United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2008 Decided February 22, 2008
No. 06-3045
UNITED STATES OF AMERICA,
APPELLEE
v.
DALE ANN HARRIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00384-01)
Howard B. Katzoff, appointed by the court, argued the
cause and filed the briefs for appellant.
Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the briefs were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Wendy L.
Short, and Bryan Seeley, Assistant U.S. Attorneys.
2
Before: TATEL, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Dale Ann Harris argues: (1)
there was insufficient evidence to sustain her conviction for
possession with intent to distribute PCP; (2) the police
violated her Fifth Amendment rights by subjecting her to
custodial interrogation without a Miranda advisement; and
(3) the district court violated her due process rights by asking
compound questions during jury selection. We reject these
challenges and affirm her conviction.
I
Officers from the Metropolitan Police Department
executed a search warrant on Harris’s apartment, where she
lived with her two children. When the police entered, they
handcuffed Harris and the other two women inside. Officer
Robert S. Cephas then directed the handcuffed Harris to a
hallway area, and without informing her of her Miranda
rights, asked, “is there anything in the apartment that I should
know about?” Harris responded there were two guns in the
bedroom and the police recovered the guns. In the
meanwhile, other officers searched the kitchen and seized
jars, vials, tin foil, and spoons, which contained suspect liquid
or vegetable matter or smelled like phencyclidine (“PCP”).
The Drug Enforcement Administration’s forensic lab tested
the seized items and found that one jar and three vials
contained a total of 34 grams of PCP, a large amount
consistent with distribution. A fingerprint specialist also
found Harris’s latent print on one of the vials containing PCP.
3
A federal grand jury indicted Harris for: (I) possession of
PCP with intent to distribute; (II) possession with intent to
distribute within 1,000 feet of a school; and (III) possession
of a firearm in relation to drug trafficking. The district court
denied Harris’s motion to suppress her statements about the
guns, holding she was not “in custody.” During the voir dire,
the district court asked potential jurors several compound
questions requiring them to decide for themselves whether
factors like law enforcement employment histories
undermined their objectivity. At the close of the
government’s case-in-chief, the district court granted Harris’s
motion for acquittal on the gun charge. The jury then found
Harris guilty on Counts I and II and the district court
sentenced her to 33 months in prison on Count II.1 Harris
now appeals.
II
Harris argues the government did not present sufficient
evidence to support her conviction because it did not prove
she “possessed” the PCP found in her kitchen. In considering
sufficiency-of-evidence challenges, we view the “evidence in
the light most favorable to the government, and affirm a
guilty verdict where any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir.
2002) (emphasis in original). We conclude the government
presented more than enough evidence to satisfy this
permissive standard.
The government had the burden of proving Harris either
actually or constructively possessed PCP. To demonstrate
constructive possession, it had to show she “had the ability to
1
The district court properly dismissed Count I as a lesser-included
offense. See Rutledge v. United States, 517 U.S. 292, 307 (1996).
4
exercise knowing dominion and control over the [PCP].” See
United States v. Morris, 977 F.2d 617, 619 (D.C. Cir. 1992)
(internal quotation marks omitted). Harris argues that even
though the police found PCP in her kitchen, the government
presented no evidence she exercised “knowing dominion or
control” over this contraband. Yet, “[a] jury is entitled to
infer that a person exercises constructive possession over
items found in his home,” and this inference applies “even
when that person shares the premises with others.” Id. at 620;
see also United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.
Cir. 1991) (“The natural inference is that those who live in a
house know what is going on inside, particularly in the
common areas.”). Thus, “if there was sufficient evidence
from which a juror could infer that [Harris] lived in the
apartment where [s]he was arrested, the jury could infer that
[s]he constructively possessed the drugs.” Morris, 977 F.2d
at 620. In this case, only Harris and her two children were
listed on the apartment’s lease and she does not dispute she
lived there.
