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February 23, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Warren R. King, Trial Judge

Before Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Darnell Mack appeals from his convictions of possession of P.C.P. and marijuana with intent to distribute them (PWID) in violation of D.C. Code § 33-541 (a) (1988 Repl.). He contends primarily *fn1 that he was denied a fair trial because prejudicial hearsay and opinion testimony were brought to the attention of the jury. Mack asserts that the trial Judge committed plain error in failing to prevent the reception of the damaging evidence. He also claims that his court-appointed counsel failed to object to most of the prejudicial material, and that he was thereby denied the effective assistance of counsel in violation of the Sixth Amendment. We find no plain error but, discerning substantial potential merit in Mack's ineffective assistance claim, we remand for further proceedings.



A. The Prosecution Case

Mack, his mother, Frances Mack, and his sister, Karen Mack, were jointly indicted for possessing PCP and marijuana with intent to distribute. The charges stemmed from the execution of a search warrant at the house in southeast Washington in which all three defendants lived. The government's evidence, if credited, tended to show that the residence was used for the distribution of PCP and marijuana on quite a substantial scale.

On February 17, 1983, at approximately 7:30 p.m., officers of the Metropolitan Police Department (MPD) executed a search warrant at 1112 2nd Street in southeast Washington. Officer Byron R. Wallace, the principal prosecution witness, had provided the information contained in the affidavit in support of the warrant, *fn2 and had obtained a Judge's signature on the warrant. Wallace testified that the officers knocked on the front door and announced their authority and purpose. Upon hearing activity in the house which sounded like running, they used a battering ram to force open the door. As he entered the house, Officer James R. Eisenhauer saw some people run from the living room into the kitchen and leave the house through the back door. Other officers stationed at the rear of the house promptly apprehended the fleeing individuals, who turned out to include Mack and his mother.

Officer Wallace testified that inside the apartment, there was a strong chemical odor which he associated with PCP. In the kitchen, the police recovered the following items: (1) a gallon jar of PCP, located in the refrigerator; (2) a pound of marijuana, located on a kitchen table; (3) a gas mask, found on a dresser in the kitchen; (4) a scale, found on a kitchen table; and (5) some tin foil, some of which had been cut into squares, and coin envelopes, also on a kitchen table. *fn3

Darnell Mack and his mother were advised of their constitutional rights, but neither made a statement. Each was then arrested. During a search of Darnell Mack, officers recovered $2,969.00 in cash. Officer Wallace testified that a beeper was also recovered from Darnell Mack. *fn4 Officer Wallace explained that beepers are often used as a means of communication between participants in a drug distribution enterprise.

Karen Mack, Darnell Mack's sister, was in the house when the police arrived, but she and several others were not arrested. *fn5 Several days later, Karen Mack received a grand jury subpoena. Upon her arrival at the courthouse, she was questioned by Officer Wallace. She told him that she had found the drugs and paraphernalia three days before the search, that the drugs were hers, and that the police had arrested the wrong people. A few minutes later, Karen Mack denied in the presence of an Assistant United States Attorney that the drugs belonged to her. Finally, before the grand jury, Ms. Mack reverted to her original account and stated that she was a user and that she intended to smoke all of the marijuana and PCP. She testified that she was the person who had put the drugs in the refrigerator.

Detective Steven S. Finkelberg, a "narcotics expert," testified that the contraband recovered contained usable amounts of PCP and marijuana. He also expressed the opinion that the evidence recovered suggested the existence of a wholesale drug operation. The detective estimated the value of a portion of the drugs as being $4,500.

B. The Defense Case

Darnell Mack did not testify. The defense presented testimony, however, which contradicted the government case in many respects, and which, if credited, supported a defense of innocent presence, both for Mack and for his mother.

The mother, Frances Mack, who worked as a "bus jockey" transporting handicapped children to school, told the jury that on Valentine's Day, February 14, 1983, she noticed a strong odor coming from a blue gym bag in her kitchen. After a conversation with her daughter Karen, *fn6 she told the daughter to remove the contents of the gym bag from the house. A few days later, Mrs. Mack was preparing some tuna in the kitchen, with the television set turned on. A group of men broke down the front door without announcing themselves or initially disclosing who they were. At first, Mrs. Mack thought that the intruders were drug dealers who had come to recover the contents of the bag. Her son, Darnell Mack, pulled her out of the kitchen door. There, several of the men pushed her face down in the mud and pointed a gun at her head. These men subsequently identified themselves as police officers and took her back into the house, where she was formally arrested. Mrs. Mack claimed that at the time of the search, the drugs and paraphernalia were in the gym bag in which they had arrived. She denied that they were spread out in the kitchen, as the officers had claimed. Mrs. Mack asserted that neither she nor any other member of her family was involved in drug trafficking.

Mrs. Mack also testified that the beeper which the police recovered had been in the possession of Darnell's friend George Archie, rather than on Darnell, and that police obtained it when "they tore George's pocket out." She related that Archie had received a call on the beeper prior to the arrival of the police. She noted that the beeper had mud on it when it was shown to her in court.

George Archie testified that he was a close friend of the Mack family, and was visiting at the Mack residence on the evening when the police broke the door down. He ran out with Mrs. Mack, and claimed to have been roughly handled by the police both outside the house and later inside. *fn7 Mr. Archie testified that the beeper allegedly seized from Darnell Mack in fact belonged to him and was taken from him by police. He stated that there was mud on it as a result of his being thrown to the ground with the beeper in his possession. At the Conclusion of his testimony, Mr. Archie asked the Judge if he could have his beeper back; the Judge denied his request. Leland Core, Archie's employer, testified that a beeper similar to the one in evidence was part of Archie's equipment at work. *fn8

The defense also attempted to explain the large amount of cash taken from Darnell Mack at the time of his arrest. Mack's fiancee, Sharon Davis, told the jury that she and Darnell had made plans to rent an apartment together, and that she had recently given him $800 in cash to purchase furniture; she acknowledged, however, that the apartment in question was already furnished. Mack's mother testified that she had lent her son another $500 toward the cost of the apartment. Beyond that, Mrs. Mack testified that her son occasionally worked as a vendor at the D.C. Armory, and that it was not unusual for him to be carrying large amounts of cash.

C. The Prejudicial Testimony

Unfortunately, the legitimately admitted evidence described above was not all that came before the jury. Officer Wallace also provided hearsay testimony to the effect that Darnell Mack was a drug dealer and that the drugs and paraphernalia in the house belonged to him. His trial counsel did little or nothing to prevent this from happening.

The prosecutor initially requested Officer Wallace to explain what a search warrant is and how the police obtained this one. *fn9 She thus elicited testimony that a Judge had received information about activity at the Mack residence which was sufficient to convince him or her that there were unlawful drugs on the premises.

On cross-examination, counsel for Frances Mack took the lead in attacking the witness, but his questioning resulted in the disclosure to the jury of information disastrous to the interests of his client's son. The mother's attorney asked Officer Wallace a somewhat confusing question about the information on which the affidavit in support of the search warrant was based. The officer, however, evidently understood counsel to be inquiring about the identity of the owner of the drugs rather than of the informant. The following exchange ensued:

Q. And you don't know whether it was a man or a woman, do you?

A. I knew what it was.

Q. What was it?

A. From my information, I knew what it was.

Q. What was it?

A. What was it or who was it?

Q. What was it and who ...

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