WASHINGTON – A federal appeals court affirmed a Prince George’s County man’s conviction for possession of a firearm by a felon, ruling that police did not need explicit consent from his girlfriend for the search that turned up his gun.
A three-judge panel of the 4th U.S. Circuit Court of Appeals also rejected Kenzie Hylton’s argument that police violated his Sixth Amendment right to have an attorney, saying in their published opinion that the right did not apply until he was formally indicted.
The case began in April 2001, when Hawanya Harper called police to report that her live-in boyfriend, Hylton, had locked her out of their apartment.
When police arrived, Harper told them Hylton kept a gun under the bedroom mattress, and that he had raped her the week before while threatening her with it. She also said she feared her children might be in the apartment with Hylton.
Hylton eventually came out of the apartment and was arrested on three outstanding traffic warrants. At that point, officers “conducted a protective sweep” to of the apartment and found a loaded .38-caliber gun between the mattress and box springs of the bed, Judge Paul V. Niemeyer wrote in the opinion.
Hylton was charged with possession of a firearm by a convicted felon and released after an appearance before a district court judge.
But two days later, on April 25, 2001, Harper said Hylton had threatened to kill her, and police arrested Hylton on charges of witness intimidation and harassment, the opinion said.
“After signing a form advising him of his Miranda rights, Hylton signed a written waiver of those rights, indicating that he wished to talk to police without a lawyer,” Niemeyer wrote. Hylton told officers that the gun found in Harper’s apartment was his.
He was indicted by a federal grand jury on May 14, 2001, on possession of a firearm by a convicted felon.
Hylton unsuccessfully tried to block admission of both the gun and his statement to police into evidence. At the end of the trial, the jury deadlocked, but U.S. District Judge William Nickerson told them to try again — and 15 minutes later, jurors came back with a guilty verdict.
Hylton was sentenced to 17.5 years in prison.
He appealed the conviction, saying that the gun and his statement should have been kept out of his trial. But the appeals court disagreed.
Niemeyer said that while Harper did not give express consent for police to search her apartment, “the undisputed facts in this case support the inference that Harper gave consent” for police to conduct the search and “retrieve the firearm about which she complained.” In fact, he wrote, Harper would “rightly have been critical of police” if they had not searched for the gun.
The court also rejected Hylton’s argument that his statement should have been suppressed because his right to counsel was violated.
The court said such a right begins when “adversary judicial proceedings” begin. Hylton said they began when the statement of charges was filed against him on April 23, and that his Miranda rights waiver two days later does not mean he waived his right to counsel in all judicial proceedings.
But the court said that adversary judicial proceedings did not actually begin until the grand jury indicted Hylton for the gun charges three weeks later. The statement of charges would not have been sufficient to try Hylton in circuit court, where felony cases are heard, the court reasoned.
Finally, the appeals court dismissed Hylton’s argument that Nickerson had coerced the jury by “improperly and unduly” emphasizing how much a retrial would cost when they were deadlocked.
While the appeals court expressed “disfavor” with the emphasis on court costs, it said the instructions were “not in the overall context unduly coercive. And the fact that the jury reached a verdict shortly after . . . does not indicate that it was.”
Assistant Federal Public Defender Kelli McTaggart declined to comment on the case and Assistant U.S. States Attorney Donna Sanger did not return a phone call seeking comment.