*1 asserting that WASA Finally, SCHOOLS, Appellant, James M. over thou by seeking $76
“overreached” (more three times what in costs than sand awardable), the trial court found to STATES, Appellee. UNITED rule of ask us to create new
appellants “ov prevailing parties who punishing law No. 12-CF-1448. the motion by denying either erreach[] in toto or substan costs] taxation of [for District of Appeals. Columbia Court of any award that it makes.”32 tially reducing Submitted Oct. 2013. penalized prevailing par have never We than ty merely requesting for more costs Decided Dec. 2013. awarded,33 ultimately and absent were
showing of misconduct that has not been here, justification for do
made we see no Consequently, we hold that
ing so now.34
the trial court did not abuse its discretion failing punish by denying WASA
otherwise allowable costs.
IV. Conclusion reasons, foregoing judgment
For the hereby Superior Court is affirmed. except
The award of costs is affirmed inso-
far as we direct that the award be reduced $1,859.06,
by attor- representing WASA’s
ney travel costs.
It is
ordered.
so
specified
applicable
jurisdictions
in an
as taxable
statute or
34.The
cases from other
cited
appellants
support
adoption
court rule and
there
no indication
because
is
do not
of a
brought
punishes prevailing party
to the attention of
new rule that
sim-
Crawford
court,
substantially
the Coulter
we cannot
ply
party requested
because that
attorney
award of
travel costs here. "Where
more costs than it was awarded. The cited
a division of this court fails to adhere to
generally deny
pre-
cases
costs because of the
controlling authority,
earlier
we are
vailing party's
litigation
misconduct
See,
to follow the earlier decision rather than the
losing
inability
party’s
pay.
e.g.,
(Tony Christopher)
later one.”
Thomas v.
Passion, Holy
Congregation
Cross Prov-
421 n. 6
Touche,
Co.,
219, 222
ince v.
Ross &
854 F.2d
1999).
(7th Cir.1988) ("Generally, only misconduct
prevailing party worthy
penalty
(for
witnesses,
Appellant
32.
Brief
at
calling unnecessary
Second
for
7.
example,
issues,
raising unnecessary
or otherwise un-
See,
(where
necessarily prolonging
proceedings),
e.g., Talley,
Jamison Koehler was on the brief for appellant. Jr., Machen States
Ronald C. *3 Trosman, Attorney, and Elizabeth Suzanne Curt, Schrader, Grealy Ben and Peter S. Smith, Attorneys, Assistant United States appellee. were on the brief for THOMPSON, Judge, Before Associate SCHWELB, Senior WAGNER Judges.
THOMPSON, Judge: Associate A convicted James (aka Schools) David of unlawful Schools felon, pos- of a firearm possession firearm, unregistered session of an (ac- possession of unlawful ammunition possession him of with intent to quitting armed, cocaine while distribute lesser-in- cocaine-possession charges, and cluded during of a firearm a crime of violence). He seeks reversal of his con- that the evidence ground victions on at trial was not sufficient to show that he had constructive i.e., that “no could ammunition — reasonably have concluded a rea- sonable doubt that knew about the [he] ammunition” he firearm and or that “had requisite intent to exercise dominion per- and control” over them. We are and therefore re- argument suaded verse.
