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10/20/92 JAMES COSBY v. UNITED STATES

October 20, 1992

JAMES COSBY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)

Before Ferren, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge:

A jury convicted appellant of possession with intent to distribute cocaine and possession with intent to distribute heroin, D.C. Code § 33-541 (a)(1) (1988). Appellant challenges his convictions on the grounds that the trial court erred (1) in denying appellant's motion for judgment of acquittal; (2) in refusing to give Instruction 4.36 (Narcotics Addiction Not a Crime), CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (3d ed. 1978); and (3) in ordering resumption of jury deliberations after giving an "acquittal first" instruction in response to a note from the jury that indicated, without any mention of the distribution charges, that it had reached guilty verdicts on the lesser included offenses of possession of cocaine and of heroin. We affirm.

I.

We consider, first, the evidence. On November 21, 1990, at approximately 3:45 in the afternoon in the 600 block of Park Road, N.W., near Morton Street, Officer Anthony Scarpine watched appellant, whom he later identified at trial, standing on the steps of an apartment building at 620 Park Road. Officer Scarpine knew the location as an area where narcotics are bought and sold. The officer watched as an individual approached appellant and gave him some money. Appellant first looked around as if to see whether anyone was watching before walking down the stairs and over to a dirt area beside another nearby building. At the dirt area, appellant picked up a paper bag, removed a dark-colored pouch from the bag, and removed a white object from the pouch. He gave the white object to the individual who had given him money, again looking around to see if anyone was observing his actions. Replacing the pouch in the paper bag, he brought the paper bag and its contents back to the dirt area. Appellant then returned to the steps.

Officer Scarpine and his partner continued to watch appellant, who was approached on the steps by a second person who handed him money. Again, appellant looked around for observers as he accepted the money. Again, appellant descended the steps and walked to the dirt area, picked up the paper bag, removed the pouch, removed a white object from the pouch, and handed it to the person who had given him the money. Again, he returned the pouch to the paper bag, replaced the paper bag in the dirt area, and returned to his post on the steps.

The officers approached appellant as he walked back toward the steps the second time. As the officers got closer, they saw appellant hand money to another individual who was standing at the top of the steps. That person took the money and walked inside the apartment building.

The two officers apprehended appellant, and Officer Scarpine recovered the paper bag from the dirt area nearby. Inside the bag he found a dark pouch containing three clear ziplock bags and two blue ziplock bags. All five ziplocks contained white powder. *fn1 The officers searched appellant, who was carrying $42 in cash.

At trial, the jury heard Officer Scarpine's and Officer Farish's testimony. In addition, Sergeant Gerald G. Neill testified as an expert witness on the use and sale of illegal drugs in the District of Columbia, as well as on police procedures for handling drug evidence. He testified that use of the paper bag containing controlled substances reflected the routine practice among drug sellers of maintaining a "stash" of drugs with the intent to sell from the stash.

Appellant acknowledged that the recovered drugs were his, although he claimed that he had bought rather than sold the drugs in the pouch, and that the drugs were for his personal use to support his admitted drug addiction. The evidence showed that appellant tested positive for both cocaine and heroin on the day of his arrest. Appellant's wife testified that her husband had a "heroin problem," that she had given him money for drugs, and that he sometimes shared drugs with her.

The trial court should grant a motion for judgment of acquittal only if "there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt.'" Curry v. United States, 520 A.2d 255, 262 (D.C. 1987) (quoting Curley v. United States, 81 U.S. App. D.C. 389, 392-93, 160 F.2d 229, 232-33, cert denied, 331 U.S. 837, 67 S.Ct. 1511, 1512, 91 L.Ed. 1850 (1947)). After reviewing the evidence "in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact," id. at 263, we conclude that the evidence was sufficient for conviction of distributing the illegal drugs.

II.

The trial court refused to give the instruction that "it is not a crime to be a narcotics addict, nor is the use of narcotics, standing alone, a crime." CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA No. 4.36 (3d ed. 1978). In requesting that instruction, defense counsel had referred to the evidence that appellant is a drug addict and that the illegal drugs were for his personal use. Appellant contends that the trial court erred in refusing the requested instruction because a defendant is ...


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