Otts v. U.S., 04-CF-1139.

• Decision Date: 13 September 2007
• Docket Number: No. 06-CO-1040.,No. 04-CF-1139.,04-CF-1139.,06-CO-1040.
• Parties: Andre OTTS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

952 A.2d 156

Andre OTTS, Appellant, v. UNITED STATES, Appellee.

No. 04-CF-1139.

No. 06-CO-1040.

District of Columbia Court of Appeals.

Argued May 10, 2007.

Decided September 13, 2007.

Amended April 24, 2008.¹

Lee Richard Goebes, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the initial brief was filed, Jeffrey A. Taylor, United States Attorney at the time the supplemental brief was filed, and Roy W. McLeese III, Precious Murchison, and Carolyn K. Kolben, Assistant United States Attorneys, were on the brief, for appellee.

BEFORE: WASHINGTON, Chief Judge; FARRELL, RUIZ, REID,* GLICKMAN, KRAMER, FISHER,^** BLACKBURNE-RIGSBY,* and THOMPSON, Associate Judges; KING, Senior Judge* (Order).

Before REID and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge (Opinion).

PER CURIAM.

ORDER

On consideration of appellant's petition for rehearing or rehearing en banc, it is

ORDERED by the merits division* that the petition for rehearing is granted as set forth in the amended opinion filed April 23, 2008, and that this court's opinion filed on September 13, 2007, is hereby vacated. It is

FURTHER ORDERED that the petition for rehearing en banc is denied as moot, without prejudice to the filing of a petition for rehearing en banc directed to the amended opinion issued on April 23, 2008.

BLACKBURNE-RIGSBY, Associate Judge:

Appellant, Andre Otts, was charged with distributing a controlled substance (heroin) and unlawful possession of a controlled substance (heroin), both in violation of D.C.Code § 48-904.01(a)(1) (2001).

In this consolidated appeal, appellant presents four arguments for reversal, of which the first two, are the primary focus of this opinion. Appellant first contends that the trial court plainly erred in admitting two DEA-7 chemist reports at trial when the chemist did not testify at trial. Second, appellant argues that the trial court erred in denying his D.C.Code § 23-110 (2001) motion for relief, in which he alleged that his trial counsel was ineffective for failing to raise an objection under the Confrontation Clause of the Sixth Amendment to the introduction of chemist reports, and for failing to move the trial court to reopen its pretrial ruling on the admissibility of appellant's statement made while in custody. Third, appellant contends that the trial court committed plain error in failing to reverse sua sponte its sua sponte pretrial ruling denying suppression of a statement appellant made while in police custody, when evidence introduced at trial revealed that the statement was made in response to interrogation. Fourth, appellant contends that the trial court erred in denying his Motion for Judgment of Acquittal as to the unlawful possession charge because the evidence was insufficient to establish that appellant possessed a "measurable" amount of heroin. We reject all four of appellant's arguments and affirm the decision of the trial court.

I. Factual Background

On December 11, 2003, Metropolitan Police Department ("MPD") officers were conducting a narcotics surveillance operation in the 300 block of L Street, S.E., Washington, D.C. Observation post officers observed appellant standing in the 300 block of L Street, S.E., and a teal-colored Ford vehicle drive onto the block. A male passenger, later identified as appellant's co-defendant, Robert Drummond, exited the vehicle, approached appellant, and the two men engaged in a conversation. Then, the two men walked a short distance and observation post officers saw appellant give Mr. Drummond a small object in exchange for U.S. currency. Mr. Drummond then left the area.

