Irick v. U.S.
| Decision Date | 05 October 1989 |
| Docket Number | No. 87-429.,No. 87-592.,No. 87-134.,87-134.,87-429.,87-592. |
| Parties | Curtis L. IRICK, Appellant, v. UNITED STATES, Appellee. Larry DANIELS, Appellant, v. UNITED STATES, Appellee. Jerry L. DANIELS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Calvin Steinmetz, appointed by this court, for appellant, Curtis L. Irick.
Joanne D. Slaight, appointed by this court, for appellant, Larry Daniels.
Thomas B. Mason, Public Defender Service, with whom James Klein, and Jennifer P. Lyman, Public Defender Service, were on the brief, for appellant, Jerry L. Daniels.
Ann K.H. Simon, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, were on the brief, for appellee.
Before NEWMAN, BELSON and SCHWELB, Associate Judges.
I
These consolidated appeals arise out of the shooting and wounding of an undercover police officer who was investigating illicit drug activity and attempting to make an arrest. Following a five-week jury trial, the appellants Larry Daniels (L.D.), his brother Jerry Daniels (J.D.)1 and Curtis Irick were all convicted of possession of cocaine with intent to distribute it (PWID), in violation of D.C.Code § 33-541(a)(1) (1988). J.D. and Irick were also convicted of assault on a police officer while armed, § 22-505(a) and (b), and of carrying a pistol without a license, § 22-3204. All three appellants were sentenced to serve mandatory minimum prison terms for PWID, and J.D. and Irick received substantial additional periods of incarceration on the assault and weapons counts.
On appeal, L.D. claims that the evidence against him was insufficient to support his conviction. J.D. contends that the trial judge abused his discretion by improperly admitting certain testimony by the prosecution's expert witness. Both Irick and J.D. seek reversal of their convictions on the grounds of alleged prosecutorial misconduct.
With respect to L.D.'s appeal, we hold that the evidence against him, when viewed as it must be in the light most favorable to the government, was sufficient to support his conviction. We also discern no abuse of discretion in the trial judge's admission of the expert testimony challenged by J.D.
The issue of prosecutorial misconduct is more difficult. We agree with Irick and J.D. that on some occasions the conduct of the prosecutor, who apparently threatened outside the courtroom to "bust [J.D.'s counsel] in the mouth," was less than a model of decorum. A few comments made by the prosecutor during the trial were plainly inappropriate, and a number of others were close to the line and, from the calm and detached perspective of appellate review, might better have been left unsaid. Some of what the prosecutor did was triggered but, we emphasize, not excused, by some troubling tactics by J.D.'s counsel. On balance, we cannot agree with J.D. and Irick that the prosecutor's conduct was "unprovoked" or "egregious." Indeed, we note that much (though not all) of the alleged misconduct passed without objection by any of the three defense attorneys and is challenged for the first time on appeal. Appellants were not, entitled to a perfect trial, and we are satisfied that they received a fair one. Accordingly, we affirm their convictions.
II
The prosecution introduced evidence tending to show that on January 9, 1986, Officers Jimmie Lewis and Byron Wallace were in casual clothes, assigned to enforcement of the drug laws. Between 6:15 and 6:30 p.m., they monitored a broadcast for subjects selling drugs at a nearby playground. They drove to the area, and eventually saw a group of men near the door to a school building. The officers walked in the direction of the group, arid Wallace inquired if "anybody got halves [of cocaine]." A man later identified as L.D. approached the officers. He said that he had halves for fifty dollars and asked for the money. Officer Wallace, however, had seen a man later identified as J.D. some 25 to 30 feet away actually delivering drugs. He told L.D. that he would go straight to the man with the dope. The officers walked towards J.D.
J.D., with his hand still in a pouch apparently filled with the cocaine which he was selling, asked Officer Wallace "what do you need?" Wallace identified himself as a police officer and told J.D. that he was under arrest. J.D. offered no resistance and sat on the ground. Officer Lewis prepared to call for a transportation unit over the police radio, but there was "chatter" on the channel which he intended to use.
