Chavarria v. United States, 84-1021.

• Decision Date: 13 February 1986
• Docket Number: No. 84-1021.,No. 84-1038.,84-1021.,84-1038.
• Citation: 505 A.2d 59
• Parties: Cristina CHAVARRIA, Appellant, v. UNITED STATES, Appellee. Jorge FIGUEROA, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 59

505 A.2d 59

Cristina CHAVARRIA, Appellant, v. UNITED STATES, Appellee.

Jorge FIGUEROA, Appellant, v. UNITED STATES, Appellee.

No. 84-1021.

No. 84-1038.

District of Columbia Court of Appeals.

Argued December 18, 1985.

Decided February 13, 1986.

Stephen L. Braga, Washington, D.C., appointed by this court, for appellant Chavarria.

Mary I. DuVall, Washington, D.C., appointed by this court, submitted on brief, for appellant Figueroa.

T. Mark Flanagan, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. Steven I. Friedland, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before FERREN and TERRY, Associate Judges, and PAIR, Senior Judge.

TERRY, Associate Judge:

Appellants were convicted of possession of marijuana with intent to distribute it, in violation of D.C.Code § 33-541(a)(1) (1985 Supp.).¹ Both appellants argue on appeal that the trial court erred in failing to give the jury cautionary instructions regarding the limited admissibility of certain evidence, and that the court abused its discretion by giving the jurors a Winters instruction² late in the afternoon on their last scheduled day of jury service. In addition, appellant Chavarria argues that she was denied her constitutional right to the effective assistance of counsel. We reject all of these contentions and affirm both convictions.

I

One night in July 1983, shortly before midnight, Officers J.A. Moore and James Ginger of the Metropolitan Police were concealed in an observation post about forty feet above street level, maintaining surveillance over the 1400 block of Park Road, Northwest, a neighborhood well known for illicit drug traffic. The area was brightly lit by high-intensity street lights. From their hiding place they saw four persons — Chavarria, Figueroa, Miller, and Parker — engaging in what they believed to be illegal drug transactions.³ Figueroa was standing on the south side of Park Road, immediately in front of a parked blue and white car. Chavarria was inside that car, seated in the right front seat. Miller was sitting on the steps in front of 1448 Park Road, and Parker was standing about ten or fifteen feet away from him. Several pedestrians were also on the street.

From time to time Officer Moore saw Figueroa raise his hand toward cars traveling along the street while shouting "Ganja, ganja, I got ganja."⁴ Figueroa would give a "high-five" gesture, which Moore interpreted as a signal that he was selling "nickel" (five-dollar) bags of marijuana. Both officers heard Miller tell Figueroa to "quiet down, there's police all over," to which Figueroa replied, "You got to advertise this, you got to advertise this." The officers also heard two pedestrians tell Figueroa and Miller, "You know it's after 11:00. You better close up shop."

On several occasions Officer Moore saw Figueroa approach a stopped car, engage in a short conversation with the driver, and then give the driver a manila envelope in exchange for money. He would then walk over to the blue and white car and give the money to Chavarria, who would give him manila envelopes in return. In addition, Miller was twice seen making exchanges with persons on bicycles. Miller would hand manila envelopes to the bikers in return for money, then walk over to the blue and white car and give the money to Chavarria. Meanwhile, Officer Ginger saw Parker approach a stopped car and engage in conversation with the driver. He then walked over to the blue and white car, made an exchange with Chavarria, returned to the driver of the stopped car, made another exchange of "something" (Ginger could not see what it was) for money, and then went back to Chavarria and made yet another exchange. Throughout the period of observation, Chavarria was seated in the parked car holding a purse on her lap. Officer Moore saw her put money in the purse, remove manila envelopes from the purse, and then place the purse on the floor.

After watching these activities for about twenty minutes, the officers left their observation post to arrest the four suspects, broadcasting a request for assistance from other officers in the area. Two police cars arrived within three or four minutes, just as Officers Moore and Ginger reached the street. Moore and Ginger went over to the parked car and asked Chavarria to step outside. On the floor of the car, beneath the right front seat where she had been sitting, Officer Moore found an open purse containing six manila envelopes and a substantial amount of cash. Each of the manila envelopes contained marijuana.

