Chambers v. U.S., 87-1368.

• Decision Date: 31 August 1989
• Docket Number: No. 87-1368.,No. 88-37.,87-1368.,88-37.
• Citation: 564 A.2d 26
• Parties: Ernest R. CHAMBERS, Appellant, v. UNITED STATES, Appellee. Martha L. HUBBARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 26

564 A.2d 26

Ernest R. CHAMBERS, Appellant, v. UNITED STATES, Appellee.

Martha L. HUBBARD, Appellant, v. UNITED STATES, Appellee.

No. 87-1368.

No. 88-37.

District of Columbia Court of Appeals.

Argued May 4, 1989.

Decided August 31, 1989.

David Carey Woll, Rockville, Md., appointed by this court, for appellant Chambers.

Walter S. Booth, Washington, D.C., appointed by this court, for appellant Hubbard.

Sharon M. Collins, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, and Elizabeth Trosman and James F. Rutherford, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and NEWMAN and TERRY, Associate Judges.

TERRY, Associate Judge:

Appellants Chambers and Hubbard were jointly charged with distribution of cocaine and with possession of cocaine with intent to distribute it, both in violation of D.C. Code § 33-541(a)(1) (1988). Hubbard was convicted of distribution, but was acquitted of both possession with intent to distribute and the lesser included offense of simple possession, on which the jury was also instructed. Chambers was convicted of both offenses as charged.

Several claims of error are presented on appeal. Appellant Hubbard contends that her motion to dismiss the indictment, made after the government had completed its case in chief and renewed after trial, should have been granted. Hubbard also maintains that the trial court abused its discretion by prohibiting her from cross-examining a police detective about his prior testimony before the grand jury. Appellant Chambers argues that the trial court erred in refusing to dismiss the indictment against Hubbard, and that this error was prejudicial to him. Chambers joins Hubbard in contending that the trial court erred in circumscribing Hubbard's cross-examination of the detective about his grand jury testimony, again asserting that this error prejudiced his defense. Chambers also contends that the evidence was insufficient to of possession with intent to distribute. Finally, although he did not request an instruction on simple possession as a lesser included offense of possession with intent to distribute, Chambers maintains that the trial court erred in failing so to instruct the jury sua sponte. We reject all of these arguments and, with one exception,¹ affirm the convictions of both appellants.

I

One evening in September 1986, Officer Alfonso Walton of the Metropolitan Police, a member of the Narcotics Task Force, was working under cover in the area of 12th and U Streets, N.W., when appellant Hubbard walked past him saying, "Cane and powder cane." When she made the same remark again, Walton responded, "One time," and gave Hubbard a $20 bill whose serial number had been pre-recorded. Hubbard walked over to a man in a brown plaid shirt and exchanged the $20 bill for one $10 bill and two $5 bills.² Hubbard gave the two $5 bills to Walton, then turned to appellant Chambers, who was standing only a few feet away, and said, "One time." Chambers pulled from his pocket a tinfoil ball about the size of a

The court's withdrawal of the paraphernalia charge from the jury's consideration was error because, under our recent decision in Simmons v. United States, 554 A.2d 1167, 1171 (D.C. 1989), only the jury — and not the court — could find appellant guilty of the lesser included offense. Chambers' conviction under section 33-603 must therefore be set aside. In fairness to the trial court, however, we note that this case was tried more than a year before Simmons was decided silver dollar, and from that ball he removed a smaller tinfoil package, which he handed to Walton. The transaction completed, Chambers and Hubbard started to walk down 12th Street toward T Street. Walton walked with them for almost a block, then headed for his own car to broadcast their descriptions to a waiting arrest team.

Detectives Norman Hill and Richard Skirchak, who were parked at 12th and T, heard Walton's broadcast. When Chambers and Hubbard passed by the cruiser in which the detectives were sitting, the detectives jumped out and arrested them. In the course of the arrest, Detective Hill saw a plastic vial containing a white powder on the ground just behind Hubbard's right foot. Detective Skirchak seized the vial, and a chemist later determined that the powder inside it was cocaine. From Chambers' pockets Skirchak recovered three tinfoil packets of cocaine, and in his socks Skirchak found a syringe and a bottle-top cooker used in preparing drugs for injection.³

