Brooks v. US

• Decision Date: 27 August 1998
• Docket Number: No. 96-CF-1381.,96-CF-1381.
• Citation: 717 A.2d 323
• Parties: Dawayne M. BROOKS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

717 A.2d 323

Dawayne M. BROOKS, Appellant, v. UNITED STATES, Appellee.

No. 96-CF-1381.

District of Columbia Court of Appeals.

Argued March 24, 1998.

Decided August 27, 1998.

A. Kevin Fahey, Falls Church, VA, appointed by the court, for appellant.

Kimberley S. Knowles, Assistant United States Attorney, for appellee. Mary Lou Leary, United States Attorney at the time the brief was filed, and John R. Fisher, Elizabeth Trosman, Molly A. Meegan, and Renate D. Staley, Assistant United States Attorneys, were on the brief for appellee.

Before TERRY, FARRELL, and KING, Associate Judges.

TERRY, Associate Judge:

Appellant was convicted of possession of cocaine with intent to distribute it, in violation of D.C.Code § 33-541(a)(1) (1993). During the trial, at the conclusion of the government's case, appellant made an oral motion to suppress evidence, which the court denied after hearing argument from both sides. On appeal, appellant contends that the trial court erroneously denied his motion to suppress and that the evidence was insufficient to support his conviction. We affirm.

I

Metropolitan Police Officer John Farr testified that during the early morning hours of February 24, 1993, he and his partner were manning an observation post in an abandoned house at 1322 Park Road, Northwest.¹ There were no lights in the house, but light from the street shone in through at least one window.² At approximately 1:20 a.m., while on the second floor of the house, Officer Farr heard the sound of voices downstairs, so he went down to the first floor to see if anyone had entered the house, trying hard to make as little noise as possible. When he reached the first floor, he saw appellant in the front room, standing next to an open window, talking to another man who was outside the house, standing next to the same window. Although he could not hear all the details of their conversation, Officer Farr heard the man outside say, "Give me two." Appellant then reached into "an old refrigerator lying on its side" (in the middle of the room) and retrieved a crumpled brown paper bag. At the same time, the man standing outside the house told a companion, also outside, that he "didn't have enough money." Appellant, apparently overhearing this remark, said, "Then you will only get one." Suddenly, before any exchange took place, someone yelled, "Five-O,"³ and the people outside the window "casually walked away."

Appellant, still holding the paper bag and looking down, walked toward Officer Farr, who had concealed himself in the shadows at the bottom of the stairwell. When appellant was within two feet of him, Farr lunged for the bag, and appellant "pulled back" and dropped the bag to the floor between his feet. Without ever losing sight of the bag, Officer Farr picked it up off the floor⁴ and then subdued appellant. Farr's partner ran down from the observation post upstairs, and Farr radioed for backup.

The paper bag recovered by Officer Farr contained eighty-three ziplock bags, each containing in turn a white rock-like substance which turned out to be crack cocaine, as well as several empty ziplock bags.⁵ Farr gave the paper bag and its contents to Officer Gregory Bailey for processing. Officer Antonio Womack recovered an additional five ziplock bags with similar contents from appellant's pocket⁶ and handed them to Officer Farr. He in turn gave these five ziplock bags, as well as $312 in cash recovered from appellant's coat pocket, to Officer Robert Ingram to seal and process.⁷

Officer Bailey testified that, when he and his partner responded to a call for assistance at 1322 Park Road, Officer Farr handed him a brown paper bag containing eighty-three⁸ small ziplock bags, each of which contained a white rock-like substance. Bailey performed a field test on a portion of that substance and "received a positive color reaction for cocaine base." When Bailey told Farr the results of the test, Farr placed appellant formally under arrest. Officer Bailey took the paper bag and its contents to the Fourth District police station, completed the necessary paperwork—making an entry in the property log and filling out the Drug Enforcement Administration Form DEA-7—and then placed everything in a heat-sealed envelope⁹ and put the envelope into a "lock box" to be sent to the DEA for analysis.

Officer Myron Smith, accepted by the court as an expert in the distribution and use of narcotics, explained to the jury that most drug transactions involve two or more persons, including a "runner" who initiates the transaction and a "lookout" who watches for and warns of any police presence.¹⁰ Officer Smith testified that the possession of eighty-eight small ziplock bags containing seventy-five to ninety-five milligrams of crack cocaine was not consistent with personal use. He also said that the report of the chain of custody of the drugs seized from appellant "appeared to be in order."

