U.S. v. Simpson, 92-3120

• Decision Date: 21 May 1993
• Docket Number: No. 92-3120,92-3120
• Citation: 992 F.2d 1224,301 U.S. App. D.C. 203
• Parties: , 38 Fed. R. Evid. Serv. 1201 UNITED STATES of America, Appellee, v. Gerald S. SIMPSON, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1224

992 F.2d 1224

301 U.S.App.D.C. 203, 38 Fed. R. Evid. Serv. 1201

UNITED STATES of America, Appellee, v. Gerald S. SIMPSON, Appellant.

No. 92-3120.

United States Court of Appeals,District of Columbia Circuit.

Argued April 19, 1993.

Decided May 21, 1993.

On Appeal from the United States District Court for the District of Columbia.

Elaine R. Lubin, Washington, DC, Attorney (appointed by the Court), was on the brief, for appellant.

Peter V. Taylor, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black and Per A. Ramfjord, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before: EDWARDS, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

On October 22, 1991, Gerald S. Simpson ("Simpson") was indicted for possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), possession with intent to distribute within one-thousand feet of a junior high school in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), possession of dilaudid in violation of 21 U.S.C. § 844(a), and possession of marijuana in violation of 21 U.S.C. § 844(a). On February 19, 1992, after the Government dropped the second count, Simpson was convicted on the remaining three counts. He was subsequently sentenced to 120 months incarceration on the first count and to twelve months for each of the possession counts.

Simpson claims that his conviction should be reversed on several grounds. Two of his claims are meritorious. First, we hold that it was plain error for the trial court to allow the Government to elicit testimony regarding Simpson's prior possession of dilaudid. Second, we hold that Simpson was improperly denied compulsory process when the District Court refused to issue a bench warrant for a witness who may have been essential to Simpson's defense. Because of these errors, we vacate the conviction and remand the case for a new trial.

I. BACKGROUND

On September 27, 1991, officer Vernon T. Gudger ("Gudger") interviewed a woman who had been raped earlier that day on the 2100 block of 10th Street, N.W. The victim described two assailants, one of whom was a black male of medium complexion, seventeen to eighteen years of age, stocky, 5'9", wearing black pants and a black jacket with silver buttons, and whom she had seen before in the vicinity of the crime. After enlisting another officer to assist him in the search, Gudger came upon Simpson standing at the corner of 10th and V Streets, within a block of the scene of the crime. Simpson is 5'7" tall and weighs approximately 190 pounds. When he was spotted by Gudger, he was wearing a plain burgundy shirt, black denim jeans, black Reebok tennis shoes, and a black leather jacket. Gudger approached Simpson, told him that he was a suspect in a rape investigation, and began questioning him regarding the crime.

At that point, the officers noticed a man standing in the vicinity who fit the description of the second alleged rapist, so they called him over for questioning. During the encounter, the unidentified second man behaved suspiciously, prompting Gudger to frisk him for weapons. The frisk uncovered a gun, and a struggle ensued between officer Gudger and the second man. Other officers soon arrived on the scene in response to a priority call, and eventually officer Paul Rose ("Rose"), among others, disarmed the unidentified man and brought him under control.

Throughout this episode, Simpson remained standing, as he had been instructed, spread-eagle against a police cruiser. After the altercation with the second man, Rose turned toward Simpson and noticed officer Kenneth Furr standing next to him. Rose asked Furr whether he had frisked Simpson, to which Furr replied that he had not. Concerned that Simpson also might have a weapon, Rose frisked Simpson and found a small open-bladed knife in Simpson's jacket. Rose testified that, as he extracted the knife, a cellophane bag fell out of Simpson's pocket and onto the hood of the police car. Believing the bag to contain crack cocaine, Rose immediately placed Simpson under arrest. After a field test confirmed that the cellophane bag contained cocaine base, the officers conducted a search incident to arrest which yielded a vial of dilaudid pills and a box of marijuana.

