Davis v. United States

the defendant indicated right testify. The forego intends deter-

purpose colloquy would be to making

mine defendant right

knowing intelligent waiver testify.

I of whether such think the is of given by must the trial court

advice be subject of a importance

sufficient similarly ruling definitive or other court. Because the division

of this divided, in Boyd the matter

considered for en banc probably suitable matter is appropriate case. As

consideration an significant of the matter is

resolution appeal, of this this case

to the outcome appropriate ve- appear

does not

hicle for en banc consideration. ‍​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​​​​‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌​​‌​‍Colucci, by this appointed

Michael P. brief, D.C., court, Washington, appellant. for DAVIS, Anthony Anthony Glenn a/k/a Atty., and John R. Jay Stephens, B. U.S. Davis, Appellant, G. Fisher, Black, M. Mun- Thomas C. Diane v. son, Humphreys, Asst. V. Claudette STATES, Appellee. UNITED brief, Washington, Attys., U.S. were on D.C., appellee. No. 90-488. ROGERS, Judge, Chief Before Appeals. Court of

District Columbia KERN, TERRY, Judge, and Associate Judge. Senior Feb. Submitted May Decided KERN, Judge. Senior appeal presents our determina- there was sufficient

tion whether trial to prosecution jury’s verdict of a controlled possession of D.C.Code (cocaine)in violation substance (1988 Repl.). We conclude 33-541(d) § so affirm. there was and at trial developed The basic facts observed uncomplicated. Police officers drinking seated beer while approached officers park.1 As the public alia, in, parks. beverages 25-128(a) (1981 inter Supp.) ers of alcoholic & 1990 § 1. D.C.Code drinking open proscribes possessing contain- or him, appellant never they cigarette he held with witness who testified had saw that twisted,2 possession and of the rocks. its tobacco removed and end in put object pocket. he coat an his The trial court’s instructions to the themselves, the officers identified he When difficulty jury created the which nоw di put to appeared from the and arose bench ap this in its of vides court decision this object in can from which he had the beer charged peal. Specifically, the court drinking. struggle A brief ensued been does not jury: “Now the Government have during was handcuffed before any particular prove there was ground and the can fell to some which involved, it amount of cocaine but does liquid spilled of its out. The officers recov- you beyond have to a reasonable show ered “a small оff-white colored rock-like there was a usable amount of doubt that ground puddle in a of substance from possessed.” cocaine The court went toon small, near can” “a beer the beer and white say: appel- colored rock-like substance” from pocket. suggests lant’s coat The in this case may there two ... of be elements cocaine performed separate The officers field possessed; allegedly possessed one they had tests on each of the “rocks” re- defendant, pocket other positive and tested for covered co- ground. you allegedly on the Now rocks, larger The one of caine. which guilty you find ‍​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​​​​‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌​​‌​‍find that the defendant other,3 placed separate than the were he either of these of ... plastic bags routinely and secure and trans- cocaine, you alleged but must be unani- Drug mitted to the Enforcement Adminis- possessed. mous as to which one he For laboratory analysis tration for chemical example, you found if six a forensic chemist. chemist’s allegedly taken the one upon served counsel trial before and pocket pos- his six that he and found submitted to the It evidence. certi- puddle, allegedly sessed one in the weighed fied the “white chunks” “144 one, you not which agree but could mg.” and were cocaine. you to find the defen- would not be able put govern- trial prosecutor At to the guilty. dant You would have be unan- expert question ment’s pos- imous that he as to least one “assuming weight milligrams be 144 guilty.4 sessed in order to find him percеnt purity of crack ... is jurors after some deliberation sub- this usable amount?” The an- judge. questions mitted two swered, “A usable amount is question first was: “In order find drug ingested of a that can be in or taken agree if the can guilty, defendant particular In this it body. into the case specimens of cocaine be- only one of the milligrams plenty go which is ahead single longing does put and into a device and smoke it.” a usable specimen to constitute was: “If during The second

