Hilliard v. US, 89-CF-923.

• Citation: 638 A.2d 698
• Decision Date: 15 March 1994
• Docket Number: No. 89-CF-923.,89-CF-923.
• Parties: Jessie HILLIARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

638 A.2d 698

Jessie HILLIARD, Appellant, v. UNITED STATES, Appellee.

No. 89-CF-923.

District of Columbia Court of Appeals.

Argued September 19, 1991.

Decided March 15, 1994.

Daniel J. Harn, Washington, DC, for appellant.

Kristan Peters-Hamlin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before ROGERS, Chief Judge, and SCHWELB and WAGNER, Associate Judges.

WAGNER, Associate Judge:

Appellant, Jessie Hilliard, Jr., was found guilty by a jury of: (1) possession of a controlled substance (heroin) with intent to distribute (PWID), D.C.Code § 33-541(a)(1) (1993); carrying a pistol without a license (CPWL), D.C.Code § 22-3204; possession of an unregistered firearm, D.C.Code § 6-2311(a); and unlawful possession of ammunition, D.C.Code § 6-2361(3).¹ Appellant's most substantial argument for reversal is that the trial court erred in denying without an adequate hearing and an in camera inspection his request for Jencks material.² We find no reversible error in the trial court's ruling because the foundational requirements for production or even in camera inspection were not met for most of the material, and the error, if any, involving the single form which the trial court found to be Jencks was harmless. Appellant also argues for reversal on the grounds that the trial court erred in: (1) denying his motion to suppress tangible evidence; (2) denying his motion for judgment of acquittal on the CPWL count; and (3) admitting other crimes evidence. We affirm.

I.

The government's evidence at the suppression hearing showed that on November 9, 1988, at about 9:00 p.m., Officers James Flynn and Joseph Platt were patrolling the area at 12th and I Streets, S.E. in the Potomac Gardens apartment complex known as the "boardwalk." Officer Flynn described the "boardwalk" as "the open air space between approximately four buildings," which was well known at the time for heroin and cocaine sales. The two experienced narcotics officers saw a man hand a clear packet of white powder to another man and concluded that a drug transaction had occurred. Apparently, having spotted the uniformed officers, people began shouting "olleray," which is pig latin for roller (police), and the man who had just passed the packet fled into apartment 21 at 1212 I Street. The officers pursued the suspect into the apartment where the door appeared to be ajar, allowing the man to enter without turning the knob. Officer Flynn testified that while Officer Platt was frisking the suspect in a hallway inside the apartment, he looked over his shoulder and saw appellant, who was sitting on a bed in one of the bedrooms, trying to hide a blue pouch by tossing it behind him. When appellant reached his hand toward the corner of the bed, Officer Flynn ordered him to stop. Initially ignoring the officer's order, appellant again reached toward the corner of the bed. The officer testified that appellant's movements caused him concern for his safety. Both officers drew their service revolvers and ordered appellant to put his hands in the air.

When appellant stood up, the officers saw the blue pouch, and one of them picked it up, searched it and discovered fifty packets of a substance, later determined to be heroin. One officer searched the area where appellant had lunged and discovered a loaded .45 caliber automatic pistol. Although not in the room with appellant, syringes were strewn throughout the apartment, which the police recovered.

Officer Flynn testified that there were approximately eight people in the apartment, excluding himself, Officer Platt, and the suspect they had chased inside. The officers wrote out PD76 cards ("stop-and-frisk" or "contact" cards) for some of the people, including the suspect, recording the name, address and date of birth of each. Officer Flynn also wrote a description for the suspect they chased inside. The officers arrested only appellant. When arrested, appellant told the officers that he did not live in the apartment, but he came there to rest. When he was booked later, appellant gave an address, but not that of the apartment building where the arrest occurred.

Officer Flynn testified that he had been inside the apartment at least eight other times and that it was a "shooting gallery," i.e., a place where people entered and left at will for the purpose of using drugs. Each time Officer Flynn had been in the apartment, he had seen at least ten, and as many as thirty-three people inside. Although there were a few beds and mattresses in the apartment, the kitchen and bathroom were not in working order. The officer inquired about, but never found the lessee or anyone who knew that person. On prior occasions, the officer recognized some of the people who used the apartment as addicts, and others admitted being there to "shoot up." On those earlier occasions the people would leave hastily when the police arrived. Officer Flynn also testified that there was no clothing there which appeared to belong to appellant.

