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08/22/90 THEODORE WARE v. UNITED STATES

August 22, 1990

THEODORE WARE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Michael Lee Rankin, Trial Judge

Newman, Belson and Steadman, Associate Judges. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Associate Judge Newman.

The opinion of the court was delivered by: Steadman

Appellant was convicted by a jury of unlawful distribution of Dilaudid and unlawful possession with intent to distribute Dilaudid in violation of D.C. Cede 33-541(a)(1) (1988). Appellant's principal contention is that the trial court erred in permitting the government to impeach him with evidence inadmissible in the government's case-in-chief because it was obtained in violation of the fourth amendment. We affirm. *fn1

I

A

Appellant was arrested after a drug transaction. The incident began when appellant's accomplice, Christopher Beckwith, approached an undercover police officer, the passenger in an unmarked police vehicle. Beckwith asked the officer, "How many do you want?" "One," the officer replied. Beckwith walked twenty or 'thirty feet to where appellant was standing, and the two talked for ten to fifteen seconds. At that point, the officer saw appellant put something into Beckwith's hand; Beckwith then returned to the undercover agent, opened the same hand, and displayed a tablet later identified to be Dilaudid. In exchange for the tablet, the officer gave Beckwith $40.00 in prerecorded currency. Beckwith then walked away.

As the undercover officer's vehicle pulled away from the curb, appellant and his accomplice were seized by other officers. The undercover officer had not yet left the vicinity when appellant was stopped; he observed appellant's seizure and immediately radioed a positive identification to the arrest team. Appellant was then formally placed under arrest and searched. Only about ten seconds elapsed between the time of the transaction and the time when appellant was stopped. Throughout the entire transaction, appellant was under observation not only by the undercover officer but also by two other member's of the arrest team who testified at trial. Police recovered just over $100.00 in currency from appellant; the serial numbers of bills totaling $30.00 matched those of the prerecorded bills used in the transaction. *fn2 During a more though search at the police station, police recovered from appellant's underwear a small ziplock bag containing three pills later identified as Dilaudid.

The police officers who participated in appellant's arrest seized from appellant the key to a rental car. They located the car and, in an assumed violation of the fourth amendment, *fn3 opened the door and searched the car's interior. During this search, the police recovered seventeen yellow Dilaudid pills like the one sold to the undercover officer. *fn4

B

In the defense case, appellant took the stand and, on direct examination, denied any involvement in the transaction leading to his encounter with Beckwith. He testified that at the time of his arrest, he had just departed from the home of the mother of a friend of his and was on his way to the nearby spot where he had parked his car. While walking, he encountered a woman he knew from the neighborhood; the two continued walking together. Soon after, they were joined by a man, later identified as Beckwith, who sought to strike up a conversation with the woman. Appellant testified that he did not know Beckwith, did not talk with him, and did not hand him any drugs or anything else.

During his direct examination testimony, appellant testified that he was "positive" that he did not have any drugs with him at the time of his encounter with Beckwith. He also denied that he had any drugs on his person when searched at the station, asserting that a police officer picked the bag containing three Dilaudid tablets off the floor. Appellant sought to characterize as implausible the government's allegation that a Dilaudid sale had taken place between strangers in the open. Based own a "knowledge of how drugs are sold on the streets" he had acquired through "seeing a lot of arrests and things of that nature," appellant testified that the government's evidence wad not consisted with drug sales he had seen. "People on the street are a little more discrete than the way they blowed it up to be." At the Conclusion of his direct testimony, appellant issued a broad assertion of innocence, denying that he sold or was "involved in the sale of any drugs with anybody else on that day." *fn5

On cross-examination, the prosecutor sought permission to cross-examine appellant about the presence in his car of the seventeen Dilaudid tablets. The trial court decided to permit that line of cross-examination in light of appellant's denial of defense counsel's "broad questions whether he had any drugs on him." When asked if his car had seventeen Dilaudid tablets in it at the time of his arrest, appellant responded that it did not. Appellant's subsequent cross-examination statements also expanded on his direct testimony about his source of knowledge of drug transactions; he testified that he knew of drug trafficking only through "observations" and "conversation," denied that any such knowledge stemmed from his own experience in dealing drugs, and categorically denied that he had ever sold drugs in the District of Columbia. Additionally, appellant professed unfamiliarity with the drug Dilaudid; when asked whether he had ever seen a Dilaudid pill before, he replied, "I wouldn't know if I saw Dilaudid pills or not. I didn't know the name. I never heard of no Dilaudid up till this case."

In rebuttal, the government offered the testimony of the police officer who searched appellant's car; he testified about his discovery of seventeen Dilaudid pills in appellant's car. The Dilaudid pills ...


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