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12/14/90 SABRINA A. DUPREE v. UNITED STATES

December 14, 1990

SABRINA A. DUPREE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E.C. Queen, Trial Judge

Belson, Schwelb, and Wagner, Associate Judges. Opinion for the court by Associate Judge Belson. Concurring opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Belson

Sabrina Dupree appeals from the imposition of a mandatory-minimum sentence of imprisonment of not less than four years and no more than twelve years pursuant to D.C. Code § 33-541 (c)(1)(A) (1988) after she entered a plea of guilty to distribution of dilaudid in violation of the D.C. Uniform Controlled Substances Act, D.C. Code § 33-541 (a)(1). At the sentencing hearing, the trial Judge found that Dupree was not an "addict" and concluded that for that reason Dupree failed to qualify for the addict exception to the statutory requirement of a mandatory-minimum sentence. *fn1 Dupree contends that the trial Judge erred in finding that she was not an addict. We agree, and therefore reverse and remand for further proceedings.

I.

At the sentencing hearing, Dupree testified in her own behalf about her addiction to marijuana, cocaine, and heroin. She testified that she had used marijuana daily for the past fifteen years and that she had used cocaine and heroin for the past ten years. Dupree stated that her habit cost her approximately $200 per day, that she could not stop using drugs, and that she needed help with the problem. She also testified that she had worked at the Veterans Hospital as a ward secretary for the eight years preceding her arrest, receiving a $450 biweekly paycheck. *fn2 For the past two years, Dupree testified, she had been selling drugs solely to support her drug habit. As further evidence of her addiction, Dupree rolled up her sleeves so the trial Judge could see the needle marks in her arms caused by the intravenous use of heroin. Dupree also testified that she had been in an outpatient drug treatment program but had left when she started "hanging in the streets again, got with the wrong crowd again and . . . started using drugs again."

Dupree's counsel called one other witness to support Dupree's testimony that she was an addict, a court liaison officer for the D.C. Pretrial Service Agency Adult Drug Unit. The witness testified, with reference to Dupree's drug record kept by the agency, that Dupree had tested positive for drugs six out of eight times over a period of approximately a year and a half. On all six occasions, Dupree had tested positive for cocaine. On two of those occasions, she also had tested positive for phencyclidine (PCP) and, on another occasion, she also had tested positive for opiates. The government offered no evidence to rebut the evidence that Dupree was an addict.

At that point in the proceedings, the trial Judge made her findings upon the evidence presented by the defense to support the contention that Dupree was an addict. The Judge pointed out that Dupree's use of drugs had not "in any way impaired her ability" to function in society, noting the fact that Dupree held a job "which required meticulous control of records in a hospital where the health and safety of the patients are at risk if she is not performing." Dupree's counsel attempted, without success, to persuade the trial Judge that the use of drugs had impaired Dupree's ability by pointing to the fact that, as the presentence investigation report showed, Dupree had lost that very job due to absenteeism and other problems. The trial Judge also noted that no evidence was presented of illness as the result of withdrawal, or other evidence of withdrawal patterns, and that there was no showing of a dependency pattern or anything else indicative of an addictive personality. Assuming, apparently, that all the evidence proffered by Dupree was true, the trial Judge then ruled that Dupree was not an addict for purposes of the addict exception, and thus not eligible for sentencing pursuant to the exception. Somewhat inconsistently, the trial Judge determined that Dupree, nevertheless, needed drug treatment as evidenced by the Judge's recommendation that Dupree receive drug treatment during incarceration, followed by a period of probation with drug treatment.

II.

To qualify for the addict exception, the defendant must notify the trial Judge that she seeks to be sentenced under the addict exception and she must prove her eligibility to be so sentenced. Grant v. United States, 509 A.2d 1147, 1154 (D.C. 1986). There is no question that defense counsel in this case satisfied the first of these requirements by notifying the trial Judge at the plea proceeding that Dupree would seek to be sentenced under the addict exception. The focus of our inquiry will be on the trial Judge's determination that Dupree was not eligible for the exception.

