Alfred O. Reed v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-CF-l426 A LFRED O. R EED, A PPELLANT v. U NITED S TATES, A PPELLEE Appeal from the Superior Court of the District of C olumbia (F-8942-98) (Hon. Frederick H. Weisberg, Trial Judge) (Submitted February 6, 2003 Decided July 3, 2003) John A . Briley, J r., appointed by the cou rt, was on th e brief for app ellant. Roscoe C. Ho ward , Jr., United States Attorney, and John R . Fisher, Mary Patrice Brown, and Brian J. Quarles, Assistant United States Attorneys, were on the brief for appellee. Before TERRY, S CHWELB, and G LICKMAN, Associate Judges. T ERRY, Associate Judge: A fter a jury trial, app ellant was c onvicted of possession of cocaine with intent to distribute it, possession of marijuana, and carrying a dangerous weapon (a knife). On appeal he contends that the evidence 2 was insufficient to support the weapon conviction, that the trial court erred in allowing an exp ert witn ess to tes tify, and that the court shou ld have gra nted his motion for a mistrial b ased on a llegedly improper comments by the prosecutor during closing argument. We affirm. I Two Metrop olitan Police off icers, w hile driv ing on O range S treet, S.E ., arrested appellant at about 10:30 p.m. after they discovered him sitting alone in the driver s seat of a park ed car wit h expired tags. Appellant had an open container of cognac in the car, visib le from w here the officers were standing, and a bag containing marijuana was lying on the console. As he struggled with the officers, appellant told them that he had a d agger, wh ich Officer D ennis Spa lding prom ptly located and rem oved fr om ap pellant s waistb and. After the police restrained appellant, they searched him and discovered in the pocket of his jacket forty-two small plastic bags containing crack cocaine, one large chunk of crack cocaine, eight bags of marijuana, and $266 in cash. Detective Mark Stone testified as an expert witness for the government about the nature of the drug trade. Ten months before trial, the government had notified 3 defense counsel by letter that it was going to call an expert witness. The letter named two poss ible experts, but stated that the identity of the witness would not be known until shortly before trial because of scheduling uncertainties. Nevertheless, the government summarized the substance of the expert testimony and gave detailed background informatio n for the tw o name d experts. S ix month s before trial, appellant filed a motion in limine to exclude the expert testimony, arguing that such testimony was not necessary to explain the drug trade to the jury. At trial, when the prosecutor called Detective Stone, defense counsel reminded the court of the pending motion. He also asserted that the prosecutor had not supplied background information about Detective Stone (who was not one of the two potential witnesses named in the earlier letter) and requested a hearing on Stone s qualifications outside the presence of the jury. In response, the prosecutor turned over a copy of Stone s curriculum vitae, which he had obtained ab out a half-hour earlier when he found out who his expert would be that day . The court denied counsel s motion a nd the request for a hearing . Voir dire proceeded, and the court accepted the expert as qualified, over defense counsel s general objection. In his opening statement, defense counsel had said, You will hear testimony, we expect, that this jacket, in which the proven drugs, they have been 4 analyzed by the D EA La b and w ere found belong to a n individua l by name of Nathaniel Blakeley. At the end of the trial, the prosecutor made the following comments in his closing argument which related back to defense counsel s opening statemen t: And that s the evidence. You have evidence from any other eyew itness w ho wa s there? No, yo u do no t have. * * * * * But we certainly don t have any evidence in this case, although it was promised to you, that you would hear evidence that the drug s belonge d to Nathaniel Blakeley. That the defendant went to see Nathaniel Blakeley at that particular location. * * * * * And did you hear any reason to doubt Detective Stone on that? Any reason whatsoever? In fact, you heard . . . the defense come back after lunch break and say we got nothing really to cross-examine this guy on. In response to these comments, defense counsel moved for a mistrial, arguing that the prosecutor had impermissibly suggested to the jury that the burden of proof had shifted to the defendant and that police officers were entitled to a higher level of credibility. The court denied the motion, stating, I did n t think there was any risk that the jury would take that inference. In addition, th e court note d that it wou ld 5 instruct the jury on the presumption of innocence and the burden of proof. A short time later the court included such instructions in its jury charge. II