Reginald BROWN, Appellant, v. UNITED STATES, Appellee.
No. 85-1099.
District of Columbia Court of Appeals.
Decided May 12, 1988.
1231
The situations are at least conceptually different because an attorney will not necessarily conduct private affairs in the same manner in which the attorney handles the professional, fiduciary responsibility to manage the legal and financial affairs of others. Failure at the former may make failure at the latter more likely; it does not render the breach of professional responsibilities inevitable. A failure to recognize this distinction would mean that an attorney is subject to greater sanction as a result of the conduct of the attorney‘s private affairs than are other persons simply because the person is a member of the Bar, and that the disciplinary proceedings will unjustifiably intrude into aspects of private life that are unrelated to the practice of law.
Under the most analogous of our previous cases, the nonpayment of bar dues and the three violations of DR 1-102(A) 4), which were not directly related to the practice of law, would justify a sanction in the range of sixty to ninety days. A slightly more stringent sanction would be justified here than in In re Landesberg, 518 A.2d 96 (D.C.1986), because Kennedy has displayed a disturbing tendency to cut corners in his financial affairs. In addition, several aggravating factors counsel a harsher sanction: Kennedy received an informal admonition two years after his admission to the bar for several violations that occurred in the context of his representation of a client.11 Moreover, we note, without assigning special emphasis to the circumstance, since an attorney is entitled to protest a recommended sanction, that Kennedy has expressed no remorse during the instant proceedings.
Accordingly, we conclude that a sanction of ninety days for the four violations of the disciplinary code is more in keeping with our recent decisions than the sanction recommended by the Board. This sanction more properly reflects the weight that should be accorded to the aggravating factors based on the disciplinary violations at issue. It also takes into account the pattern of conduct and Kennedy‘s prior disciplinary record. See In re Rosen, 481 A.2d 451, 455 (D.C.1984) (previous discipline should not lead to disproportionate sanction).
It is hereby ORDERED that Kennedy shall be suspended from the practice of law for ninety days which shall commence thirty days from the date of this opinion.
Mark Stier, Washington, D.C., for appellant.
Before NEWMAN, TERRY and ROGERS, Associate Judges.
ROGERS, Associate Judge:
Appellant Reginald Brown was charged with one count of possession of marijuana and one count of possession of phencyclidine (PCP).
Police officers observed Reginald Brown smoking a cigarette and recovered the re-
“The Sixth Amendment gives to a defendant the right to have his fate decided by a unanimous verdict.” Owens v. United States, 497 A.2d 1086, 1092 (D.C.1985), cert. denied, 474 U.S. 1085, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986); see also Super.Ct.Crim.R. 31(a). “There is no danger of a nonunanimous verdict when one charge encompasses only a single incident.” Owens, supra, 497 A.2d at 1093. When one count of an indictment encompasses two separate incidents, however, the danger of a nonunanimous verdict arises. Derrington v. United States, 488 A.2d 1314, 1335 (D.C. 1985). In Scarborough, supra, 522 A.2d at 873, this court explained:
[T]he unanimity issue under a single count of an information or indictment does not turn only on whether separate criminal acts occurred at separate times (although in some cases it may); it turns, more fundamentally, on whether each act alleged under a single count was a separately cognizable incident—by reference to separate allegations and/or to separate defenses—whenever it occurred.
The court held that a special unanimity instruction was required in Scarborough because the defendant presented separate defenses to a single count charging receipt of different items of stolen property in a single burglary. 522 A.2d at 873. Previously the court had held that a special unanimity instruction is required when a defendant is charged in a single count with possessing different batches of a single controlled substance at the same time. See Davis v. United States, 448 A.2d 242, 244 (D.C.1982); Hack v. United States, 445 A.2d 634, 641 (D.C.1982).