At a suppression hearing, Simpson moved to have all of the evidence suppressed as unlawfully seized. The District Court denied the motion and the case went to trial, wherein Simpson testified in his own defense. In response to a direct question from the Assistant United States Attorney ("AUSA"), Simpson admitted that he had carried dilaudid on at least one other occasion. When the AUSA attempted to explore the depth of Simpson's prior experience with dilaudid, Simpson denied knowing much about the drug. The AUSA then asked for and received permission from the court to inquire into Simpson's prior conviction for possession of dilaudid to impeach Simpson's proclaimed lack of knowledge.

On the second day of trial, Simpson requested a bench warrant to secure the presence of an eyewitness who had failed to show up in court pursuant to a subpoena; it was asserted that the eyewitness would testify that he did not see anything fall from Simpson's pocket during his encounter with the police officers. The District Court denied that request and Simpson was convicted of possession with intent to distribute five grams or more of cocaine base, possession of marijuana, and possession of dilaudid.

II. ANALYSIS

A. Simpson's Meritless Claims

1. The Terry Stop

Simpson first contends that the initial investigatory stop was unlawful because Gudger did not have a reasonable articulable suspicion that Simpson was involved in the alleged rape. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). This contention is meritless. Simpson was wearing clothing similar to that described by the victim, was of the same general age group (Simpson was twenty-five years old at the time of arrest), was of the same race and physical build of the alleged rapist, and was in the vicinity of the crime. Generally, a confluence of such factors will be sufficient to justify a Terry stop. See United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir.1992) (stop reasonable where suspect with appearance and clothing similar to perpetrator's found near crime scene), cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171 (1993); United States v. Short, 570 F.2d 1051, 1054 & n. 7 (D.C.Cir.1978) (stop justified where suspect's race, hair style and clothing matched description, and suspect stopped within two blocks of crime scene). Accordingly, it was reasonable for Gudger to temporarily detain Simpson in the course of his investigation.

Furthermore, we find nothing untoward about the scope or duration of the Terry stop in this case. At the suppression hearing, Gudger testified that only ten minutes elapsed between the time of the initial stop and Simpson's arrest. The trial judge credited this officer's testimony and we, as an appellate court, will overturn such a credibility determination only if it appears to be clearly erroneous. See United States v. Williams, 951 F.2d 1287, 1289 (D.C.Cir.1991). Simpson can point to nothing in the record that would call into question the trial judge's credibility finding in this case. Thus, assuming that the Terry portion of the stop lasted only for about ten minutes, the duration of the investigatory stop appears to have been well within the range that we have found reasonable. See, e.g., United States v. Nurse, 916 F.2d 20, 24-25 (D.C.Cir.1990) (twenty to thirty minute detention for canine sniff found to be "minimally intrusive" when investigation is conducted diligently); United States v. Tavolacci, 895 F.2d 1423, 1427 (D.C.Cir.1990) (fifteen minutes for canine sniff reasonable).

It is also noteworthy that there is nothing in the record indicating that the officers were in any way dilatory in their investigation. See United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985) (to assess whether a detention is too long, Court considered whether police acted diligently). Simpson was detained for approximately ten minutes preceding his arrest, during which time a second man was stopped, frisked, found to be armed, wrestled to the ground by several officers, and disarmed. Since it was not unreasonable for the officers to detain Simpson during this altercation, most of the time that Simpson was detained prior to his arrest was chargeable to reasonable safety precautions rather than dilatory investigation. Thus, the trial judge's conclusions regarding the propriety of the Terry stop were not in error.

2. The Frisk

Simpson next argues that, even if the stop was reasonable and not excessive in duration, he did not pose a sufficient threat to justify Rose's decision to frisk him. Under Terry, an officer may frisk a detainee when "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27, 88 S.Ct. at 1883; see also United States v. Mitchell, 951 F.2d 1291, 1295 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1976, 118 L.Ed.2d 576 (1992). Once an officer has decided to frisk a suspect, the scope of the search must be limited "to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Under the circumstances as they were understood by Rose at the time of the incident, we cannot fault the officer's frisk of Simpson.

Rose arrived on the scene in response to a call for assistance from officers confronting a suspect with a gun. After assisting other officers in subduing the gunman, ...