At no time the trial did the de- amount?” yes, do the the answer is fensе contend that rocks were usa- pocket each ground drugs, rather it ble but giv- testimony probably not have been struction need 2. There was that crack cocaine ... alleged possession up regular cigarette agree. Appellant’s placed broken inside a en.” We pocket smoking after the smoker has first removed one in of two rocks him, proximity the tobacco. in close one on the cognizable single legally act of constituted a court, denying appellant’s pоst-tri- trial 3. The States, 528 A.2d possession. Briscoe acquittal, al motion stated (D.C.1987). Appellant offer did not at trial and held rock could seen ... “[e]ach differing possession each defenses [tjhough significantly smaller one rock is than Scarborough separate of cocaine. See rocks the other.” (D.C.1987) States, 522 A.2d v. (en banc). recognized 4. As the and stated subse- charge, unanimity quent giving "the in- analysis usually tive suffice to If usable amount? constitute a —will does, usable. specimen is it?” question first in Id. answered the As to the secоnd the affirmative. case, the In the instant rocks you advised, supply “I can’t with an subjected to capable cocaine were and question. You have to to this will answer quantitative analysis. laboratory test your own your memories and use own weighed milligrams they found that 144 later, Thirty the judgment.” minutes expert cocaine. The pure and were 97% verdict, which rendered its weight that their exceeded witness testified challenges. now street, sold in the minimal amount the viz.: argues in essence that while Appellant milligrams, “plenty” 70 аnd were smoke in forensic was direct evidence the there Thus, drug. a the instant case as narcotic expert’s testimony and report chemist’s the v. sharply Singley contrasts United were usable as together the rocks that (D.C.1987), States, narcotic, direct evidence in was no a there There, the upon relies. testimony that each the or the either government present able evidence was ” usable as a narcot- rock was in and of itself only “a of heroin was that ‘small amount’ jury’s the issue is whether ic. in the seized from the substance in this ease—under ultimate conclusion expert state and the witness was unable to given a particular instructions opinion —constituted these “traces” or “resi inference from all the evidence reasonable as a narcotic. due” of heroin were usable improper, to an and hence or amounted consequence, was prosecution As a reversible, evidentiary speculation without usability rely proof on its of the forced to foundation. upon a of the substance as narcotic by the States, prospective use of the substance court, Wishop in v. United of circum (D.C.1987), Given this set re- defendant. A.2d 1005 stated with 531 con stances, compelled to this court was required to the evidence that spect in speculate had to is usable: clude that proscribed substance and, hence, the guilty verdict reaching its States, A.2d 395 Edelin United [v. could not stand. conviction (D.C.1967) quanti that if the holds ] capable ty drug of a is too small be dissent, urge us Appellant, as well as quantitative analysis, there must be “ad simply evi- there was no to conclude that usability a narcot proof ditional of its as that could find dence from which in to sustain a conviction. 227 ic” order drug as a narcotic was usable each rock Implicit in A.2d at 399. this is refusing in court and hence the trial erred quan proposition that if the the converse judg- grant post-verdict motion trace, is and therefore tity more than a forensic evi- acquittal. ment Given the measurable, proof may “additional” not each rock wаs almost dence (though course it is not necessary be mil- weighed 144 and pure cocaine cases the facts prohibited, size rock of such ligrams,5 that each it.) require held, could be that it States, supra, 531 A.2d Wishop v. less (an significantly substance rock) state: 1008. This court went not co- at the smaller than even caine, in the of cocaine the amount progeny its make clear Edelin and “plenty” expert according usability, rocks requirement is not the critical government is enti- smoke, and that drug fact meаsurability.... [T]he in its favor inferences reasonable i.e., quantita- tled to all capable of is measurable — of heroin mere traces more than v. Unit- We note court’s comment Wells (D.C.1986): identified heroin. ed A.2d case, evidence was that In the instant quantify required and were of cocaine consisted package white chunks purity of the heroin each the exact mg. mere traces—144 long more than seized consisted of as the substance sufficiency puddle of challenge of the in a beer near the to the when made, can.” positive beer Both tested Curry presence (D.C.1987), for the of cocaine in field test we conclude conducted there was evidence to officers. verdict, must jury’s officers, arresting In addition and is trial the offered Lieutenant Henry as an Berberich Affirmed. the use of cocaine and on the Park Police

ROGERS, dissenting: Judge, Chief procedures safeguarding evidence. chemi- Lieutenant Berberich testified that a binding I Because conclude that authori- analysis performed cal had bеen govern- ty makes clear failure of arrest, specimens appellant’s retrieved proof its ment to meet burden of show specimens the two possessed appellant Glenn Davis a us- weighed milligrams (mg.), able D.C.Code opined which was cocaine. The witness (1989), 33-541(d) I would reverse and re- § amount, 144 mg was a usable in ex- v. Ryan, mand for a new trial. See M.A.P. dosage cess of “the smallest street unit (D.C.1971). Accordingly, I 285 A.2d 310 mg. you buy,” would contain 100 which respectfully dissent. counsel, At the of defense request I. judge gave special unanimity instruction jury:1 A full statement of the evidence crit- application binding authority. ical to Now, gentlemen, ladies and the evi- government’s evidence showed that suggests dence in this case there two members the United States Park might be two what we call elements appellant Police first saw and Antonio possessed. allegedly pos- of cocaine One Freeman, companion, sitting aon bench pocket sessed in the of the defendant and- drinking in Franklin Park and from a can allegedly on the ground. the other appellant of beer. The officers observed Now, may find you the defendant “making type of movements with his guilty you possessed if find that he ei- turning hands and around as to see if cocaine, alleged ther of these anyone looking at him.” As the offi- you cocaine. But must be unanimous as approached, appellant they place