Appellant contends that the evide nce was insufficient to su pport his conviction of carrying a dangerous weapon. We disagree. D.C. Code § 22-3204 (a) (1996)1 states in part, No person sh all carry within the District of Columb ia either openly or conce aled on or about their [sic] person . . . any deadly or dangerous weapon capable of being so concealed. To obtain a conviction under this statute when the weapon in question is a knife, the government must prove beyond a reasonable doubt (1) that the defendant carried the knife either openly or concealed, (2) that the defendant had the general in tent to do the acts constituting the carrying of the knife, and (3 ) that the purpose of carrying the knife was its use as a dang erous w eapon . Strong v. United States, 581 A.2d 383, 385-386 (D.C. 1990). The government is not required to prove a specific intent to use the knife for an u nlawfu l purpo se. See In re S.P., 465 A.2d 823, 826 (D.C. 198 3); 1 Recodified as D .C. Code § 22-4 504 (a) (2001). 6 Leftwitch v. United States, 251 A.2d 646, 648-649 (D.C. 1969). Rather, because a knife may be lawfully used as a tool or for other utilitarian purposes ( all knives are not per se dangerous weapons ), the test is [whether] the purpose of carrying the object, under the circumstances, is its use as a weapon. Scott v. United States, 243 A.2d 54, 56 (D.C. 1968) (citation omitted). This may be established by proof of the surrounding circumstances, such as the time and place the defend ant was fo und in possession of [the knife] . . . . Id. In the instant case, appellant was sitting alone in a car late at night, in a neighborhood known for d rug activity, with a substantial quantity of drugs in the pocket of his jacket. The knife he was carrying was described at trial as a three-inch dagger, which the jury could reasonably find ha d no uti litarian p urpose . See Scott, 243 A.2d at 56 (jury could find that razor carried by defendant, absent other explanation, could be a dangero us weap on); Leftwitch, 251 A.2d at 646 (large butcher knife carried by defen dant as he walked along the street, trying to open several car doors, could be a dangerous weapon). The fact tha t appellant w as in possession of a knife and a large quantity of drugs at the same time is also significant; as has often been observed, drugs and weapons go together. Peay v. United States, 597 A.2d 1318, 13 21 (D.C . 1991) (en banc) (citation s omitted); see, e.g., Marsh all v. United States, 623 A.2d 551, 555 (D.C. 199 2); United States v. 7 Payne, 256 U .S. App . D.C. 3 58, 361 -362, 805 A.2d 1062, 1065-1066 (1986) (collecting cases). We are satisfied that the jury in this case could reasonably infer from all the eviden ce, viewe d in the light mo st favorable to the gove rnment, th at this particular knife was carried as a weapon. We hold accordingly that the evidence was sufficient to permit the jury to find guilt beyond a reasonable doubt on the dangerous weapon charge. III Appellant s second claim of error is that the government s expert witness was improperly qualified by the court. The gist of appellant s argument is that the government did not completely fulfill its requirements under Rule 16 of the Superior Court Crimina l Rules and that the cou rt erred by no t holding a hearing on the expert s qualifications out of the presence of the jury. We find these contentions unpersuasive. First, the gov ernmen t substantially complied with Rule 162 when it 2 Rule 16 (a )(1)(E) states in relevant pa rt: At the defendant s request, the government shall disclose to the defendant a written summary of the testimony of any expert witness tha t the govern ment inten ds to use du ring its case-in-chief at trial. . . . The summ ary provid ed under this subparagraph shall describe the witnesses opinions, the bases and the reasons for those opinions, and the witnesses (contin ued...) 8 sent defense counsel its discovery letter stating that it was going to present an expert. That letter stated the substance of the expert s testimony and the basis for the opinion that the expert would offer. The only thing lacking until the day of trial was informatio n about the specific qua lifications of the expert, wh o was id entified on the day he was needed in court according to a procedure about which the government had pre viously notified couns el. The cou rt itself noted that most police experts in its experience did not come with a curriculum vitae. In this case, however, defense counsel ha d the expert s curriculum vitae in hand be fore the voir dire of the expert even began. We are satisfied, on this record, that appellant was well-armed for a complete voir dire of the expert s qualifications and for later crossexamination. Second, no hearing outside the jury s presence was required when the cou rt was able to determine the expert s qualifications before he took the stand to testify in front of the jury. See Johnson v. District of C olumbia , 728 A.2d 70, 74-75 (D.C. 1999) ( the court need not hold a factual hearing when an adeq uate found ation is present in the record of the proceedings or an attorney s offer of proof (citation omitted)). There was in this case a complete voir dire o f the expert, and defense 2 (...continued) qualifications. 