Lead Opinion
In Dеcember 2003, a jury found appellant guilty of unlawful distribution of a controlled substance (heroin), in violation of D.C.Code § 48 — 904.01(a)(1) (2001).
I. Facts
Metropolitan Police Department (MPD) Officers Adrian Johnson and Angelo Battle were working undercover as part of a “buy/bust” operation near the 5100 block of Nannie Helen Burroughs Avenue in Northeast Washington, DC on August 21, 2003. Several other officers were also in the vicinity working as the operation’s “arrest team.” At approximately 4:45 p.m., Officers Johnson and Battle parked their unmarked car in front of a carryout restaurant at 5120 Nannie Helen Burroughs Avenue to buy a meal. While eating in their car, Officers Johnson and Battle observed a man, later identified as appellant, exit a Mercedes Benz SUV parked across the street, walk across the street, and talk with another man, later identified as Willie Knox.
As appellant and Knox talked, they walked into the same carryout restaurant where the officers had just purchased their meal. Officer Johnson returned to the restaurant to get some ketchup. While inside the restaurant, a small establishment with windows on three sides and just a countertop where orders are placed (no tables or seating), Officer Johnson overheard appellant and Knox’s conversation: Appellant asked Knox, “how much you have?” Knox responded, “I got you baby ... I got about 50 on me.” Appellant replied, “yeah, it’s going to cost — it’s going to be — it’s going to cost you at least 50.” Officer Johnson then saw Knox count currency and hand it to appellant, and appellant pass an object “small enough to be concealed with a closed hand” to Knox. After the exchange, appellant left the restaurant and “just casually just strolled up the sidewalk” to a bus stop at the end of the block.
Officer Battle, who was still in the car, also observed the transaction through the restaurant’s window. Battle saw appellant pass a “brown-colored object” to Knox. As soon as Officer Johnson returned to the vehicle, Officer Battle asked him, “[W]as that — was that a drug deal? Did they just do a transact — a hand-to-hand?” After Johnson confirmed, “[Yjeah, [t]hey did a hand-to-hand,” Battle issued a broadcast lookout, describing appellant and Knox to the nearby arrest team and instructing them to “move in.” In the lookout he described appellant as wearing blue jeans
As appellant was being stopped, Officer Battle communicated over the radio that another officer needed to go inside the restaurant to stop Knox. Officer Battle saw Knox begin to leave the restaurant, only to immediately go back inside once he saw appellant being approached by the officers at the bus stop. Battle then saw Knox “toss[ ] a brown item to the floor of the carry-out,” which he also said he “believe[d] was a brown paper bag item.” Other officers arrived at the restaurant and stopped Knox. The officers found a “piece of brown-paper” with ten pink zi-plock bags “less than two feet” from where Knox had been standing. White powder inside each of the ten bags field-tested positive for opiatеs. DEA technicians later tested the substance, and found it to be 28% pure heroin with a reserve weight of 0.87 grams.
Officers Battle and Johnson confirmed for the arrest team that appellant and Knox were the same two men they had just observed in the carryout restaurant. The officers arrested both men and took a photograph of appellant in his blue jeans and black shirt.
Appellant took the stand in his defense. He denied getting out of a Mercedes Benz SUV, entering the carryout restaurant, and meeting with Knox and passing anything to him. Appellant testified that he had walked to the Nannie Helen Burroughs area and that he had been standing at the bus stop conversing “for a while” with his friends Lizzy Stoddard and John Brand when the officers arrived and “grab[bed] Mr. Knox” at the carryout restaurant. Stoddard and Brand corroborated appellant’s recounting of events, testifying that they had been with appellant conversing at the bus stop for about twenty minutes before the officers stopped him. Brand and Stoddard testified they had not seen appellant go into the carryout restaurant from the time they arrived at the bus-stop until the officers arrested appellant. As to the sequence, Stoddard and Brand confirmed that officers stopped Knox first at the carryout restaurant, and then stopped and searched appellant at the bus stop.
There was no forensic evidence linking appellant to the drugs seized in the carryout restaurant. Officers searched appellant and found $72 and some personal items, but no drugs or drug pаraphernalia.
