Bellamy v. US

• Citation: 810 A.2d 401
• Decision Date: 14 November 2002
• Docket Number: No. 99-CF-1173.,99-CF-1173.
• Parties: Danny C. BELLAMY, Appellant v. UNITED STATES, Appellee
• Court: Court of Appeals of Columbia District

810 A.2d 401

Danny C. BELLAMY, Appellant v. UNITED STATES, Appellee

No. 99-CF-1173.

District of Columbia Court of Appeals.

Argued November 20, 2001.

Decided November 14, 2002.

M. Elizabeth Kent, Washington, DC, appointed by the court, for appellant.

Stephanie J. Meltzer, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., and Edward B. Parks, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, FARRELL, and GLICKMAN, Associate Judges.

TERRY, Associate Judge:

After a jury trial, appellant Bellamy was convicted of distributing cocaine in a drugfree zone and possession of cocaine with intent to distribute it ("PWID") in a drug-free zone.¹ On appeal he contends (1) that he was prejudiced by a prosecution letter that allegedly misrepresented the testimony of an expert narcotics witness, (2) that the trial judge erred by neglecting to instruct the jury on the drug-free zone element of the charges against him, and (3) that he was entitled to a full evidentiary hearing on his claim of juror misconduct. We find no reversible error and affirm the convictions.

I

On April 29, 1998, the Metropolitan Police were involved in a drug investigation in the vicinity of 703 24th Street, Northeast, which is near Spingarn High School and within a drug-free zone.² Detective Gary Curtis, working undercover, engaged in a conversation to buy crack cocaine from an unidentified man.³ This man then walked a short distance away to another man, later identified as appellant, made an exchange, and returned to Detective Curtis with a ziplock bag containing what appeared to be crack cocaine. Curtis paid for the cocaine with a $20 bill whose serial number had been pre-recorded. After the transaction, Detective Curtis went to his car and performed a field test on the contents of the ziplock bag. When the test yielded a positive result, Curtis broadcast a lookout for the two men involved in the transaction.

Within minutes, police officers on the arrest team stopped appellant, who matched one of Curtis' descriptions, as he was coming out of a building at 703 24th Street. As Investigator Keith Tabron seized appellant and placed him up against a wall, he heard something hit the ground. Looking down, he saw a large ziplock bag containing twelve smaller bags of what appeared to be crack cocaine on the ground next to appellant. Moments later, Detective Curtis drove slowly past the scene and identified appellant as one of the men involved in the drug transaction. Appellant was then placed under arrest. A search of his person incident to his arrest yielded $202 in cash, including the $20 bill that Curtis had given him in payment for the cocaine.

Laboratory tests established that the ziplock bag purchased by Detective Curtis contained 85 milligrams of cocaine base at 82 percent strength. The twelve ziplock bags retrieved from the ground by Investigator Tabron contained 960 milligrams of cocaine base at 81 percent strength. Detective Charles Culver, an expert witness for the government, testified that the tests showed that cocaine in both samples came from the same batch. He also said that a person with crack cocaine packaged in twelve bags worth $20 each was more likely to have such drugs for distribution rather than for his own personal use.

Appellant denied selling any drugs and explained his possession of the $20 bill by presenting three witnesses. The substance of their testimony (appellant himself did not testify) was that a man known as "Hubcap" approached appellant and asked him for change for a $20 bill as appellant stood in front of 703 24th Street talking to a group of people. Although appellant "brushed Hubcap off," Hubcap followed him inside. One of the witnesses testified that, as he walked past the building, he saw appellant peeling off money from a roll of bills for Hubcap, who had a $20 bill in his hand. Appellant's defense as to the twelve ziplock bags found at his feet was that either the drugs belonged to someone else or the police planted the drugs on him.

II

On May 19, 1998, more than a year before trial, the prosecutor sent a letter to defense counsel containing a plea offer, a summary of the government's evidence, and certain discovery requests. The letter gave counsel notice that "should this matter proceed to trial, the government intends to call a narcotics expert," and that the expert "may testify," among other things,

(f) that possession of narcotics for use can be distinguished from possession of narcotics with intent to distribute, and that, for a variety of reasons, possession of individually packaged narcotics numbering more than ten (10), or possession of fewer packages but accompanied by other indicia of sale, is generally more consistent with an intent to distribute than with mere possession for personal use.

