Howard v. U.S., No. 05-CM-221.

• Decision Date: 06 July 2006
• Docket Number: No. 05-CM-221.
• Citation: 929 A.2d 839
• Parties: Robert J. HOWARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

929 A.2d 839

Robert J. HOWARD, Appellant, v. UNITED STATES, Appellee.

No. 05-CM-221.

District of Columbia Court of Appeals.

Argued June 7, 2006.

Decided July 6, 2006.^*

Amended May 3, 2007.

Dennis M. Hart, Washington, appointed by the court, for appellant. Dennis M. Hart filed a supplemental brief for appellant.

John W. Borchert, with whom Kenneth L. Wainstein, United States Attorney at the time, and Roy W. McLeese III, and Margaret Sewell, Assistant United States Attorneys, were on the brief, for appellee.

Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Elizabeth H. Danello, John W. Borchert, and Chrisellen R. Kolb, Assistant United States Attorneys, filed a supplemental brief, for appellee.

James Klein, Samia Fam, and Andrea Roth, Public Defender Service, filed a supplemental brief as amicus curiae in support of appellant's petition.

Before WASHINGTON, Chief Judge, REID, Associate Judge, and KING, Senior Judge.

REID, Associate Judge:

After a bench trial, appellant Robert J. Howard was convicted of one count of unlawful possession of a controlled substance (marijuana), in violation of D.C.Code § 48-904.01(d) (2001). He filed a timely notice of appeal challenging the trial court's denial of his motion to suppress evidence, the sufficiency of the evidence, and the trial court's denial of his motion to require the government to produce for examination at trial the chemist who prepared the chemical analysis of the substances which the police seized from his person and from the ground.

After we affirmed the judgment of the trial court and held (1) that the trial court properly denied Mr. Howard's motion to suppress evidence, and that the evidence was sufficient beyond a reasonable doubt to convict him of possession of a controlled substance; and (2) that Mr. Howard was afforded a statutory opportunity to confront the chemist at trial, but waived that right, appellant filed a petition for rehearing en banc, which the government opposed. In our July 6, 2006 decision, we declined to resolve the constitutional issues presented by Mr. Howard, and instead, narrowly focused on Mr. Howard's statutory opportunity to present the chemist. The Public Defender Service filed a consent motion to participate as amicus curiae and to lodge its brief, which this court granted. While appellant's petition for rehearing en banc was pending, this court issued its decision in Thomas v. United States, 914 A.2d 1 (D.C.2006).¹ There, we held that

[The Confrontation] Clause [of the Sixth Amendment to the Constitution] was violated when the prosecution introduced a Drug Enforcement Administration chemist's written expert testimony against appellant without calling the chemist to appear and testify in person.... [D.C.Code] § 49-905.06 [2001] still authorizes the government to introduce a chemist's report without calling the chemist in its case-in-chief, but only so long as the record shows a valid waiver by the defendant of his confrontation right. Absent a valid waiver, which usually must be express but under some circumstances may be inferable from a defendant's failure to request the government to produce the author of the report, the defendant enjoys a Sixth Amendment right to be confronted with the chemist in person.

Thomas, supra, 914 A.2d at 5. Unlike Mr. Howard, Mr. Thomas did not raise a Confrontation Clause objection during his trial. Therefore, we affirmed Mr. Thomas' conviction because "his invocation of the [Confrontation] Clause on appeal ... [did not] survive [plain error] scrutiny" because the plain error, which "affected appellant's substantial rights," did not "seriously affect[] the fairness, integrity or public reputation of the judicial proceeding."

Following the issuance of Thomas, supra, the merits division in Howard, sua sponte, ordered the parties and amicus curiae "to file supplemental briefs solely on issues related to the Confrontation Clause [of the Sixth Amendment to the Constitution] and the impact of [] Thomas [] on the disposition of this case." In the same order, dated January 5, 2007, this court also decided to hold the petition for rehearing en banc in abeyance pending the filing of the supplemental briefs.

