Dyson v. United States

Decision Date13 December 1984
Docket NumberNo. 83-482.,83-482.
Citation485 A.2d 194
PartiesWilliam W. DYSON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Douglas B. Mishkin, Washington, D.C., appointed by the court, for appellant.

Robert H. Klonoff, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Judith Hetherton, and Melvin R. Wright, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

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

PER CURIAM:

Appellant seeks reversal of his conviction by a jury for unlawful possession of phencyclidine (PCP), D.C.Code § 33-541(d) (1983 Supp.), on the grounds the trial court erred in (1) allowing the government to amend the information to charge a new or different offense after the government's opening statement, and (2) admitting testimony that the street on which appellant was arrested was known for drug traffic. We affirm.

I

Appellant was charged in an information filed on July 21, 1982 with one count of unlawful possession of a controlled substance ("phenmetrazine (PCP)") (Count A) and one count of possession of a controlled substance (cannabis (marijuana)) (Count B). On August 9, 1982, Judge Salzman granted the government's motion to amend the information to charge appellant "with possession with intent to distribute" cannabis instead of possession of cannabis. The distribution charge thus became Count C and the simple possession count (Count B) was dropped. Defense counsel then moved to dismiss Count A on the ground that "phenmetrazine and PCP are not the same substance." In reply to Judge Salzman's question which substance was the correct charge, the prosecutor initially responded "phenmetrazine," but immediately corrected himself to say "PCP." The judge had, however, already crossed out the term "PCP" on the information, so he then rewrote "PCP," initialled the information, and instructed the prosecutor to file another information.1

Pursuant to appellant's request, new defense counsel was appointed on September 20, 1982. Two days later, the court advised government and defense counsel that appellant's "case involving the possession of PCP and possession of marijuana" would be set for November 30, 1982. On that date, the government nolle prossed the count charging appellant with intent to distribute cannabis (Count C).

During voir dire of the jury on March 15, 1983, the prosecutor told the jury that appellant was charged with possession of PCP. Defense counsel asked the prospective jurors whether there was anything about "the nature of these charges explained to you by the [prosecutor]" that might adversely affect his client. Two jurors indicated their concern about serving in a case involving PCP. Following the selection of a jury, the prosecutor told the jury in his opening statement that appellant was charged with possession of PCP. Defense counsel advised the trial judge, Judge Mitchell, at the conclusion of the prosecutor's opening statement that he thought the PCP possession count had been eliminated by Judge Salzman. Judge Mitchell ruled alternatively that the count had not been deleted, but if it had, the government would be allowed to amend the information because appellant would not be prejudiced. Defense counsel objected, and renewed his objection in a motion for judgment of acquittal at the close of the government's case, which Judge Mitchell denied.

A.

Appellant contends that the government created "such confusion over the contents of the information that neither appellant's trial attorney nor the trial judge could determine precisely what offenses were charged." Thus, he received inadequate notice of the charge he was facing, and the information failed to comply with Super.Ct. Crim.R. 7.2 He argues the information was "complicated, convoluted and vague," and the amendment to it constituted per se prejudice.

The information has two primary functions: to apprise a defendant of the charge against him so he may properly prepare a defense, and to "spell out the offense clearly enough to enable the accused to plead the judgment as a bar to a subsequent prosecution for the same crime." Horowitz v. District of Columbia, 291 A.2d 202, 203 (D.C. 1972). Accordingly, the issue before us is whether the information charged an offense. We hold that the information as amended by Judge Salzman's notations, supra note 1, stated an offense. Although it is regrettable the government did not follow Judge Salzman's suggestion to file a new information, its failure to do so is not dispositive.3

Appellant was present with counsel during the proceedings before Judge Salzman when the information was amended. His counsel joined in moving to amend the information, and did not object to the proceedings, which involved a fairly simple procedure. The record clearly supports the government's contention that even though the information was not a model, appellant was aware of the offense with which he was charged. The original information was only complicated insofar as it included more than one count, but it otherwise remained a simple statement of the minimum elements of the charges. Judge Salzman's notations made the information somewhat messy to look at, but that alone does not defeat compliance with the requirement of Rule 7(c) that the charge be definite. In re C.D., 437 A.2d 171, 174-75 (D.C. 1981) (defendant put on notice of charges against him despite ambiguous petition that stated two offenses in one count; trial court's failure to require government to amend the petition was harmless error); In re J.R. G., 305 A.2d 529, 530 (D.C. 1973).

Furthermore, the restrictive rules about the amendment of an indictment do not apply to an information, which "may be amended in either form [or] substance," 1 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2d § 128, at 430 (1982); see United States v. Blanchard, 495 F.2d 1329, 1332 (1st Cir. 1974). The trial judge found that no additional or different offense was charged. The information originally charged in one count that appellant possessed PCP in addition to another drug; it thus contained all the necessary elements to charge possession of PCP. See Government of the Virgin Islands v. Bedford, 671 F.2d 758, 765 (3d Cir. 1972) (information amended during trial); cf. 8 J. MOORE, MOORE'S FEDERAL PRACTICE ¶ If 705[1], at 7-36 (2d ed. 1984) (withdrawal of counts does not constitute amendment). The trial judge acted in accordance with this court's decisions, In re C.D., supra, 437 A.2d at 174-75, by allowing the information to be amended under Rule 7(e) where a defendant would not be prejudiced. Jenkins v. United States, 242 A.2d 214, 215-16 (D.C. 1968) (no logical reason to reverse conviction when defect in information cured and no possible prejudice can be shown). See United States v. Kegler, 724 F.2d 190, 193-95 (D.C.Cir. 1983); Government of the Canal Zone v. Burjan, 596 F.2d 690, 692-93 (5th Cir. 1979) (change in information to charge lesser included offense was technical violation of Rule 7(e) but harmless).

Appellant does not allege he suffered any actual prejudice, and we agree with the trial judge that there was none. Appellant was on notice of the charges six months before trial, when he was personally present at the proceedings before Judge Salzman. On September 22, 1982, the court referred in the presence of appellant's new counsel to the charge of possession of PCP. Appellant does not claim, and we are...

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