To prove eligibility, the defendant must proffer evidence "that she has no disqualifying convictions, she was an 'addict'. . . at the time of the offense, and addiction was the primary purpose for the commission of offense." Id. The proffer should contain "information about the nature of the defendant's addiction and its relationship to offense," and not just consist of mere conclusory statements. Id. However, the defendant's burden of proof cannot be "insurmountable or tantamount to repeal of the addict exception." Id. at 1156. In order to establish that she is an addict, the defendant must bring herself within the applicable definition of addict which is set forth in D.C. Code § 33-501 (24) (1988) as follows:

Any individual who habitually uses any narcotic or abusive drug so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such narcotic drug or abusive drug as to have lost the power of self-control with reference to his addiction.

III.

In this case, the trial Judge seems to have focused on the latter portion of the foregoing definition, as is illustrated by her finding that Dupree had not demonstrated withdrawal symptoms, or an "impaired ability" to maintain employment. To limit the definition of addict to those who demonstrate a physical addiction would be to misconstrue the statutory definition as well as prior cases applying the addict exception. In Grant, we observed that the Controlled Substances Act does not prescribe standards for finding whether the defendant is an addict or whether commission of the offense of manufacturing or distributing narcotics was for the primary purpose of supporting the defendant's drug addiction. 509 A.2d at 1151. We found guidance in the provisions of the Federal Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. §§ 4251 et seq. (1982), repealed by Pub. L. No. 98-473, 98 Stat. 2027, 2031 (1984), and in judicial interpretation of those provisions. Adopting the NARA standards, we indicated that the addict requirement would be satisfied if the defendant shows habitual use of narcotic drugs, even if she cannot prove physical addiction. Grant, supra, 509 A.2d at 1152-53. As an example, we cited Wheeler v. United States, 276 A.2d 722 (D.C. 1971) (involving the Dangerous Drug Control Act which, as we noted in Grant, supra, 509 A.2d at 1152 n.8, is similar to NARA), in which the defendant, who used heroin regularly three to four times daily, satisfied the addict requirement even though he "had not stolen money to obtain narcotics and had not suffered any serious withdrawal symptoms when he was committed to a hospital after his arrest." Grant, supra, 509 A.2d at 1153 (quoting Wheeler, supra, 276 A.2d at 724-25). We stressed in Grant, however, that the defendant's burden of proof that she is an addict is greater under the addict exception than under the Dangerous Drug Control Act or NARA because of the differing purposes of the acts, emphasizing that the addict exception was not intended "as a loophole for drug users who are also sellers." Grant, supra, 509 A.2d at 1153. *fn3 To meet her burden of proof, the defendant must relate her habitual use of drugs to the endangerment of the public or to the loss of self-control with reference to her addiction. See D.C. Code § 33-501 (24); cf Wheeler, supra, 276 A.2d at 725. With this in mind, we review the trial Judge's finding that Dupree failed to meet the definition of an addict.

Dupree's unrebutted testimony that she had a ten year history of use of marijuana, heroin, and cocaine, an expensive habit that far exceeded her disposable income, and that she had failed in a drug treatment program, provides strong support for her claim of addiction. The trial Judge gave no indication that she did not credit Dupree's testimony. To the contrary, she stated that she would deal with the record as the defense put it before her. *fn4 The fact that Dupree tested negative two out of eight times for narcotics does not prove that she was not an addict, especially when one considers that those tests were apparently administered while she was under court order to avoid the use of narcotics. We are not in agreement with the trial Judge's suggestion that Dupree's ability to maintain employment tends to negate a finding that she was an addict. It cannot be assumed that an addicted person who gets the amount of narcotics she requires cannot function in a job. Furthermore, the trial Judge's reliance on the apparent absence of withdrawal symptoms seems misplaced. A defendant would not suffer any withdrawal symptoms unless she has had to go without ...


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