Simmons v. U.S.
| Decision Date | 24 January 2008 |
| Docket Number | No. 04-CF-254.,No. 04-CF-214.,04-CF-214.,04-CF-254. |
| Citation | 940 A.2d 1014 |
| Parties | Doc E. SIMMONS and Olivia B. Smallwood, Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.*
Appellants Doc Simmons and Olivia Smallwood were tried together with a third co-defendant, Wally Smith, on charges of unlawful distribution of cocaine and unlawful possession with intent to distribute cocaine. The jury found Simmons guilty of distribution, not guilty of possession with intent to distribute, and guilty of the lesser included offense of simple possession of cocaine. Smallwood was convicted of distribution of cocaine. Smith was acquitted of all charges.
Simmons claims that his convictions should be reversed because (1) the government violated a pre-trial promise dot to introduce so-called Toliver1 evidence of uncharged contemporaneous drug sales, and (2) the prosecutor misstated the testimony of a defense witness in her closing and rebuttal arguments. Smallwood asserts that the evidence was insufficient to support her conviction for distribution of cocaine, because the key testimony against her was inherently incredible. Appellants' arguments do not persuade us, and we affirm their convictions.
According to the government's evidence at trial, at 6:00 p.m. on February 4, 2003, undercover Metropolitan Police Department Officers Thomas Stephenson and Anthony Greene drove to the 2700 block of Bruce Place, S.E., to conduct a "buy-bust" operation. Greene remained in their unmarked car as Stephenson, holding a prerecorded twenty-dollar bill in his hand, exited and approached Wally Smith. Stephenson testified that Smith asked him "what [he] was looking for." Stephenson replied that he wanted "two bags."
In response, Smith brought Stephenson across the street to meet Olivia Smallwood, who was standing in the walkway at 2726 Bruce Place. Smith asked Smallwood if she had "three bags." Smallwood did not have them but led Smith and Stephenson down the walkway, where she knocked on an apartment door. Doc Simmons opened the door and Stephenson, Smith, and Smallwood all went inside.
Several other persons were in the apartment, and Stephenson observed Simmons dispensing ziplock bags to them containing what appeared to be drugs. When it was his turn, Stephenson gave the pre-recorded twenty-dollar bill to Smith, who added ten dollars of his own and handed the money to Simmons. In return, Simmons gave Smith four small, pink ziplock plastic bags with a rocklike substance in them. Stephenson testified that Smith passed the four bags to Smallwood.
Smallwood then led Stephenson out of the apartment and handed him two of the ziplock bags. Smith soon followed them and rejoined Smallwood. With the two bags in his possession, Stephenson left and returned to his car, where his partner, Officer Greene, was awaiting him. Inside the car, Stephenson performed a field test, which indicated the presence of crack cocaine in the ziplock bags. Within minutes, a police arrest team, summoned by Greene, stopped Smallwood and Smith and brought Simmons out to the street. All three individuals were positively identified by Stephenson and placed under arrest.
From Simmons, the police recovered one small, pink ziplock bag containing crack cocaine and $156 in cash, including the pre-recorded twenty dollar bill that Stephenson had used to make his undercover purchase. The police found no ziplock bags or drugs on Smallwood, even though no officer saw her throw anything away. Smith had no drugs in his possession either.
The defendants disputed Stephenson's account and presented a very different version of events at trial. After getting off work on February 4, 2003, Simmons testified, he bought a pizza to share with his fiancée, Sherita Hester. He also bought a single ziplock bag of crack cocaine for his own personal use. He then went to 2726 Bruce Place, where Hester was expecting him. Hester lived at that address with her mother, who sold "bootleg" beer., cigarettes and other articles (but not drugs) from their apartment.
Shortly after Simmons arrived at the apartment, Smallwood visited it to purchase some beer. According to Simmons and Hester, Smallwood entered alone, and they never saw Stephenson. Smallwood remained in the apartment for a little while, drinking beer and chatting. Other defense witnesses testified that Smallwood left the apartment by herself, holding, a beer in her hand,2 and that she did not throw anything down before she was arrested a few minutes later. Simmons and Hester were sitting at the dining room table, still eating their pizza, when the police entered to arrest Simmons.
