Jones v. U.S., 86-31.

• Citation: 548 A.2d 35
• Decision Date: 09 September 1988
• Docket Number: No. 86-31.,86-31.
• Parties: Nathaniel JONES, Jr., Appellant, relevance. v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 35

548 A.2d 35

Nathaniel JONES, Jr., Appellant, relevance. v. UNITED STATES, Appellee.

No. 86-31.

District of Columbia Court of Appeals.

Argued May 19, 1988.

Decided September 9, 1988.

Matthew C. Leefer, for appellant.

Thomas J. Tourish, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the briefs were filed, and Michael W. Farrell, Elizabeth Trosman, Washington, D.C., and Sherri L. Berthrong, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, ROGERS, and STEADMAN, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant Nathaniel Jones, Jr., of possession of cocaine and of heroin with intent to distribute each. D.C. Code § 33-541(a)(1) (1988 Repl.). He now appeals, contending the trial court erred in admitting certain testimony by the government's narcotics expert and in admitting rebuttal testimony about the positive results of his drug tests using the so-called EMIT system, without providing expert testimony that EMIT has general acceptance in the scientific community. He also contends the evidence was insufficient to show that he had possessed the cocaine and heroin with intent to distribute, rather than for personal use. Finding no merit in any of these contentions, we affirm.

I.

The government's evidence shows that appellant was arrested at approximately 1:00 in the afternoon on July 19, 1984, in the 400 block of 7th Street, S.W., near L'Enfant Plaza.¹ He was searched, and seventeen tinfoil packets and three clear plastic bags containing white powder were recovered from his sock. The tinfoil packets were subsequently found to contain cocaine, while the plastic bags were found to contain heroin. Officer Massey, one of the arresting officers, testified on cross-examination that he had not observed appellant engaging in any activity before his arrest indicating an attempt to sell narcotics. Massey further stated that, although he was not very familiar with the area, it was not one commonly known for narcotics traffic. A second arresting officer, Officer Scott, testified that no money was found on appellant at the time of his arrest.

The government called Detective Lawrence Coates as its narcotics expert. Detective Coates testified that the quantity of cocaine and heroin recovered from appellant would indicate that he had intended to distribute the drugs. Coates testified, moreover, that the way in which the drugs were packaged indicated that they had been prepared for sale. He characterized the tinfoil packets of cocaine as "executive hits," which sell for ten dollars, and indicated that they are so named because such packets are commonly sold at lunch-time around government buildings. Coates also testified that the cocaine, as packaged, would sell for $170, whereas the same quantity would sell for just $100 if packaged in bulk. Coates said that although the three packages of heroin comprised a quantity that could typically be for personal use, possession of the heroin together with the cocaine indicated an intent to distribute the heroin, which is sometimes used with cocaine in "speed-balling." Finally, Coates testified that sales of small amounts of cocaine are popular at lunch-time around government buildings such as the HUD building located near L'Enfant Plaza, an area with which Coates was familiar.

Appellant, testifying in his own behalf, said that he had witnessed the arrests of three persons in another part of town earlier on the day of his own arrest. One of those arrested, a woman, threw something away. Appellant, thinking he might find money, retrieved several items and discovered that they were not money but white powder in tinfoil and plastic, wrapped in toilet paper. Appellant took the items and put them in his sock, intending to find out what the white powder was and, if it turned out to be cocaine, to try it out of curiosity. He then travelled by bus and on foot to L'Enfant Plaza. Later, when he was leaving, the police arrested him as he ran to board a bus.

Appellant testified on cross-examination that he had not previously used cocaine nor did he on that day. In rebuttal, the government presented the testimony of an officer from the Drug Detection Unit of the Pretrial Services Agency, Johnny T. Jordan. Jordan testified that appellant's urine had tested positive for cocaine and PCP the day after his arrest. He also testified about the Agency's drug testing procedures, the test itself, and his knowledge of the general accuracy of the test results.

II.

Appellant contends, first, that Detective Coates' testimony about the packaging and sale of so-called "executive hits" of cocaine was unfairly prejudicial and should have been excluded.

