BERNARD v. U.S.

• Decision Date: 31 May 1990
• Docket Number: No. 88-1287,No. 88-1286,88-1286,88-1287
• Citation: 575 A.2d 1191
• Parties: Everett E. BERNARD, Appellant, v. UNITED STATES, Appellee. Heron L. REDMON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

575 A.2d 1191

Everett E. BERNARD, Appellant, v. UNITED STATES, Appellee.Heron L. REDMON, Appellant, v. UNITED STATES, Appellee.

Nos. 88-1286, 88-1287.

District of Columbia Court of Appeals.

Argued April 25, 1990.

Decided May 31, 1990.

Appeal from the Superior Court, Richard S. Salzman, J.

Rosanna Mason, appointed by this court, for appellant Bernard.

Steven A. Feldman, New York City, appointed by this court, filed a brief for appellant Redmon.

Anthony P. Farley, Asst. U.S. Atty., Washington, D.C., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Odessa Vincent, Washington, D.C., Asst. U.S. Attys., were on the brief, for appellee.

Before TERRY and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

Following a jury trial on an assortment of drug-related charges, appellant Everett Elroyd Bernard was convicted of distribution of marijuana, possession of marijuana with intent to distribute it, and unlawful possession of cocaine, in violation of D.C. Code § 33-541(d) (1988). Bernard's codefendant, appellant Heron Redmon, was convicted of unlawful possession of marijuana and unlawful possession of cocaine. Id. § 33-541(d). Both men now appeal their convictions, alleging that the trial judge made a diverse assortment of errors. The principal issue raised which warrants plenary discussion is whether the government's evidence was sufficient to permit the jury to find beyond a reasonable doubt that the contraband sold by Bernard was in fact marijuana and that he distributed a "usable amount" of the drug. A second issue — whether there was sufficient evidence to establish that appellants constructively possessed cocaine — is addressed in non-summary fashion in Part III of this opinion.

We hold that the identity and amount of a suspected controlled substance may be proved by circumstantial evidence, that the evidence in the present case was sufficient to support the jury's verdict, and that Bernard's motion for judgment of acquittal was properly denied. Discerning no merit in any of the other contentions raised by either appellant, we affirm the judgments entered below.

I

The evidence presented by the government, if believed by the jury, established that on January 23, 1988, an officer who was using binoculars in a concealed location observed both appellants, as well as other individuals, engaging in narcotics trafficking in the 7300 block of Georgia Avenue in northwest Washington, D.C. Specifically, the officer observed Bernard conversing with potential customers and handing small plastic objects to them. The customer would examine the object, sometimes raise it to his nose and smell it, and then give Bernard money for it. When Bernard ran out of the plastic objects, he would walk to the door of a nearby building and remove similar additional objects from a brown paper bag which was located on the ledge above the door. The officer also saw Redmon go to the paper bag — obviously a "stash" in the lingo of the drug trade — and remove objects from it. Redmon placed these objects in his pocket and then apparently sold several in transactions with passersby.

After observing this misguided entrepreneurial activity for an hour or so, the officer in the concealed observation post made radio contact with members of the arrestteam, who promptly took both appellants into custody. They recovered $390 in cash from Bernard and $212 from Redmon. On the ledge from which the two men had been replenishing their inventory, officers recovered the brown paper bag, which contained twenty ziplock bags containing green weed which later proved to be marijuana. Also on the ledge were two other plastic bags. One of these bags contained six ziplock packets of marijuana. In the other, police found six clear bags filled with white powder which was subsequently shown to be cocaine.¹

These events led to the conviction of both appellants as described above. Each was sentenced to consecutive terms of incarceration.

II

Bernard contends that the trial judge should have granted his motion for judgment of acquittal in connection with the charge of distribution of marijuana. Noting that the contraband which he allegedly sold to the suspected purchasers was not introduced into evidence,² Bernard claims that the government is required to produce the drugs in court so that he can "confront the evidence against him." He also argues that since the drugs were not in evidence, no determination could be made as to whether he distributed a "usable amount" of marijuana. We are unable to agree with these contentions.