Although appellant testified at the suppression hearing that he had lived in a room at the apartment since May 1988, he admitted that he had no lease, that he had given pretrial services his mother's address after his arrest, that he had no mailbox key, and that he did not know the names of the other people in the apartment that night. Appellant offered explanations for the absence of such indicia of residence. He also said that the lessee did not live in the apartment, but he paid rent to the lessee's brother.³

During a Jencks inquiry, Officer Flynn testified that the name of the person the officers had pursued into apartment 21 that evening was Ronald C. Scott, and appellant arranged for Scott to testify at the suppression hearing. Mr. Scott testified that on November 9, 1988, he was living in one of the bedrooms at 1212 I Street and that he paid rent to appellant, who was known to him as Hassan. Although Mr. Scott admitted that the apartment was used as a shooting gallery, he said that he and appellant lived there. He testified that syringes were left in the apartment, but he claimed "that type of stuff" was cleaned up. Mr. Scott admitted that he was a heroin addict and that he had used heroin the night of appellant's arrest. He denied that the police pursued him into the apartment that evening.

According to Mr. Scott, he was in his room with two other people, a Ms. Bennett and a Mr. Witherspoon, known as "Spoon." He said he had been watching T.V. for about fifteen minutes, when the police entered his room.⁴ Mr. Scott said he never left his room while the officers were in the apartment; therefore, he did not see what went on in appellant's bedroom that night.

The trial court credited the testimony of the police officer. Based upon the conditions of the apartment and the circumstances surrounding its use, the trial court concluded that the apartment was used as a shooting gallery and not as a residence. The court also credited the officer's testimony concerning their observations of a drug transaction which led them to chase the suspect inside the apartment. Therefore, the court upheld the search and seizure of the drugs on the grounds that: (1) the officer properly concluded that no one lived in the apartment nor had a reasonable expectation of privacy there; (2) the police had probable cause to believe the fleeing suspect had committed a crime and could pursue him into the premises; and, (3) the search and seizure of the drugs and guns followed a lawful protective search under Terry.⁵

Much of the evidence presented at the suppression hearing was also presented at trial. Officer Flynn again described the apartment in detail and testified that the gun was just twelve inches from appellant when he recovered it. Officer Platt recounted how the officers chased Ronald Scott into the apartment, appellant's action at the time of his arrest, and the purpose for which the apartment was used. Officer Platt testified that he collected only a third of the syringes which were strewn around the apartment. An expert witness in the sale and use of controlled substances testified that the quantity of the heroin and syringes seized was not consistent with personal use.

Ronald Scott testified that he entered the apartment a couple of minutes before the police arrived, but he said the police had chased someone named Wayne inside. Subsequently, Scott said he did not know how the police got into the apartment. Scott admitted that he was a heroin addict, that the apartment was used as a "shooting gallery," and that it was run by appellant to whom he paid rent. Although Scott testified that appellant was asleep with his door closed when the police arrived, on cross-examination, he stated that he could not see what occurred in the bedroom.

II.

Appellant argues that the trial court erred in denying his request for the production of Jencks material at the suppression hearing and at trial. We find no basis for reversal based on the trial court's Jencks rulings. The subject of appellant's Jencks request were the PD76 cards (contact or "stop and frisk" cards) on which Officer Flynn had recorded the name, address, and description of the fleeing suspect and only the names and addresses of some of the others found in the apartment. The prosecutor argued that the PD76 cards were not Jencks material and not otherwise discoverable.

The government was not able to locate the originals of any of the PD76s. During two evidentiary hearings concerning the documents, Officer Flynn testified that there was no requirement to fill out PD76 cards, but the supervising officers on the overtime tour used the cards to monitor overtime work. The officer said that he checked the police files for cards prepared for the offense date, but he was unable to locate them. Officer Flynn kept copies of the original cards for his own files which he used for...