Simmons denied selling drugs to Stephenson or anyone else. When asked by the prosecutor on cross-examination why he had the pre-recorded twenty dollar bill in his possession, Simmons replied that he did not know, but he might have received it when giving change to one of Hester's mother's customers.
The first basis on which Simmons seeks reversal of his convictions is that the government violated its representation to his counsel in pretrial discovery that it would not present evidence of any uncharged crimes. The violation occurred, but we conclude that Simmons suffered no prejudice as a result. Simmons therefore is not entitled to the relief he requests.
The issue arose during the direct examination of Officer Stephenson. The prosecutor asked Stephenson what he saw when he entered the apartment on Bruce Place with Smallwood and Smith. Stephenson answered that he observed Simmons "giving out some small ziplock bags with little small [sic], tan rock substances inside to the other people that were in front of me."
Simmons did not object to this testimony. On cross-examination, his counsel questioned Stephenson about his inability to describe the other persons he allegedly saw obtaining ziplock bags from Simmons and his failure to issue a lookout for any of them.
On the next morning of trial, Simmons objected to Stephenson's testimony regarding his sales of drugs to other purchasers. His counsel requested a mistrial or, alternatively, that the court strike the testimony and give a curative instruction, because the prosecutor handling pretrial discovery had told him that the government did not intend to introduce "other crimes evidence as defined by Drew or Toliver."3 The prosecutor had promised to inform him in writing, defense counsel if the government's intentions were to change. Having "never received anything," counsel stated, he was surprised when Stephenson testified to having seen Simmons make other drug sales.
The trial judge denied Simmons's request for a mistrial or other relief on the ground that Simmons had not been prejudiced by the unexpected introduction of the challenged testimony (which, the judge, observed, was Toliver evidence rather than Drew evidence). Simmons's counsel then resumed his cross-examination of Stephenson, who reluctantly admitted that he did not mention any other drug sales by Simmons in his undercover buy report. "And the reason you didn't put it in there," counsel asked, was "because it didn't happen; is that right?" "It's because it wasn't important," Stephenson replied.
Later, at a break in the proceedings, there was renewed colloquy regarding Stephenson's testimony that Simmons sold drugs to others in the apartment. The trial judge observed that this testimony was "substantial independent proof' of the charge of possession with intent to distribute cocaine, because it strengthened the inference that Simmons had intended to distribute the remaining bag of cocaine found on him when he was arrested. Simmons's counsel agreed that the testimony was "certainly classic Toliver evidence" and reiterated that its admission after the government said "it did not exist" had "substantially prejudiced" Simmons. The judge acknowledged "the discovery problem" but said that he still perceived no prejudice, particularly in view of defense counsel's effective cross-examination.
The matter did not end there. Two days later, at the close of the government's case-in-chief, the trial judge revisited the issue once more. Although he initially had doubted that Simmons was prejudiced,4 the judge now had second thoughts. He asked the prosecutor whether Simmons's counsel had made a specific discovery request and been told that there would be no Toliver evidence. Not having handled the discovery herself, the prosecutor said she accepted defense counsel's representation. The prosecutor added that she first learned of the Toliver evidence on the eve of trial, because Stephenson had not been able to meet with her earlier.
Declaring that Stephenson's testimony about other drug sales "would be very powerfully incriminating if it were believed," the judge found that the government's failure to disclose it was "inadvertent" and "negligent" but not "willful and not an attempt to get some type of tactical advantage." Given the possible prejudice to the defense, the judge decided to strike the testimony and instruct the jury not to consider it. Simmons renewed his request for a mistrial, which the judge denied.
Accordingly, after hearing the defendants' motions for judgment of acquittal,5 the judge instructed the jury as follows:
I'm going to have to strike part of some testimony that you heard during the course of the trial.
During the course of the trial, you heard . . . Undercover...
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