William A. Whitley v. United States (See 4/10/02 order revising opinion)
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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 97-CF-1673 and 00-CO-677
WILLIAM A. WHITLEY, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(Hon. Mary Ellen Abrecht, Trial Judge)
(Submitted October 11, 2001
Decided October 25, 2001)
Peter L. Goldman, appointed by this court, filed a brief for appellant.
Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and
John R. Fisher and Bernard J. Delia, Assistant United States Attorneys, filed a brief for
appellee.
Before SCHWELB and WASHINGTON, Associate Judges, and NEBEKER, Senior
Judge.
SCHWELB, Associate Judge: On July 14, 1997, William A. Whitley was convicted by
a jury of possession of cocaine with intent to distribute it (PWID), in violation of D.C. Code
§ 33-541 (a)(1) (1998).1 On the same day, the trial judge found Whitley guilty of unlawful
possession of drug paraphernalia (PDP), in violation of D.C. Code § 33-603 (a) (1998).2 On
September 9, 1999, Whitley filed a motion for a new trial on the grounds that the
prosecution’s narcotics expert, Detective Johnny St. Valentine Brown, Jr., of the
Metropolitan Police Department (MPD), had given perjured testimony at Whitley’s trial
1
This provision has been recodified as D.C. Code § 48-904.01 (a) (2001).
2
This provision has been recodified as D.C. Code § 48-1103 (a) (2001).
2
regarding his (Brown’s) credentials. On April 24, 2000, in a seven-page written order, the
trial judge denied Whitley’s motion without a hearing.
Whitley filed timely appeals from his convictions and from the order denying his
motion for a new trial. These appeals were consolidated by order of this court. Only the
appeal from the order denying Whitley’s post-trial motion merits plenary discussion; we
affirm that order as well as Whitley’s convictions.3
I.
THE TRIAL COURT PROCEEDINGS
A. The evidence.
In her order denying Whitley’s motion for a new trial, the trial judge succinctly
summarized the evidence at the trial. We adopt her synopsis as our own:
The evidence at trial revealed that on April 1, 1997, the
defendant was in the basement bedroom of a crack house on
Lamont Street, NW, cutting and packaging crack cocaine for
distribution when police entered. The police observed two men
engaged in a drug sale in the hallway before they went to the
3
Whitley’s direct appeal was based on his contention that the government’s proof was insufficient
as a matter of law to support his conviction of PWID, as opposed to simple possession. In light of
the prosecution’s evidence, summarized in Part I A, infra, an impartial jury could properly find,
beyond a reasonable doubt, that the cocaine in Whitley’s possession was intended for distribution.
We conclude that Whitley’s claim of evidentiary insufficiency is altogether devoid of merit. See Earle
v. United States, 612 A.2d 1258, 1270 (D.C. 1992); United States v. Glenn, 314 U.S. App. D.C. 202,
207-08, 64 F.3d at 706, 711-12 (1995); United States v. Williams, 344 U.S. App. D.C. 64, 67, 233
F.3d 592, 595 (2000) (Williams II).
3
back bedroom. Initially oblivious to the police presence,
Defendant was using a razor blade to cut pieces of crack cocaine
from a large white rock of crack that was on a plate in front of
him. He had numerous ziplock bags on the plate and bed.
Some bags were already filled with pieces of crack; some were
empty. When Detective Milton Norris, who had observed all
this, identified himself to Defendant as a police officer,
Defendant threw his hands up over his head and acknowledged
that he had been caught red handed. Detective Norris seized the
drugs and the razor and found $113 on Defendant’s person.
The Drug Enforcement Administration Laboratory (DEA)
found that the large rock was 9.4 grams of cocaine base of
which 92 percent was pure cocaine. The DEA found in the
small ziplock bags an additional 1.3 grams of cocaine base of
which 84 percent was pure cocaine and found cocaine residue
on the razor blade.
Detective Johnn[y] St. Valentine Brown qualified to
testify as an expert after discussing his 27 years of law
enforcement experience. He stated that his knowledge of the
drug field was “further enhanced by the fact that I am a board
certified pharmacist. I received, maintained, compound[ed] and
dispensed narcotics substances per prescription.” He was not
asked and did not volunteer any information about his formal
education or degrees. He opined that the small ziplock bags
with small amounts of crack were ready for distribution. He
opined that the large rock could be cut and packaged into 62
$20-rocks for a total street value of $1,240 but would not be
sold on the street in bulk form. He opined that the difference in
strength between the cocaine already bagged and that of the rock
could mean either different batches or crude mixing resulting in
one end of the rock being different than the other.
