Harris v. United States

• Decision Date: 15 March 1985
• Docket Number: No. 82-961.,82-961.
• Citation: 489 A.2d 464
• Parties: Calvin HARRIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 464

489 A.2d 464

Calvin HARRIS, Appellant, v. UNITED STATES, Appellee.

No. 82-961.

District of Columbia Court of Appeals.

Submitted June 27, 1984.

Decided March 15, 1985.

Vincent A. Jankoski, Washington, D.C., for appellant.

Carolyn Adams, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell,

Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before BELSON and ROGERS, Associate Judges, and PAIR, Associate Judge, Retired.

BELSON, Associate Judge:

Appellant was convicted by a jury of a single count of possession of a controlled substance (heroin). D.C. Code § 33-541(d) (Supp. 1984). On this appeal he raises several issues, the most significant of which is the refusal by the trial court to permit him to be present when certain testimony was read back to the jury by the court reporter. We affirm.

We set forth the evidence in detail because we will refer later to the harmless error doctrine. Although appellant was charged only with possession, the government's evidence showed that appellant sold a packet of heroin to an undercover police officer. Officer Ronald Smith testified that on February 3, 1982, he was approached by two men in an alley near Wheeler Road, Wahler Place, and Barnaby Street in Southeast Washington. The two men offered to sell him a packet of heroin for $35. Smith agreed and gave $40 to one of the two, who was later identified as appellant. Appellant walked around a corner and returned a moment later and handed Smith a packet containing heroin. Smith and the two men then walked over to a third man. Appellant gave this third man the $40. The third man gave appellant $5 in change, which appellant passed to Officer Smith. Smith then walked out of the alley and back to his car, where he broadcast a lookout describing the three suspects.

The suspect alleged to be appellant was described as a slim black male, about 5'7", medium complected, wearing a rust-colored jacket and blue jeans. Although the lookout mentioned that the other two suspects were wearing hats, appellant was not described as wearing a hat.

Within minutes, other police officers had detained three men who appeared to match the descriptions. Smith drove by to make an identification, and informed the other officers that two of the men they were holding were the two (including appellant) who had approached him in the alley, but that the third man was not the one who had taken the $40 from appellant. The third man was therefore released, but appellant and the other suspect were arrested. Appellant was wearing a rust-colored jacket but had on brown corduroy pants rather than blue jeans. He was also wearing a hat.

Officer George Woody testified that he, too, was on undercover duty that day. He observed the transaction between Officer Smith and the three men from a nearby vantage point. He was able to see that one of the men who first approached Smith was slim and was wearing a rust-colored coat. After Smith left, this individual remained in the area within Woody's view. He remained in view until other officers arrived and detained him.

Officer Freddie Lawson testified that on the date in question he was on duty as part of an arrest team. Based on the description radioed by Officer Smith, he detained a man wearing a rust-colored coat, who was then identified by Smith as one of the participants in the drug sale. This person was appellant Harris, whom Lawson identified in court.

Finally, the government called Detective Johnny St. Valentine Brown as an expert in narcotics trafficking. Detective Brown first testified about police procedures for handling seized contraband.¹ Over appellant's objection, Brown next testified about the ways in which heroin may be used, and he opined that the amount purchased by Officer Smith from appellant constituted a usable amount of the drug. Brown also explained that narcotics dealers often worked in teams of two or three to minimize the dangers of robbery and arrest. As a result, he said, when drug dealers are stopped by police they frequently will not have any drugs or money on them. Again over defense objection, Brown was permitted to testify that he was familiar with the area in which appellant was arrested and that the sale of heroin and other illegal drugs was prevalent there. Appellant's counsel chose not to cross examine Detective Brown.

The only defense witness was appellant. He testified that he lived only a block from where he was arrested and that at the time he had been on his way to buy cigarettes. He also testified that there were 50 to 100 people in the vicinity at the time of his arrest.

