Thomas v. US

• Decision Date: 30 December 1992
• Docket Number: No. 91-CF-113.,91-CF-113.
• Citation: 619 A.2d 20
• Parties: Sean A. THOMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

619 A.2d 20

Sean A. THOMAS, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-113.

District of Columbia Court of Appeals.

Argued May 18, 1992.

Decided December 30, 1992.

Barry Coburn, Washington, DC, for appellant.

Peggy Kuo, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and Leslie Ann Wise, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FERREN, FARRELL, and SULLIVAN, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of distributing cocaine. D.C.Code § 33-541(a)(1) (1988 Repl.). Appellant's primary contentions are that: (1) the evidence was insufficient to prove "usable amount"; (2) the trial court erred by failing to instruct the jury properly on "usable amount"; and (3) the prosecutor's misconduct in closing argument denied appellant a fair trial. We conclude that several of the prosecutor's comments and actions during rebuttal argument were unprofessional and, in some instances, clearly improper. But given the strength of the government's case and the trial court's corrective actions, we find no reversible error. We also conclude that some of the government drug expert's testimony was improper because it inappropriately defined for the jury an essential element of the crime of distribution ("usable amount"). Because there was no objection, however, we review for plain error and find none. We therefore affirm.¹

I.

The government's evidence showed a typical corner drug buy and bust. On the evening of October 3, 1989, Officer Rene Dessin, working undercover, was walking down Ninth Street, N.W., when appellant inquired whether he was "looking." The officer replied, "Yes, for twenty," meaning a twenty dollar rock of crack cocaine. Appellant held out two rocks. Officer Dessin selected one and then gave appellant twenty dollars in prerecorded funds. After returning to his car, the officer radioed a lookout description of appellant, and an arrest team moved in and arrested appellant, who had the prerecorded funds, but no cocaine, in his possession. Appellant did not testify but presented a defense of mistaken identification, supported by the testimony of three witnesses.

II.

Appellant contends that the prosecutor's rebuttal argument constituted misconduct requiring reversal. At the beginning of his rebuttal, the prosecutor stated:

Well, the Government submits to you after what you just heard the defense's closing argument this place is worse than a waiting room the trial judge had earlier asked the jurors to conduct themselves appropriately because the courtroom was not a "waiting room", this place is like one of the restrooms they haven't cleaned out in about a year, after what you just heard in the courtroom today. If you want to send a message, ladies and gentlemen, send a message to this guy right here—

At that point defense counsel objected, and the trial court admonished the prosecutor to "stay away from the defendant in that manner."

The prosecutor continued:

Send a message to him, don't sell drugs; you are guilty of selling drugs. And we told you what the core of this case was, ladies and gentlemen, the core of this case, in less than five minutes an undercover transaction, that transaction took place between Officer Dessin and this young person over there—young person, maybe the Government is giving him too much credit—

When defense counsel raised another objection, the court ordered the prosecutor up to the bench, where the court strongly admonished the prosecutor again. Apparently the prosecutor had approached appellant and had emphasized one of his points by slapping down a piece of paper on the table, because the court warned the prosecutor to control himself, to stay away from appellant, and to refrain from "slapping paper down in front of the defendant's face" and "impugning his character."

The prosecutor then apologized to the jury but a few minutes later argued:

Now the defense has talked about sending a message, send a message, send a message to the Government, send a message to the police that we are not going to stand for this anymore. Well, again, as we talked about earlier, the person we have to send a message to is Mr. Thomas. We are not going to stand for his kind of activities anymore .... The message you send to the community is not let a guilty person go for whatever reason you did not like the body language of Officer Dessin.

Defense counsel did not raise any further objections.

Following the government's rebuttal, the trial court began its charge to the jury with a lengthy instruction² cautioning the jurors to rely in their deliberations on the evidence in the case and the court's instructions, not on the lawyers' opinions and conduct. Defense counsel did not ask for additional instructions, did not object to the charge as given, and did not move for a mistrial.