II. Ineffective Assistance of Counsel
In reviewing the denial of an ineffective assistance of counsel claim, we defer to the trial court’s findings of fact unless they lack support in the record, but we review the trial court’s conclusions of law de novo. Cosio v. United States,
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
A. Failure to File a Motion to Suppress
In the § 23-110 motion, appellant argued that his trial counsel should have filed a motion to suppress (i) the $72 found on him, (ii) the identification of him made by Officers Battle and Johnson after appellant was stopped by the arrest team, and (iii) the photograph of him taken at the time of his arrest. He argued that the officers lacked probable cause to arrest and search him, and that a motion to suppress the products of an unlawful search would likely have been granted. The failure to file such a motion, argued appellant, prejudiced him at trial, rendering trial counsel constitutionally ineffective.
At the § 23-110 hearing, the government called appellant’s trial counsel, Greg Baron, as a witness. Baron testified that he had considered and researched the possibility of filing a motion to suppress, but concluded that such a motion would not be meritorious. Appellant did not present any evidence. The court found that the arrest and search were supported by probable cause, and that a suppression motion, therefore, would not have been granted.
The existence of probable cause is tested by asking “whether a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed.” Davis v. United States,
Appellant relies on our analysis in Shelton v. United States,
On appeal, we held that the trial court erred in denying the suppression motion because the officers had no probable cause to arrest and search the driver. Id. at 423. We first acknowledged the various factors that would have given the officers reason to believe that they had witnessed a drug sale:
appellant sitting in a car in a convenience store parking lot, (2) a pedestrian holding currency approach [ing] appellant’s driver’s side window and giv[ing] that money to appellant, (3) the pedestrian receiving] back from appellant some kind of “small object,” and (4) both parties departing] the scene.
Id. at 424. We noted in Shelton that notwithstanding the officers’ observation of an apparent two-way exchange, there was no evidence of additional facts that had been relied upon in other “two-way transaction” cases to sustain probable cause that the exchange involved drugs, including: the suspect was seen passing something taken out of a “plastic medicine vial,” id. (citing Peterkin,
Considering the situation as a whole, we concluded in Shelton that there were not enough relevant facts to support probable cause to arrest:
[T]he instant case involves a two-way transaction on a record otherwise devoid of suspicious circumstances and where the observed transaction is capable of numerous innocent explanations. [The officer] observed the transaction immediately upon entering the parking lot and received no insight from events occurring before the transaction. [The officer] did not know or recognize either of the subjects as participants in past criminal activity. [The officer] did not see appellant retrieve the “small object” from a suspicious container or location. And immediately after the transaction, appellant and the pedestrian left the scene and [the officer] ordered appellant’s arrest; no conduct subsequent to the transaction — such as any attempt to flee or conceal contraband — entered into the probable cause analysis.
Shelton,
In this case, appellant highlights facts that are missing from the undercover officers’ observations before they arrested him that are similar to the missing facts in Shelton: appellant was never seen attempting to flee, neither of the officers observed any attribute of the small brown object that would have identified it as contrabаnd,
The government, on the other hand, distinguishes this case from Shelton. Importantly, argues the government, the specific
The government also points to additional facts that added to the officers’ suspicions. Appellant and Knox first met on. the street, and then walked into the restaurant together; once in the restaurant, they did not buy anything to eat, but instead carried on their conversation and made their exchange. Once undercover Officer Johnson entered the restaurant, appellant and Knox looked up, paused in their conversation, and then resumed once Johnson began to engage with the attendant at the ordering window. This interruption in their conversation could have suggested to the officer that appellant and Knox were concerned about being overheard. Then, Officer Johnson heard appellant and Knox mention $50, and saw a small object being passed between the two men. While there are admittedly many small objects with a $50 value, a quantity of drugs was one of the more obvious possibilities, according to the government, at such a location. And, notably absent from the conversation, says the government, was any information suggesting that the item for sale was something innocuous. Appellant left the restaurant as soon as the exchange concluded, and Knox attempted to leave less than a minute later only to retreat into the carryout restaurant upon seeing the police approach apрellant at the bus stop.
