August 31, 1990
RONALD BYRD, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; Hon. John H. Suda, Trial Judge
Rogers, Chief Judge, and Newman and Steadman, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant Ronald Byrd was convicted by a jury of possession of narcotics paraphernalia under D.C. Code § 33-550 (1981), *fn1 and on appeal he contends that the trial Judge erred in denying his motion to suppress. D.C. Code § 33-550 requires intent to use a controlled substance by "subcutaneous injection," *fn2 and has been invoked only where there is possession of a hypodermic needle or syringe. See United States v. Covington, 459 A.2d 1067 (D.C. 1983). Here the government proved only that appellant had a smoking pipe. Consequently, the court, sua sponte, directed the parties to address whether appellant was charged under the correct statute. *fn3 See Clemons v. United States, 400 A.2d 1048, 1051 (D.C. 1979) ("Courts generally . . . dismiss challenges based on technical inaccuracies or omissions, if the indictment adequately informs the defendant of pending charges."). In response, the government concedes that appellant was erroneously charged under § 33-550, but maintains that this error should have no effect on the Disposition of this appeal. Under Super. Ct. Crim. R. 7 (e) (1989), the information could have been amended "at any time before verdict or finding if no additional or different offense is charged," to charge appellant under D.C. Code § 33-603 (a). *fn4 Further, the record of appellant's defense, that he did not "knowingly" possess the drug pipe makes clear, according to the government, that appellant understood that he was charged with possession of drug paraphernalia. Finally, the jury instructions required the jury to find facts that satisfied the elements of § 33-603 (a). Appellant's response is that the essential elements of the two offenses are different and that he had no notice of the charges against him. We conclude that the variance between allegation and proof was not fatal, and accordingly, we affirm.
An indictment, or other charging instrument, serves three vital constitutional functions. First, it insures that the accused is apprised of the charges so as to be able to adequately prepare a defense. Second, it describes the crime with sufficient specificity to protect the accused against future jeopardy for the same offense. Gaither v. United States, 134 U.S. App. D.C. 154, 159, 413 F.2d 1061, 1066 (1969); see United States v. Miller, 471 U.S. 130, 135, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985). Third, it "protects against oppressive actions of the prosecutor or a court, who may alter the charge to fit the proof." Scutchings v. United States, 509 A.2d 634, 636 (D.C. 1986) (referring to the Fifth Amendment guarantee regarding indictments (citing Gaither, supra, 134 U.S. App. D.C. at 159, 413 F.2d at 1061).
The information charging appellant with violation of D.C. Code § 33-550 reads:
POSSESSION OF DRUG PARAPHERNALIA -- in that he unlawfully had in his possession a pipe, which contained a quantity of a controlled substance with intent to use said pipe, for the administration of an controlled substance by subcutaneous injection in a human being, in violation of 33 District of Columbia , Section 550.
The docket sheet in the case file identified count A of the information as charging possession of cocaine and count B as charging possession of drug paraphernalia -- a pipe. *fn5 The trial transcript indicates that the government and appellant proceeded on the basis that appellant was charged with illegal possession of drug paraphernalia to wit: a pipe used for ingesting cocaine. Appellant denied that the jacket in which the pipe was found was his, that he had knowledge of the drug paraphernalia, and that he knowingly any drugs or drug paraphernalia. The prosecutor's cross-examination focused on appellant's possession of the drug pipe, which he admitted was found in the jacket that he was wearing, but protested that his fingerprints would not be found on the pipe.
Thus, the information charged appellant with illegal possession of drug paraphernalia that could be administered subcutaneously, under 33-550, while the government proved that appellant possessed a pipe used to ingest drugs into the body, an offense under § 33-603 (a). *fn6 A variance between allegation and proof is not fatal, however, unless the defendant has been deprived of an adequate opportunity to prepare a defense or has been exposed to the risk of being prosecuted for the same two offenses. See Ingram v. United States, 392 A.2d 505, 507 (D.C. 1978); Jackson v. United States, 123 U.S. App. D.C. 276, 280, 359 F.2d 260, 264, cert. denied, 385 U.S. 877, 87 S. Ct. 157, 17 L. Ed. 2d 104 (1966). *fn7 We find no evidence that appellant was harmed by the variance, and he has not suggested that his defense would have changed in any respect.