After Coates had testified on direct examination that the packages of cocaine found in appellant's possession were "executive hits, ten dollar hits of cocaine" so-called because "they are commonly sold during lunch-time around Government buildings," defense counsel immediately objected and asked for a mistrial. In response to defense counsel's charge that Coates had improperly tailored his testimony to the particular facts of the case, the court conducted a voir dire examination outside the jury's presence. Coates testified on voir dire as to the basis for his testimony and, specifically, to his personal knowledge of sales of cocaine in and around government buildings. The trial court then denied appellant's motion for a mistrial and permitted Coates to continue his testimony before the jury, instructing that he should "confine himself to things he knows from his expert knowledge." Coates then reiterated his testimony as follows:

Q. Detective Coates, are you familiar with the 400 block of 7th Street, Southwest, over near the HUD building? A. Yes, ma'am.

Q. In your own personal knowledge, are you aware of any sales being done in that area or ever having been done in that area?

A. Yes, ma'am.

Q. What type of sales are you aware of?

A. We are talking about cocaine and again, a number of those buildings where I have been working out of the Narcotics Branch as well as supervising undercover officers, in all these buildings, not HUD exactly itself, but in the general area of the buildings, at lunchtime it's very popular for selling small amounts of cocaine.

Q. In that area, around Government buildings, does the packaging of cocaine have any particular street name? A. Sure.

Q. What is that name?

A. They're called dime bags or executive hits.

The trial court has broad discretion to admit or exclude the testimony of expert witnesses, and we will disturb the trial court's ruling only if the ruling is clearly erroneous. Hinnant v. United States, 520 A.2d 292, 293 (D.C. 1987); Harris v. United States, 489 A.2d 464, 470 (D.C. 1985); Hawkins v. United States, 482 A.2d 1230, 1232 (D.C. 1984); Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C. 1979). To be properly admissible, the testimony of the expert must be helpful to the jury, Jenkins v. United States, 113 U.S. App.D.C. 300, 306, 307 F.2d 637, 643 (1962) (en banc), and must be more probative than prejudicial, Ibn-Tamas, 407 A.2d at 632.

These requirements were met in this case. Detective Coates' testimony illuminated for the jury the reasons why appellant might have been carrying cocaine packaged as this cocaine was and, further, offered a possible explanation, based on his extensive experience in the Narcotics Branch, as to what someone with seventeen packets of cocaine might be doing near a government building in midafternoon.² On the reasonable assumption that the average juror is not well-versed in the practices of the cocaine trade, the trial court, we believe, reasonably could have concluded that Coates' testimony would be highly informative. See Hawkins, 482 A.2d at 1232. That it bolstered the government's theory that appellant possessed the cocaine with intent to distribute does not render the testimony so prejudicial as to be inadmissible. See Hinnant, 520 A.2d at 293-94. To the contrary, the testimony was admissible precisely because it was probative of the central issue of appellant's possible intent.

III.

Appellant contends, next, that for three reasons the trial court erred in admitting evidence about his prior drug use. In the first place, he says, the prosecutor's questions on cross-examination as to whether appellant had ever used cocaine were irrelevant to the criminal charge: possession with intent to distribute. Second, appellant argues, the subsequent admission of the government's rebuttal evidence in the form of Mr. Jordan's testimony about appellant's drug tests was highly prejudicial, and should have been excluded, because the particular drug test employed by the Pretrial Services Agency, the enzyme multiplied immunoassay technique (EMIT), was not proved generally accepted in the scientific community and reliably administered in this case. Finally, appellant contends, he could not adequately confront the drug test evidence because, in any event, Jordan lacked the necessary scientific expertise.³

A.

Appellant's first concern is easily disposed of. The prosecutor's questions on cross-examination about appellant's prior cocaine use were relevant, and thus proper, in view of appellant's defense. Appellant testified that he had found the packets of cocaine and was unaware of their contents. He indicated, moreover, that he had intended to seek the advice of others, presumably more experienced with drugs than he, to determine before he tried it whether the white powder he had found was cocaine. In short, appellant attempted, on direct examination, to portray himself as an innocent bystander who had stumbled upon something illicit. The prosecutor's questions on cross-examination and the government's subsequent rebuttal evidence comprised legitimate exploration of two issues that appellant himself had raised: his sophistication with respect to drugs and his general credibility. See United States v. James, 181...