Appellant did not present any evidence. However, at the conclusion of the government's case, defense counsel, for the first time, moved to suppress the crack cocaine found in the paper bag, as well as the crack cocaine recovered from appellant's coat pocket.¹¹ Counsel argued that Officer Farr lacked probable cause to stop appellant and that Farr knocked the paper bag out of his hand, thereby seizing it without probable cause. In denying the motion, the court credited Officer Farr's testimony, saying:

I find that the defendant dropped the bag as the officer approached, and when the officer approached, the officer had probable cause to believe that the defendant was engaged in the activity of selling contraband drugs. The seizure was lawful. The arrest was lawful. The seizure from the coat was incident to a lawful arrest.

Defense counsel also moved for a judgment of acquittal, arguing inter alia that Officer Farr never made an in-court identification of appellant. The court denied the motion, noting that Officer Farr "referred to your client, but even if he didn't, if you take his testimony and couple it with the other officers, it's sufficient."

II

The principal issue in this case is the sufficiency of the evidence.¹² Appellant argues that the evidence was insufficient to support his conviction because Officer Farr, in court, failed to identify him directly and also failed to identify Government's Exhibit 3—the paper bag and the eighty-three ziplocks of crack cocaine that it contained—as the contraband he recovered at 1322 Park Road on February 24. Viewing the evidence, as we must, in the light most favorable to the government, giving full play to the right of the jury to determine credibility and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence, see Curry v. United States, 520 A.2d 255, 263 (D.C.1987), we hold that the evidence was sufficient.

A. The Identification of Appellant

The identity of the defendant as the person who committed the charged crime is an essential element that the government must always prove beyond a reasonable doubt. See United States v. Telfaire, 152 U.S.App.D.C. 146, 149, 469 F.2d 552, 555, 559 (1972); United States v. Fenster, 449 F.Supp. 435, 439 (E.D.Mich.1978); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 5.06 (4th ed.1993). A specific in-court identification by a witness, however, is not always necessary. United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir.), cert. denied, 516 U.S. 878, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995); see State v. Kaba, 217 Neb. 81, 83-87, 349 N.W.2d 627, 630-631 (1984). In some cases "identification may be inferred from all the facts and circumstances that are in evidence." United States v. Weed, 689 F.2d 752, 754 (7th Cir.1982) (citations omitted). Therefore, "a witness need not physically point out a defendant so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime." United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir.1980) (citations omitted). Although we have not expressly adopted this rule, it is not inconsistent with our case law¹³ and has been embraced by many other appellate courts, both state and federal. See, e.g., United States v. Morrow, 925 F.2d 779, 781 (4th Cir.1991); United States v. Green, 757 F.2d 116, 119 (7th Cir.1985); United States v. Weed, supra, 689 F.2d at 754-755; Delegal v. United States, 329 F.2d 494 (5th Cir.), cert. denied, 379 U.S. 821, 85 S.Ct. 44, 13 L.Ed.2d 32 (1964); Becker v. State, 298 Ark. 438, 440-442, 768 S.W.2d 527, 529 (1989); People v. King, 151 Ill.App.3d 644, 646-648, 104 Ill. Dec. 827, 829-830, 503 N.E.2d 384, 386-387 (1987); State v. Burton, 615 So.2d 1042, 1046 (La.Ct.App.1993), cert. denied, 516 U.S. 977, 116 S.Ct. 482, 133 L.Ed.2d 409 (1995); State v. Kaba, supra, 217 Neb. at 83-87, 349 N.W.2d at 630-631; State v. Watts, 72 N.C.App. 661, 662-663, 325 S.E.2d 505, 506, review denied, 313 N.C. 611, 332 S.E.2d 83 (1985); State v. Hill, 83 Wash.2d 558, 559-561, 520 P.2d 618, 619 (1974).

In the instant case, although Officer Farr did not directly identify appellant in the courtroom, the record is replete with evidence sufficient to allow the jury to find that the defendant who appeared at trial was the person who committed the acts charged. In the first place, there were no co-defendants, so that any mention of "the defendant" would certainly have denoted appellant Brooks. Officer Farr repeatedly referred to the person he encountered on February 24 at 1322 Park Road as "Mr. Brooks" or "the defendant," and Officers Womack, Bailey, and Ingram expressly identified appellant in court as the person whom Officer Farr subdued and arrested. See United States v. Morrow, supra, 925 F.2d at 781; see also Becker v. State, supra, 298 Ark. at 440-442, 768 S.W.2d at 529 ("the fact that none of the witnesses pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity"). Also, without objection, the...