Harris argues the government has to present some
evidence of “knowing dominion and control” in joint-
occupancy situations where drugs and related accoutrements
are completely hidden from view. We agree, since a contrary
view could unfairly sweep up unwitting roommates or
housemates and subject them to the harsh criminal
punishments associated with drug crimes. See United States
v. James, 764 F.2d 885, 890 (D.C. Cir. 1985) (quoting United
States v. Bonham, 477 F.2d 1137, 1139 (3d Cir. 1973) (en
banc) (finding evidence insufficient where there was “nothing
except the joint occupancy of the room upon which an
inference of possession could be based”)). But this is not a
hidden contraband case. Harris’s fingerprint was on a vial
with PCP in it and the police found PCP in four containers, at
least two of which were readily visible upon opening the
5
freezer or kitchen cabinet. Moreover, the kitchen was littered
with evidence that police experts testified was consistent with
PCP distribution: from jars smelling of PCP to tinfoil
containing a black leafy substance. See Jenkins, 928 F.2d at
1179 (finding sufficient evidence of constructive possession
where there was a computerized scale on the kitchen counter
and cocaine pieces on the cutting board in defendant’s
apartment). Accordingly, there was sufficient evidence that
Harris constructively possessed the PCP.2
III
Harris argues we should vacate her conviction because
Officer Cephas violated her Fifth Amendment rights under
Miranda v. Arizona, 384 U.S. 436 (1966), by placing her in
handcuffs, leading her to the hallway, and immediately asking
her “is there anything in the apartment that I should know
about?” As every television viewer knows, an officer
ordinarily may not interrogate a suspect who is in custody
without informing her of her Miranda rights. See id.
Whether Cephas subjected Harris to custodial interrogation is
a question we do not reach today. Compare United States v.
Bautista, 684 F.2d 1286, 1292 (9th Cir. 1982) (suspect
handcuffed during a Terry stop and then asked questions was
not “in custody” for Miranda purposes), with United States v.
Newton, 369 F.3d 659, 676 (2d Cir. 2004) (“[A] reasonable
2
The government argues it also presented sufficient evidence
that Harris actually possessed PCP. See United States v. Molinaro,
877 F.2d 1341, 1348–49 (7th Cir. 1989) (defendant’s fingerprints
on a bag containing cocaine “certainly suggests” he actually
possessed the bag). We need not reach this argument because our
finding that Harris constructively possessed the PCP is sufficient to
sustain her conviction.
6
person finding himself placed in handcuffs by the police
would ordinarily conclude [he was] in custody.”).
Even assuming Cephas violated Harris’s Fifth
Amendment rights, the district court’s admission of Harris’s
answer pinpointing the location of the guns was harmless
beyond a reasonable doubt. “Error is harmless if it appears
‘beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’” United States v.
Green, 254 F.3d 167, 170 (D.C. Cir. 2001) (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)); see also Neder v.
United States, 527 U.S. 1, 18 (1999). While the jury could
have drawn some incriminating inference from Harris’s
knowledge about the guns, see United States v. Payne, 805
F.2d 1062, 1065 (D.C. Cir. 1986) (“it has uniformly been
recognized that substantial dealers in narcotics possess
firearms”), here, the link between the drugs and guns was so
attenuated the district court dismissed the charge of
possessing a firearm in connection with drug trafficking.
Tellingly, once the district court dismissed this charge, the
government made only one glancing reference to Harris’s
knowledge of the guns in its closing argument. Instead, it
focused on the strong evidence of Harris’s connection to the
drugs: from Harris being the only adult responsible for the
lease to her fingerprint appearing on the vial containing PCP
to conspicuous evidence of drug dealing in plain view in the
kitchen. In light of this strong evidence and the minor role
the guns played in relation to the drug counts, the government
has shown, beyond a reasonable doubt, that introduction of
Harris’s statement did not contribute to the verdict.
IV
As part of the voir dire, the district court asked
prospective jurors the same compound questions we found
7
troubling in United States v. West, 458 F.3d 1 (D.C. Cir.
2006), and United States v. Littlejohn, 489 F.3d 1335 (D.C.
Cir. 2007). As in those cases, the district court explained to
the jurors that, first, the court would ask them to consider
whether they had a characteristic or experience that could bias
their judgment. The jurors were not to raise their hands at
this point. Then, the court would ask if the potentially
prejudicial factor actually rendered them unable to be fair and
impartial. Only if they answered affirmatively to this second
question would they raise their hands and come up to the
bench.
The district court asked several compound questions,
including whether potential jurors were members of crime
prevention groups or had been the victims of violent crimes.
Most relevant for our purposes, the court asked the following
two-part question:
[Are] you personally, a close family member or a
close personal friend presently or previously
employed by any law enforcement agency? Don’t
raise your hand if your answer is yes. … If your
answer is yes. As a result of that experience that
either you have had personally or a close family
member or close friend … do you believe that you,
you personally would be unable to be fair and
impartial to both sides if selected as a juror … ?