As Officer Lewis was waiting for the channel to clear, a tall man, later identified as Irick, approached the group, carrying a large handgun. Wallace told Irick that he and Lewis were police officers. J.D. still seated on the ground, told Irick: or words to that effect. Lewis began to reach for his service revolver. Irick pointed his weapon at Lewis and fired from a distance of five feet. The bullet struck Lewis' thumb and body, missed vital organs in his abdomen, and exited some three millimeters from his spine. Irick and J.D. fled. Officer Wallace gave chase, and he and Officer Lewis both fired shots in the fugitives' direction. Wallace then returned to obtain assistance for his wounded colleague. A civilian witness testified that he saw two men running from the scene, and that he heard one of them say that he had "got that motherfucker."
More police officers came to the scene. They found a Wendy's bag with a warm hamburger, as well as three packets of cocaine, at the location where J.D. had been standing. J.D.'s fingerprints were on the Wendy's bag.
Shortly after the shooting. Officer William Herndon responded to the area. He saw L.D. jump over a fence and walk away at a rapid pace. L.D.'s clothing matched the description of that worn by one of the drug sellers in the original radio lookout. Officer Herndon ordered L.D. to stop. L.D. volunteered, for no readily apparent reason, that he had just got out of a cab. No cab was in sight.
Cassandra Dorsey, a long term heroin and cocaine addict who was facing possible revocation of her probation, also testified for the prosecution. At the time of the offenses, she was living with her boyfriend Tommy Daniels, a brother of J.D. and L.D., and with the Daniels brothers' mother. She testified that J.D., Irick and a third man arrived at the house between 6 and 7 p.m. on the day of the shooting. The men talked about having shot a police officer, and Irick suggested that they had better get out of town. Irick gave a large gun to J.D., who passed it on to his brother Tommy my with directions to bury it. Based on selling operation information received from Ms. Dorsey and On his way to Tommy Daniels, police eventually recovered the hand gun under a van behind the garage near the Daniels' home. The bullet that passed through Officer Lewis was positively identified as having come from this handgun.
Detective Johnny St. Valentine Brown testified as an expert witness for the government, primarily on the subject of the modus operandi of drug dealers. He related, among other things, that more sophisticated drug distribution units may include a "lieutenant" or "enforcer." This individual's job is to be on the scene of the distribution activity, armed with a weapon, to protect the individuals engaged in the sale of the drugs from "stick-up boys" and police.3 He testified that if individuals who are close to each other in the same location are distributing drugs, they are likely to be part of the same organization.
L.D.'s defense was a general denial, and he called no witnesses. J.D. likewise did not testify. Through counsel, he admitted his guilt of the PWID charge, but vigorously contested the assault and weapons charges. In doing so, he relied on the evidence presented by his codefendant Irick.
Irick testified in substance that he had come to the playground to buy cocaine from J.D., whom he knew only slightly, having purchased drugs from him on a previous occasion at a different location. He denied being associated in any drug selling operation with J.D. or anyone else. On his way to make the purchase, he picked up a .44 caliber handgun at his father's garage for the purpose of taking it to his mother's home. Upon his arrival at the playground, he gave J.D. $45.00, and J.D. asked him to wait a few minutes so that he could procure a "half" of cocaine for him.
While he was awaiting the arrival of the cocaine, he witnessed two men apparently attempting to rob J.D. at gunpoint. Concerned because J.D. had his $45.00, Irick pulled out his weapon and ordered one of the men — who later turned out to be Officer Wallace — to drop his gun and raise his hands. The other man who, unbeknownst to Irick, was Officer Lewis, began to pull out his revolver and appeared to be about to shoot Irick. Irick then shot Lewis in the hand. After some further shooting, Irick and J.D. fled. Irick went to J.D.'s house because J.D. had his money. Neither of the two apparent robbers announced that he was a police officer,4 and Irick only learned of his victim's identity from J.D.'s brother Tommy, who had heard it on a television news reports.5
III
L.D. contends that the evidence was insufficient to establish beyond a reasonable doubt that he aided and abetted the possession of cocaine with intent to distribute it.6 Although the case against him was perhaps less than overwhelming, we cannot agree that it was inadequate to support the jury's verdict.
In evaluating a claim of insufficiency, we must consider the evidence in the light most favorable to the government, giving the prosecutor the benefit of all reasonable inferences from the evidence. Patterson a United States, 479 A.2d 335, 337-38 ...
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