We agree with appellant that several of the prosecutor's actions and comments were improper. The prosecutor's unsanitary allegory comparing the courtroom (after appellant's closing argument) to a filthy restroom was at best unprofessional, as were his actions in approaching appellant and slapping down a piece of paper in front of him.³ Furthermore, this court has repeatedly condemned prosecutorial requests that the jurors "send a message" either to the defendant or to the community. See Coreas v. United States, 565 A.2d 594, 604-05 (D.C.1989); Powell v. United States, 455 A.2d 405, 410 (D.C. 1982); Dyson v. United States, 450 A.2d 432, 438 (D.C.1982); Reed v. United States, 403 A.2d 725, 730 (D.C.1979). Although we agree with the government that, seen in context, the prosecutor's exhortations to "send a message" were in response to some of defense counsel's statements during closing argument,⁴ the prosecutor's rebuttal went well beyond the scope of what was proper.

Rather than responding to defense counsel's attack on the government's actions, evidence, and witnesses, the prosecutor made a general appeal to the jury to take a stand against illegal drug activities. See Irick v. United States, 565 A.2d 26, 36 (D.C.1989) ("The key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo."); Powell, 455 A.2d at 409 n. 4 ("`The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law....'" (quoting ABA Standards for Criminal Justice Relating to the Prosecution Function, 3-5.8(d))). Such an appeal was clearly improper. As we said in Powell: "The function of the jury is to determine the facts based on evidence presented. The jurors are not empaneled to send messages on behalf of their community." 455 A.2d at 410; accord Coreas, 565 A.2d at 605.

Our law, however, requires more than a finding of misconduct to warrant a reversal. "If misconduct has occurred, then, viewing the comments in context, we must consider the gravity of the misconduct, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case." Irick, 565 A.2d at 32. During the prosecutor's rebuttal, the trial judge took swift and stern corrective action each time defense counsel objected. In addition, he began his instructions to the jury by reminding jurors to decide the case based on their view of the facts, rather than the lawyers' opinions. Although the prosecutor's misconduct in this case was grievous, much of what he said in rebuttal was "the sort of irrelevant rhetoric that the jury likely had the good sense to disregard." Dyson, 450 A.2d at 438.

In light of the trial court's corrective actions and the government's strong evidence of appellant's guilt (including the recovery of the prerecorded funds from his possession), we conclude that "we can say with fair assurance, after pondering all that has happened without stripping the erroneous action from the whole that the judgment was not substantially swayed" by the prosecutor's actions and comments. Mathis v. United States, 513 A.2d 1344, 1348 (D.C.1986) (quotations omitted); see Dyson, 450 A.2d at 439; Reed, 403 A.2d at 731. The prosecutor's misconduct was not prejudicial enough to warrant reversal.

III.

To prove appellant distributed cocaine in violation of D.C.Code § 33-541(a)(1), the government, in accordance with its theory in this case, was required to prove that appellant had sold a "usable" quantity of drugs to Officer Dessin. Edelin v. United States, 227 A.2d 395, 398-99 (D.C.1967). To meet its evidentiary burden, the government had to demonstrate that the substance appellant sold "was marketable and of sufficient quality to be of some utility to a user." Gray v. United States, 600 A.2d 367, 369 (D.C.1991). This burden is not onerous: "`The fact that a drug is measurable—i.e., capable of quantitative analysis—will usually suffice to prove it is usable.'" Judge v. United States, 599 A.2d 417, 419-20 (D.C.1991) (quoting Wishop v. United States, 531 A.2d 1005, 1008 (D.C. 1987)).

In previous cases, this court has found the government's case sufficient, with respect to its burden of proving usable amount, when the government has introduced the following evidence: (1) the total weight of the substance the defendant distributed, (2) the percentage of the total weight consisting of the active drug ingredient, and (3) expert testimony that, based on the total weight and the percentage of active ingredient, the defendant distributed a usable amount. See, e.g., Judge, 599 A.2d at 419-20; Davis v. United States, 590 A.2d 1036, 1038 (D.C.1991).⁵ Such evidence is required only to ensure that the defendant distributed more than a "trace amount." "A trace amount is insufficient to convict whenever it cannot produce a narcotic effect in any form." Singley v. United States, 533 A.2d 245, 248 (D.C. ...