I. The Evidence government presented shortly April after a.m. on 7:00 2011, Metropolitan Department Police (“MPD”) officers executed a search war- at 17th rant of an located Place, was on apartment, S.E. The which two-story building, had the first floor of a and a “back bed- a front bedroom second right testified that in the middle converted from a Alvarado had been room” that three-level, had a door that led porch and six-drawer dress- sleeping drawer Alvin er, Officer Cardinal clothing,”1 outside. “hidden underneath the apartment, arrived at that when plastic in a handgun found a .45-caliber the door and one officer they knocked on ammunition, and a bag, five rounds of “Police, at search warrant” loudly yelled, contained, in a shaving-kit-like bag waiting 15 to 30 seconds twice. After least pouch, potato chips bag, inside of side response no from inside hearing ziplock bags. Po- empty, pink which were battering ram officers used apartment, any finger- recover lice were unable to They entry into the to force ammuni- prints handgun from the *4 a woman and a child first encountered tion.2 Officer the front of the near Officer identified Government Cardinal Brown, Detective Scott an- Cardinal videotape police Exhibit 37 as a that a team, the search testified other member of morning technician took on the of stopped just were people that two other search, which, apartment, “ledge” explained, on the of the officer was outside led the back-bedroom door searching, recorded before officers started ap- first outside. When Officer Cardinal “just to show where all the evidence” was bedroom, ap- the back he found proached anything prose- moved. As the before was “large whom he described as a pellant, played jury, cutor the video for the Officer bed, next to a gentleman,” standing identified a shot of Cardinal door, away back turned from the and his (whom heavyset the video shows to be a if positioned manipulat- hands “as he was man) (much and a shot of two other hiding something.” Appellant was smaller)-men, in the who are shown seated wearing only pair a of boxers and a tank testi- living room and who Officer Cardinal top. appel- Officer Cardinal twice ordered fied were “in the search warrant.” lant his hands After the “put up.” Quigley, MPD Detective Lavinia who order, appellant dropped a “white second search, participated also testified hands, object,” raised his and turned got underway, gave appellant that as it she around. Officer Cardinal handcuffed the (a clothing pants) men’s and sweat living and took him into the shirt room, detaining where officers were “all chair in that she had found on a the back ... occupants bedroom, the other who were in the put and he the clothes on. She house[.]” looked in the front bedroom also for only for fe- appellant, clothes but found
When officers returned to the back bed- clothing clothing. male children’s She taking appellant living after into the room gave appellant also shoes that she testified room, saw, in the area where appel- got believed she from the back bed- she white, object, dropped lant had the white a (although, pressed room when on cross- shoe, green man’s inside which were 53 of examination, she testified that she was zip-lock bags containing crack cocaine. got “not sure” that she the shoes from the digital also found a scale on the Officers bedroom rather than from a clothes windowsill room. Detective Erick back Alvarado, emphasized during gun, defense counsel clos- 1. Detective who found tes- As "clothing ing argument, presented tified he recalled that there also items, linking” appellant top” say on but he could not "no scientific "exactly ziplock bags drawer. piece what the was.” dresser room).3 to the belonged nephew.4 She testified bedroom She living closet (Government 2) testified that shoe Ex. her recollection on cross-examination containing belonged cocaine also living were clothes in the was that there nephew, as did wallet the back bed- room closet. that was shown in the police room video- George Thomas testified MPD Detective Marl- tape. pack She testified that ziplock scales and digital the use of about cigarettes in the back boro bedroom also distribution, the distribution- bags drug belonged Timothy shown the video ziplock packaging quantity and heat-sealed Thomas. Mason further testified that apartment, of the cocaine found when came to the to exe- might possess someone “reason[s] warrant, cute the nephew the search He in connection with narcotics.” Thomas ran out the door of the back bed- ziplock bags that the color of also testified room. Mason young identified two men drug “representative used can be [a sitting whom the video shows in the living On packaging.” brand of cross- dealer’s] Timothy room as the Thomas. examination, Detective Thomas Christopher Officer Eckert testified that might kept dealer’s stash *5 he a man arrested name Ronnie Caldwell place else’s of abode[.]” “someone 1, 2011, green on June and recovered 42 Mason and MPD Officer Valene Christo- zip bags containing lock crack cocaine.5 pher Eckert testified for the defense. Ma- Mason testified that Mr. Caldwell had apart- son testified that she lived in the regularly visiting been dur- couple’s ment with and the ing the week leading up young daughter. Appellant’s nephew arrest, that she was afraid of Caldwell (“the nephew”) Jervel Mason had also because he had been “involved in ... living beginning been there since the shootings” neighborhood and be- April, and both the and a man engage physical cause she had seen him Timothy stayed the name of Thomas had violence, and that she seen Caldwell night in the on the before bring gun into the testified, “[N]ormally,” search. Mason Applicable II. Law bedroom, nephew slept the back appellant slept living kept in the room and government proceeded against living his clothes in the room closet and on the theory that he construc the closet in the front bedroom. Mason tively possessed and ammunition. night further testified that on the of the Accordingly, government was search, “(1) appellant, “pret- whose health was prove presence that he knew of the bad,” (2) ty contraband, in the slept back bedroom because power had the it, feeling was sick. Mason testified that exercise dominion and control over (3) inside the dresser in the back intended to exercise dominion and con- bedroom, police videotape appears pair 3. The to show a back but that the closet contained a (in shoes) of shoes addition to the white on laundry bag (including of clothes men’s some the floor in the back bedroom. clothes) given that someone had her and that needed to be washed. 4. Mason also testified that before the arrived, gone she had into the back bedroom Caldwell, spotted 5.When Officer Eckert first daughter's to retrieve her uniforms so that standing he was front 1606 17th Place get daughter she could her dressed in the (apparently, appellant’s apart- next door to front bedroom. She that there building). ment way hang no clothes closet 508 307, 319, 2781, States, 61 49 443 U.S. 99 S.Ct. Ramirez United
trol over it.”