Detective Hill was not asked on direct examination whether he had seen the drug transaction between appellants and Officer Walton. On cross-examination, however, counsel for Hubbard elicited from Hill that he had not seen it. Hubbard's counsel then sought to impeach Detective Hill with his grand jury testimony, in which Hill had reversed the roles of Chambers and Hubbard as described at trial by Officer Walton. Counsel asserted that he should be allowed to use the grand jury testimony given by Hill to impeach both Hill and Walton. The trial court refused to allow this line of cross-examination as to Officer Walton because there was no showing that Walton had ever adopted Hill's grand jury testimony.⁴ The court prohibited counsel from using Hill's grand jury testimony to impeach" Hill on two grounds: first, because Hill had testified at trial that he had not seen the drug transaction at all, so that Hill had no personal knowledge of it, and second, because the proposed cross-examination would raise a collateral issue beyond the scope of direct. Although counsel for Hubbard vigorously sought to cross-examine Hill about his grand jury testimony, counsel for Chambers made no attempt to pursue this line of questioning, nor did he object to the limitations on cross-examination which the court imposed on Hubbard's counsel.

At the close of the government's case in chief, Hubbard's counsel moved to dismiss the indictment as to Hubbard, asserting that only Hill had testified before the grand jury about Hubbard's actions, and that his testimony was insufficient to support the indictment which the grand jury issued. Chambers' counsel did not join in this motion or make a similar motion, but he did move for judgment of acquittal on the charges of distribution and possession with intent to distribute. All of these motions were denied⁵

In his own defense, Chambers testified that he had met his old friend Hubbard on a bus after coming from a methadone treatment center.⁶ The two left the bus at 12th and U Streets, where Chambers bought three tinfoil packets of cocaine with his own money. Having made the purchase, Chambers said, he planned to share it with Hubbard once they reached an "oil joint" at 12th and T, and that "the only reason I spent that whole $30 [was] because I was going to share it with Ms. Hubbard." Chambers denied ever having seen Officer Walton.

Hubbard presented no evidence.

II

Both appellants contend that the trial court erred in refusing to grant Hubbard's motion to dismiss the indictment. Their attack on the indictment is twopronged. First, they maintain that because the indictment was based entirely on Detective Hill's hearsay testimony (reporting what he had been told by Officer Walton), it must be dismissed. This argument is utterly without merit. The notion that an indictment based entirely on hearsay should be dismissed has been explicitly rejected by the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Controlling District of Columbia case law is to the same effect. E.g., Miles v. United States, 483 A.2d 649, 654 (D.C. 1984); Coppedge v. United States, 114 U.S. App.D.C. 79, 83, 311 F.2d 128, 132 (1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963).

Appellants' second argument is that Detective Hill's testimony before the grand jury was insufficient to enable the grand jury to find probable cause and therefore insufficient to support the indictment. We reject this argument as well. "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Costello v. United States, supra, 350 U.S. at 363, 76 S.Ct. at 408 (footnote omitted); accord, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 2377, 101 L.Ed.2d 228 (1988); Lawn v. United States, 355 U.S. 339, 349-350, 78 S.Ct. 311, 317-18, 2 L.Ed.2d 321 (1958); Blango v. United States, 335 A.2d 230, 234 (D.C. 1975); United States v. Harley, 221 U.S. App.D.C. 69, 72, 682 F.2d 1018, 1021 (1982). "[S]o long as the Grand Jury itself is not `tainted' in the sense that it was improperly constituted, or that its members were necessarily biased, its actions, if valid on their face, are valid." Coppedge v. United States, supra, 114 U.S. App.D.C. at 83, 311 F.2d at 132 (citation omitted).

Moreover, even assuming that the indictment was somehow flawed, neither appellant can make a showing of prejudice sufficient to require reversal. When a defendant has been found guilty of the charges in the indictment, "the petit jury's verdict [has] rendered harmless any conceivable error in the charging decision that might have flowed from the violation." United States v. Mechanik, 475 U.S. 66, 73, 106 S.Ct. 938, 943, 89 L.Ed.2d 50 (1986). Further, because Hubbard was acquitted of both possession with intent to distribute and the lesser included offense of possession, her challenge to that charge in the indictment is moot. There is no possibility that any infirmity in the charging stage had anything to do with the ultimate conviction of either appellant. Because appellants can point to no misconduct or bad faith by the government, they cannot demonstrate any meaningful prejudice, which is a...