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09/24/91 KENNETH GRAY v. UNITED STATES

September 24, 1991

KENNETH GRAY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge).

Before Ferren and Wagner, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: A jury convicted appellant Gray of unlawful distribution of a controlled substance, D.C. Code § 33-541(a)(1) (1988 Repl. and 1991 Supp.), and violation of the Bail Reform Act, id § 23-1327 (1989 Repl. and 1991 Supp.). Appellant contends that (1) the trial court's admission of expert testimony as to what constitutes a "usable amount" of controlled substance was manifestly erroneous and unduly prejudicial; (2) the government failed to produce sufficient evidence that the quantity of cocaine sold was a usable amount; and (3) the instructions on usable amount did not adequately inform the jury about an essential element of unlawful distribution. We affirm.

I.

In challenging the government's expert, Officer Sinclair, appellant argues that (1) the trial court erred in allowing Sinclair to testify about narcotics usage without first determining that Sinclair had sufficient education, experience, or expertise to do so; (2) Sinclair failed to state any factual basis for his opinion that the cocaine was a usable amount; and (3) Sinclair erroneously defined "usable amount."

The trial court has broad discretion to admit or exclude expert testimony; we will disturb the trial court's ruling on appeal only if the ruling is "clearly erroneous." Jones v. United States, 548 A.2d 35, 38 (D.C. 1988). Officer Sinclair testified that he had eleven years of experience in the Narcotics Branch of the Metropolitan Police Department. During those eleven years he investigated several hundred narcotics cases. He attended many different law enforcement schools and training programs on drug trafficking and drug enforcement. He has been qualified as an expert on the sale and distribution of narcotics in the District of Columbia in numerous prior court proceedings. Given this record, we cannot say that the trial court abused its discretion in finding Sinclair qualified to testify as an expert on narcotics usage.

Nor did Officer Sinclair fail to state a factual basis for his opinion that the cocaine was a usable amount. He testified that the cocaine had been offered for sale in a quantity and in packaging consistent with the usual sale of drugs on the streets of the District of Columbia. He explained that the term "dime cocaine" refers to a specific quantity of the drug generally offered for sale at a price of $10.00. The cocaine at issue in this case was analyzed and measured to contain .278 grams of cocaine hydrochloride. These were sufficient factual bases for Officer Sinclair's expert opinion that the cocaine seized was a usable amount. See Wishop v. United States, 531 A.2d 1005*, 1008-1009 (D.C. 1987).

Appellant also contends that Officer Sinclair's definition of "usable amount" reflected an erroneous interpretation of the law -- a contention which, if true, would call into question his expert opinion that the cocaine satisfied the legal requirement of usability.

The following exchange occurred on cross-examination:

DEFENSE COUNSEL: You spoke also, Officer, of a usable amount. What is a usable amount?

OFFICER SINCLAIR: A usable amount is any amount of the drug that can be ingested into the system through its normal use. For an example, cocaine, any amount of cocaine that can be absorbed or taken into the body is a usable amount of that drug.

DEFENSE COUNSEL: And so, when you're talking about usable amount, you're talking then about any amount that can be physically taken into the body without regard to any effect that it produces, is that right?

OFFICER SINCLAIR: That's correct.

We consider this testimony against the background of Officer Sinclair's other testimony concerning the amount of cocaine seized, its packaging, and the method of its acquisition consistent with street sale. We conclude that Sinclair's definition, while perhaps not as precise or thorough as one might desire, was adequate on ...


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