In the instant case, the marijuana in the cigarette and in the tin foils constituted legally separate incidents to which Brown presented different defenses. The marijuana in the tinfoil packets was laced with PCP; that in the cigarette was not. Brown claimed that the government failed to prove the cigarette contained a usable amount of marijuana2 and that someone else had discarded the tinfoil packets. Thus, the two batches of marijuana constituted legally separate incidents “by reference to separate defenses,” Scarborough, supra, 522 A.2d at 873. Therefore, the trial judge should have given a special unanimity instruction informing the jury that to convict Brown of the marijuana count it had to agree unanimously either that he possessed the cigarette or that he pos-
In Scarborough the court distinguished between legal incidents and factual incidents. Id. at 873. Although there were separate legal incidents here, by reference to different defenses, there were not separate factual incidents because the evidence showed that Brown possessed both batches of drugs at the same time. Thus the government could not have charged Brown with more than one count of possession of marijuana because the simultaneous possession of the marijuana in the cigarette and the marijuana in the tinfoil packets constitutes only a single criminal offense. Briscoe v. United States, 528 A.2d 1243, 1246 (D.C.1987) (batches of marijuana found at same time in kitchen and bedroom not chargeable as separate offenses). See also Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (simultaneous transportation of two women in interstate commerce for immoral purposes constitutes only one violation of the Mann Act); Cormier v. United States, 137 A.2d 212, 216-17 (D.C.1957) (simultaneous carrying of two pistols constitutes only one offense under
The remaining question is whether the error was harmless beyond a reasonable doubt. Scarborough, supra, 522 A.2d at 873; Hack, supra, 445 A.2d at 641. Considering the error in the context of the entire trial, see Davis, supra, 448 A.2d at 243-44 (examining prosecutor‘s opening and closing arguments and trial court‘s instructions in order to determine whether lack of special unanimity instruction constituted plain error), we conclude that it was unlikely the jury unanimously agreed that all of the elements of possession of the cigarette had been proved beyond a reasonable doubt. The prosecutor and defense counsel both told the jury in their closing arguments that the remains of the cigarette did not contain a usable amount of marijuana and, therefore, constituted insufficient evidence of possession. The relevant instruction to the jury stated only that the government had to prove “the defendant possessed some measurable amount of a controlled substance,” and that the arguments of counsel were not evidence. In the absence of further clarification, all twelve jurors could hardly have ignored the prosecutor‘s concession on usable amount.
Similarly, we are unable to conclude that the jury unanimously agreed Brown possessed the marijuana in the tinfoil packets. The evidence showed the marijuana in the tinfoil packets was sprayed with PCP. The jury had failed to reach agreement on the PCP count when it returned a partial verdict. Outside the presence of the jury, the prosecutor attempted to explain this discrepancy by theorizing that the jury unanimously agreed Brown knew there was marijuana in the tinfoil packets but disagreed whether he knew it was laced with PCP; the prosecutor referred to the expert‘s testimony that PCP has a strong chemical odor. The evidence before the jury does not support this theory, however. Neither the expert testimony nor any other testimony indicated that Brown knew about one drug and not the other. The prosecutor presented the government‘s case on the basis that Brown knowingly possessed both drugs. The defense did not argue the dual knowledge theory, claiming that Brown had never possessed the tinfoil packets and someone else had. Therefore, if the jury had adopted the prosecutor‘s theory, the verdict would not have been rationally based on the evidence. See Scarborough, supra, 522 A.2d at 874 (error is harmless where “the only basis for perceiving the jury‘s verdict was not unanimous would be that the jury acted irrationally“).
This case is the converse of Hack, supra, 445 A.2d at 641. In Hack, as here, one
Brown‘s other claims of error require only brief comment. First, his contention that the tinfoil packets should have been suppressed under Terry6 and Mendenhall,7 because he was stopped the moment he saw the two police officers approaching and realized that he was not free to leave, is contrary to the evidence.8 In Terry, supra note 6, 392 U.S. at 19 n. 16, the Court made clear that “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” See also Mendenhall, supra note 7, 446 U.S. at 554-55 (followed in Purce v. United States, 482 A.2d 772, 776 (D.C. 1984)); United States v. Barnes, 496 A.2d 1040, 1042 (D.C.1985). No such circumstances are present in the instant case, and therefore a Terry stop had not occurred before Brown discarded the tinfoil packets. Brown only saw the officers approaching from one direction and he was not stopped until he had tried to discard the hand-rolled cigarette he was smoking and two tinfoil packets. His reliance on State v. Davis, 359 So.2d 986 (La.1978), is misplaced.
