched the description given by the lookout broadcast. Officer Boteler grabbed Mr. Clyburn’s arm and was pulled into the apartment as Mr. Clyburn sought to return to his apartment. The officer placed handcuffs on Mr. Clyburn and another officer took charge of him.

Officer Boteler described the layout of Mr. Clyburn’s apartment. The living room, which was immediately inside the front door, contained an L-shaped couch, a coffee table and a book shelf. The living room “opened up” into a dining area with a large fish tank and a dining room table. The dining area, which “also acted as a hallway, ..., led to a kitchen and then kind of a storage area behind that.” The bathroom and a bedroom with a bed and a closet were off to the left.

To make sure no other people were in the apartment, Officer Boteler conducted a protective sweep by walking through each room and calling out, “Police. Anybody in here?” The officer passed through the living room where he had handcuffed Mr. Clyburn, and proceeded to the dining room/hallway area, continued to the kitchen and a storage area, back tracked past a bathroom, and entered the bedroom. He looked under the bed “to make sure nobody was hiding under the bed.” He noticed a “large black-colored assault rifle.” Upon seeing a closed closet door, he drew [150]*150his weapon, and again called out, “Police.” He opened the closet door and on the shelf he observed a live ammunition clip belonging to an assault rifle. He decided to obtain an emergency search warrant, and he asked other officers to secure the apartment. On cross-examination, Officer Bo-teler acknowledged that he never saw Mr. Clyburn touch the assault rifle or the ammunition that was seized from the apartment.

After Officer Boteler returned to the apartment with the search warrant, MPD Officer Edward Hansohn, another member of the arrest team, removed a Comcast bill bearing Mr. Clyburn’s name, from the dining room table, the loaded assault rifle from underneath the bed, and the ammunition clip from the closet. In addition, he seized empty Ziploc bags and numerous disposable gloves. Officer Boteler retrieved identification cards from the bedroom which bore Mr. Clyburn’s name. MPD Officer Walter Gilmore, yet another member of the arrest team, took from a table in the apartment two grams of a white rock-like substance, a razor blade, glass plate and two Ziploc bags, all with white residue. The government stated in closing argument that these items were found in the kitchen. MPD Investigator James Tyler testified that he and another officer found $116.00, including the $40.00 in pre-recorded funds, on the coffee table in the living room.

The government’s expert witness, Detective George Thomas, was not familiar with the facts of Mr. Clyburn’s case. His testimony concentrated, in part, on the distribution and packaging of narcotics, including “the manner in which narcotic dealers distribute narcotics in the District of Columbia and the pricing.” Detective Thomas did not discuss the connection between gun possession and a drug transaction.

At the close of the government’s case, defense counsel moved for judgment of acquittal on all counts, especially the PWIDWA charge. The trial court denied the motion, essentially on the grounds that a reasonable trier of fact could conclude that Mr. Clyburn owned the assault rifle, or that it was “in his possession or under his control” because the government’s evidence established that the apartment belonged to Mr. Clyburn, “he was the sole occupant,” and the assault rifle “was lying under the bed.” Therefore, “the evidence and the circumstances indicate that [jurors] can conclude [the rifle] was in his possession or under his control.”

Mr. Clyburn called as his sole witness Investigator Tyler. Defense counsel sought to impeach his earlier testimony relating to Officer Washington’s identification testimony.

The jury returned a guilty verdict on the PWIDWA count, as well as on the charges of unlawful distribution of cocaine, possession of a firearm during a crime of violence or dangerous offense, unlawful possession of a firearm, unlawful possession of ammunition, and failure to appear in court (Bail Reform Act violation).

ANALYSIS

With respect to his challenge to the sufficiency of the evidence relating to the enhancement penalty, Mr. Clyburn argues that under our case law, “ ‘carrying on or about’ and ‘armed with or readily available’ are equivalent concepts.” Thus, “a firearm would be readily available to an individual only in circumstances where he carried the firearm on or about his person— that is, when the firearm was ‘near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive.’ ” He maintains that in his case, “[t]he government adduced no [151]*151evidence of drug possession outside of the living room area, which was just inside the front door of the apartment,” and the rifle which was in the bedroom under the bed was not “readily available.” Thus, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
48 A.3d 147, 2012 WL 2504879, 2012 D.C. App. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clyburn-v-united-states-dc-2012.