Bruce v. U.S.

305 A.3d 381

Dana BRUCE, Appellant,

v.UNITED STATES, Appellee.

No. 22-CF-0463

District of Columbia Court of Appeals.

Argued June 8, 2023

Decided November 30, 2023

Appeal from the Superior Court of the District of Columbia (2020-CF2-000699), (Hon. Michael O’Keefe, Trial Judge)

Jeffrey L. Light, Washington, DC, for appellant.

Mark Hobel, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, Niki Holmes, and Thomas Faulkner, Assistant United States Attorneys, were on the brief, for appellee.

Before Deahl and Shanker, Associate Judges, and Fisher, Senior Judge.

Fisher, Senior Judge:

Appellant, Dana Brace seeks reversal of his convictions for possession of an unregistered firearm ("UF"), unlawful possession of a firearm by a convicted felon (felon in possession or FIP), unlawful possession of ammunition ("UA"), possession of a large capacity ammunition feeding device, and attempted possession of cocaine with intent to distribute ("PWID").¹ Appellant raises a variety of issues, but only his challenge to his conviction for possession of a large capacity ammunition feeding device entitles him to relief. For the following reasons we affirm in part and reverse in part.

I. Background

On January 14, 2020, at about 8:26 a.m., Metropolitan Police Department ("MPD") officers executed a search warrant at 4928 Nash Street, NE, Apt. 1. When officers entered the building, a resident, Maurice Cary,² opened the apartment door and held it ajar. After entering the apartment, officers saw appellant walking out of the galley kitchen on the opposite side of the living room from the front door. Officers handcuffed appellant and conducted a protective pat-down. They found a key ring in appellant’s pocket with keys to the apartment and to appellant’s car, which was parked outside.

Once appellant and Cary were secured, officers searched the apartment. In the kitchen, officers found a stand with exposed shelving. There, officers saw—in plain view—a nine-millimeter semiautomatic pistol propped up against other items with its barrel pointed down. The gun was loaded with a full 12-round magazine.

The gun and magazine were swabbed for DNA and the swabs were sent to a forensic lab for analysis. The lab interpreted the DNA profile as a "mixture of three individuals, with at least one male contributor." The lab compared the mixture profile to DNA samples obtained from appellant and Cary and determined that it was "approximately 58.1 septillion times more likely [that] the DNA originated from [appellant] and two unknown, unrelated individuals than if the DNA originated from three unknown, unrelated individuals." The lab also determined that at was "approximately 540 times more likely [that] the DNA originated from Maurice Cary and two unknown, unrelated individuals than if the DNA originated from three unknown, unrelated individuals." As for the magazine, the DNA results were "insufficient for comparisons" and "no further conclusions [could] be made." At trial, the parties stipulated that, as of January 14, 2020, appellant had previously been convicted of an offense punishable by imprisonment for a term exceeding one year and he knew on that date that the prior conviction was so punishable. Officer Milton Agurs, who worked in MPD’s firearms registration unit, testified that appellant did not have any firearms registered to him in the District on January 14, 2020.

Next to the kitchen was a table with a security camera pointed at it. According to an MPD drug expert, Investigator Ryan Bernier, security cameras can be used to "mak[e] sure that transactions ... and the things that are occurring on the table can be monitored and verified for accuracy." Appellant’s shoes were found under the table during the search. On the table, officers found suspected powder cocaine and crack cocaine, baking soda, two digital scales, a money pouch, plastic sandwich bags, a microwave, and two Pyrex containers. Investigator Bernier explained that powder cocaine, when combined with water and baking soda, can be boiled at a high temperature in Pyrex containers to create crack cocaine. He also testified that the amount of cocaine was inconsistent with possession for personal use and had an estimated street value of $4,400.

Officers also found appellant’s jacket hung up next to the kitchen. Inside appellant’s jacket, officers found $5,126 in various denominations. When officers searched appellant’s car, they found four loose bullets and $8,974. Collectively, the cash re- covered included 169 $10 bills, 484 $20 bills, and some $5 bills.