James McNeil testified for the defense. He was arrested
on April 1, 1997, in the basement of 1032 Lamont Street after
the police saw him throw down a ziplock bag of cocaine exactly
like the bags on Defendant’s plate. He pled guilty to possession
with intent to distribute cocaine. He testified that he had bought
his cocaine elsewhere and that he and Defendant had entered the
basement to use the bathroom after drinking beer. He denied
seeing drugs or drug paraphernalia in the bedroom.
(Citations to transcript omitted.)
4
B. Detective Brown’s false testimony.
Detective Johnny St. Valentine Brown, Jr., also known by his nickname of “Jehru,”
has long been a familiar figure to judges, attorneys and jurors involved in the trials of drug
prosecutions in the District of Columbia. See, e.g., Edward D. Sargent, Flamboyant
Narcotics Expert is Key Witness in Drug Cases, WASHINGTON POST, May 6, 1983, at C1.
At the trial of the present case, Brown claimed that he had “testified on over 4000 occasions
in [an] expert capacity in some 26 jurisdictions throughout the country.” Judge Stanley
Sporkin wrote of Brown in United States v. Jones, 84 F. Supp. 2d 124, 126 (D.D.C. 1999),
as follows:
A police officer for over twenty years, Brown has testified in
numerous cases as a narcotics expert. While most of his
testimony has been on behalf of the government, on a few
occasions he has even testified for the defense. Detective
Brown has been a witness before this Court on numerous
occasions. He is charismatic and his testimony has generally
been well received by juries.
At various times, Brown has claimed to possess a Ph.D and other degrees in pharmacology,
see, e.g., id. at 124, and to be a “Board certified pharmacist.” See, e.g., United States v.
Williams, 77 F. Supp. 2d 109, 111 (D.D.C. 1999) (Williams I), aff’d, Williams II, supra
note 3] In the present case, as noted by the trial judge, supra page 3, Brown testified under
oath that he was a Board-certified pharmacist and that he had dispensed narcotics per
prescription.
In July 1999, two years after Whitley’s convictions in this case, Detective Brown
5
suddenly resigned from the MPD after his truthfulness had been called into question. See
Bill Miller, Accused of Perjury, Police Expert Resigns, WASHINGTON POST, July 23, 1999,
at B1. According to Miller’s article, Detective Brown had testified in a deposition in a civil
suit that he had received a Ph.D degree in pharmacology from Howard University, as well
as a bachelor’s degree and a master’s degree in the same discipline. The article further
reported that the University had searched its records but had been unable to verify Brown’s
claim, and that Brown had resigned from the police force. The report in the Washington Post
precipitated a number of collateral attacks on convictions in cases in which Detective Brown
had testified as an expert for the prosecution. See, e.g., Jones, supra, 84 F. Supp. 2d at 125.
Whitley’s case is the first such collateral attack to reach this court.
Seven weeks after the publication of Miller’s article, Whitley filed a motion for a new
trial, pursuant to Super. Ct. Crim. R. 33 and D.C. Code § 23-110 (2001), on the basis of
newly-discovered evidence. Whitley presented the article to the court as an attachment to
his motion. Whitley relied on evidence, not previously available, that Detective Brown had
lied at trial about his credentials, and he claimed that Brown’s false testimony “played a
fundamental role in persuading the jury of Mr. Whitley’s guilt of PWID as opposed to mere
possession.”
In its response to Whitley’s motion, the government stated that it was still
investigating the claim that Detective Brown had falsely represented his academic
credentials. The government argued, however, that even assuming Detective Brown’s
testimony that he was a board-certified pharmacist to be false, the defendant still was not
entitled to a new trial, inter alia, because, according to the government, Detective Brown’s
6
“formal credentials are a de minimis part of his overall expertise, and . . . being a pharmacist
is irrelevant to knowing how cocaine is distributed on the streets of the District.” (Internal
quotation marks omitted.)
On February 10, 2000, while Whitley’s motion for a new trial was pending,
Detective Brown entered a plea of guilty to eight counts of perjury. As the trial judge
disclosed in her written order, Brown “admitted that he did not have a pharmacology degree
or a license to practice pharmacy. . . . In many cases, although not in this one, [he] has lied
about earning a degree from Howard University.”
C. The trial court’s decision.
The trial judge denied Whitley’s motion. She wrote, in pertinent part, as follows:
First, Detective Brown’s false claim to being a
pharmacist in this case was an irrelevant part of his credentials
as an expert. His extensive street experience as an undercover
narcotics officer and as a narcotics detective qualified him and
made him persuasive as a drug expert in a case involving
cocaine. This case did not involve any opinions about
prescription drugs handled by pharmacists. Thus, even if he had
not lied about being a pharmacist or [if] the falsity of that
credential had been exposed, it is likely that the jury would still
have credited his testimony based on his many years of practical
experience.