(1979))
(D.C.2012) (internal
(“[U]pon judicial re-
1246,
quota- L.Ed.2d 560
omitted).
is to be considered
Appellant contends
view all
tion marks
prosecu-
could have found
most favorable to the
juror
light
that no reasonable
tion.”)
knew
that he
(emphasis
original);
a reasonable doubt
United
Bear,
it was hid-
Grey
because
828 F.2d
about the contraband
States v.
(8th
view,
Cir.),
no movement
he made
on other
part
den from
vacated in
(8th Cir.1987) (not-
it,
no “other indication
gave
and he
toward
“Although [contra is cise Rivas, inferences, at 130. 783 A.2d any band].” “[Prox titled to reasonable [a may prima insufficiency-of-the-evi imity or association establish reviewing court an possession if it is all of the evi facie case of constructive dence must consider claim] linking the accused to to the de colored evidence including dence that favorable of which ongoing operation criminal Rapone, States v. 131 an fendant.” United (D.C.Cir.1997) (Silberman, v. part.” is a Guishard possession F.3d States, 1306, 1312 J., 669 A.2d concurring) (citing Virginia, Jackson omitted). 1995) (internal occupancy appellant’s marks quotation guilt” consciousness of evincing was weakened because of the evidence that “[A]cts with, the essential link be may provide also shared the or and the contraband. tween the to, given yielded had access several (Devenn) 899 A.2d Smith v. United R.G., re others. See In 917 A.2d (D.C.2006). general, jury In (D.C.2007) (“[W]hen people two or more may person “infer that a exercises con occupying place, are a defendant’s con- structive over items found place enough trol over the is not itself home[,]” “plainly inference is but this to establish constructive of con- may be unwarranted strong” not as there.”) (internal quotation traband found premises where the defendant shares the omitted). marks people. other Moore v. United with Specifically, during government’s (D.C.2007). 1040, 1050
case-in-chief,
heard,
jury
saw on
III.
Analysis
videotape,
evidence that the
Timothy
present
Thomas were
Notwithstanding appellant’s ac
ground-floor apartment along
appel-
drug paraphernalia
quittal
on the
(early) morning
lant on the
of the search.
charges, the evidence
this case was cer
The jury also heard Officer
tes-
Cardinal’s
tainly
jury
sufficient to
to infer
timony that
men
“in
both
were
the search
appellant possessed
bags
the 53
warrant,”
from which
infer that
could
digital
They
cocaine and the
scale:
were in
both men
if
repeated
regular
not
view,
plain
supporting an inference that he
presence
govern-
them;
permitted
knew of
and the
(including
videotape)
ment’s evidence
to find that he exercised dominion
drugs by
also established that
the back bedroom
attempting
and control over the
(that
infer,
them from
and also to
presumably
to hide
had a door to the outside
involvement with the
have
an
would
enabled
individual
access
that he intended to exercise domin
drugs,
passing through
the room without
the rest
ion and control over the scale. “Where
addition,
apartment).
In
*7
exert
over
knowledge
ability
and
control
testimony
heard Mason’s
for the defense
shown,
contraband are
the additional evi
that she
the
in the
nephew
and
resided
necessary
prove
pos
dence
constructive
apartment,
plus Timothy
that each of them
Moore,
comparatively
session is
minimal.”
stayed
night
Thomas had
there the
before
(internal quotation
However, viewing even evi through police the back bedroom when the in the favorable to the dence most came; frequently and that Caldwell had must, government, as we we think a rea recently and been sonable fact-finder must have been left (and, was not to believe for ap reasonable whether with doubt about purposes analysis, may pre- of our we not pellant knew about the firearm and ammu believed) any sume that of Mason’s in clothing nition found hidden beneath testimony, foregoing testimony, but in dresser drawer the back bedroom and that, uncontradicted, informs our view as and intended to exercise dominion control ammunition, gov- to the firearm and Any over these items. inference of knowl edge might prove that have been drawn from ernment failed as a matter of law to cards, any personal or other effects linked knowledge and intent.6 were found in the back bed- appellant was in the appellant The evidence gun room where the and ammunition were at the in his underclothes
back bedroom
shows,
a
videotape
sitting
found. The
on
arrived and that he had been
police
time
bedroom,
with
shelf
the back
a wallet
established that he had
sleeping there
cards,
containing
papers
slots
numerous
bedroom,
with the back
as did
connection
but
offered no evidence
that,
protest,
accepted
fact
without
wallet,
about
the contents of the
and—
clothing and shoes
Officer
and donned
without
contradiction —Mason
the back bedroom.
