Appeal from the Superior Court of the District of Columbia; Honorable Robert M. Scott, Trial Judge
Rogers, Chief Judge. Wagner, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Rogers
Appellant Everette Mitchell appeals from his conviction by a jury of possession with intent to distribute a controlled substance (heroin), D.C. Code § 33-541 (a)(1) (1989), on the principal ground that the trial Judge erred in not instructing the jury on the lesser-included offense of attempted possession in addition to the lesser-included offense of simple possession. Although there was an evidentiary basis for the attempted possession instruction, we conclude, in view of the choice presented in the instructions to the jury and its verdict, that the failure to give the instruction was harmless error.
Two police officers watched two males who were engaged in conversation on the street. One examined a plastic package, and when he saw the officers, he gave the package back to the second man and fled. Upon his arrest, the second man, appellant, was found by the police to be in possession of ten packets of white powder, which field tested as heroin.
Appellant testified that he had been using heroin for eighteen years, and that on the day in question he had been trying to purchase drugs. He had walked up to a group of men and after talking with one man about a purchase, he reached in his pocket for some money. As he did so, the other man, who was about to give drugs to appellant, ran and took the drugs when he saw the police. Appellant claimed that when he was arrested he only had cash in his right hand and a syringe in his pocket, and that the police had found a package containing drugs 25 to 30 feet away from where he was apprehended. The government offered rebuttal testimony that no cash or syringe was found on appellant when he was arrested.
The trial Judge instructed the jury on possession with intent to distribute and the lesser-included offense of simple possession as well as that the jury should not consider the lesser offense if it found appellant guilty of the greater offense, but declined to instruct on attempted possession. *fn2 The jury found appellant guilty of possession with intent to distribute.
Appellant contends that the trial Judge's failure to instruct on attempted possession violated his Fifth Amendment right to due process of law in view of the fact that appellant's testimony would have supported the instruction. In previous cases, the court has held that, " defendant in a criminal case is entitled to a jury instruction on any issue fairly raised by the evidence." Carter v. United States, 531 A.2d 956, 959 (D.C. 1987). Thus, in Lampkins v. United States, 515 A.2d 428, 432 (D.C. 1986), the court explained:
A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.
Lampkins, supra, 515 A.2d at 432 (citations and internal quotation marks omitted). Indeed, the necessary evidentiary basis may consist of evidence which is quite weak, id., as long as that evidence demonstrates that "proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge." Id. (citations and internal quotation marks omitted).
Appellant testified that he was attempting to purchase drugs at the time of his arrest and, accordingly, he was entitled to an instruction on attempted possession. Simmons v. United States, 554 A.2d 1167 (D.C. 1989); Lampkins, supra, 515 A.2d at 432. *fn3 This is true even though, in order to find appellant guilty of attempted possession, the jury would have to credit one portion of his testimony (that he was attempting to purchase drugs at the time of his arrest), while disbelieving another portion (that he was 30 feet away from the nearest drugs discovered). See Belton v. United States, 127 U.S. App. D.C. 201, 206, 382 F.2d 150, 155 (1967). Accordingly, the issue is whether the trial Judge's instructions, viewed as a whole, rendered harmless the error in failing to give the instruction on attempted possession. *fn4 See Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).
The trial Judge instructed the jury on the elements of the offense of possession with intent to distribute and the government's burden of proof. In addition, the Judge instructed the jury that if it found appellant guilty of possession with intent to distribute, it should not consider the lesser-included offense of simple possession. The jury convicted appellant of possession with intent to distribute, and therefore did not consider the offense of simple possession. See Burkley v. United States, 373 A.2d 878, 881 (D.C. 1977) (jury presumed to follow instructions). The government therefore maintains that since the instructions gave the jury a choice between convicting appellant of the greater offense or a lesser-included offense, and it convicted appellant of the greater offense of possession with intent to distribute without reaching the lesser-included offense of simple possession, the jury would not have reached a secondary-included offense, such as attempted possession. We agree that the error was harmless.
Appellant relies principally on Simmons, supra, 554 A.2d 1167, in which the court reversed the conviction of robbery where the trial Judge had declined to instruct on the lesser-included offense of taking property without right and the defendant had testified that he had given some money to the complainant for sexual services and had attempted to reclaim it when she did not perform. Because his testimony, if credited by the jury, provided an evidentiary basis for the requested instruction, the court held that it was error to deny the request. 554 A.2d at 1172. Unlike the instant case, however, in Simmons no lesser-included instruction was given. Previously, in Hebble v. United States, 257 A.2d 483, 485 (D.C. 1969), the court held that, assuming an erroneous instruction on the ...