A very significant fact in the probable cause analysis in this case is the small brown paper item, later determined to contain heroin, that the officers saw Knox toss to the floor of the carryout. The trial court found that Officers Battle and Johnson saw Knox begin to leave the restaurant and look toward the bus stop “as [appellant] was being stopped,” and that “[Knox] then turned and immediately went back into the carryout” and threw the item onto the floor — with the implication that Knox discarded the item and the officers retrieved it before appellant was arrested. Appellant disputes this sequence of events, arguing that “[t]he record makes clear that [appellant] was arrested and searched as soon as Officer Battle positively identified him as the person involved in the suspected drug deal, and that Mr. Knox made the ‘tossing motion’ only [after-wards].” The government, citing the combined testimony of the various witnesses, asserts that the evidence supports that events unfolded in the sequence described in the court’s order: “Knox tossed drugs as the officers were starting to stop appellant, and that appellant was searched thereafter.”
In our view, the sequence of events is critical. If Officer Battle saw Knox retreat into the restaurant and toss the brown paper to the floor once he noticed police officers approaching appellant at the bus stop, the arresting officer could suspect (under a colleсtive knowledge theory) that the item Knox tossed was the one he had received from appellant and that Knox
The officers’ testimony,
To succeed on an ineffectiveness claim grounded on counsel’s failure to file a suppression motion, it is the movant’s burden to show that a Fourth Amendment claim would have been successful. See Wright v. United States,
B. Failure to Consult a Narcotics Expert
We come to a different conclusion with respect to appellant’s claim that his trial counsel was insufficiently prepared for trial and, as a result, did not call an expert on narcotics who would have questioned the officers’ accounts of what they observed. As the government’s case rested on the officers’ testimony, and there is a reasonable probability of a different outcome if an expert witness had been presented, we reverse and remand for a new trial.
1. The § 23-110 Motion and Hearing
The officers testified at trial that the police recovered a small brown paper bag from the floor of the carryout that contained ten ziplocks, with approximately 0.87 grams of 28% pure heroin. The government’s theory was that the brown paper bag was the “smаll brown object” that the officers said they saw appellant exchange for Knox’s $50. In his § 23-110 motion, appellant argued that trial counsel was constitutionally ineffective for not pre
Together with his § 23-110 motion, appellant submitted affidavits from former MPD Detectives Mark Stone and Myron Smith, both of whom served as Resident Narcotics Experts in Superior Court. Detectives Stone and Smith opined that, based on weight and purity,
The government, in its opposition, submitted the affidavit of MPD Detective Anthony Washington, who also served as Resident Narcotics Expert in Superior Court. Detective Washington did not dispute that the proper valuation of the drugs was $200. He opined, however, that “sometimes” a drug dealer will sell a quantity of drugs at less than full price, expecting a trusted reseller with whom the dealer has “engaged in transactions before” to pay the remaining purchase price once the drugs were resold. Alternatively, Detective Washington’s affidavit suggested, the ten ziplocks could have been a “tester” — “a small supply of drugs from a new source that a dealer will give or offer at a reduced price to a re-seller,” who would then sell the drugs and report back to the dealer on how well the drugs were received by users on the street. Detective Washington noted that “[t]he high purity of the heroin in this case indicates that it might have come from a new source and that the ten-pack transferred by the defendant to the code-fendant might have been a tester.” Like Detective Smith, Detective Washington
At the § 23-110 hearing, Detective Stone rebutted the possible explanations offered in Detective Washington’s affidavit. Detective Stone testified that he did not think it was very likely that appellant would have “fronted” Knox the ten bags of heroin for $50 in the exchange overheard by Officer Battle because these transactions are usually negotiated in advance, and the entire quantity of drugs is fronted Avithout any prepayment. He added that an exchange of drugs would have been negotiated beforehand “[bjecause of police that might be in the area.” Detective Stone questioned the “partial payment” theory suggested by Detective Washington, because drug-dealers in the Nannie Helen Burroughs area are a close-knit group of veteran dealers, making it unlikely that a dealer would require payment up front, or risk negotiating a drug sale in public or in the presence of strangers.