9 counsel made o nly a gene ral objection to his qualifications. We hold that the trial court acted well within its discretion when it accepted Detective Stone as an expert and allowed him to give an opinion on matters within his expertise.3 IV Appellant s final contention about allegedly improper statements by the prosecutor is also witho ut merit; inde ed, the cases he cites do n ot support h is argume nt. For example, in Brewer v. United States, 559 A .2d 317 (D.C. 1 989), cert. denied, 493 U.S . 1092 (19 90), we h eld that the prosecutor s comment, Nobody who to ok the w itness sta nd can tell you w hy he d id it, was permissible and did not infringe or comme nt on the defendan t s Fifth A mend ment r ight no t to testify . Id. at 322. Likewise, in Tillman v. United States, 487 A.2d 1152 (D.C. 1985), after defense counsel h ad mad e insinuation s in his closing argument about possible police 3 Appellant also argues that the expert testimony did not meet the standard set forth in Kumho Tire Co. v. Carmichael, 526 U .S. 137 (1999 ). As the government points out, Kumho is not the law in this jurisdiction, which uses the general acceptance standard set forth in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). See Bahura v. S.E.W. Investors, 754 A.2d 928 , 943-944 n.15 (D .C. 2000). Likewise, appellant s assertion that street drug activity is within the ken of a jury is contrary to our e stablish ed case law. See, e.g., Hinnant v. United States, 520 A.2d 292, 293 (D.C . 1987) (up holding admission of expert testimony because the use, sale, and packaging of [drugs] on the streets are not matters within the ken of the average lay person ). 10 miscond uct, we found nothing improper in the prosecutor s pointing out in rebuttal that counsel s theory was not supported by any evidence. Id. at 1154 (citations omitted). A prosecutor s argument that the defense did not prove what defense counsel said in his opening statement that he would prove is also permissible . Brewer, 559 A .2d at 323 n.11 ( the prosecutor was entitled to point out that the defense did not live u p to its prom ises ); Boyd v. U nited States, 473 A.2d 828, 833-834 (D.C. 198 4) (prosecu tor permitted to respond, using where is the evidence? arguments, to defense counsel s unproven theories presented in opening statement). The three comments by the prosecutor that appellant challenges were not improper. The first and third are statements of the no evidence type, as in Brewer, Tillman, and Boyd, which say only that there is no evidence to discredit or contradict the government s theory of the case e.g., [Do] you have evidence from any other eyewitness who was there? [D]id you hear any reason to doubt Detective Stone on that? Any reason whatsoever? In fact, you heard . . . the defense . . . say we got nothing really to cross-examine this guy on. These rem arks mer ely highlighted the fact that there w as no evid ence from the defense contradictin g the governm ent s evidence, which the jury had heard; they did not come close to suggesting that the defense had the burde n of pro of. See Allen v. United States, 603 A.2d 1219, 1224- 11 1225 (D.C. 1992) (en banc) (rejecting claim that prosecutor s closing argument which revealed the lack of evidence presented by the defense somehow shifted the burden of proof to the defense (citing cases)). As for the second statement by the prosecutor, But we certainly don't have any evidence in this case, although it was promised to you, that y ou wou ld hear evidence that the drugs belonged to Nathaniel Blake ley, it merely pointed out that the defense d id not prov e what co unsel said he expected to prove in h is opening statemen t. This too w as permis sible under Brewer and Boyd. Finally, as the government points out, the jury was properly instructed on the burden of proof, the presumption of innocence, and the fact that the statements of counsel are not evidence. These instructions further mitigated any potential prejudice. See Allen, 603 A.2d at 1224 ( even if the prosecutor had argued that Allen had the burden of proof . . . one would presume that the jury applied the law as stated by the judge, not the pro secutor ); McCowan v. United States, 458 A.2d 1191, 1197 (D.C. 1983) (reiterating the well-established presum ption that the jury understood and fo llowed [the court s] instructions ). For these reasons, we find no abuse of discretion in the trial court s denial of defense co unsel s m otion for m istrial. 12 V The judg ment of c onviction is a ccordingly Affirmed.
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