Second, we find no error by the trial judge in excluding the hearsay testimony of Brown‘s first defense attorney that a man named Bailey, who asserted his fifth amendment privilege not to testify, had said he owned and discarded the tinfoil packets. Bailey made the statement three months after Brown‘s arrest and there was no corroborating evidence that Bailey had committed the crime. See Laumer v. United States, 409 A.2d 190, 200–01 (D.C. 1979) (en banc) (declarations made shortly after the crime are often more reliable than those made later, and a close friendship or familial relationship between the declarant and the witness indicates reliability). Bail-
Finally, we also find no error by the trial judge in excluding testimony regarding the amount of drug litter in the park the week after Brown was arrested. This evidence was irrelevant in the absence of any proffer of evidence that the condition of the park had not changed. See Ritson v. Don Allen Chevrolet, 233 Pa.Super. 112, 118, 336 A.2d 359, 363 (1975); Topelski v. Universal, 407 Pa. 339, 346-48, 180 A.2d 414, 418 (1962); 32 C.J.S. Evidence § 585. In addition, unlike Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288 (1964), on which Brown relies, the excluded evidence did not bear on the central issue in the case.
Accordingly, the judgment is reversed, and the case remanded for a new trial.
TERRY, Associate Judge, concurring:
I agree that appellant‘s conviction should be reversed, but not precisely for the reasons set forth in Judge Rogers’ opinion for the court. I start from the premise that, as a matter of law, the simultaneous possession of two quantities of the same drug constitutes only one offense. If there was ever any doubt about this, that doubt was laid to rest several months ago by our decision in Briscoe v. United States, 528 A.2d 1243 (D.C.1987), in which we held that a defendant who possessed six tinfoil packets of marijuana in the kitchen and four containers of marijuana in bulk in the bedroom of the same apartment was guilty of only one act of possession, and hence only one statutory violation. Likewise in this case, possession of the marijuana in the cigarette and the marijuana in the tinfoil packets was a single act, punishable only once. Legally, the two quantities of marijuana merged into one, so that it would not matter if some jurors found that appellant possessed only the cigarette while others found that he possessed only the tinfoil packets. Were it not for the peculiar circumstances in which the verdict was rendered in this case, I would hold that Briscoe controls and that we should affirm the conviction. See also, e.g., Cormier v. United States, 137 A.2d 212, 216-217 (D.C. 1957) (simultaneous carrying of two pistols without a license for either of them constitutes only one violation of statute which proscribes carrying “a pistol” without a license).
What makes this case different is the return of the partial verdict, followed by the separation of the PCP charge from the marijuana charge when one of the jurors was taken ill. Since the evidence showed that the PCP was associated only with the marijuana in the tinfoil packets, the lack of a verdict on the PCP charge makes it impossible for us, as a reviewing court, to determine whether the marijuana verdict was based on the cigarette or the tinfoil packets. This is a critical issue because, as Judge Rogers points out, appellant raised different defenses with respect to the two quantities of marijuana. Thus we cannot say that the manner in which the jury reached its verdict is of no legal consequence—as we did, for example, in Tyler v. United States, 495 A.2d 1180, 1182 (D.C. 1985), where we held that even if some jurors found the defendant guilty as a principal and others found him guilty as an aider and abettor, reversal was not required because an aider and abettor is deemed to be a principal as a matter of law.
I agree in essence with Judge Rogers’ observation, ante at 1235, that this case presents the flip side of Hack v. United States, 445 A.2d 634, 641 (D.C.1982), and on that basis I concur in reversal. I emphasize, however, that this is a unique case with special facts, and that the general rule, applicable to almost all cases, is that announced in Briscoe.
Michael GARCIA, Appellant, v. UNITED STATES, Appellee.
No. 85-784.
District of Columbia Court of Appeals.
Decided May 23, 1988.
Patricia A. Riley, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the briefs were filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.
Before MACK, FERREN and ROGERS, Associate Judges.