Spencer v. US

• Decision Date: 23 January 1997
• Docket Number: 94-CO-1337.,No. 92-CF-1474,92-CF-1474
• Citation: 688 A.2d 412
• Parties: Frankie SPENCER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

688 A.2d 412

Frankie SPENCER, Appellant, v. UNITED STATES, Appellee.

Nos. 92-CF-1474, 94-CO-1337.

District of Columbia Court of Appeals.

Argued April 18, 1996.

Decided January 23, 1997.

Claire T. Roth, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Gary H. Collins, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Jennifer M. Anderson, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, STEADMAN, and SCHWELB, Associate Judges.

TERRY, Associate Judge:

Appellant Spencer and a co-defendant, Bernard Bishop, were convicted of distributing cocaine, in violation of D.C.Code § 33-541(a)(1) (1993). Spencer noted an appeal from his conviction.¹ While that appeal was pending, he filed a motion to vacate his sentence under D.C.Code § 23-110 (1996). The trial court denied the motion, and Spencer noted a second appeal, which we consolidated with the first. Before this court Spencer makes three arguments. First, he contends that the evidence was insufficient to support his conviction; second, he maintains that the trial court abused its discretion by limiting defense counsel's cross-examination of the government's expert witness; third, he argues that the court erred in denying his § 23-110 motion without a hearing. We reject the first and third arguments; as to the second, we agree that the court committed error but find the error harmless. We therefore affirm both the conviction and the denial of the § 23-110 motion.

I

On December 27, 1991, at about 5:30 p.m., Officer Cornell Johnson of the Metropolitan Police was on duty in plain clothes, working under cover. From the top of a hill on Sayles Place, S.E., overlooking the 2500 block of Sheridan Road, Officer Johnson saw two men, later identified as Spencer and Bishop, standing together and conversing with each other about twenty feet downhill from where he was standing. No one else was near them. Johnson called down to Spencer and Bishop, "Do you have any dimes?"² When Spencer said yes, Johnson walked down Sayles Place to Sheridan Road and asked Spencer if he could buy a dime. Spencer asked how many he wanted, and Johnson said he wanted one, to which Bishop replied, "Yeah."

Bishop then walked about five feet away from Johnson and Spencer, reached down into a grassy area, "and retrieved a large plastic bag with numerous ziplocks." Returning to where Johnson and Spencer were waiting, Bishop handed Johnson a ziplock bag containing a rock-like substance, and in exchange Johnson gave Bishop two $5 bills whose serial numbers had been pre-recorded. After the purchase, Spencer said to Bishop, in Johnson's presence, that Officer Johnson was "the police" and that they had met before. Bishop responded that Officer Johnson "wasn't the one," meaning that he was not a police officer.

After the transaction was completed, Officer Johnson walked back along Sheridan Road to meet with his sergeant, Tammy Mitchell. Johnson gave Sergeant Mitchell a description of both men, which she broadcast over the radio to a nearby arrest team. About a minute later, Officers Suber and Myers, both members of the arrest team, saw Bishop standing at a pay phone on the corner of Sheridan Road and Bowen Road. Realizing that Bishop matched the description he had just heard over the radio, Myers approached him and identified himself as a police officer. Bishop started to run, but Officer Suber grabbed him. Moments later, after Officer Johnson identified Bishop while riding by in an automobile, Bishop was formally placed under arrest. Officer Suber searched him and found in his possession a pager and $427 in currency, including the pre-recorded $5 bills.

Meanwhile, after the initial lookout had been broadcast, Officer Johnson walked back up to Sayles Place, where he saw Spencer crossing the street. Johnson immediately radioed Spencer's location to the arrest team, and within a minute or two Spencer was detained at the top of the hill on Sayles Place. A few minutes later, Officer Johnson field-tested the substance he had purchased from the two men, then placed it into a heatsealed envelope. Later analysis by a chemist confirmed that the substance was cocaine.