cers saw possessed. to which one he something pocket. his coat The officers you he example, For if six of find that that appellant also noticed “a possessed allegedly taken from his one cigarette which had the end of it twisted.” pocket and six found he After one of the identified officers himself puddle, you allegedly one from the but officer, police appellant appeared as a one, you would agree cannot on which place something in the beer can and then guilty. find the defendant not be able dropped ground. the can to offi- as to at You have to be unanimous would attempted place appellant cers under possessed in order to least that he one drinking public, arrest for and an alter- him guilty. find ‍​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​​​​‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌​​‌​‍cation ensued. time, deliberating After for some handcuffed, After con- dialogue be- requested clarification. struggle, attempting prevent tinued fol- was as judge tween the getting pock- into his coat the officers lows: ap- et. officer One nevertheless searched the defen- person, In order find pellant’s finding jury]: “a small white-col- [The unanimously jury can right guilty, dant if the ored rock-like substance” coat agree one of pocket. Another officer “recovered small does belonging to off-white-colored substance from cocaine rock-like object to the tion. 1. The did not instruc- to be a usable the first two theories were based on insuf- single evidence, appellant ficient maintains that

amount? cannot determine this court judge]: Yes. [The him jury convicted on the basis of an im- yes, If do the jury]: the answer [The proper theory, and that under re- speci- and the specimen on the requirеd. versal is constitute a usa- pocket men in his each does, posses- If ble amount? In order to convict substance, govern- a controlled is it? sion of beyond required ment was a rea- supply you I judge]: can’t [The doubt that he a “usable sonable question. to this You will have answer See, e.g., Wishop v. amount” of cocaine. your your to use own memories and own judgment. (D.C.1987); Edelin v. United acquittal, Appellant moved for (D.C.1967). pred- This rule is took under advise- which the sense notion that icated on the common After the returned a ment. is of an “where the seized substance verdict, judge trial denied the motion the as make it of amount so inconsiderable acquittal. The rea- unmarketable, utility a it is no to user appel- jury that even if the believed soned contemplated by not such a narcotic as possessed only specimens, the lant one of society.” Congress danger jury “the could have concluded that each (quoting Wishop, supra, 531 A.2d at 1008 Thus, the rock contained cocaine.” 97% States, 447, 366 A.2d Blakeney v. United that therе was sufficient judge concluded (D.C.1976)). government The can satis- 449 verdict, support “even many ways. fact fy its burden “[T]he chunk, if determined which it cannot be ie., drug capable of that a is measurable — one, on, only jury agreed or wheth- the was analysis usually suffice quantitative —will jury agreed on er the both.” supra, Wishop, that it is usable.” “Usability can also be II. 531 A.2d at 1008. by expert tes- by other established means— Appellant Barkley relies on v. United 6; timony, example.” Id. at 1008 n. see (D.C.1983), States, 414 455 A.2d States, 482 A.2d also Hawkins v. United various alternative held that “whenеver (D.C.1984) (police detective liability jury, theories of are submitted to a amounts of expert testimony that similar determined to be any one of which is later bought, sold and drug typically the cannot be sus- improper, the conviction used). particular, appellant points In tained.” case, affording the instant after jury instructed that In the out that the (1) government the benefit of all reasonable him if it found that he could convict inferences, (2) the evidence demonstrated specimen jacket, in his he the consti- two rocks in combination ground, on the or that the possessed the government’s The (3) Appel- a usable amount. specimens. tuted from amount came government did not evidence about usable lant claims that the report expert and the testimo- con- the chemist’s that either itself establish The chem- ny of Lieutenant Berberich.3 usable amount. because stituted a majority, arresting how- officer. Unlike the Although portion has been an another ever, placed overruled, little re- Scarborough the see No evidence was (D.C.1987) (en banc), the field test results. holding ap- liance on the A.2d 869 jury the field presented to establish that upon validity. pellant retains See relies presence than of more results indicated the test Williams v. Indeed, arresting neither the cocaine. a trace of (D.C.1987). expert were asked to nor the officers significance accuracy even the explain the or that each In an effort to its conclusion amount, circum- results. Under such specimens ma- the field test was a usable stances, any reasonably jury draw part positive could not jority results of relies in tests. from the field specimens of usable amount performed the two inference field tests on total, percent report provides no about than three ist’s information rocks, reasonably an separate composition the two could not draw inference of sepa- were not According because fact. usable amount analyzed. states rately simply The majority, reasonably cоuld combination, up rocks, in that both added infer, expert without benefit testimo- mg pure cocaine. Lieutenant 97% ny, given that both rocks must be similarly testified Berberich rocks the relative sizes of the Significantly, he mg was a usable amount. finding chemist’s that the rocks combina- testify rock did not that either alone would tion constituted cocaine. Thus, the quantity. constitute usable testified, but witness could so he was evidence, provided no based any questions asked about each rock use, typical or quantifiable meаsurement In the isolation. absence of such evi- specimen, standing demonstrate that either dence, majority’s reliance such alone, amount. usable pure speculation.4 inference is the percent pure the relative sizes of flawed, was (emphasis as a basis though that the that the two usable amount dence from cantly less ^[1038] al sessed ment rensic evidence opinion at was almost More matter, of the substance ‍​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​​​​‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌​​‌​‍presence significantly introduced