Detective Stone also thought that the government’s proffered “tester” scenario was unlikely. According to Detective Stone, a tester of heroin typically contains “[r]oughly anywhere between 10 to 20 milligrams ... [n]ot 110 milligrams” (the amount per bag found on the carryout floor), testers are not sold for money, and the testing phase usually occurs while the heroin is being cut and diluted, rather than after it has been cut and bagged.
In cross-examining Detective Stone, the government elicited that the Nannie Helen Burroughs area was known for heroin sales that typically occurred in the early morning and late afternoon, and that the area was a “very crowded” “open air drug market.” Detective Stone acknowledged that “there is no one way to do a drug deal” and that there is so much variation in the way drugs are sold that the best any experts can do is to generalizе. Detective Stone further acknowledged that the usual manner in which drugs are sold could be affected by, among other things, a debt owed by the reseller to a supplier, one party’s immediate need for cash, a friendship between the two parties to the transaction, or one party’s misunderstanding of the value of drugs being bought or sold.
The trial court concluded that appellant had not shown either deficient performance in counsel’s preparation for trial or prejudice from counsel’s failure to consult with a narcotics expert or to present expert evidence at trial. The court noted that counsel had ample experience in drug-related cases, and characterized counsel’s decision not to call an expert “a strategic decision based on Mr. Baron’s years of criminal litigation experience.” As to prejudice, the court commented that “while [Detective] Stone’s testimony at trial would have explained to the jury how, in 2008, a typical drug deal may have occurred on Nannie Helen Burroughs Avenue, it would have also informed the jury [about] the variety of factors that could affect drug transactions, further suggest
2. Deficient Performance
We recently had occasion to consider an ineffectiveness claim based on counsel’s failure to consult with a narcotics expert and present expert evidence at trial in Kigozi v. United States,
Appellant argues that this omission constituted deficient performance because (i) appellant’s trial strategy rested upon discrediting the officers’ testimony about the drug transaction they said they overheard, (ii) trial counsel did not have sufficient knowledge about heroin sales and the culture and practices of drug dealers in the area to recognize the inconsistencies in the alleged weight, concentration, price, and manner of drug sales, (iii) trial counsel knew that there were narcotics experts available to the defense who could have elucidated these practices and inconsistencies, and (iv) trial counsel was aware prior to trial that the government intended to call its own expert witness, “and made Detective Stone available to the defense.” These facts, according to appellant, would have led competent counsel to consult an expert before trial.
3. Prejudice
Deficient performance, however, is not enough to warrant reversal; counsel’s deficiency must have resulted in substantial prejudice. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
With respect to the second part of the prejudice showing, we have repeatedly emphasized that there is a “critical difference between reasonable ‘probability’ and ‘possibility’ of a different outcome.” E.g., Benton v. United States,
With doubt about whether the officers observed a drug transaction, other exculpating pieces of evidence could have gained prominence: appellant had no drugs or drug paraphernalia when he was searched, and his testimony that he had been standing at the bus stop for 20 minutes and had not been in the carryout restaurant just before Knox was arrested was corroborated by two witnesses who testified at trial.
In this case, where the jury had to decide between the officers’ testimony that they observed a drug transaction between appellant and Knox in a carryout restaurant and appellant’s testimony that he did not go into the carryout restaurant or meet with Knox but had been at the bus station conversing with friends for twenty minutes before the officers made the arrest, there was obvious аdvantage to be gained by presenting exculpatory evidence from a disinterested witness. When the
We conclude that the trial court erred in finding that trial counsel made a strategic choice not to consult an expert witness, and conclude that trial counsel’s failure to consult an expert fell below professional norms. We also conclude, based on the expert evidence proffered at the § 23-110 hearing and in affidavits, that there is a reasonable probability that competent counsel would have called a narcotics expert at trial and that there is also a reasonable probability that such expert testimony, in conjunction with other evidence presented at trial, would have created a reasonable doubt that appellant was guilty of unlawful distribution of heroin. As appellant has demonstrated that his claim of ineffective assistance of trial counsel meets both prongs of Strickland, the judgment of the Superior Court is hereby reversed and the case is remanded for a new trial.