The government also presented the expert testimony of Detective Joseph Brenner, who described the usual methods of distribution of crack cocaine and the procedures used by the police in handling narcotics evidence. Detective Brenner spent considerable time explaining the roles of "runners" and "holders" during a sale of drugs on the street, noting that it was common practice for drug dealers to act in concert, with one person (the runner) acting as an intermediary between the buyer and the seller, "making arrangements for the sale of the drugs," while the actual seller (the holder) held the money, the drugs, or both. The runner, he explained, could be compared to a waiter or waitress in a restaurant, who takes the customer's order and then gives it to another person in the kitchen, who actually prepares the food and puts it on the plate. Brenner also said, in response to a question from the prosecutor, that it was not unusual for runners and holders to stand near each other while conducting their drug-selling business; in that instance, he observed, "the holder hears what the customer wants."

Spencer offered no evidence in his own behalf. Bishop presented an alibi defense and also sought to establish, through the testimony of his girl friend, that he had a legitimate use for the pager.

II

Spencer contends that the evidence was insufficient to support his conviction of aiding and abetting Bishop's distribution of cocaine. The evidence, according to Spencer, did not show that he was a runner for Bishop or that he screened prospective customers. Instead, he says, it "tended to prove that Spencer spoke with Officer Johnson to sell his own drugs but refrained from completing the deal when he recognized Johnson as an undercover police officer."

In considering a challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the government, "giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Byrd v. United States, 388 A.2d 1225, 1229 (D.C.1978) (citations omitted); accord, e.g., Curry v. United States, 520 A.2d 255, 263 (D.C.1987). We recognize no distinction between direct and circumstantial evidence. Franey v. United States, 382 A.2d 1019, 1023 (D.C.1978) (citing cases); see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-138, 99 L.Ed. 150 (1954). The government is not required to negate every reasonable hypothesis of innocence. Irick v. United States, 565 A.2d 26, 30 (D.C.1989) (citing cases). Assessed in light of these long-established standards of review, appellant's sufficiency argument is without merit.

To convict Spencer as an aider and abettor, the government had to prove that the cocaine was distributed by someone (in this instance Bishop), that Spencer in some way assisted, facilitated, or participated in the distribution, and that he did so with guilty knowledge. See, e.g., Blakeney v. United States, 653 A.2d 365, 370 (D.C.1995); Lowman v. United States, 632 A.2d 88, 93 (D.C.1993). There is no dispute that Bishop sold cocaine to Officer Johnson and that Spencer was present during the sale. Spencer contends, however, that he did not assist Bishop, and that there was no evidence to show that he and Bishop were working together or involved in a joint venture. Without such a showing of concerted activity, Spencer maintains that the government's expert testimony "could not satisfy a juror beyond a reasonable doubt that he was screening customers for Bishop."

While it is true that "mere presence at the scene of the crime is insufficient to establish criminal participation, `proof of presence at the scene of a crime plus conduct which designedly encourages or facilitates a crime will support an inference of guilty participation as an aider and abettor.'" Griggs v. United States, 611 A.2d 526, 528 (D.C. 1992) (citations omitted). We are satisfied that the evidence was sufficient to prove that Spencer's conduct amounted to more than mere presence, and that his actions encouraged and facilitated Bishop's sale of cocaine to Officer Johnson.

Officer Johnson testified that Spencer and Bishop were standing alone, conversing with each other, when he called to Spencer, "Do you have any dimes?" After Spencer said yes, Johnson approached them, repeated his question, and was asked by Spencer, "What do you want?" Johnson said he wanted one, and Bishop responded, "Yeah," a fact which strongly suggests that the two were acting in concert. Bishop then walked a short distance, reached into a grassy area, retrieved the cocaine, and sold it to Officer Johnson. After the sale, Spencer said to Bishop, in Johnson's presence, that he recognized Johnson as a police officer because the two of them had met before. Bishop replied that Johnson was not the police.

Officer Johnson's testimony thus demonstrated not just an association between Bishop and Spencer, but a joint involvement in the sale of cocaine; the jury could, at least, infer such an involvement. Spencer's complicity was further established by the expert testimony of Detective Brenner. "From his testimony the jury could readily and reasonably infer that appellant was the runner in this particular drug-selling operation." Thompson v. United States, 678 A.2d 24, 28 (D.C.1996); see Lowman, supra, 632 A.2d at 89-90; Griggs, supra, 611 A.2d at 528; Stevenson v. United States, 608 A.2d 732, 733 (D.C.1992); Green v. United States, 608 A.2d 156, 158 (D.C.1992). Spencer now offers a different interpretation of the conversation among Johnson, Bishop, and himself, namely, that he and Bishop were independent drug dealers seeking to...