at trial. As not concedеs, (emphasis majority together the for two reasons. important, jury added) cocaine.” [6], there was no the than even conclude pure cocaine.” could based judge trial, No erroneously the evidence “established constituted 144 added). the this remark smaller than cocaine....” the infer, such or rock jury, on the that each that the {an Majority remarked, the two majority the (Emphasis forensic evidence This First, based on no evi- testimony that “one smaller fact appellant pos- refers tо hardly smaller statement rocks. rock was the opinion as a factu- mg. each rock outside concludes put something in Majority govern- signifi- other,” added). serves rock) about “only of 97 rock rock “fo- Al- at is a the circumstances unpersuasive, pieces.” The strate court has the crack for rocks each officer amount. surrounding appellant’s arrest that the two pellant’s end could have inferred from the circumstances “appellant [His] evant No reliance der. ... convictеd fact on attempt of (as usability: government argues subjective intentions approached” to the actual if it was “hand According rejected was separately [appellant’s] intended Obviously, if use [sic] [he were] government’s argument in cigarette movements holding something); the two by a similar the beer crush the possession placed by all demonstrate that contents of the process breaking constituted a usable reasons. [he] snorting with the government, ap- alone argument can could not be cigarette the can it First, preparing when into two lap; ... trier twisted demon- usage. irrel- pow- this tal- the is intent powder. Because erroneous cum percent constituted three of the more than practice are insufficient and common Moreover, if majority total. even the had the in fact substance evidentiary concluding convict basis must be confined illegal, inquiry more the appeared the smaller rock contain ever, in Although the rocks appellate court the non-cоcaine substances the is ill-suited less) judgments specula- chemistry, density (weigh co- render about the than the a lower have majority’s rock, clear. caine, although occupy- tive nature of the conclusion is then the smaller volume, The chemist’s concluded that the ing percent of the total than three more rocks weight. contained 97% based no cocaine. nonetheless contain could Thus, that three the chemist concluded question; the cannot resolve the court percent weight On of the was not cocaine. total called on make should have been hand, judge’s the other the trial remark that simply judgment. comments These informed "significantly than the of the rocks was smaller” majority's is even less inference indicate that a about other could well have been might first seem. compelling than it If, how- of the two the relative volume rocks. pos- responded judge “yes” the chemical contents of what The to the first [he] sessed. question, and declined to answer the second Thus, question. bоth the instructions and Singley v. A.2d jury the communication (D.C.1987).5 between Second, government’s ar- open possibility jury left that the gument begs found this case. If had appellant appellant inferred that broke a of the theory basis larger pieces, rock into two smaller it appellant possessed only one of the necessarily would also have concluded that rocks, despite government that the fact appellant possessed recov- provide failed to to sup- sufficient evidence police. by government’s ered port theory. a conviction such a speculation possible jury about infer- supra, The court in Barkley, help addressing prob- ence is of no just held that such circumstance posed by lem this case: requires Barkley reversal. was convicted provided government sufficient evidence to larceny. grand The intro theory a conviction on the Barkley duced evidence to show that had only one of the rocks. entered friend’s home and stolen several inquiry] Once we “confine [this items, including speaker $280 hidden pos- chemical contents of what” amplifier within it and an more worth than sessed, supra, Singley, 533 A.2d at appeal, complained On $100. apparent that the failed to allegedly many items he had stolen that either rock itself constituted were not shown to value excess amount.6 a usable $100, required grand as larceny however, instructed, that it statute, (1981). D.C.Code § [appellant] guilty could “find if [it found] held that court “because those articles of pieces that he of these either unproven value could have been sole cocaine, alleged long cocaine” conviction, grand larceny basis for piece as to which or unanimous conviction cannot be sustained.” Id. at possessed. jury’s of cocaine he principle 414. The court relied on the request for clarification indicates liability theories of “whenever alternative concerned about whether jury, are submitted one which is showed that one of the rocks itself impropеr, later determined to convic The jury constituted usable amount. tion cannot be This is because sustained. following question: submitted possibility might the verdict guilty, In order to find the defendant improper entirely upon have rested the unanimously agree on only (citing, ory.” v. e.g., Id. Chiarella one of the of cocaine belong- 21, States, 222, 100 445 U.S. 237 n. S.Ct. single ing to the does this 1108, 21, (1980)). 1119 n. L.Ed.2d 348 63 specimen have to a usable amount? holding in Barkley has been re yes, specimen If the answer is do the by the pock- affirmed court. See Williams v. (D.C. States, 665 et each constitute amount? If United 521 a usable does, 1987).7 is it? government's rely 5.The a footnote Nor could the on the fact that reliance on 6. 1233 n. did that either rock Brown 2 the chemist (D.C. 1988), misplaced. contained In Brown the court non-cocaine or that either rock "testimony microscopic that Brown cocaine. The noted showed traces of actually smoking appellant pos- cigarette immediately proving that seen bears the burden of Wishop,supra, sufficient a usable See 531 before his arrest. This constitutes evi sessed amount. acquittal_’’ to withstand a A.2d at 1007. dence motion case, contrast, In the instant no evidence speci- government urges reconsider either us to our showed had smoked Moreover, ground that it is men. court in Brown incompatible adopted "flatly Turner v. United a standard inconsistent" with 642, 654, 398, 420, Wishop, Singley, supra, U.S. S.Ct. 533 A.2d at (1970). Supreme supra, 531 A.2d at L.Ed.2d In Turner case, Barkley, instant alter- In the liability submitted theories of were

