Fields v. U.S.

• Decision Date: 10 April 2008
• Docket Number: No. 06-CF-894.,06-CF-894.
• Citation: 952 A.2d 859
• Parties: Thomas J. FIELDS, Appellant, v. UNITED STATES of America, Appellee.<SMALL><SUP>1</SUP></SMALL>
• Court: D.C. Court of Appeals

952 A.2d 859

Thomas J. FIELDS, Appellant, v. UNITED STATES of America, Appellee.¹

No. 06-CF-894.

District of Columbia Court of Appeals.

Argued September 28, 2007.

Decided April 10, 2008.

Andrea Roth, with whom James Klein, Samia Fam, and Richard Greenlee, Public Defenders, were on the brief, for appellant.

Lisa H. Schertler, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, Roy W. McLeese III, Elizabeth Trosman, and Sharad S. Khandelwal, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL, RUIZ, and BLACKBURNE-RIGSBY, Associate Judges.

RUIZ, Associate Judge:

Appellant appeals from a jury conviction of possession of marijuana.² See D.C.Code § 48-904.01(d) (2001). The parties agree that the "DEA-7," a report prepared by the Drug Enforcement Administration, which determined that the green weed substance found on and near appellant was marijuana, was erroneously admitted into evidence in violation of appellant's constitutional right to confrontation. See Howard v. United States, 929 A.2d 839, 847 (D.C.2007); Thomas, 914 A.2d at 5.

The parties disagree as to the appropriate remedy. The government argues that the case should be remanded with instructions to the trial court to vacate the conviction of possession and enter a conviction for the lesser-included offense of attempted possession of marijuana. See Mitchell v. United States, 595 A.2d 1010, 1012 n. 3 (D.C.1991) ("[A]ttempted possession is ... a lesser-included offense of simple possession."). Appellant counters that he is entitled to reversal and a new trial because the admission of the DEA-7 is not harmless error even as to the lesser-included offense of attempted possession. We agree with appellant and reverse and remand the case for a new trial.

I.

Officer John Bolden of the Metropolitan Police Department testified that in the evening of February 11, 2005, he was on patrol in an unmarked police cruiser as part of the Third District Focus Mission Unit,³ along with Officers Bret Brown and Christopher Petz. Around 7:35 p.m., the officers received over the radio a complaint of drug activity near Georgia Avenue and Hobart Street, in Northwest Washington. As the officers pulled into the area, Officer Bolden saw appellant leaning over a burgundy car and talking to the people inside the car. Appellant appeared to look in the direction of the officers, stood straight up, and walked away from the car toward the officers. As Officers Bolden and Brown alighted from the cruiser, appellant started to run. The officers gave chase.

As they were running, Officer Bolden saw appellant clenching something in his right hand. He then heard a "metal sound" as appellant threw a "dark item" over a privacy fence. A short while later, Officer Bolden discovered a gun in the yard behind the fence.

Officer Petz followed in the cruiser and arrested appellant. The officer testified that he saw appellant being searched within a few minutes of the arrest, before he was placed in a car. The police did not discover anything despite appellant being "searched thoroughly from head to toe."

Officer Bolden processed appellant at the police station house. Appellant told Officer Bolden that his name was Gregory Jackson. As the officer was removing loose property from appellant-which the officer described as "his belt, shoelace[s], the contents of his pockets, [and] things of that nature ...."—a "green weed substance" fell out from the "crotch area of [appellant's] pants."⁴ Officer Bolden also saw "a clear plastic bag with a green weed substance underneath the bench" in the holding cell where appellant had been placed. Appellant was the only person in the cell at the time.

At Officer Bolden's request, Officer Ralph Davis—who had been processing another person—took photographs of the green weed substance located "maybe a foot" from appellant,⁵ and of the plastic bag containing a green weed substance, three to four feet away. Separate photographs of appellant standing inside the cell block, of the green weed on the ground, and of the plastic bag underneath the bench in the holding cell were admitted into evidence.

