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02/21/92 JAMES W. LAWRENCE v. UNITED STATES

February 21, 1992

JAMES W. LAWRENCE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)

Before Rogers, Chief Judge, and Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant James Lawrence appeals his conviction by a jury of possession with intent to distribute cocaine, D.C. Code § 33-541 (a)(1) (1988 Repl.), contending that the trial Judge erred by instructing the jury that appellant was charged with two counts from different indictments. In view of the proffers before the trial Judge and in the absence of any facial inconsistency between the indictments or a request under Super. Ct. Crim. R. 6 (e), we find no abuse of discretion by the trial Judge in consolidating the indictments. Appellant's other contentions, that there was insufficient evidence to support his conviction and that he was denied effective assistance of counsel, are meritless. Accordingly, we affirm.

I

At the beginning of the trial, the prosecutor asked the trial Judge to clarify the charges that were pending against appellant. The request arose as the result of the existence of two indictments. On October 25, 1989, the grand jury had returned an indictment charging that:

B On or about October 13, 1989, within the District of Columbia, James W. Lawrence and a person whose identity is unknown to the Grand Jury did unlawfully, knowingly, and intentionally distribute a quantity of cocaine, a Schedule II controlled substance. (Unlawful Distribution of a Control led Substance in violation of 33 D.C. Code, Section 541 (a)(1))

C On or about October 13, 1989, within the District of Columbia, James W. Lawrence did unlawfully, knowingly, and intentionally possess with intent to distribute a quantity of cocaine, a Schedule II controlled substance. (Unlawful Possession with Intent to Distribute a Controlled Substance, in violation of 33 D.C. Code, Section 541 (a)(1)). [Emphasis added].

The same grand jury returned a second indictment on January 3, 1990, after the police had arrested Maurice Krider for the sale of drugs on October 13, 1989. The second indictment charged:

D On or about October 13, 1989, within the District of Columbia, James W. Lawrence and Maurice L. Krider ["Shorty"] did unlawfully, knowingly, and intentionally distribute a quantity of cocaine, a Schedule II controlled substance. (Unlawful Distribution of a Controlled Substance, in violation of 33 D.C. Code, Section 541 (a)(1))

On or about October 13, 1989, within the District of Columbia, Maurice L. Krider ["Shorty"] did unlawfully, knowingly, and intentionally possess with intent to distribute a quantity of cocaine, a Schedule II controlled substance. (Unlawful Possession with Intent to Distribute a Controlled Substance, in violation of 33 D.C. Code, Section 541 (a)(1)). [Emphasis added].

The prosecutor advised the trial Judge that it was his belief that the second indictment was not a superseding indictment and that the second count (Count C) of the October indictment was still outstanding against appellant. The Judge noted that there was nothing to indicate that the first indictment had been dismissed. Defense counsel objected on the ground that the second indictment was a superseding indictment, noting that the second count (Count C) of the first indictment charged appellant with possession with intent to distribute while the second indictment charged only Mr. Krider with a count of possession with intent to distribute ("Count E"). Defense counsel stated that it was his belief, in preparing the case, that appellant was charged with a single count (Count D) of distribution "through the indictment filed in January." Counsel noted further that "there was never any allegation in discovery or in anything else that was in fact charged with two counts of distribution," and that he was of the view that the government could not simply dismiss one of the distribution counts. The prosecutor responded that in discovery defense counsel "must have known the police took five additional bags of cocaine off when he was arrested," and defense counsel confirmed that he had known about the five additional bags.

The trial Judge ruled that both the possession with intent to distribute count from the October 1989 indictment (Count C) and the unlawful distribution count from the January 1990 indictment (Count D) could be presented to the jury. The Judge stated that:

It appears to me that the effect of the January indictment in Count was simply to identify Mr. Crider as [appellant's] co-defendant and in that sense, the first count [Count D] did replace Count of the October indictment. * * * The second count of the January indictment ["Count E"] appears to me . . . merely to supplement the second count [Count C] of the October indictment by indicting Mr. Crider with possession with intent to distribute whereas in October, only had been indicted with that charge.

The Judge noted that defense counsel was on notice from the government's evidence and, therefore, it was difficult to see any prejudice to the defense in not realizing until the day of trial that the two ...


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