In the meantime, as the officers were approaching the parked car, Figueroa started to run away, while Miller attempted to walk into a crowd of people that had begun to gather. Both Figueroa and Miller were apprehended by other officers, as was Parker. A search of Miller yielded $122 in cash and three manila envelopes containing marijuana.

At trial Chavarria testified that she was innocent of any wrongdoing. She said that she and her husband had been on their way to Virginia to meet some friends when they stopped in the 1400 block of Park Road so that her husband could buy some cigarettes. As she was waiting for him to come back to the car, she saw a package lying on the street that she believed might contain money. She picked it up and, without opening it, placed it in her purse. Shortly thereafter, before her husband returned, she was arrested.

Figueroa testified that he had gone into a store on Park Road to buy a beer. As he came out, he met an acquaintance, Gilbert Wright, and stopped to talk for a few minutes. Then, as he started to walk back to his car, he was arrested. He said that he did not run away, but rather ignored the police officers when they first called to him to stop because he thought they were shouting at someone else. When they called to him a second time, however, he stopped and was placed under arrest. Wright corroborated Figueroa's testimony.⁵

The jury quickly found Miller guilty of the Bail Act violation. However, after sending the court two notes requesting further instructions, the jury informed the court that it was unable to reach a decision on any of the charges of possession with intent to distribute. Therefore, at approximately 3:00 p.m. on Friday afternoon, the last scheduled day of jury service for these jurors, and over the objections of defense counsel, the court gave a Winters instruction. An hour and a half later, at 4:30 p.m., the jury returned a verdict of guilty against Chavarria and Figueroa, and against Miller on a separate drug charge, and acquitted Parker.

II

Appellants contend that the trip 1 court committed plain error in failing to give limiting instructions to the jury regarding the admissibility of certain evidence. Chavarria argues that the court should have instructed the jury that the "hearsay declarations of Messrs. Figueroa and Miller concerning the advertising of `ganja' and the likelihood of police in the area" and the actions of Figueroa in fleeing and of Miller in walking into the crowd when the police arrived were inadmissible against her. She maintains that "[d]espite the highly inflammatory nature of such evidence, the trial court did nothing at the time it was introduced to properly limit its impact." In a similar vein, Figueroa asserts that the court should have given the jury cautionary instructions with respect to the "hearsay declarations of defendant Miller concerning the likelihood of police in the area" and the actions of Chavarria "in possessing and secreting the envelopes and money."

As to the alleged hearsay, we hold that the court committed no error at all in failing to give cautionary instructions. In the first place, Miller's comment was not even hearsay, since it was not offered to prove the truth of the matter stated, viz., that there were police in the area. On the other hand, Figueroa's repeated statements ("I got ganja") were apparently offered to show that he did in fact have "ganja" for sale, and thus that he had a specific intent to distribute marijuana; however, they were admissible as co-conspirator declarations under FED.R.Evm. 801(d)(2)(E), which was expressly adopted by this court in Butler v. United States, 481 A.2d 431 (D.C. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985).

Under the holding in Butler, "a co-conspirator's out-of-court assertions may be admitted as non-hearsay evidence in the courts of this jurisdiction only if the prosecution proves that (1) a conspiracy existed, (2) the defendant had a connection with the conspiracy, and (3) the co-conspirator made the statements during the course of and in furtherance of the conspiracy." Id. at 439. That the substantive crime of conspiracy was neither charged nor alleged is irrelevant. United States v. Jackson, 201 U.S. App.D.C. 212, 230, 627 F.2d 1198, 1216 (1980). The co-conspirator exception to the hearsay rule is applicable even though no conspiracy has been charged, so long as the evidence shows, independently of the statements, that "two or more defendants were joint participators in the commission of substantive offenses." Id.; see Butler, supra; United States v. Rogers, 652 F.2d 972, 976 (10th Cir. 1981); United States v. Robinson, 651 F.2d 1188, 1195-1196 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981).

Figueroa's statements about "ganja" were plainly made "during the course of and in furtherance of the conspiracy." Butler, supra, 481 A.2d at 439. The government presented evidence connecting Chavarria with the other three defendants in their scheme of illicit drug activity. Chavarria was seen on several occasions handing manila envelopes to Figueroa and Miller in exchange for money. Figueroa and Miller were both seen making similar exchanges with the occupants of several stopped cars and...