Bullock v. US, 95-CF-395

• Decision Date: 02 April 1998
• Docket Number: No. 95-CF-395,95-CF-692.,95-CF-395
• Citation: 709 A.2d 87
• Parties: Jay BULLOCK and Kenneth V. Rawlinson, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

709 A.2d 87

Jay BULLOCK and Kenneth V. Rawlinson, Appellants, v. UNITED STATES, Appellee.

Nos. 95-CF-395, 95-CF-692.

District of Columbia Court of Appeals.

Argued October 8, 1997.

Decided April 2, 1998.

Janet Ann Cohen, Baltimore, MD, appointed by the court, for appellant Bullock. Steven K. Lee, Washington, DC, filed a brief for appellant Bullock.

Michael Olshonsky, Washington, DC, appointed by the court, for appellant Rawlinson.

Thomas C. Black, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Chrisellen R. Kolb and James R. Costello, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN and SCHWELB, Associate Judges, and GALLAGHER, Senior Judge.

STEADMAN, Associate Judge:

Appellant Jay Bullock was convicted by a jury of one count of unlawful distribution of a controlled substance and one count of unlawful possession with intent to distribute a controlled substance ("PWID"). At the same trial, appellant Kenneth V. Rawlinson was convicted of one count of PWID.¹ All charges relate to a quantity of heroin that was stashed beside a tree near the corner of Georgia Avenue and Otis Place, N.W. Bullock contends that (A) the evidence was insufficient to convict him of distribution and PWID, (B) in any event he cannot remain convicted of both offenses insofar as they relate to the same quantity of heroin, and (C) the government impermissibly introduced "other crimes" evidence. He also alleges a violation of the government's duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Rawlinson contends that the evidence was insufficient to convict him of PWID. We find no error and affirm the convictions of both appellants.

I.

On the morning of March 12, 1994, Officer Richard Fitzgerald of the Metropolitan Police Department manned an observation post near the "high drug area" of Georgia Avenue and Otis Place, N.W. From approximately 10:20 a.m. until 11:10 a.m., Fitzgerald observed the two appellants and a third person, Cynthia Davis,² through binoculars.

A. The Open-Air Heroin Enterprise.

At around 10:20 a.m., appellant Bullock emerged from an alley known for drug trafficking, engaged Davis in conversation, and gave her a bundle of objects wrapped in a plastic band. Fitzgerald believed the objects were cellophane ziplock bags. Through his binoculars, Fitzgerald watched Davis count out ten objects by "flipping through" the bundle. Davis stashed the bundle at the base of a nearby tree. Davis remained near the tree while Bullock wandered up and down the street, often looking back toward the tree.

Shortly after Bullock gave the bundle to Davis, appellant Rawlinson entered the scene. Rawlinson approached Davis and struck up a conversation. Fitzgerald could not hear what was said, but he observed Davis gesture toward the base of the tree with her head. Rawlinson nodded in response to this gesture, and he and Davis walked a short distance together. Rawlinson continued to associate with Davis throughout the surveillance period. Fitzgerald testified that Rawlinson once "motioned and directed" a passerby to Davis, who then appeared to sell drugs from the stash to the passerby.

During the fifty minutes of Fitzgerald's surveillance, a total of five or six pedestrians appeared to buy drugs from Davis. After every one or two sales, Davis would approach Bullock, appear to give him money, and then return to the tree while Bullock disappeared into the alley. Fitzgerald testified that Bullock appeared to be "more or less overlooking what was going on, supervising his troops." Fitzgerald also saw Rawlinson appear to make two or three drug sales to different passersby, although his testimony was unclear as to whether these sales were linked to the stash by the tree or to a different source. At one point during the observation, all three suspects conferred in a group.

At 11:10 a.m., two arrest teams moved into the area and apprehended Bullock, Rawlinson, and Davis. After Bullock's arrest, police found $115 in one of his pockets. Police found no drugs on Bullock's person, and they did not find drugs or money in the alley. Police recovered neither drugs nor money from Rawlinson after his arrest. A police officer searched the base of the tree and found two small cellophane ziplock bags hidden inside a bottle-cap. There were no other items of significance beneath the tree. The contents of the ziplock bags were identified as heroin in a field test.