I

The testimony in this case was presented on a Thursday and a Friday. The jury began its deliberations on Monday. On Tuesday morning the jury sent a note to the trial judge asking for a transcript of the testimony of Officers Smith and Woody. Appellant objected, but asked that, if the objection was overruled, the jury also be given the testimony of Officer Lawson.² The trial court ruled that, "given the time interval, including the weekend having intervened," it would exercise its discretion to grant the jury's request. The court denied appellant's request to have Officer Lawson's testimony presented, however.

Because there were other matters taking place in the courtroom, the trial court directed that the court reporter read the testimony of the two officers to the jury in the jury room. The attorneys were to be present, but the court denied a request by appellant's counsel that appellant also be present. Finally, the court instructed the jury not to make any statements while the testimony was being read and not to resume deliberations until the court reporter and the attorneys had left the jury room.

A.

Appellant contends that the trial court erred in allowing the testimony of Officers Smith and Wood to be read back to the jury. Even if that action was proper, he argues, the court erred in refusing his request to include Officer Lawson's testimony with the other testimony to be read to the jury. These contentions are without merit. A trial judge has broad discretion in deciding whether to have testimony reread to the jury. Kleinbart v. United States, 426 A.2d 343, 356 (D.C. 1981); United States v. Mackin, 163 U.S.App.D.C. 427, 440, 502 F.2d 429, 442, cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974); United States v. DePalma, 414 F.2d 394, 396 (9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970). Although Officer Lawson's testimony arguably contradicted one portion of Officer Smith's, we find no abuse of discretion in the trial court's decision to direct the rereading of the testimony of only those witnesses requested by the jury. We note that the court specifically directed that the cross examination of the two witnesses be read, not just the direct testimony. Cf. United States v. Desist, 384 F.2d 889, 904-05 (2d Cir. 1967) (no abuse of discretion in permitting the rereading to jury of government agents' direct testimony about conversations they overheard but not the cross-examination of the agents' ability to hear), aff'd, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).

B.

Appellant next contends that the trial court erred in refusing to allow him to be present for the rereading of the officers' testimony. It is well established that a defendant has a constitutional right to be present at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Winestock v. United States, 429 A.2d 519, 529 (D.C. 1981); Wade v. United States, 142 U.S. App.D.C. 356, 360, 441 F.2d 1046, 1050 (1971). See also Super.Ct.Crim.R. 43(a). This has been interpreted to mean that a defendant has the right to be present during communications between the judge and the jury, Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927); Winestock, supra, 429 A.2d at 528, and for the return of the jury's verdict, Super.Ct.Crim.R. 43(a); see Rogers, supra, 422 U.S. at 39, 95 S.Ct. at 2094.³

This right is not absolute, however. Heiligh v. United States, 379 A.2d 689, 693 (D.C. 1977). In Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), the Supreme Court stated that a defendant had the right to be present in person "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Applying that test, the Court held that a defendant did not have a constitutional right to be present at a view by the jury of the scene of the crime. The Court found that the defendant's interests were adequately protected by the presence of his attorney and that his personal presence would not have aided his defense. Id. at 108-13, 54 S.Ct. at 333-35. See Heiligh, supra, 379 A.2d at 693.

This court in Quarles v. United States, 349 A.2d 690 (D.C. 1975), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976), considered a claim that a defendant's right to be present was violated when trial exhibits were transmitted to the jury outside his presence after the jury requested to see the exhibits. The court rejected the claim in view of the "ministerial nature of the activity and the lack of unusual circumstances." Id. at 692.

We think sending the court reporter to read to the jury the testimony of Officers Smith and Woody implicated appellant's rights more than the "ministerial" action of transmitting exhibits in Quarles. An inadvertent omission of a part of this testimony, a mistake in the reading of a shorthand symbol or an inappropriate emphasis of voice could have occurred. The situation here, however, was ameliorated by the presence of the two defense counsel and the prosecutor who had heard the original testimony and listened to its being read back to the jury. This is not a...