So ordered.
Notes
. Appellant was sentenced to twenty-seven
. Specifically, the court found:
The evidentiary trial record reflected in this case that before the exchange occurred, the officers observed [appellant] and [Knox] leave the openness of a parking lot and street for the privacy of the empty carryout. Thereafter, Metropolitan Police Department Officer Johnson entered the carryout and overheard [appellant] and [Knox] negotiating a price. Officer Johnson then saw [Knox] count out currency and observed the exchange of the money for a small item. Officer Battle witnessed the exchange as well, through an unobstructed view of [appellant and Knox] inside the carryout, while he remained located in a car in a lot. This exchange occurred inside a carryout located in a neighborhood that Officer Johnson characterized as an open air drug market for illegal drugs....
When [appellant] left the carryout, Officer Johnson returned to his unmarked police car where Officer Battle broadcasted a description of [appellant] and [Knox] and directed that they “be stopped.” Approximately twenty to thirty seconds later, members of the arrest team stopped [appellant]. The record further reflects that as [appellant] was being stopped, the undercover officers saw [Knox] looking out of the door at the arrest team. [Knox] then turned and immediately went back into the carryout. Officer Johnson saw [Knox] make a throwing motion, while Officer Battle observed him throw a small, brown item to the floor. The officers recovered the thrown item, within two feet of [Knox], which contained ten zip locks that field-tested positive for opiates.
Under the totality of the circumstances, it is clear that the officers were justified in briefly detaining [appellant] who they believed to be involved in a drug transaction. Once probable cause was established, the police had authority to search [appellant] incident to arrest.
. Indeed, at trial, Officer Johnson testified, “I know something was passed. I just couldn't make out what it was.”
. Officer Johnson testified at trial that members of the arrest team stopped Knox between “[t]wo and five seconds" after stopping appellant. Officer Battle testified that "Mr. Knox was in transition of exiting the carry-out as the arrest team pulled up. Mr. Knox was looking in the direction of the arrest team, simultaneously ... making a U-turn ... back into the carry-out and tossed a brown ... what I believe was a brown paper bag item to the floor.” According to Officer Ronald Roy-ster, the officer who stopped appellant, "I pulled up, [Officers Battle and Johnson] advised me that when [Knox] saw us pulling up he ran back inside the carryout and tossed something to the ground.” Officer Royster further testified that, "[a]s I drove up in the car, in the block, I observed [appellant] standing behind the bus stop, exited the vehicle, walked over to [appellant] and stopped him, at which time the officers in the observation post, a short time after we stopped him, advised us thаt that was the correct subject.” According to Officer Royster, appellant was stopped very quickly after the lookout was broadcast ("[a] few seconds. I would say less than a minute, maybe a little over a minute.”), but wasn't arrested until "a few minutes” after the broadcast.
. Had a suppression motion been filed before trial or the record supplemented at the § 23-110 hearing, there could have been more factual development and the trial court could have made more precise factual findings with respect to the order in which the various events unfolded. Specifically, the question of exactly when Knox tossed the bag and when the officers seized it and its contents in relation to appellant’s arrest presumably could have been clarified. But appellant presented no evidence at the § 23-110 hearing to sup
Appellant's alternative interpretation of the sequence of events rests entirely upon a statement by Officer Battle at trial that, upon seeing appellant being stopped, he "immediately picked that radio back up and said okay, look[s] like ya’U got him. That’s positive.” Appellant argues we should infer from this statement that Officer Royster placed appellant under arrest and searched him immediately after Officer Battle’s identification. It appears from the record that Officers Johnson and Battle formally identified apрellant and Knox together after they had both been stopped, and the trial court found that it was only after their joint identification — and after Knox's toss — that appellant was arrested. We also note that the version of events that appellant argued in his § 23-110 motion and on appeal is at odds with appellant’s own testimony at trial, where he testified that the officers seized the drugs in the carryout restaurant before they arrested him. ■
. Detective Stone opined that the purity (28%) of the heroin recovered from the carryout floor was twice to four times higher than "[t]he average purity of the heroin sold in this area [which] is 7% to 14%.”