B. The Expert Testimony.

At trial, an expert explained how open-air drug enterprises tend to operate. The expert identified a common pattern in which one individual, designated a "runner," would solicit potential customers and direct them to the "holder," who supervised the supply of drugs. A holder in an enterprise rarely keeps the drugs on his or her person for fear of being caught with incriminating evidence. Instead, the holder might stash the drugs in a vehicle, near a tree, or in a bag amongst litter. For the same reason, the participants in an open-air drug enterprise might arrange to have incoming cash stashed separately. Finally, the expert identified "an executive lieutenant or captain who will pass the drugs out to the street lieutenants for selling on the street."

Neither defendant presented any evidence.

II.

We first address the issues presented by appellant Bullock.

A. The Sufficiency of the Evidence Against Bullock.

Bullock claims the evidence was insufficient to convict him of distribution and PWID, and, for that reason, contends that the trial court erred in denying his motion for judgment of acquittal ("MJOA"). In reviewing the denial of an MJOA, we view the evidence "in the light most favorable to the government, with due regard for the jury's right to weigh the evidence and assess credibility." Chambers v. United States, 564 A.2d 26, 30-31 (D.C.1989); see also Speight v. United States, 671 A.2d 442, 454-55 (D.C.), cert. denied, ___ U.S. ___, 117 S.Ct. 375, 136 L.Ed.2d 264 (1996). An MJOA is appropriately granted "only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt. . . ." Chambers, supra, 564 A.2d at 31 (quoting Williams v. United States, 357 A.2d 865, 867 (D.C.1976)).

As for the distribution, the government presented eyewitness testimony that Bullock physically gave Davis a bundle of cellophane packets, which she deposited by the tree. Davis exchanged some of these packets with various passersby over the course of fifty minutes, but two packets remained when the police moved in. The contents of these two packets field-tested positive for heroin. The delivery of a controlled substance between two participants in a drug enterprise, whether or not an agency relationship exists, is a distribution. See Long v. United States, 623 A.2d 1144, 1147 (D.C. 1993), and cases cited therein. The identification testimony of even a single eyewitness is sufficient to sustain a conviction for distribution, "coupled, of course, with other evidence identifying the substance itself." Hill v. United States, 541 A.2d 1285, 1288 (D.C. 1988). A reasonable factfinder could conclude that Bullock distributed heroin to Davis.

Bullock's PWID conviction was based on a theory of constructive possession of the stash after it was distributed to Davis. "To establish constructive possession, the government must prove that the accused (1) knew the location of the drugs, (2) had the ability to exercise dominion and control over them, and (3) intended to exercise such dominion and control." Earle v. United States, 612 A.2d 1258, 1265 (D.C.1992). "Constructive possession may be established by circumstantial as well as direct evidence, and may be sole or joint possession." Id. (citations omitted).

There was eyewitness testimony from which a jury could infer all three elements of constructive possession. Bullock appeared to know the location of the drugs because he saw Davis place them by the tree and he periodically emerged from the alley to check on Davis and Rawlinson. There was expert testimony that a drug enterprise often includes an "executive lieutenant or captain" who keeps an eye on the runner and holder. Cf. Griggs v. United States, 611 A.2d 526, 527-28 (D.C.1992) (noting that expert testimony may aid the jury's understanding of drug trafficking). Moreover, the packaging of the drugs, the operation of the enterprise, and the fact that he periodically accepted incoming cash from Davis would allow the inference that Bullock intended to distribute the remainder of the stash. See Davis v. United States, 623 A.2d 601, 604 (D.C.1993); Earle, supra, 612 A.2d at 1270. From the government's evidence, a reasonable factfinder could conclude that Bullock continued to have both the ability and the intent to exercise dominion and control over the stash.³

B. "A Legal Impossibility"?

Having established that the evidence was sufficient as to each offense, we now address Bullock's more novel contention that he cannot remain convicted of both. Bullock argues that logically he cannot continue to possess the same heroin he already distributed to Davis; alternatively, he cannot be said to have distributed the heroin to Davis if, as the government alleged, he retained dominion and control over the stash during the fifty minutes of surveillance. To remain convicted of both distribution and PWID with respect to the same drugs, he claims, is a "legal impossibility."

We rejected a similar claim in Allen v. United States, 580 A.2d 653 (D.C.1990), where we affirmed convictions for both PWID and distribution even when they concerned the same contraband. The appellant in Allen had offered a tinfoil packet of cocaine to a passerby, but changed his mind and withdrew the packet when he saw a police car approach. Id. at 655. He tried to resume, but did not complete, the...