Appeal from the Superior Court of the District of Columbia; Hon. Noel A. Kramer, Trial Judge
Before Newman, Terry, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant Murphy was charged by indictment with one count of distribution of hydromorphone (Dilaudid) *fn1 and one count of possession of hydromorphone (Dilaudid) with intent to distribute it. *fn2 A jury found him guilty of distribution as charged in the first count, and guilty of the lesser included offense of simple possession *fn3 under the second count. Murphy contends on appeal that his convictions should be reversed because evidence of another drug sale was admitted at his trial during the government's case in chief, contrary to the teaching of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and the quarter-century of cases which have followed and applied Drew. We agree that the evidence was erroneously admitted, but we hold that the error was harmless and therefore affirm both convictions.
The government sought to prove that Murphy sold Dilaudid to a woman named Meredith Little, and that shortly thereafter, when Murphy was apprehended with a single Dilaudid pill, he possessed that pill with the specific intent to distribute it. The government's evidence showed that on February 4, 1986, Officer Philip Burton was concealed in an observation post overlooking the intersection of 11th and U Streets, N.W. At about 5:00 p.m. Officer Burton saw a light blue Volvo traveling north on 11th Street. When the car stopped a short distance away, Burton saw that the driver was a woman (Meredith Little) and that appellant Murphy, whom he recognized ("his face was familiar to me"), was in the right front passenger seat. After a short conversation with Little, Murphy removed a pair of fingerless black gloves he was wearing and put his hands together in the area of his waist. He then extended his right hand, with his fingers pinched together as if he were holding something, and placed his fingers into Little's outstretched and cupped palm. Little bent her head over her palm as if inspecting something she had just received, and immediately thereafter she handed money to Murphy. Then Murphy put his gloves back on, got out of the car, and walked down the street as Little drove away. *fn4 Officer Burton immediately broadcast a lookout for Little and her car. Little was soon arrested, and in her car the police discovered a single Dilaudid pill wrapped in a dollar bill, and a syringe. *fn5
About half an hour later Murphy again came into Officer Burton's view. Two men walked up behind Murphy, and the three appeared to converse; then one of the men handed Murphy some money. Officer Burton immediately broadcast Murphy's location and description to an arrest team. When the arrest team arrived in an unmarked cruiser and wearing plain clothes, Murphy started to run. The officers chased him and, after about a block, caught up with him in an automobile repair shop. When one of the officers grabbed him, Murphy and the officer both slipped on a patch of grease and fell to the ground. As he fell, Murphy threw a handful of money to the pavement; the officers recovered it and found that it totaled $75. A subsequent search revealed an additional $151 in cash concealed in one of Murphy's gloves and a single Dilaudid pill in the other glove, enclosed in a partially shattered glass vial.
The government also presented an expert witness, Detective Lawrence Coates of the Metropolitan Police. Detective Coates, largely in response to hypothetical questions, testified that one Dilaudid pill is typically used for two to four injections, that Dilaudid is typically sold around 11th and U Streets, that sellers typically leave the area immediately after a sale to avoid apprehension, that they throw away money in the face of apprehension to avoid being caught with pre-recorded funds, and that they stash their supply of drugs in order to avoid being caught with a large quantity either by the police or by other criminals. Coates was asked detailed hypothetical questions which closely tracked the exchange between Murphy and Little as it had been described by Officer Burton. When asked to characterize a factual scenario duplicating Murphy's behavior, Coates described it as a "classic drug transaction. . . ." *fn6
At this point the government sought the court's permission to introduce evidence that on a prior occasion Murphy had sold a Dilaudid pill to an undercover police officer. The government had filed a notice of its intent to introduce this evidence several months earlier, and immediately before trial the prosecutor informed the court of his continued desire to offer it. The court, however, told both counsel that it would hear further argument on the issue at the Conclusion of the government's case in chief, citing Graves v. United States, 515 A.2d 1136 (D.C. 1986). In Graves we recommended that consideration of the admissibility of other-crimes evidence offered to prove intent be deferred until after the defense presents its case, if any. This procedure ensures that the issue of intent is meaningfully contested, and puts the trial court in the best position possible to weigh the probative value of the evidence against the danger of unfair prejudice. See id. at 1142-1143; see also Thompson v. United States, 546 A.2d 414, 423-424 (D.C. 1988).
When the prosecutor raised the matter again at the Conclusion of the government's case, but before the government formally rested, the court asked defense counsel whether Murphy would be testifying in his own behalf. Counsel replied that he might, but only if the evidence of the prior sale were admitted; "if the court does not allow the evidence in . . . he does not intend to take the stand." In the Discussion that followed, defense counsel argued inter alia that merely putting the government to its proof did not constitute "a challenge to the issue of specific intent," but he declined to state in detail what his defense might be or to tell the court whether he expected to ask for a lesser included offense instruction on simple possession under the count charging possession with intent to distribute (PWID). Faced with counsel's reluctance to reveal his strategy, the court assumed nevertheless--given the state of the evidence--that he would argue that the government had failed to prove specific intent and that Murphy possessed the single Dilaudid pill in the vial only for his personal use, and would request a lesser included offense instruction on simple possession under the PWID count.
Having so prognosticated, the court ruled that the other-crimes evidence could be admitted only on the issue of whether Murphy possessed the single pill with the specific intent to distribute it. The court then allowed the prosecutor to introduce evidence that, three months before his arrest in this case, Murphy had sold a single Dilaudid pill to an undercover officer, Debra Vanadia. This evidence was presented through the testimony of Vanadia herself and through a transcript, read aloud in part to the jury, which contained Murphy's guilty plea to a charge of distributing the drug to Officer Vanadia.
Defense counsel then told the court that Murphy had originally intended "to rely entirely upon the burden which the government assumes in bringing a criminal case to convince a jury beyond a reasonable doubt, and not to testify." Because the other-crimes evidence had been introduced, however, Murphy had decided to testify in order "to rebut . . . the prejudicial effect of that particular information." Murphy took the stand and admitted that he used Dilaudid frequently. He said that on the day of his arrest he had met his friend Little on the street and that she had agreed to give him a ride to work. Before he left her car, Little handed him a piece of paper with her phone number written on it.
After he got out of the car, he said, he bought a pill in a glass vial for his own personal use. A few minutes later he ran into two acquaintances named Tyrone and Eric. Tyrone, who owed him money for some stereo equipment, paid him $75. Then, according to Murphy, the unmarked cruiser carying the arrest team suddenly came toward him as if to run him down, and for that reason he began to run. Murphy also testified that he did not attempt to throw the $75 away, but that he was struggling to break a hold that the police officer had on his neck He explained that he had the additional $151 to pay his mother's rent, and denied both that he sold a pill to Little and that he possessed the other pill with the intent to distribute it.
The other-crimes evidence in this case was admitted only for its relevance to the specific intent element of the PWID charge in the second count of the indictment. The trial court erred in admitting it because, at the time of the court's ruling, Murphy's specific intent was in issue only because of the nature of the charge itself, not because it was genuinely or meaningfully controverted by the defense. Before the introduction of the evidence, defense counsel did nothing to make specific intent a contested issue. He did not make an opening statement until after the evidence was admitted, did not raise the issue of Murphy's specific intent in his cross-examination of any of the government's ...