. As Detective Stone explained at the hearing, "[t]hese ten packs are actually more than ten and so they could either be 12 or 13. The payment for selling the ten bringing back the money to the seller is giving the person the opportunity to either use or sell the extra bags.”
.In response to the query, “how likely would it be for a dealer in this neighborhood to bargain for the price of a ten pack inside a carry out restaurant in front of someone he didn’t know,” Detective Stone stated, "I think it would be unlikely ... if a restaurant had a lot of people in it, but one person in it who does not live in the neighborhood, who is a stranger to that particular area, just to openly carry out that conversation, I think it would be unlikely.”
. Detective Stone testified that a dealer would ”[n]ot [give] 110 milligrams to test” and the tester would not be packaged in a ten-pack because "onсe it is wrapped in a ten pack it is all ready to go. It has already been tested.”
. The diluting process involves decreasing the purity of heroin. As the heroin recovered was 28% pure — very concentrated — it does not appear to have been diluted, a fact that also cuts against Detective Washington’s tester hypothesis.
.Baron testified that discovery documents he received included the PD 163 in Knox’s case, photographs of the drugs seized at the carryout, and the PD 95, which included the evidence envelope into which the drugs had been placed. We assume Baron would also have had — or could have obtained — the DEA-7 report on the drugs seized from the carryout. The trial court did not find, nor does the government argue, that Baron lacked any of the essential facts of the government's case before trial that Detective Stone was later able to use to identify significant discrepancies between the officers’ testimony and the practices of narcotics dealers in the area. Counsel must inform himself of the facts of the government's case-in-chief, and the record indicates that Baron filed a Rosser letter requesting discovery.
. The government did not call a narcotics expert at appellant's trial.
. Baron specifically agreed, on cross-examination, that a narcotics expert "could probably have given [him] an informed opinion, their expert opinion about how much 10 bags of heroin with that 28 percent purity would have typically sold for, or the pricе it would have sold for in that Nannie Helen Burroughs area.”
. As in Kigozi, this was a technical question: whether an exchange in a public place, as described by the officers, of ten bags with 87 milligrams of 28% pure heroin for $50 was a likely drug transaction in the Nannie Helen Burroughs area.
. Here there is a reasonable probability the expert testimony, in the context of the other evidence at trial, would have created a different outcome.
. To summarize, Detective Stone testified that it was unlikely that a dealer in the Nannie Helen Burroughs area would have "fronted” drugs to a reseller in the manner suggested by the government’s witnesses. Moreover, in Detective Stone's opinion, fronting transactions are usually negotiated in advance, and it is extremely unlikely that any sort of transaction would have been conducted in public, around strangers. Detective Stone also rebutted the "tester” scenario, explaining that a tester bag would have contained much less heroin than the 110 mgs. in each of the 10 ziplocks found in the carryout, a tester would not be sold for money but in exchange for 1 or 2 bags for consumption or resale or repayment, the heroin would have been far less pure than the 28% pure heroin found in the carryout, and the testing itself would have occurred pre-packaging during the cutting stage.
Even though Detective Stone recognized that the ordinary manner аnd price of a drug sale can be affected by, among other things, debts owed by one to another, an immediate need for cash, a pre-existing relationship, or simple inexperience, there was no evidence presented at trial (or at the § 23-110 hearing) that would establish the factual predicates of
. It is also possible that with expert testimony to undermine the officers’ testimony, counsel would have changed other aspects of the defense. See Kigozi,
Dissenting Opinion
dissenting:
I agree with the majority opinion’s rejection of the appellant’s first argument, viz, that the evidence seized during the search of his person should have been suppressed. As to his argument that he received ineffective assistance from his trial counsel, I agree with the majority opinion’s discussion of the importance of preparation and investigation by defense counsel. I will also assume for the purposes of discussion only that appellant’s trial counsel rendered ineffective assistance in that he failed to complete adequate investigation and trial preparation regarding the significance of the relatively high purity of the heroin that was seized.