Investigator Bernier testified that these denominations were indicative of narcotics sales because bags of crack cocaine are typically sold on the street in $10 and $20 sizes. Additionally, he explained that it was common for drug dealers to keep guns and other weapons to protect their operations. In defense, appellant’s ex-girlfriend—Chaquane Bryant—testified that she and appellant sold two cars in December 2019 for $5,800 and $7,800 (after fees) and were paid with checks. During Bryant’s testimony, she identified purchase agreements for both vehicles. Bryant claimed that, after the sales, she cashed the checks and gave the money to appellant because they wanted to buy another vehicle with the proceeds.

II. Discussion

Appellant raises three categories of claims. First, appellant contends that the trial court committed reversible error by striking a potential juror for cause. Second, appellant argues that there was insufficient evidence to sustain his convictions. Last, appellant argues that the trial court provided erroneous responses to the jury’s questions and that defense counsel rendered ineffective assistance by failing to challenge the court’s responses. We address the three categories of claims in that order.

A. Striking a Juror for Cause

Appellant argues that the trial court committed reversible error by disqualifying a potential juror because it (1) applied a blanket rule instead of exercising its discretion after evaluating the circumstances presented, and (2) applied a standard that was substantively incorrect as a matter of law. We disagree.

[1, 2] "The trial court has ‘broad discretion over ... decisions to strike a juror for cause.’ " Mason v. United States, 170 A.3d 182, 185 (D.C. 2017) (omission in original) (quoting Barrows v. United States, 15 A.3d 673, 682 (D.C. 2011)). However, "[t]he court is allowed to dismiss a juror on the ground of inferable bias only after having received responses from the juror that permit an inference that the juror in question would not be able to decide the matter objectively." Id. (alteration in original) (quoting Doret v. United States, 765 A.2d 47, 53 (D.C. 2000), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Historically, our rule has been that the trial court’s "rulings will be affirmed on appeal unless the record reveals an abuse of discretion resulting from an erroneous ruling coupled with substantial prejudice to the defendant." Tate v. United States, 610 A.2d 237, 239 (D.C. 1992).

1. The Decision to Strike for Cause

[3, 4] In cases that rely heavily on police testimony, such as this one, the trial court should question prospective jurors during voir dire to determine "if they are predisposed to accord more or less credence to police officer testimony" and to "ferret out ... possible bias within the venire panel." Jenkins v. United States, 541 A.2d 1269, 1275 (D.C. 1988). The trial court also has a "responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); see also Barrows, 15 A.3d at 683 (noting the same obligation and holding that the trial court did not plainly err when it excused prospective jurors for cause because their responses "reasonably could have been perceived as exhibiting actual bias").

During jury selection, the trial court informed the members of the venire that it later would instruct "that the jury should not give either greater or lesser weight to the testimony of a witness just because the witness is a police officer," It then asked the potential jurors: "[D]o any of you have such strong feelings about the police, either positive or negative, that you would have difficulty, following that instruction?" In other words, the court inquired, would their feelings make it difficult for them to be fair and impartial?

Juror 16, a lawyer, was among those who answered "yes" to this question, thus acknowledging that she had "strong feelings" that would make it difficult for her to follow the instruction. During follow-up questioning, the trial court asked Juror 16 whether she would give police testimony "more or less weight." Initially, Juror 16 said that she "would probably give it less weight, just given some ... biases in terms of law enforcement." When the trial court asked whether she "would already start to discredit" police testimony "without hearing what they would have, to say," Juror 16 said: "No. No. I checked, yes, out of an abundance of caution." She elaborated, "I think generally I, you know, in studying law too I was more in terms of like defendant’s side. But, yeah, I think just, I would have I guess a little bit more skepticism in terms of the veracity of their statements." Defense counsel asked Juror 16 if she "could listen to the facts and decide the facts as they are without [her] beliefs about things interfering." Juror 16 responded: "I believe so. Again, I checked yes out of an abundance of caution."

After discussing her responses with counsel, the trial court struck the prospective juror for cause. The court questioned whether Juror 16 would be able to follow the instruction to fairly consider police officer testimony the "same as the testimony of any other witness."...