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05/30/91 MARK A. JUDGE v. UNITED STATES

May 30, 1991

MARK A. JUDGE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia. Hon. Fred L. McIntyre, Trial Judge.

Before Steadman and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge:

Appellant was convicted of distribution of cocaine, in violation of D.C. Code § 33-541(a)(1)(1989). He was sentenced to twenty months to five years imprisonment. Appellant contends the trial court committed reversible error in telling the prosecutor to turn over Jencks Act *fn1 material in the presence of the jury and commenting on the material. Appellant further alleges that there was insufficient evidence to prove that he possessed a usable amount of cocaine and that the aiding and abetting instruction was improper. We find no merit to the errors alleged and accordingly affirm.

The government's evidence showed that Officer Renee Davis was operating undercover on June 4, 1989, when she approached a woman near First and Kennedy Streets, N.W., who was apparently selling cocaine. Appellant soon thereafter joined them and asked Davis to meet him a block away where he instructed co-defendant Newsome to give her a rock of cocaine which Davis purchased with $20 of prerecorded funds. An arrest team consisting of Sergeant Greenfield and Officer Sinclair responded to Davis' broadcast of descriptions of appellant and his cohorts. Sinclair stopped appellant first and then ordered Newsome to stop and come back. Sinclair saw Newsome drop a brown bag as Newsome walked towards him. Sinclair recovered the bag and discovered that it contained a white rock substance that field-tested positive as cocaine. A search of Newsome revealed that he had $50 on his person, of which $20 was the bill Davis had used to purchase cocaine.

The first alleged error occurred as defense counsel began his cross-examination of Officer Sinclair. His second and third questions were:

Q: Did you fill out any reports in connection with this transaction?

A: Yes.

Q: And would you tell us, please, what reports you filled out?

: Your Honor, may we approach briefly?

[THE COURT]: You've got the report. Didn't they give them to you?

A bench conference was held and the prosecution informed the court that it had not turned the reports over and the court ordered them to be turned over. Defense counsel moved for a mistrial on the basis of the court's statement. That prompted the court to make the following statement to the jury: "Ladies and gentlemen, the Government forgot to give him the reports. Now he's got them. The Government is supposed to give him these reports that the officer may have filled out after the witness has testified, and she didn't do it. And that's why he wanted them."

Appellant argues these actions constituted per se reversible error, citing Johnson v. United States, 121 U.S. App. D.C. 19, 347 F.2d 803 (1965), and Gregory v. United States, 125 U.S. App. D.C. 140, 369 F.2d 185 (1966), aff'd after trial, 133 U.S. App. D.C. 317, 410 F.2d 1016, cert. denied, 396 U.S. 865 (1969). However, as the government correctly argues, neither case stands for that proposition. Indeed, to the contrary, we have applied harmless error analysis to Discussions before the jury of the Jencks requirement. Washington v. United States, 397 A.2d 946, 951 (D.C. 1979).

We fail to see how appellant can fairly claim prejudice. The jury was already aware of the existence of prior reports by appellant's own questioning. The remarks of the trial court were brief and straight-forward and indicated that the government, not appellant, was at fault. An inference that such reports bolstered Sinclair's testimony as prior consistent statements would represent sophisticated speculation by the jury absent any prosecutorial argument to this effect. Moreover, the testimony of Sinclair, the arresting officer, was at best tangential to the distribution to ...


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