Quigley retrieved from
belonged
nephew.
found on a chair in
the wallet
to the
clothing
But the
bedroom, rather
than in a closet
the back
Mason also testified without contradiction
drawer, a
or in a
location consistent
clothing
that the
where the
drawer
not usual-
Mason’s claim that
did
belonged
gun and ammunition were found
ly
that room as his own.
occupy
govern-
nephew.
part,
For its
presented
ment
no evidence about
size
have often found that evidence was
We
drawer,
type
an
to establish a defendant’s con-
sufficient
particularly
omission that
is
notable since
possession of contraband where
structive
the evidence established that
is a
the contraband was recovered
(defense
man
him
large
counsel described
personal
to the defendant’s
items such as
statement),
as “obese” in her opening
personal papers, photographs,
mail or
Here,
however, while the other men who were found in the
cards.7
identification
apartment and
any
mail or
were named
search
there was no evidence
(it
wallet,
men,8
papers, photographs,
identification warrant are much smaller
who
Curry
pair
pants
found the cocaine in a
Cf.
(D.C.1987) (concluding,
in a case where
containing
closet
mail addressed to the defen
executing
police
defendant,
a search warrant at an
photographs
dant and
apartment
occupants
found several
and evi
the closet was near a bed that the
drug-distribution operation,
dence of
on); Moore,
sleeping
admitted to
A.2d at
Cur
evidence was insufficient
sustain
(evidence
prove
sufficed to
defendant's
ry's
possession
conviction for
constructive
of contraband where
police
ammunition that
found in her bed
apartment’s
contraband was found
clothes,
nightstand among
rely
room
her
bedroom,
only
"lying
plain
view next to
Curry's testimony
on
and other defense
personal papers.”); Guish
[the defendant's]
evidence that she had lived in the
ard,
(defendant’s
find firearms
to-
testify
charges.
prosecution’s
that the
But the
did not
session
Thomas
Detective
of the kind
was in-
to
evidence
drugs
present
and firearms
tal failure
of
co-presence
invariable,
(i.e.,
usual.
above
evitable,
paragraphs
or even
discussed
that
Rather,
Thomas testified
have established who
might
Detective
evidence that
“[sjometimes
vic-
dealers have been
drug
the wallet found
the back bed-
owned
want to
that
dealers
wear
the clothes
“[s]ome
timized” and
room and who could
drawer)
protection.”
as a form of
weapon
persuades
a
in the dresser
us
possess
what
testimony about
generalized
the evidence as a whole was not
His
that
to make an
did little
a
“enough
beyond
occurs
to establish
reasonable
“sometimes”
gun
knew of the
of
exacting
inference that
most
standard
doubt—the
speculative.11
less
[appellant]
and ammunition
known to our law—that
proof
to
necessary personal relationship
doubt is a doubt
“Reasonable
for his con-
weapon
and ammunition”12
evidence,
lack
a
arising from
Accordingly,
to be sustained.
we
victions
evidence,
of all the
after consideration
be,
that his convictions must
concluded
States,
Bishop v.
107
evidence.”
United
hereby,
are
(D.C.Cir.1939)
297,
(emphasis
F.2d
303
Reversed.
added).
doubt standard
“The reasonable
the factfinder ‘to reach a
proof requires
WAGNER,
Judge, dissenting:
Senior
of near certitude of the
subjective state
“
” Rivas,
light
‘in the
most
Viewing
the evidence
guilt of the accused.’
Jackson,
315,
play
full
to
government, giving
513
nia,
307, 319,
true,
99
Although
as the
443 U.S.
S.Ct.
61
precedents.
lished
(1979)).
states,
applying
that in
our famil- L.Ed.2d 560
When these well-
majority
standard,
recognized
courts have
principles
applied
iar
established
are
in-
case,
consider all of the evidence
“we must
it
present
facts of the
is clear that
defendant,”
that favorable to the
cluding
the evidence was sufficient for a reason-
govern-
remains that “the
principle
juror
able
to find that
construc-
to all reasonable infer-
ment
is entitled
tively possessed
handgun
and ammuni-
Rapone,
v.
327
ences.” United States
police
tion that
found in a dresser
338, 347,
F.3d
197
U.S.App. D.C.