At trial, Detective Culver testified that possession of twelve $20 ziplock bags was inconsistent with possession for personal use, but he did not articulate the "ten bag" policy that was set forth in the letter. On cross-examination, defense counsel asked Detective Culver about the ten bag policy, but Culver said that no such policy currently existed.⁴ Defense counsel then moved to strike Culver's entire testimony because it "does not agree with what the government has told me their expert would be testifying to." The court denied the motion.

Appellant now argues that the prosecutor's letter affirmatively misled defense counsel about Detective Culver's testimony and that, because of this misrepresentation, the trial court abused its discretion in refusing to strike that testimony. He relies on a line of cases in which this court has held that certain actions by the government may be regarded as implied and binding promises. E.g., Wilson v. United States, 606 A.2d 1017, 1023 (D.C.1992)

(reversing a conviction after the prosecutor failed to honor a representation that he would not use prior convictions for impeachment), overruled in part on other grounds by Lyons v. United States, 683 A.2d 1066, 1067 (D.C.1996) (en banc); Rosser v. United States, 381 A.2d 598, 607-609 (D.C.1977) (reversing a conviction after the prosecutor failed to disclose the defendant's complete grand jury testimony and then used the undisclosed portions to impeach him); see also McCall v. United States, 596 A.2d 948, 960 (D.C.1991) (Schwelb, J., dissenting). In Wilson we said that reversible error occurs when (1) the prosecutor makes a "pretrial representation of the government's intention [that] creates an obligation to inform the defense and the trial court of new information in a timely manner," (2) "the prosecutor fails to honor his or her pretrial obligation," and (3) "the defendant is prejudiced." Wilson, 606 A.2d at 1020.

In this case, even if we assume for the sake of argument that the government's letter constituted such an implied promise,⁵ appellant has not shown any conceivable prejudice. He claims that he intended to argue that the twelve ziplock bags he possessed, only slightly more than the ten bags that show an intent to distribute according to the supposed policy, were not meant for distribution. Appellant's case, however, fits squarely within the policy about which he expected Detective Culver to testify. He possessed twelve bags of cocaine, two bags more than the maximum of ten bags which, under the policy, reflected the outer limits of simple possession. Even had the policy been still in effect at the time of appellant's trial, Culver stated during his testimony that at no point in his career would he have agreed that the twelve ziplock bags found on appellant were for personal use. Furthermore, the issue of whether the twelve bags of cocaine were for personal use or for distribution played no significant part in appellant's defense, because the defense theory was simply that the drugs did not even belong to appellant at all. Finally, regardless of the change in the government's policy, defense counsel had ample opportunity to cross-examine Detective Culver about the policy and the reasons behind it. On this record we can discern no prejudice to appellant's case, and thus no reversible error.

III

At the close of all the evidence, the prosecutor and defense counsel met with the judge to go over the jury instructions. During their discussion, defense counsel requested that the jury be allowed to consider lesser included offenses. The court agreed to give instructions on possession of a controlled substance, possession with intent to distribute, and distribution. After a short recess, the following conversation took place:

MR. PARKS [the prosecutor]: I assume for both counts the jury could find that he wasn't in the drug-free zone, in which case ... he'd only have possession with intent to distribute.

MR. COOPER [defense counsel]: Your Honor, I think the top instruction has to read, for example, distribution in a drug-free zone, and then work its way down from there.

THE COURT: Give that to me again.

MR. COOPER: Given that the charge is, one of the charges is distribution in a drug-free zone—

THE COURT: Is there an instruction on that?

MR. COOPER: I know there is.

* * * * * *

THE COURT: I thought I saw a drug-free zone [instruction]. I saw one the other day when I was looking. I have it in my book. I've flipped through my book and haven't seen it. I'm just not sure where it is.

MR. PARKS: I imagine you should find that this was more than a thousand feet from a school zone, if you find Spingarn High School was within a thousand feet of the crime in this case.

THE COURT: Okay. I'll see what I can put together.⁶

Because it was getting late, the judge decided to excuse the jury for the day and invited counsel back to his chambers to finish work on the jury instructions.

The next morning, at a meeting before the jury instructions were given, the prosecutor noted that...