Second, the evidence against the defendant in this case
was so overwhelming that there is no reason to believe that the
jurors might have reached a different conclusion even if they
had discounted or not received Detective Brown’s testimony.
The defendant was caught red-handed cutting up a large rock of
crack cocaine with small ziplock bags all around. Defendant
ignores that evidence when he states that he merely had
possession of a small quantity of drugs of a different purity level
7
[from] those being manufactured in the area. Detective Norris
saw the defendant in possession of both the small ziplock bags
and the large rock. Moreover, he saw him using a razor blade
to cut up the large rock. Defendant had money and McNeil, a
drug user, was near him with an individual ziplock bag of
cocaine. The police had observed a drug sale in the hallway.
With this eyewitness testimony, the jury did not need an
expert’s opinion to conclude from that evidence that Defendant,
with empty and full ziplocks at hand, intended to distribute the
cocaine that he was in the process of cutting. [(Footnote
omitted.)]
....
Jurors could rely on common sense and everyday
experiences in distinguishing mere personal use from
distribution. For example, at a bakery, a customer who merely
wants a taste of cake would take a slice already cut for sale. It
is the shopkeeper with the intent to sell pieces of cake, who cuts
slices from the whole cake and wraps them individually. Any
one slice of cake could have more cherries than another if the
batter was crudely mixed. . . . Most importantly, the facts of the
case itself established Defendant’s intent to distribute. No
expert opinion was required. [(Citation omitted.)]
In conclusion, the evidence of Defendant’s intent to
distribute was compelling and not tainted by Detective Brown’s
lies.
II.
LEGAL ANALYSIS
A. The standard of review.
“Absent a clear showing of abuse of discretion, decisions of the trial court regarding
the denial of a new trial will not be disturbed on appeal.” Payne v. United States, 697 A.2d
1229, 1234 (D.C. 1997). The judge who presided over the trial and had the opportunity to
8
develop a “feel” for the case, see, e.g., In re S.G., 581 A.2d 771, 774-75 (D.C. 1990), is in
a superior position to that of an appellate court to discern whether newly discovered evidence
has any appreciable potential for affecting the jury’s verdict. We therefore accord substantial
deference to the trial court’s disposition, especially where, as here, the judge obviously gave
the issue considerable thought and issued a carefully analyzed written decision.
B. Newly discovered evidence.
In Thompson v. United States, 88 U.S. App. D.C. 235, 236, 188 F.2d 652, 653 (1951),
the court adopted a five-prong standard for determining whether a defendant is entitled to a
new trial on the basis of newly discovered evidence:
(1) [T]he evidence must have been discovered since the trial;
(2) the party seeking the new trial must show diligence in the
attempt to procure the newly discovered evidence; (3) the
evidence relied on must not be merely cumulative or
impeaching; (4) it must be material to the issues involved; and
(5) of such nature that in a new trial it would probably produce
an acquittal.[4]
In conformity with M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), this court has applied
verbatim the standard set forth in Thompson. See, e.g., Heard v. United States, 245 A.2d
125, 126 (D.C. 1968) (quoting Thompson); Payne, supra, 697 A.2d at 1234 (quoting Heard).
In Williams II, supra note 3, a case in which, as in this one, the defendant
4
In this case, the parties have focused on whether the fifth Thompson prong applies to these facts
and, if so, whether this prong has been satisfied.
9
unsuccessfully sought reversal of his PWID conviction upon the ground that Detective
Brown had testified falsely regarding his credentials, the United States Court of Appeals
adhered to the standard that it had articulated in Thompson and required the defendant to
show that a new trial would “probably produce an acquittal.” 344 U.S. App. D.C. at 65, 233
F.2d at 593 (emphasis in original). The court noted the decision in Larrison v. United States,
24 F.2d 82 (7th Cir. 1928), in which it was held that where, without the prosecutor’s
knowledge, perjury had occurred at trial, the appropriate inquiry on a motion for a new trial
was whether, without the perjured testimony, the jury “might have reached a different
conclusion.” Id. at 87 (emphasis added). The court disagreed with Larrison’s reasoning,
however, and “join[ed] several other circuits in rejecting Larrison.” Williams II, 344 U.S.