131
drawer inside his residence where he was
(1997) (Silberman, J.,
(citing
concurring)
engaged
drug operation.
to be
in a
shown
307, 319,
Virginia,
v.
443 U.S.
Jackson
stated,
Briefly
light
most favor-
(1979),
2781, 61
for the
S.Ct.
L.Ed.2d
government,
able to the
the evidence
judicial review all
proposition
“upon
appellant actually
showed that
resided in
is to be considered in the
the evidence
apartment
two-bedroom
where the
light
prosecution”).
most favorable to the
in-
jury may
contraband
found.1
Further,
recognizing
while
that the review-
person
fer that “a
exercises constructive
ing court must consider “the evidence tak-
possession over items found in his home”
whole, including
by
that offered
en as
that, although
strong,
not as
the infer-
Bear,
defendant,”
Grey
States v.
United
applies
person
ence
even when the
shares
majority,
the court also made
cited
Moore,
premises
with another. See
jury’s province
clear that it is the
to make
(citation omitted).
supra,
514 drug that a dealer had nephew, A.2d 122 and v. United 2006) apartment, jury evidence that into the the (holding brought gun that additional knowledge and intent ele- the was not to credit this evidence. prove can includes possession assessing credibility, jury ments of constructive In the is allowed ongo- accused to an linking consider, among things, “evidence whether a to other which operation possession of ing criminal any telling motive for not witness has evidence, attempts to hide and part,” is a truth and whether there are inconsisten- showing actions consciousness other testimony cies between the witness’ on the window- digital A scale was guilt). In that con- other evidence case. weapon and ammu- plain sill in view. nection, jury was allowed to consider in were found in a dresser drawer nition relationship here that Mason’s Ms. room, along empty, with numerous her a motive to appellant might given have expert An witness tes- pink zip-lock bags. provide exculpatory testimony. him with are drugs guns tified that often found Further, testimony appellant her drug dealers together and that some use in clothing stored his the front bedroom protect firearms to themselves from rob- Quigley’s was inconsistent with Detective packag- He also testified about the bers. testimony only that she observed female small, illegal drugs plastic ziplock ing closet, and a child’s in that particular of a color of zi- bags, the use jury matter that the could consider in de- plock identify drugs, to the “brand” of to which to ciding the extent believe the digital the use of scales dealers to verdict, jury’s witness. Given the it is evidence, weigh drugs for sale. From this apparent jurors that the chose not to cred- jury it was reasonable for the to conclude it have might some of engaged illegal was in an been favorable to and to infer which drug operation of the from other credible evidence that part. were a weapon and ammunition See linked ammunition weapon was to Guishard United A.2d the drawer. that, (holding although not view, of the plain challenges evidentiary sufficiency, In drugs where defendants sold room requires our standard of review us to view jury sufficient to to infer the evidence most favorable to had convenient access thus dominion the give play” and to “full weapon and control over the so as to es- right determine possession.) tablish constructive As the witnesses, credibility weigh show, cited cases we have held evidence evidence, any to resolve conflicts in the presented like that in this case to be suffi- evidence, proven and to draw from the prove cient to that a defendant had con- facts such reasonable inferences as the weapon structive and am- Moore, appropriate. deems See su- See, Guishard, e.g., supra, munition. (citing at pra, Curry, supra, at 263). Applying that standard case, to the evidence in this a rational fact Although ap- Ms. Mason testified that finder could find the essential elements of couch, pellant usually slept on the that her the offenses of conviction a reason- that ex- nephew apartment, resided if able doubt. See id. Even Ms. Mason’s for cept night before raid the bedroom, man and the other named nephew usually slept the back hiding warrant who were found on that the wallet in the bedroom and cloth- search back door belonged ledge apartment’s in the bedroom drawer to her outside the *12 drug operation, were also involved to show
the evidence was still sufficient either appellant possessed weapon with others. See Guish
solely jointly
ard, (holding at 1313 supra, 669 A.2d linking ap both
“circumstantial in a drawer “as
pellants” to the hidden drugs and other contraband
well as apartment”
found in the was suffi [shared] possession).
cient to establish constructive reasons, I foregoing respectfully
For the opinion from the of the court.
dissent LOOMIS, Respondent.
In re David H. Suspended the Bar of the
A Member of Appeals
District of Columbia Court
(Bar 394857) (BDN- Registration No.
468-11).
No. 13-BG-18. Appeals.
District of Columbia Court
Submitted Nov. 2013. Jan.
Decided