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12/30/92 SEAN A. THOMAS v. UNITED STATES

December 30, 1992

SEAN A. THOMAS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)

Rehearing Denied July 23, 1993. Rehearing En Banc Granted July 23, 1993, Vacated July 23, 1993.

Before Ferren, Farrell, and Sullivan, Associate Judges. Opinion for the court by Associate Judge Ferren. Opinion Concurring in part and Dissenting in part by Associate Judge Sullivan.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: A jury convicted appellant of distributing cocaine. D.C. Code § 33-541 (a)(1) (1988 Repl.). Appellant's primary contentions are that: (1) the evidence was insufficient to prove "usable amount"; (2) the trial court erred by failing to instruct the jury properly on "usable amount"; and (3) the prosecutor's misconduct in closing argument denied appellant a fair trial. We conclude that several of the prosecutor's comments and actions during rebuttal argument were unprofessional and, in some instances, clearly improper. But given the strength of the government's case and the trial court's corrective actions, we find no reversible error. We also conclude that some of the government drug expert's testimony was improper because it inappropriately defined for the jury an essential element of the crime of distribution ("usable amount"). Because there was no objection, however, we review for plain error and find none. We therefore affirm. *fn1

I.

The government's evidence showed a typical corner drug buy and bust. On the evening of October 3, 1989, Officer Rene Dessin, working undercover, was walking down Ninth Street, N.W., when appellant inquired whether he was "looking." The officer replied, "Yes, for twenty," meaning a twenty dollar rock of crack cocaine. Appellant held out two rocks. Officer Dessin selected one and then gave appellant twenty dollars in prerecorded funds. After returning to his car, the officer radioed a lookout description of appellant, and an arrest team moved in and arrested appellant, who had the prerecorded funds, but no cocaine, in his possession. Appellant did not testify but presented a defense of mistaken identification, supported by the testimony of three witnesses.

II.

Appellant contends that the prosecutor's rebuttal argument constituted misconduct requiring reversal. At the beginning of his rebuttal, the prosecutor stated:

Well, the Government submits to you after what you just heard [the defense's closing argument] this place is worse than a waiting room [the trial Judge had earlier asked the jurors to conduct themselves appropriately because the courtroom was not a "waiting room"], this place is like one of the restrooms they haven't cleaned out in about a year, after what you just heard in the courtroom today. If you want to send a message, ladies and gentlemen, send a message to this guy right here --

At that point defense counsel objected, and the trial court admonished the prosecutor to "stay away from the defendant in that manner."

The prosecutor continued:

Send a message to him, don't sell drugs; you are guilty of selling drugs. And we told you what the core of this case was, ladies and gentlemen, the core of this case, in less than five minutes an undercover transaction, that transaction took place between Officer Dessin and this young person over there -- young person, maybe the Government is giving him too much credit --

When defense counsel raised another objection, the court ordered the prosecutor up to the bench, where the court strongly admonished the prosecutor again. Apparently the prosecutor had approached appellant and had emphasized one of his points by slapping down a piece of paper on the table, because the court warned the prosecutor to control himself, to stay away from appellant, and to ...


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