Blakeney v. US, 93-CF-401

• Citation: 653 A.2d 365
• Decision Date: 19 January 1995
• Docket Number: 93-CF-457.,No. 93-CF-401,93-CF-401
• Parties: Michael H. BLAKENEY, Appellant, v. UNITED STATES, Appellee. James B. NELSON, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

653 A.2d 365

Michael H. BLAKENEY, Appellant, v. UNITED STATES, Appellee.

James B. NELSON, Appellant, v. UNITED STATES, Appellee.

Nos. 93-CF-401, 93-CF-457.

District of Columbia Court of Appeals.

Argued November 21, 1994.

Decided January 19, 1995.

Karen J. Krueger, for appellant Blakeney. Craig Dean Katz, for appellant Nelson.

Glen L. Kirschner, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty. and John R. Fisher, Thomas J. Tourish, Jr., Shanlon Wu, and Linda I. Marks, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN and KING, Associate Judges, and PRYOR, Senior Judge.

FERREN, Associate Judge:

On September 18, 1992 a jury convicted appellants Nelson and Blakeney of unlawful possession with intent to distribute cocaine. D.C.Code § 33-541(a)(1) (1993 Repl.). Nelson was also convicted of unlawful possession of drug paraphernalia. D.C.Code § 33-603(a) (1993 Repl.). Nelson was sentenced to a mandatory term of seven to twenty-one years in prison for possession with intent to distribute, and to one month in prison for possessing drug paraphernalia, to be served concurrently. Blakeney was sentenced to a mandatory term of four to twelve years incarceration.

In this appeal, Blakeney contends that the trial court erred by (1) admitting in evidence a pager found on Blakeney at the time of his arrest, and by (2) permitting the government's expert to testify as to the use of pagers in drug transactions. Blakeney also argues that (3) there was insufficient evidence to convict him of aiding and abetting possession with intent to distribute cocaine.

Nelson maintains that (1) the trial court erred by restricting cross-examination of the government's expert witness; (2) his sentence was illegal; and (3) the admission, solely against Blakeney, of the pager, as well as the expert testimony about the use of pagers in drug distribution, had a "spill over effect" which resulted in unfair prejudice against him. We affirm as to both appellants.

I.

The government presented the following evidence at trial. United States Park Police Officer John Dowd obtained a search warrant for apartment # 3 at 1814 North Capitol Street, N.W. Soon thereafter, on June 26, 1992, at approximately 5:15 p.m., Officer Dowd and FBI special agent John Kerr set up an observation post to monitor the front of 1814 North Capitol Street. It was light outside and Officer Dowd had an unobstructed view of the apartment building.

On four occasions between 5:15 p.m. and 6:00 p.m. Officer Dowd saw appellant Nelson walk to a tree located along the curb, bend down next to the tree, and then appear to put something inside his waistband. The tree was approximately ten feet to the north of 1814 North Capitol Street. According to Officer Dowd's testimony, after bending down next to the tree, Nelson would walk southbound on North Capitol Street with an unidentified person, and exchange a small item taken from his waistband for money.

Appellant Blakeney walked "in front of or behind" Nelson during these exchanges and looked up and down North Capitol Street while the exchanges were taking place. After each sale, Blakeney would meet Nelson in front of 1814 North Capitol, and Nelson would give Blakeney some cash. Just before 6:00 p.m., Officer Dowd saw Nelson give Blakeney a large sum of money, and Blakeney then went into the building at 1814 North Capitol. At approximately 6:00 p.m., Dowd radioed to his fellow officers to execute the search warrant for 1814 North Capitol # 3; he also told them to stop Nelson. In the meantime, Officer Ed Brosch searched the area near the tree and recovered a cardboard box containing a large amount of debris and a "carefully folded" piece of brown paper that contained a green ziplock bag. The bag held a "large chunk" of a substance that a Drug Enforcement Administration (DEA) analysis later established was 519 milligrams of cocaine base.

When Nelson was detained, he told the police that he lived in apartment # 3 at 1814 North Capitol Street and that he was unemployed. Blakeney was stopped in a hallway just outside one of the bedrooms in apartment # 3. Blakeney confirmed that he "stayed" in the bedroom closest to where he had been detained. Officer Dowd, who had left his observation post and entered the apartment, recognized Blakeney as the person he had seen near Nelson during the transactions; he also recognized Blakeney as the person who had received money from Nelson. Blakeney told the police that he was unemployed and gave his address as 6212 Georgia Avenue, Northwest.

