# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2008 Decided February 22, 2008

No. 06-3045

U NITED S TATES OF A MERICA

, A PPELLEE

v.

D ALE A NN H ARRIS

, A PPELLANT

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: T ATEL , B ROWN and K AVANAUGH

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge B ROWN

.

B ROWN

, Circuit Judge : Dale Ann Harris argues: (1)

there was insufficient evidence to sustain her conviction for possession with intent to di stribute 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 se lection. 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 search ed 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 Administra tion’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 suppr ess her statements about the guns, holding she was not “in custody.” During the voir dire

, the district court asked poten tial jurors several compound questions requiring them to d ecide for themselves whether factors like law enforcement employment histories undermined their objectivity. At the close of the government’s case-in-chief, the di strict court granted Harris’s motion for acquittal on the gun ch arge. 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 construc tively 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. Ye t, “[a] jury is entitled to infer that a person exercise s 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 inferenc e 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 jointoccupancy situations where dr ugs 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 insuffici ent 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 f ound PCP in four containers, at

least two of which were r eadily visible upon opening the5

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 v acate 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 ha llway, and immediately asking her “is there anything in the apartment that I should know about?” As every televisi on 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 locati on of the guns was harmless beyond a reasonable doubt. “Error is harmless if it appears ‘beyond a reasonable doubt that th e 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 betw een the drugs and guns was so attenuated the district court dismissed the charge of possessing a firearm in connectio n 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 cl osing argument. Instead, it focused on the strong evidence of Harris’s connection to the drugs: from Harris being the on ly adult responsible for the lease to her fingerprint appear ing 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 found7

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, th e district cour t 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 cour t would ask if the potentially prejudicial factor actually rendered them unable to be fair and impartial. Only if they answer ed 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 juro rs were members of crime prevention groups or had been th e victims of vi olent 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 answ er is yes. ... If your answer is yes. As a result of that experience that either you have had pers onally 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 thei r hands and the district court overruled Harris’s objection to this method of questioning.

The district court also aske d several one-part questions, directly asking jurors to rais e their hands if they knew any potential witnesses or believ ed 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-righte ousness without something more.” West

, 458 F.3d at 11. Accordingly, compound questions can viol ate a defendant’s Sixth Amendment rights by undermining his ability to have a “full and fair opportunity to expose bi as 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 substant ial prejudice to the accused.”

Id. In West and Littlejohn , this circuit conducted casespecific analyses for virt ually identical compound lawenforcement questions.

West held the district court di d 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 ju rors and never asked for past employers. Finally, some of th e traditional one -part questions the district court asked provi ded the defendant additional opportunities to learn ab out juror prejudice. See 458 F.3d at

7–8. West also held there was no substantial prejudice

because the district court instruct ed 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 claime d 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 defenda nt’s brother. 489 F.3d at 1337–38. Accordingly, this circui t held the district court

abused its discretion in aski ng 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 hi s 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 em ployment histor y related to the officers’ employer. Finally, Littlejohn came to this conclusion despite both the dist rict court’s use of one-part questions that could have e xposed juror prejudice and the

defendant’s failure to sh ow actual juror bias. Id. at 1344–47.

This case is far more like West than Littlejohn on the overlapping abuse of discreti on 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 PC P. Harris argues officer credibility was at issue becau se 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 of10

them tested negative for the dr ug. While these factors make Harris’s case stronger than West , it is still far from a situation

like Littlejohn where “the jury coul d 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 specifical ly relating to the Metropolitan Police Department. Finally, as in West (and Littlejohn ), the district court asked one-part que stions 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.