Broome v. United States, No. 18-CM-80

240 A.3d 35

Matthew BROOME, Appellant,

v.UNITED STATES, Appellee.

No. 18-CM-80

District of Columbia Court of Appeals.

Argued October 24, 2019

Decided October 15, 2020

Denise D. Green for appellant.

Adam Braskich, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Anwar Graves, and Chrisellen R. Kolb, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and Thompson, Associate Judges, and Steadman, Senior Judge.

Thompson, Associate Judge:

After a bench trial, appellant Matthew Broome was convicted of unlawful entry ("UE") into a restricted area of Howard University Hospital (hereafter sometimes called "the Hospital"), see D.C. Code § 22-3302 (2012 Repl. & 2020 Supp.), and possession of a controlled substance (methamphetamine). He argues on appeal that he is entitled to reversal of his UE conviction because he was entitled to a jury trial and, in the alternative, because the government failed to prove that the Hospital is a "private ... building," D.C. Code § 22-3302(a)(1). We affirm.

I.

Appellant's UE conviction was based on what the government alleged was his unauthorized presence in an employee locker room at the Hospital. Harold Bunch, a Howard University ("University") campus police officer whose job entailed security for the campus and the Hospital, testified at trial that at around 5:00 a.m. on July 7, 2017, he and another officer found appellant in a locker room, located in the basement of the Hospital, that was reserved for use by employees who worked in the Hospital's adjacent main kitchen. Bunch testified that the locker room door had an "employees only" sign and that the basement level of the Hospital is restricted to employees and contractors. He further testified that the basement level can be accessed not only through the hospital loading dock area, but also through a route beginning at the main entrance of the Hospital. He explained, however, that "[t]he main entrance ... was closed" at the time in question. He acknowledged that the public could access the Hospital at that time of day by entering the Hospital's emergency room.

The officers had to force their way into the locker room, as it was "barricaded." Appellant told the officers that he was "just sleeping" and, upon further questioning, said that he "was waiting on a contractor" for whom he was "doing some ... air conditioning work." Officer Bunch testified that the officers tried to verify that information, but were unsuccessful; they learned instead that there were no contractors working in the area at the time.

The campus police officers eventually contacted the Metropolitan Police Department ("MPD"), and two MPD officers responded to the scene, arrested appellant for UE, and performed a search incident to arrest. They found on appellant's person "a clear plastic small bag containing a rock like substance and also a small paper that was folded up and that contained a powdery substance[,]" later determined to be methamphetamine.

After the government rested, defense counsel moved for acquittal, arguing that while the amended information charged appellant with a violation of D.C. Code § 22-3302(a) (UE with respect to a "private ... building"), the Hospital is open to the public and therefore is a public building, and the government had failed to prove otherwise. The trial court denied the motion, reasoning that given "the context of this case," the Hospital was "not a public institution[.]"¹ In closing argument, defense counsel made the same argument he had presented in the motion for judgment of acquittal ("MJOA"). Appellant also renewed his argument, which he had presented in a pre-trial motion, and which the court again rejected in finding appellant guilty, that the government "should have proceeded under [s]ection [b] of the statute [pertaining to UE with respect to a public building], which would give the defendant a right to a jury."² Appellant urges the same points on appeal.³

II.

As described above, the amended information charged appellant with a violation of D.C. Code § 22-3302(a), which provides in pertinent part that:

(1) Any person who, without lawful authority, shall enter, or attempt to enter, any private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine ..., imprisonment for not more than 180 days, or both ....

D.C. Code § 22-3302(a)(1). Appellant contends that he should have been charged, if at all, under § 22-3302(b), which provides in pertinent part that:

Any person who, without lawful authority, shall enter, or attempt to enter, any public building, or other property, or part of such building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof or his or her agent, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof or his or her agent, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine ..., imprisonment for not more than 6 months, or both.

D.C. Code § 22-3302(b).

Section 22-3302 does not define "public building," and we therefore deem it appropriate to look to the history of the UE statute and its legislative history for guidance. See In re W.M. , 851 A.2d 431, 441 (D.C. 2004) ("[W]hen statutory language is not dispositive, ... we may look to the legislative history ... to determine the Council's objectives and intent."). Before its amendment in 2009 to establish differing penalties for UE (private building) and UE (public building), the UE statute (earlier codified as D.C. Code § 22-3102 ) established that unlawful entry into either was a misdemeanor.⁴ In enacting the current language of § 22-3302 in 2009, the Council of the District of Columbia (the "Council") explained its rationale for "[p]rovid[ing] disparate penalties for unlawful entry based on whether the unlawful entry was onto public or private property." Committee on Public Safety and the Judiciary, D.C. Council, Report on Bill 18-151 at 44 (June 26, 2009) ("Committee Report" or the "Report") (stating that unlawful entry onto "[p]rivate property will not be jury demandable and [unlawful entry onto] public property will be jury demandable"):

The intent of making unlawful entry onto public property [jury-demandable] is to account for a concern that protesters are often charged with this offense and to balance constitutional protections likely exercised by protestors with the government's interest in streamlining the jury system[.]

Id. Thus, in referring to "any public building[s]," the Council had in mind locations where protest activity would enjoy First amendment protection⁵ (although, as we have explained, the Council did not "tailor the jury-trial right precisely to prosecutions implicating First Amendment concerns" and did not "preserv[e] a jury-trial right only for defendants prosecuted for unlawfully entering a public area of a public building[,]" Frey , 137 A.3d at 1003 ).

In amending the UE statute in 2009, the Council also added, as § 22-3302(a)(2), a paragraph that states that for purposes of § 22-3302(a), the term "private dwelling" "includes ... public housing, ... the development or administration of which is assisted by the Department of Housing and Urban Development, or housing that is owned, operated, or financially assisted by the District of Columbia Housing Authority." 56 D.C. Reg. 7413, 7436 (Sept. 11, 2009) (internal quotation marks omitted). Other than that instruction that certain government-owned or –financed housing should be treated as private, nothing in the 2009 amendments or legislative history indicates that the Council intended any change in how this court had interpreted the reference to "any public ... building" in the previous UE statute. Thus, the interpretation this court applied in Whittlesey v. United States , 221 A.2d 86 (D.C. 1966), remains relevant.

In Whittlesey , this court noted that the District's UE statute had been amended in 1952 to cover "any public building[.]" Id. at 89. We concluded that it was "plainly shown by the legislative history of the Act that it was the intent of Congress that the Act extend to all buildings and property owned by the District of Columbia or the United States." Id. This history is some evidence that when the Council amended the UE statute without defining "public building" or indicating that it intended the term to have a broader meaning than we recognized in Whittlesey , it was satisfied to have that interpretation govern.⁶ Cf. Zemel v. Rusk , 381 U.S. 1, 11-12, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) (reasoning that the fact that Congress "left completely untouched" language from an earlier statute was some evidence that the administrative interpretation of the language was the one Congress intended).

We acknowledge that, as a general matter, "whether a given building is public or private ... can depend heavily on the context in which the question arises." Frey , 137 A.3d at 1002. We are satisfied, however, for the reasons cited above, that for purposes of § 22-3302(b), "public building[s]" generally refers to buildings owned by the District of Columbia or the United States (other than government-owned housing that is declared to be private property under § 22-3302(a)(2) ). We need not decide in this case whether, to give effect to the Council's First Amendment objectives, there possibly are buildings beyond those in the District of Columbia that...