Circumstantial evidence is not intrinsically inferior to direct evidence. In assessing the sufficiency of the government's proof, we make no distinction between direct and circumstantial evidence. See, e.g., In re E.G.C., 373 A.2d 903, 906 (D.C. 1977); cf. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954) ("[c]ircumstantial evidence in this respect is intrinsically no different from testimonial evidence"); Morrison v. United States, 417 A.2d 409, 413 (D.C. 1980) (operability of pistol may be proved by circumstantial evidence). Indeed, as we had occasion to observe in Jones v. United States, 318 A.2d 888, 889 (D.C. 1974) (quoting State v. Goetz, 7 Or. App. 515, 517-18, 491 P.2d 220, 222 (1971), cert. denied, 408 U.S. 929, 92 S.Ct. 2510, 33 L.Ed.2d 342 (1972)),

the amount of narcotics the defendant had in his possession, like any element of any crime, can be proven by circumstantial evidence.

(Emphasis added).

Although this court held in Jones that the presence of a "usable amount" of a controlled substance may be proved circumstantially, we have never had occasion to decide whether the same kind of proof is sufficient to establish the identity of a suspected unlawful drug. Logically, the two situations are indistinguishable. The federal appellate courts which have addressed the question have uniformly held that circumstantial proof is sufficient. We agree.

To prove the unlawful distribution of a controlled substance, the prosecution must demonstrate beyond a reasonable doubt that the substance distributed was in fact such an illegal drug. United States v. Lawson, 507 F.2d 433, 438 (7th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). This need not, however, be proved by direct evidence. As the court stated in United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962):

Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished found for inferring that the material in question was narcotics.

See also United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir. 1975), cert. denied,423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1976) ("[t]he introduction of a chemical analysis of the substance is not essential to conviction"); United States v. Murray, 753 F.2d 612, 615 (7th Cir. 1985) ("[t]he identity of a drug may be established by circumstantial evidence"); United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir. 1984) (same); United States v. Atkins, 473 F.2d 308, 313-14 (8th Cir. 1973) (same).

Most recently, in United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988), the court provided the following persuasive explanation for these and other decisions permitting circumstantial proof of the identity of a drug:

Illegal drugs will often be unavailable for scientific analysis because their nature is to be consumed. As a practical matter, therefore, the evidentiary rule urged by Schrock would insulate from prosecution a large class of unlawful drugs when the government happens upon the scene too late to seize a sample of the substance. To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evidentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence. . . . So long as the government produces sufficient evidence, direct or circumstantial, from which the jury is able to identify the substance beyond a reasonable doubt, the lack of scientific evidence is not objectionable.

(Citations omitted).³

Applying the reasoning of these decisions to the record before us, we are satisfied that the prosecution presented sufficient circumstantial evidence to establish that the packages distributed by Bernard contained marijuana. Bernard was observed making apparent sales of small plastic objects which he had taken from a brown paper bag concealed on the ledge above a doorway. When the paper bag was recovered, it contained twenty similar plastic packets of marijuana. The suspected customers who gave money to Bernard in exchange for the alleged drugs examined and in some instances smelled the goods, just as one might expect them to do if they were purchasing marijuana. One individual even rolled a cigarette immediately after making the purchase. From a common sense perspective, it was reasonable for the jury to conclude that what this man rolled was marijuana rather than tobacco. If Bernard was making street sales of material which came from a bag containing marijuana and which had been packaged for sale, then it was most improbable that the items being sold were of a different character from those which remained in the bag. Although it is theoretically possible that Bernard's sales were of something other than marijuana, that possibility appears remote indeed. In any event, the government need not exclude every reasonable hypothesis consistent with innocence. See, e.g., Irick v. United States, 565 A.2d 26, 30-31 (D.C. 1989).

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