Officer Davis testified that "[he] conducted a field test on the green weed substance [found in the cell block], and it tested positive for THC, which is the active chemical ingredient found in marijuana." As the officer began to explain the field test to the jury, the trial court cut short his testimony saying, "Okay. I think we can dispense with this part of the testimony since we have the DEA-7, so we don't need to talk about the preliminary field test."

The green weed substance, which had been placed in a heat-sealed envelope, was admitted into evidence. The DEA-7 report, which showed that the green weed substance contained a measurable amount of marijuana, was admitted into evidence over appellant's objection that it violated his Sixth Amendment right to Confrontation.

II.

Following the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we held in Thomas and reaffirmed in Howard that a drug analysis report—the DEA-7— is "testimonial" evidence, and that admission of the report into evidence without the presence of the chemist who prepared it violates the defendant's constitutional right to confrontation unless the defendant validly waives the chemist's presence at trial. See Howard, 929 A.2d at 841; Thomas, 914 A.2d at 5, 19.⁶

Because the erroneous admission of the lab report implicates constitutional rights, reversal will be required unless the court is "able to declare a belief that [the constitutional error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (noting cases applying harmless error review to violations of Confrontation Clause and applying same review where trial court significantly curtailed defendant's cross-examination of a witness for bias in violation of his right to confrontation); cf. Thomas, 914 A.2d at 8 (applying plain error standard to erroneous admission of DEA-7 report because appellant's trial counsel objected at trial solely on the basis that the government had not "laid proper foundation.").

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1431 (citation omitted). The framework for analyzing the evidence where there has been constitutional error has been formulated in different ways. Chapman instructed courts to "requir[e] the beneficiary of a constitutional error [the government] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." 386 U.S. at 24, 87 S.Ct. 824 (emphasis added). Although the decision under review in Chapman had "found from `other substantial evidence[,]' ... overwhelming[]" evidence of one of the petitioners' guilt, id. at 24 n. 7, 87 S.Ct. 824 the Court, however, found that the lower courts' tendency to find overwhelming evidence was "perhaps overemphas[ized]," id. at 23, 87 S.Ct. 824, and reversed the conviction, concluding that the error had "contribute[d] to the verdict," id. at 24, 26, 87 S.Ct. 824. The Court noted that "[al]though the case in which this occurred presented a reasonably strong circumstantial web of evidence against petitioners, it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts." Id. at 25-26, 87 S.Ct. 824. (citation omitted);⁷ see Brooks v. United States, 367 A.2d 1297, 1309-10 (D.C.1976) ("Even where it may be fairly said that the government's proof assuredly would have led to conviction without the disputed items, we also must consider the likely effect of the [improper] material on the trier itself....").⁸

Two years later, the Court—affirming Chapman—analyzed the impact of constitutional error by considering whether the government had presented "overwhelming evidence" of guilt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) ("We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it."). There, Harrington was tried together with three co-defendants—over his objection—for attempted robbery and first-degree murder. Id. at 252, 89 S.Ct. 1726. Confessions from his three co-defendants were admitted at trial, but only one co-defendant took the stand. Id. The Court affirmed the conviction notwithstanding the constitutional error—the admission of the non-testifying co-defendants' confessions implicating Harrington, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)—because the "case against Harrington was so overwhelming." Harrington, 395 U.S. at 254, 89 S.Ct. 1726. The Court found significant that the government's case was "not woven from circumstantial evidence," id.—as was the case in Chapman—but proved by direct evidence, including the properly admitted statements of the testifying co-defendant who said that Harrington had a gun and participated in the crime. Id. at 253, 89 S.Ct. 1726. The improperly admitted confessions of the non testifying co-defendants—which had placed Harrington at the scene but did not say he had a gun— were "cumulative" because Harrington himself had made a statement, "which fell short of a confession but which placed him at the scene of the crime," and "[s]everal eyewitnesses placed [Harrington] at the scene of the crime." Id. at 252-53, 89 S.Ct. 1726.⁹ In addition, Harrington had admitted that "he fled with the other three ...