App. D.C. at 66, 233 F.2d at 594 (citations omitted). The court opined that “the [Larrison]
test, if literally applied, should require reversal in cases of perjury with respect to even minor
matters.” Id. (quoting United States v. Stofsky, 527 F.2d 237, 245-46 (2d Cir. 1975)).5 That,
in the court’s view, was “reason enough to reject Larrison.” Id. The court went on to
explain in Williams II that
[t]he difference between Larrison and Thompson is not just in
the use of “might” versus “probably.” Thompson looks ahead
and evaluates the outcome of a new trial; Larrison looks back
and evaluates the impact of the perjury on the jury in the
original trial.
5
This interpretation of Larrison by the court in Williams is not the only possible reading of that
decision. The italicized words “might have” could fairly be construed as meaning “might reasonably
have.”
10
344 U.S. App. D.C. at 66, 233 F.2d at 594.6 We agree with the court in Williams II that
motions such as Whitley’s should be decided on the basis of the probable outcome of a new
trial, and, like that court, we apply the Thompson-Heard standard to the record before us.
C. The judge’s exercise of discretion.
Applying the foregoing principles, we conclude that the trial judge did not abuse her
broad discretion in denying Whitley’s motion for a new trial. As the judge demonstrated in
her order denying the motion, see pages 6-7, supra, the evidence against Whitley was
overwhelming, both as to his undisputed possession of the cocaine and as to his intent to
distribute the unlawful drug. Indeed, Whitley admitted to the police at the scene that he was
“caught red-handed.” Whitley’s attorney argues on appeal that, when Whitley used this
phrase in talking to Detective Norris, he meant only that he had been caught in possession
of the cocaine. According to counsel, Whitley did not intend to admit that the cocaine was
intended for distribution. In fact, however, Whitley was apprehended cutting slices from a
rock of crack so that the contraband could be placed in nearby ziplock containers for
distribution. The meaning of what was going on was evidently obvious both to the defendant
and to the officers: Cocaine was being prepared for sale. At the very least, an impartial jury
could reasonably so find; indeed, it is difficult to imagine how rational triers of fact could
have reached any other conclusion. Moreover, as the trial judge noted, the subject matter
6
In some circumstances, different from those here presented, the “look forward” approach is not
applicable. Where, e.g., the prosecution has failed to provide the defense with exculpatory evidence
in the government’s possession, in violation of Brady v. Maryland, 373 U.S. 83 (1963), the court
looks back to determine whether “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley,
514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In the
present case, the prosecution had no information at the time of trial that part of Detective Brown’s
testimony was false, and Brady principles have no application.
11
regarding which Detective Brown lied – whether he was a licensed pharmacist – was
irrelevant to the issues before the jury.7
Under the Thompson standard as applied by our federal appellate colleagues in
Williams II, we look forward rather than backward in determining whether Whitley is
entitled to a new trial. In other words, we ask whether there is a reasonable probability that
the outcome of a new trial would be different from the result in the first trial. The answer
to that question must surely be “No!” To adapt the language of Williams II, 344 U.S. App.
D.C. at 67, 233 F.3d at 595, to the record before us, “[i]f [Whitley] were retried, the
government would have at its disposal any number of experts who could testify that the
amount of [cocaine] in his possession [and the circumstances in which Whitley possessed
the cocaine] w[ere] inconsistent with personal use.” It is therefore probable that a new trial
for Whitley would largely be a replay of the first, except that the prosecution expert
presumably would not perjure himself or herself, even on a largely irrelevant aspect of the
witness’ credentials. Here, as in Williams II, “it is most unlikely that a jury would acquit
[Whitley of PWID] in a new trial.” Id. Accord, Doepel v. United States, 434 A.2d 449, 46061 (D.C.), cert. denied, 454 U.S. 1037 (1981) (affirming a ruling by the trial judge that the
defendant was not entitled to a new trial, notwithstanding the discovery after trial that an FBI
serologist had lied about his academic credentials and had engaged in other deceptive
conduct; the court held that the verdict could properly be sustained on the basis of the
independent evidence corroborating the expert’s substantive testimony); Williams I, supra,
77 F. Supp. 2d at 114 (summarizing and applying the holding of Doepel); cf. Oxendine v.
7
We note, on the other hand, that if Detective Brown was prepared to commit perjury on this
subject, an impartial trier of fact might reasonably be less inclined to believe other parts of his
testimony.
12
Merrell Dow Pharms., Inc., 563 A.2d 330, 335-38 (D.C. 1989), cert. denied, 483 U.S. 1074
(1990) (reversing, as an abuse of discretion, a trial court order that had granted a defendant
in a civil case a new trial because an expert witness for the plaintiff had misrepresented his
academic credentials).
III.
CONCLUSION
For the foregoing reasons, Whitley’s convictions and the order denying Whitley’s
motion for a new trial are
Affirmed.
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