Since Thomas considered and resolved the constitutional issue presented in Howard, which we did not address in our July 6, 2006 decision, we now hold, consistent with Thomas, that Mr. Howard's Sixth Amendment Confrontation Clause right was violated when the trial court, over his objection, admitted a Drug Enforcement Administration chemist's report in lieu of the chemist's live testimony. Furthermore, on this record, we see no valid waiver by Mr. Howard of his confrontation right. Unlike Thomas, Mr. Howard's case is not subject to plain error analysis. Consequently, we now conclude that Mr. Howard is entitled to a new trial. We reverse his conviction and remand this case to the trial court.²

FACTUAL SUMMARY

During a hearing on Mr. Howard's motion to suppress, the government presented evidence showing that on February 6, 2004, around 10:50 p.m., Officer James Craig, a seven-year veteran of the Metropolitan Police Department ("MPD") and a member of the narcotics tactical unit, was on duty at an observation post in the 1200 block of Stevens Road (in the Southeast quadrant of the District of Columbia), "one of the largest open-air drug markets for the sales of marijuana in the District of Columbia," located in the Barry Farms Housing Complex. Officer Craig "was in the observation post for approximately two to three minutes." During that time he watched and listened as a man (later identified as Mr. Howard), who was wearing a black jacket and dark-colored pants, "attempt[ed] to flag down cars yelling," "Hey, hey, right here, right here" and "waving his arms as cars would drive by." In light of his experience, gained from "approximately five hundred observation post[]" operations, Officer Craig concluded that "individuals in open-air drug markets [who] wave their hands and yell at cars passing by ... [are] attempting to stop vehicles in order to sell narcotics." After "a couple of minutes[,]" Officer Craig's position was "compromised" when a passerby saw him. Consequently, Officer Craig used his radio to alert MPD Officer Eric Siebert,³ who also was working in the Stevens Road area as part of an arrest team. Officer Craig told Officer Siebert that he should "move in and make contact with" Mr. Howard, described then by Officer Craig as "a black male wearing a black jacket and dark-colored pants yelling at cars as they were going by, attempting to flag them down." "[D]ue to [his] experience especially in an open-air drug market," Officer Siebert recognized that "if you're flagging down numerous vehicles[,] you're attempting to stop them to sell drugs." Officer Craig kept Mr. Howard in sight while he directed Officer Siebert (and Officer Matthew Daly) to the place where Mr. Howard was standing.

When Officer Siebert arrived on the scene in his "tactical uniform" (with a vest, badge and belt, and a "jacket underneath [his] vest that had MPD on the sides"), he saw Mr. Howard, who "was in the 1200 block of Stevens ...; pretty much at the cross section of the alley ... and Stevens Road." Another person stood "approximately 10 or 15 feet away from [Mr. Howard,]" but Officer Siebert did not think they were "directly together." When Mr. Howard saw Officer Siebert, "[h]e quickly walked up Stevens Road towards Wade Road."⁴ Officer Siebert "asked him to stop," and as he approached Mr. Howard, the officer "saw four ziplock bags of marijuana ... on the sidewalk." The bags were located "where [Mr. Howard] was standing."⁵ Mr. Howard stopped, as requested, and Officer Siebert took him "over to where [Officer Daly] ... had another individual stopped." Mr. Howard did not respond to Officer Siebert's question whether "he had any weapons on him." When the officer posed the question a second time and received no response, he "conducted a pat down of [Mr. Howard] for weapons." During the pat down, Officer Siebert "felt a texture consistent, from [his] experience, with ziplocks of marijuana." He removed the ziplocks and they later tested positive for marijuana.

During cross-examination of both officers, defense counsel sought to cast doubt on whether Mr. Howard was involved in any criminal activity, and whether he was the person that Officer Craig saw flagging down cars. Officer Craig acknowledged that he never saw Mr. Howard "sell anyone drugs" or "engage in any criminal activity"; nor did he remember providing information to Officer Siebert concerning Mr. Howard's height, weight or age. Officer Craig also reiterated that he was "sixty feet" away from Mr. Howard, and revealed that he was monitoring one other individual at the same time, but could not remember what that person was wearing. Officer Siebert said he did not see who dropped the ziplock bags that were on the ground. He recognized Mr. Howard as the person described in the radio transmission he received because he was "tall," there were "only two people ... wearing all dark clothing," and when he saw Mr. Howard, Officer Craig sent a message to him that "that's the one."

The trial court found that the police had reasonable articulable suspicion to stop Mr. Howard, and soon thereafter had probable cause to arrest him and to search him incident to the lawful arrest:

I think there is articulable suspicion to stop Mr. Howard based ... only on the fact that it's an open-air market and that he's waving his hands, saying "hey, hey, right here," trying to flag down a number of cars over [a] several minute period. I think that there was probably a crime. I find legally that there is reasonable articulable suspicion to stop him. But . . . even if there isn't . . . the frisk is not in any way a product of the stop, the frisk is the product of the observation of the drugs on the ground at his feet, combined with the other facts ....

And I also...