The instructions required the jury to find all of the elements of § 33-603 (a). *fn8 See note 4, (supra) . Section 33-603 uses the generic term "drug paraphernalia," while the jury instruction referred to the "unlawful" possession of a pipe." This is not a material difference between the statute and instruction as would require the reversal of appellant's conviction. The word "pipes" is included in the statutory definition of "drug paraphernalia" under § 33-602 (3) (L) (i). See Minor v. United States, 475 A.2d 414, 416 (D.C. 1984) (failure to object to the inadequacy of the jury instructions does not mitigate error where effect of instruction was to remove critical issue from jury's consideration). Furthermore, we view the reference in § 33-603 (a) to "inhale, ingest or otherwise introduce into the body," as only a semantic, not substantive difference from reference in the jury instruction "for the administration of a controlled substance, in this case, cocaine." Thus, despite these slight variations, the instructions presented the jury with a correct statement of the law to convict under of D.C. Code 33-603 (a). See Kind v. United States, 529 A.2d 294, 295 (D.C. 1987) (reversible error not to instruct jury on an essential element).
Where there has been, as here, no more than a miscitation of a statute, reversal of a conviction is required only if the defendant is prejudiced. In Price v. United States, 429 A.2d 514, 515 (D.C. 1981), the court held that the defendant was not prejudiced by a miscitation in the information because "he was apprised of the charge against him although it derived from a different statutory provision." Id. (citing Wittenberg v. United States, 366 A.2d 128 (D.C. 1976); Super. Ct. Crim. R. 7 (c)). See Belton et al. v. United States, Nos. 88-446, -573, -773 (circulated to all Judges July 30, 1990) (miscitation to statute in fifth count of indictment not prejudicial because facts stated in that count coupled with reference to another statute gave defendants "clear notice" or charge); Scutchings, supra, 509 A.2d at 639 (indictment not fatally defective where it charged the defendant with violating a repealed statute since the new statute also proscribed the defendant's conduct). Appellant has not suggested that he was prejudiced in any way as a result of the miscitation in the information. The record clearly shows that he was apprised that he was charged with possession of drug paraphernalia. Count B of the information, as shown in the docket sheet, charged possession of drug paraphernalia -- a pipe. See Giles v. United States, supra, 472 A.2d at 884 (no error to disregard words in the fifth count of indictment where the essential and material charging terms appeared in the fourth count and put appellant on notice of crime charged); Price v. United States, supra, 429 A.2d at 515 (no prejudice because appellant apprised of charges against him); Wittenberg v. United States, supra, 366 A.2d at 132 (information mistakenly charged felony embezzlement where proof supported appellant's conviction of misdemeanor embezzlement). See also United States v. Bush, 212 U.S. App. D.C. 117, 659 F.2d 163 (1981) (no prejudice where the indictment listed wrong form numbers); United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970) (technical change in citation of statute). Accordingly, we hold that appellant has failed to demonstrate prejudice necessary for his conviction to be vacated on the basis of the miscitation in the information.
Appellant's claim of error, prior to our sua sponte order, related to the denial of his motion to suppress the drug pipe. Under the totality of circumstances, we hold that the trial Judge could properly find that the police had reasonable grounds to order appellant out of car and to frisk him upon seeing a bulge in appellant's pocket that was thought by the police officer possibly to be a gun. *fn9 Jones v. United States, 544 A.2d 1250, 1251 (D.C. 1988); see Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1967) (per curiam) (driver of car); Marbury v. United States, 540 A.2d 114, 116 (D.C. 1985). Upon feeling an object that "was round or cylinder-like, and . . . had stems," which the officer thought was a smoking pipe," there was, in view of the drugs and pipe previously found in the car and the drug-mixing test tube noted hanging from appellant's pocket, probable cause for appellant's arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); In re E.G., 482 A.2d 1243, 1246 n.3 (D.C. 1984) ("'ven if the formal arrest was not made until after the search, the search will be upheld so long as there is probable cause for an arrest before the search is begun'" (citation omitted)).