None of the jurors raised their hands and the district court
overruled Harris’s objection to this method of questioning.
The district court also asked several one-part questions,
directly asking jurors to raise their hands if they knew any
potential witnesses or believed they could not hold the
government to its burden of proof.
8
“[W]hether a juror can render a verdict based solely on
evidence adduced in the courtroom should not be adjudged on
that juror’s own assessment of self-righteousness without
something more.” West, 458 F.3d at 11. Accordingly,
compound questions can violate a defendant’s Sixth
Amendment rights by undermining his ability to have a “full
and fair opportunity to expose bias or prejudice on the part of
the veniremen.” Littlejohn, 489 F.3d at 1342. We vacate a
jury’s verdict in response to a district court’s use of
compound questions only if the district court “abuses its
discretion, and there is substantial prejudice to the accused.”
Id. In West and Littlejohn, this circuit conducted case-
specific analyses for virtually identical compound law-
enforcement questions.
West held the district court did not abuse its discretion in
asking the compound law enforcement question. In that case,
an officer caught the defendant carrying a bag with a gun
inside. West explained there was no abuse of discretion
because officer credibility was not at issue since the
defendant admitted he was carrying the bag and his only
defense was he did not intend to possess the gun. In addition,
the defendant already had the current employment
information for most potential jurors and never asked for past
employers. Finally, some of the traditional one-part questions
the district court asked provided the defendant additional
opportunities to learn about juror prejudice. See 458 F.3d at
7–8. West also held there was no substantial prejudice
because the district court instructed the jury to give no special
weight to the testimony of law enforcement officers, the
defendant made no showing of actual juror prejudice, and the
evidence against the defendant was overwhelming because
the police caught him red-handed. See id. at 8–9.
9
Littlejohn presents a strong contrast to West. There, the
police found a gun in a laundry basket in the defendant’s
mother’s home. The police claimed that when they broke into
the house, the defendant darted out of the room containing the
gun; but the officer’s testimony was somewhat inconsistent
and the defendant’s mother claimed the room and laundry
basket belonged to the defendant’s brother. 489 F.3d at
1337–38. Accordingly, this circuit held the district court
abused its discretion in asking the compound law enforcement
question and this was substantially prejudicial to the
defendant. Littlejohn stressed the officer’s credibility was
paramount, since the government’s case turned on whether
the jury believed his account that the defendant was running
out of the room. Moreover, the evidence against the
defendant was extremely thin since the police did not see him
with the gun and the defendant’s mother testified the room
and laundry basket belonged to his brother. In addition, there
was no evidence the defendant received a list of potential
jurors’ current employers, and he asked about past
employment history, including employment history related to
the officers’ employer. Finally, Littlejohn came to this
conclusion despite both the district court’s use of one-part
questions that could have exposed juror prejudice and the
defendant’s failure to show actual juror bias. Id. at 1344–47.
This case is far more like West than Littlejohn on the
overlapping abuse of discretion and substantial prejudice
inquiries. Most importantly, the evidence of Harris’s guilt
was strong and the verdict did not turn on police credibility.
Harris was the lessee of the apartment, the kitchen was
littered with PCP and drug paraphernalia, and her fingerprint
was on a vial containing PCP. Harris argues officer
credibility was at issue because she challenged the way the
police handled the evidence and because the police testified
that items in the kitchen smelled of PCP, even though some of
10
them tested negative for the drug. While these factors make
Harris’s case stronger than West, it is still far from a situation
like Littlejohn where “the jury could never have convicted
[defendant] without crediting [the officers’] testimony.”
Littlejohn, 489 F.3d at 1345. After all, Harris never argued
police misconduct somehow placed her fingerprints on the
vial containing PCP, nor could she link anyone else to the
drugs. Furthermore, as in West, Harris had the current
employment information of potential jurors and never
specifically asked for former employer information or
employment history specifically relating to the Metropolitan
Police Department. Finally, as in West (and Littlejohn), the
district court asked one-part questions that helped expose any
potential juror bias and Harris did not show any evidence of
actual juror bias.
In sum, while the district court should not have used
these compound questions, we affirm Harris’s conviction for
much the same reasons as in West.
***
The judgment of conviction is therefore
Affirmed.