Hawkins v. United States, 83-417.

• Decision Date: 10 July 1984
• Docket Number: No. 83-417.,83-417.
• Citation: 482 A.2d 1230
• Parties: James L. HAWKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1230

482 A.2d 1230

James L. HAWKINS, Appellant, v. UNITED STATES, Appellee.

No. 83-417.

District of Columbia Court of Appeals.

Submitted June 27, 1984.

Decided July 10, 1984.^*

Stephen J. Cribari, Washington, D.C., appointed by this court, was on the brief for appellant.

Linda D. Turner, Asst. U.S. Atty., Washington, D.C., 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 the brief, for appellee.

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

PER CURIAM:

Appellant appeals his conviction of one count of possession of a controlled substance—cocaine, codified at D.C.Code § 33-541(d) (Supp. 1984), on the grounds that (1) the trial court erred in permitting a police expert witness to testify concerning the significance of various chemicals and paraphernalia found during the search of appellant's bedroom; (2) the expert's testimony regarding a usuable amount of cocaine was not credible and therefore there was insufficient evidence to support his conviction; and (3) references to the weapons seized from the same places as the drugs were prejudicial and should have been excluded. We affirm.

I

On February 20, 1982, at approximately 1:00 p.m., two detectives of the Metropolitan Police Department executed a search warrant at 3406 Twenty-third Street, Southeast. The officers discovered appellant and a friend in an upstairs bedroom. During a search of the bedroom, the officers discovered a packet of white powder and a shotgun under the bed. They also discovered several packages of white powder elsewhere in the room, and in a hole in the floor of the bedroom closet, a brown bottle containing a white powder, a revolver, measuring spoons, and several one dollar bills covered with a white residue. Chemical analysis revealed that the powder found under the bed contained eleven percent cocaine; the other powders seized contained substances that were either not controlled substances or only trace quantities of controlled substances. Appellant was charged with possession of the cocaine retrieved from under the bed.

At trial, the detectives testified about all the items seized during the search. A chemist testified to the quantity and contents of each of the powders.¹ Detective Johnny St. Valentine Brown qualified as an expert on the use and sale of cocaine, and testified that approximately 200 milligrams of a substance, eleven percent of which was cocaine, was a usable amount of the drug. On cross-examination he testified that 201 milligrams of a powder containing cocaine is a usable amount "regardless" of the proportions "because the total mass is utilized." He further explained that "[the powder] would be a usable amount in the sense that no one utilize[s] or administer[s] pure cocaine. It is always diluted with cutting reagents." Detective Brown testified, without objection, to the use of the various substances seized from the bedroom as "cutting reagents" to dilute cocaine and heroin. He also identified some of the packages of white powder seized from the bedroom as the type of packaging frequently used to distribute cocaine and heroin.

II.

Appellant challenges Detective Brown's testimony about the use of the various substances found in the house as "cutting reagents." This was not "other crimes" evidence since possession of these substances is legal. Nevertheless, appellant contends that the testimony was unduly prejudicial because it tended to suggest he was engaged in the sale and distribution of drugs when he was charged only with possession. The government contends that the evidence was probative of appellant's knowledge of the existence of the drugs under the bed because the other substances and packages were found in the open in various parts of the room.

Whether evidence should be excluded as more prejudicial than probative is a decision committed to the sound discretion of the trial court. See Willcher v. United States, 408 A.2d 67, 75 (D.C. 1979) (evidence may be excluded when prejudice exceeds probative value; weighing process within the discretion of trial court). Similarly, whether expert testimony on a matter should be admitted is also for the trial court's discretion. Brooks v. United States, 448 A.2d 253, 258 (D.C. 1982). The standard for expert testimony is

(1) the subject matter `must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman [emphasis added]'; (2) `the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth [emphasis added]'; (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.'

Dyas v. United States, 376 A.2d 827, 832 (D.C.) (quoting McCORMICK ON EVIDENCE, § 13 at 29-31 (E. Cleary, 2d ed. 1972), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977).

Since there was no objection to this evidence—either as a threshold matter (more prejudicial than...