Appellant’s argument on appeal is, essentially, that if a narcotics expert like Mark Stone, a former MPD detective, who testified for appellant at the hearing on the § 23-110 motion, had been interviewed before trial by defense counsel and then called to testify at trial about the significance of the high strength of the seized heroin аnd the way heroin was sold in the area where the appellant’s offense allegedly occurred, it is reasonably probable that the jury would have found appellant not
I cannot agree. The testimony of Stone at the § 23-110 hearing was itself so ambiguous and inconclusive that it would not have led the jury to disbelieve the police officers’ uncomplicated testimony about appellant’s actions.
A basic weakness of appellant’s argument is that, notwithstanding all of Stone’s testimony about how 28% pure heroin was likely to be marketed in the area where appellant was arrested, what the officers saw take place was clearly a drug transaction. Officers Johnson and Battle had been eating while seated in a car close to the front window of the carry-out. The officers had first seen appellant a short time before the exchange when he had been dropped off by an expensive Mercedes SUV and crossed the street and spoken with Knox in front of the carry-out. After they spoke, they entered the carryout where the officers saw them speak further as they stood by the front window. They were the only persons in the small carry-out aside from an employee who stood behind a plexiglass window.
After appellant and Knox entered the carry-out and continued talking, Officer Johnson entered the carry-out to get ketchup. At that point, appellant and Knox briefly stopped their ongoing conversation, but then concluded it with language signifying that they had struck a deal. Appellant asked Knox, “How much do you have?” Knox answered, “I got you, baby ... I got almost 50 on me” and appellant replied, “yeah, it’s going to be — it’s going to cost you at least 50.” Knox counted out money and gave it to appellant who, in turn, handed Knox a small object that Officer Battle, from outside the window, could see was brown in color.
Most damaging to appellant’s effort to show prejudice is that Stone had to acknowledge that drug transactions take place in an almost “infinite variety of ways.”
The essential thrust of Stone’s testimony was that the charged drug transaction could not have taken place in the manner described by the officers. Stone’s testimony was based on the fact that the heroin was found to be of a level of purity well above that of the heroin usually sold in the area of the sale. Starting with that premise, Stone testified that he “can’t think of any reason” why the heroin would have sold at such a discounted price.
Stone also said that arrangements between dealer and retail seller would usually be negotiated beforehand because of concerns about the police presence in the area or a potential robbery. Stone, however, had no knowledge of what conversation had taken place between buyer Knox and seller appellant leading to the exchange. The officers witnessed them conversing outside the carry-out and then within it before Officer Johnson entered to get ketchup and heard the final words before the exchange. Nor did Stone know whether they had spoken by telephone or otherwise before they met, almost certainly by appointment rather than by coincidence, outside the carry-out, or what appellant was doing before the officers saw him. For this reason, Stone’s testimony that the terms of a deal would normally be worked out beforehand and that parties to such a deal would not normally bargain in a carry-out casts no doubt on the officers’ testimony about the transaction.
In an attempt to discredit the evidence that appellant and Knox were engaged in a narcotics transaction, testimony was adduced from Stone that, in a transaction for resale, a dealer usually hands over to a reseller a 12 or 13 pack instead of a pack of only 10 bags. The reseller could then “either use or sell the extra bags” as payment. But this testimony does not help
Stone testified at a different point that a typical arrangement between buyer and retail seller is “to be fronted
All of Stone’s statements about what would typically occur are of limited value because he was unaware of the conversations that preceded the transaction, and did not know the existing relationship between appellant and Knox, particularly whether a debt was owed from a prior transaction. Stone also recognized that an immediate need for cash or inexperience could affect the terms of a transaction.
Moreover, the value of Stone’s testimony would have been called into question by his statement that the floors of carry-out restaurants “have often been used as stashes as well.” The testimony was obviously adduced to explain the presence of the bag of heroin on the floor near Knox. The government responds that the idea that a drug dealer or seller would “stash” illicit drugs on the floor in the middle of a public restaurant is “incredible.” This response has added force where the floor of the restaurant in question was bare, and the restaurant was empty except for appellant, Knox, Officer Johnson and an employee behind a plexiglass window.