native were based on jury, of which in Barkley,

insufficient evidence. Just cannot whether the

the court determine improper theory.

jury verdict rested on an judgment,

Accordingly, I reverse the would remand for a new trial.8 REALTY

COLUMBIA Petitioner,

VENTURE,

v. OF RENTAL

DISTRICT COLUMBIA COMMISSION,

HOUSING

Respondent, Place, Argonne

Tenants

N.W., Intervenors. PLACE,

TENANTS OF 1601 ARGONNE

N.W., Petitioners,

v.

DISTRICT OF COLUMBIA RENTAL COMMISSION,

HOUSING

Respondent, Venture, Realty

Columbia Intervenor. 89-1256,

Nos. 89-1315. Appeals.

District of Columbia Court

Argued 15, 1990. Nov. May

Decided appellant possеssed "general namely, Court noted the rule” that "when a evidence: rocks, charg- returns a ing verdict on an indictment constituted both rocks conjunctive, Thus, acts ... the ver- several in the should usable amount. dict stands the evidence sufficient with re-trying appellant be precluded not be from charged.” respect to one of the acts properly See instructed. fore Nothing U.S. at 90 S.Ct. at 654. in the (affirming con Barkley, A.2d at 416 supra, 455 however, opinion, precludes this court Turner predicated offense viction lesser included adopting a rule. different ‍​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​​​​‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌​​‌​‍we J., ("I (Ferren, dissenting) proper theory); id. ruling prior decision bound of this trial"); see for a new and remand would reverse (D.C.1971). Ryan, court. M.A.P.v. 285 A.2d 310 (D.C. States, 557 A.2d 599 Thomas v. United also 1989) (en banc) (double pre jeopardy does not however, agree, appellant's I do not con- government has when the clude a second trial tention that is entitled to reversal with trial sufficient evidence at the first government presented prop- prejudice. The conviction). support a theory liability supported sufficient er

Case Details

Case Name: Davis v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 10, 1991

Citation: 590 A.2d 1036

Docket Number: 90-488

Court Abbreviation: D.C.