Upon witnessing this transaction, observation post officers gave a lookout description of the teal-colored vehicle, and arrest team officers detained Mr. Drummond and recovered three green Ziploc bags of a substance that later field tested positive for heroin, and one blue-colored Ziploc bag of a substance that later field tested positive for cocaine base. Arrest team officers then stopped appellant at the corner of Third and L Streets, S.E. MPD Officers Michael Jewell, Donald Smalls, and William James, each testified that they were able to see appellant place an object in his mouth after he was stopped by the arresting officers. Specifically, Officer Smalls testified that when appellant noticed him and the other arresting officers, he "motion[ed] to his mouth with his right hand," prompting the officers to jump out of their vehicle and ask appellant what he had just placed in his mouth, to which appellant did not say anything. The transcript indicates that Officer Smalls testified on direct examination that appellant responded to the arresting officers' inquiry of "what do you have in your mouth" by repeatedly saying "he didn't have anything." However, on cross examination, Officer Smalls testified that appellant said nothing in response to this inquiry, but began to move his [A]dam's apple as if trying to swallow, and further testified: "He didn't say anything until after he spit it out. When he spit it out, Mr. Otts said there's nothing in there." Viewing the evidence in a light most favorable to the government, as we must, we are satisfied that appellant made the at-issue statement after expelling the green bag from his mouth. See, e.g., United States v. Turner, 761 A.2d 845, 850 (D.C.2000); Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc).

Officer Smalls, along with arrest team Officer James, approached appellant and brought him over to their police cruiser. At this time, Officer Smalls could see appellant's "Adam's apple trying to swallow something," and ordered appellant to "spit it out." Another arrest team officer then placed his hand around appellant's collar in an effort to force him to expel the object from his mouth. Appellant finally spit the object out, and remarked "there's nothing in there." The officers determined that it was a "[green] plastic bag with a white residue in it that was chewed up."

II. Analysis

1. Crawford Challenge to the Admissibility of the Chemist Reports

Appellant argues, for the first time on appeal, that the admission of the two DEA-7 chemist reports at trial violated his Sixth Amendment confrontation rights because the chemist was not called to testify.² Specifically, appellant argues that the chemist reports constituted "testimonial hearsay" under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court announced that "[t]estimonial statements of witnesses absent from trial [are] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S.Ct. 1354. The government relies on the statutory authority for the admission of these reports pursuant to D.C.Code § 48-905.06 (2001) (chemist report is admissible as business record), as well as our decision in Howard v. United States, 473 A.2d 835, 840 (D.C. 1984),³ in which we held that DEA reports were properly admitted at trial as business records, and that the Confrontation Clause did not require barring the admission of these reports. Appellant concedes that his trial counsel failed to raise a Confrontation Clause objection at trial to the government's introduction of the chemist reports. Therefore, we review appellant's current constitutional claims under the rigors of plain error, which require appellant to show that the trial court's allowance of the chemist reports into evidence was "(1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Marquez v. United States, 903 A.2d 815, 817 (D.C.2006) (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).⁴ Although appellant satisfies the first and third prongs of Olano, we conclude that appellant is unable to meet the remaining predicates.

We conclude that appellant satisfies the first prong of Olano based on our prior decision in Thomas, where we found error. See Thomas, supra, 914 A.2d at 20-21. Further, Mr. Otts has satisfied his burden under the third prong of Olano of proving that the error in this case affected his "substantial rights" because there was a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial. Id. at 21 (citing United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Here, as in Thomas, we so hold because "the DEA chemist's report was the main, if indeed not the only, proof offered by the prosecution" that the substance Mr. Otts was charged with distributing and possessing was a controlled one. Id. at 21-22.⁵

With regards to the second prong of Olano that requires that the error is "plain" at the time of trial, unlike the defendant-appellant in Thomas, Mr. Otts's trial occurred after Crawford but before our decision in Thomas. The special plain error rule that required the error to be "plain" at the time of appellate consideration in Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), does not apply to trials conducted after Crawford because "an objection [raised at trial] would not necessarily have been futile" because the "continuing viability" of Howard was an open question. See Thomas, supra, 914 A.2d at 20, 21 n. 26.

Even if Mr. Otts had been able to satisfy the first three prongs of Olano, he fails under the fourth and final prong: whether the unobjected-to error `seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings' before we may exercise our discretion to correct the error. Johnson, supra, 520 U.S. at 469-70, 117 S.Ct. 1544 (citations...