In light of all of the significant factors as to which Stone had no knowledge and the almost infinite variety of forms that drug transactions can take, Stone’s testimony, even if not challenged by contrary expert testimony, is simply too indefinite and lacking in materiality to create a reasonable doubt that the officers saw the drug transaction that they testified they saw.
The already slim likelihood that Stone’s proffered testimony would give rise to reasonable doubt in the minds of the jurors is lessened by another factor. The government stated that it would call a narcotics expert whose qualifications equal Stone’s to counter Stone’s testimony. The government offered the affidavit of Detective Anthony Washington in opposition to the § 23-110 motion. Washington averred that he had testified as an expert more than 500 times in Superior Court and the U.S. District Court for the District of Columbia. As the trial judge brought out at the § 23-110 hearing, Stone and Washington were colleagues, and “were basically the supervisors around [Superior Court] for the resident drug experts.”
Washington agreed with Stone that the nature of transactions between a drug dealer and a reseller can vary widely. Contrary to Stone, Washington stated that
The majority opinion places considerable reliance on the court’s recent opinion in Kigozi v. United States,
Kigozi argued that he was prejudiced by counsel’s ineffective assistance in that counsel failed to call a witness like the nationally-recognized pharmacologist who testified for Kigozi at the § 23-110 hearing. The witness gave technical scientific testimony explaining how the dying declar-ant’s behavior at the time he named appellant Kigozi as his shoоter could have been symptomatic of PCP intoxication. Such testimony, Kigozi argued, could have put the dying declarant’s identification of Ki-gozi into doubt. The Kigozi majority held that there was a reasonable probability that the outcome of the case would have been different because “[w]ithout [the dying declarant’s] accusatory statements, or if the jury had doubts about their reliability, the government’s evidence was entirely circumstantial and seriously contradicted by eyewitnesses.” Id. at 657. In a comparable situation, where available exculpatory evidence would have brought into question the motives of the complaining witness, this court has found prejudice. Cosio v. United States,
Reasonable doubt “is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason.” Criminal Jury Instructions for the District of Columbia, No. 2.108 (5th ed. rev.2012). To acquit, there must be some reasonable doubt as to appellant’s guilt. Unlike the Kigozi witness’s technical testimony about a specific scientific issue, Stone’s broad testimony about the way the drug trade is practiced in the area and the myriad ways in which drug deals take place is so unfocused and lacking in certainty that, when it is considered together with the other evidence, there is not a reasonable probability that it would have caused the jury to reasonably doubt the reliability of the testimony of the officers about what they saw
Accordingly, I would affirm.
. It can be argued with some force that trial counsel’s performance was not so deficient that “counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington,
. The government asked Stone what he meant by "fronted the ten pack.” Stone replied, "They are given the ten pack with the obligation or promise to come back with the money. They know again how much money is supposed to be brought bаck to the person who gave it to them.”
. Stone’s reference to "repaying] in drugs” is confusing, as he then said that the retail seller must bring back the money or pay the consequences, such as "being shot or beat up if that task is not carried out.”
.The majority would dismiss the many plausible variables of the Knox-appellant transaction of which Stone was unaware, suggesting that it was somehow the government’s burden to adduce evidence of matters such as debt, pre-existing relationships and the like. While appellant and Knox would know about such things, it is unreasonable to expect the government to know about them and to produce evidence about them. Nor are such facts essential elements of the offense of which appellant was convicted.
. Moreover, if Stone had testified at trial, his testimony, even if not rebutted, could have harmed appellant. Stone described the Nannie Helen Burroughs neighborhood in 2003 as a "close knit veteran heroin trafficking area” and the relationship between the buyer and seller as "a close relationship ... a trusting relationship.” A jury, listening to Stone’s testimony, could become more likely to convict appellant after hearing him associated with a "veteran heroin trafficking area” and impliedly described as having close relationships with drug dealers and sellers. The majority again attempts to demonstrate that Stone’s testimony would have called the government's evidence into doubt, but it just as likely could have been detrimental for appellant.