Inside dresser drawers in Blakeney's bedroom, the police found numerous empty yellow and blue ziplock bags, a small straw, and three small ziplocks that contained what appeared to be crack cocaine. A later DEA analysis showed that the three small ziplocks did not contain a controlled substance. The straw, however, had traces of cocaine on it. An inoperable .25 caliber Raven semi-automatic pistol was recovered from between the mattress and the box spring in the same bedroom. The police also found photographs there depicting Blakeney, Nelson, and the two of them together, as well as three "legal papers" with Blakeney's name on them.

The police recovered a pager and $690 from Blakeney's pockets. The $690 was comprised of three $100 bills, one $50 bill, fifteen $20 bills, three $10 bills, and two $5 bills. A total of $476 was recovered from Nelson, comprised of two $50 bills, eleven $20 bills, nine $10 bills, eleven $5 bills, and eleven $1 bills.

Lieutenant Ronald Schmidt, an expert in the handling and distribution of narcotics, testified for the government, opining that (1) it is common for one person to do the "hand to hand" transfer while someone else handles the money; (2) street drug sellers often sell from a "stash" and frequently use trash receptacles for their stashes; (3) the "money man" may keep the money on himself or in a stash, and then take the cash into a house or apartment after a certain amount has been received; and (4) street sales primarily generate $5, $10, and $20 bills. Lieutenant Schmidt also testified that pagers are commonly used in the drug trade; they enable sellers to contact suppliers in order to resupply inventory.

II.

A.

Blakeney contends the trial court abused its discretion by admitting in evidence the pager found in his pocket at the time of his arrest. He argues, first, that the pager should not have been admitted because it was not relevant and, second, that even if relevant the pager should have been excluded as more prejudicial than probative.

"The determination of the relevance of proffered evidence is committed to the sound discretion of the trial court." Street v. United States, 602 A.2d 141, 143 (D.C.1992). In weighing the admissibility of particular evidence, the trial court must keep in mind that "the evidence must have some connection with the defendant or the crime with which he is charged and should not be admitted if the connection is too remote or conjectural." Burleson v. United States, 306 A.2d 659, 661 (D.C.1973). On appeal, "an evidentiary ruling by a trial judge on the relevancee of a particular item ... will be upset ... only upon a showing of grave abuse." Roundtree v. United States, 581 A.2d 315, 328 (D.C.1990).

Although this court has not ruled directly on the relevance of a pager to the crime of possession with intent to distribute, we have repeatedly recognized that pagers are associated with the distribution of drugs. See, e.g., Lowman v. United States, 632 A.2d 88, 99 n. 14 (D.C.1993) (possession of money and a beeper "worth a million" as incriminating evidence) (Schwelb, J., dissenting in part); Morton v. United States, 620 A.2d 1338, 1340 (D.C.1993) (guns and beepers are "evidence of distribution"); Mack v. United States, 570 A.2d 777, 785 (D.C.1990) (evidence that defendant was carrying money and a beeper "at least highly suspicious").

Here, the discovery of the pager occurred almost immediately after the police had directly observed Blakeney participate in the sale of cocaine. Officer Dowd testified that between 5:15 and 6:00 p.m. on June 26, 1992, he had observed (1) Blakeney walking near Nelson and acting as a lookout while Nelson engaged in four "hand to hand" drug sales; (2) after each of these transactions, Nelson had met with Blakeney in front of 1814 North Capitol St. and had given him money; and (3) just before 6:00 p.m. Nelson had given Blakeney a large sum of money. Minutes later, police officers stopped Blakeney while executing a search warrant inside apartment # 3 at 1814 North Capitol Street. At the time he was stopped, Blakeney had a pager in his pocket, as well as $690 comprised of large and small bills. In light of Lieutenant Schmidt's expert testimony that pagers are commonly used in the drug trade, as well as this court's recognition in previous cases that pagers are often associated with the distribution of illegal drugs, and given the fact that the pager was found in Blakeney's pocket only minutes after he had been seen receiving money from Nelson—money which Nelson had apparently been given in exchange for drugs—we cannot say the trial judge erred in finding the pager relevant to the government's theory that Blakeney had aided and abetted Nelson in the distribution of cocaine.

B.

Blakeney also contends that, even if the pager was relevant it should have been excluded as more prejudicial than probative. Like relevance, the weighing of probative value against the danger of unfair prejudice "is a decision committed to the sound discretion of the trial court." Hawkins v. United States, 482 A.2d 1230, 1232 (D.C.1984). Thus, the trial court must determine, in light of the facts of each case, whether the evidence sought to be admitted is "likely to sway improperly the jury's deliberations." Street, 602 A.2d at 144. Appellant argues that admission of the pager unfairly prejudiced the jury because it was "predisposition evidence," meaning evidence of ...