Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Tignor, Trial Judge)
Before Schwelb, Farrell, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge : Roderick Long was convicted by a jury of possession of heroin with the intent to distribute it (PWID). D.C. Code § 33-541 (a)(1) (1988). The trial Judge also found him guilty of unlawful possession of drug paraphernalia, in violation of D.C. Code § 33-603 (a) (1988). *fn1
Long testified at trial that he purchased the heroin in question with money contributed by him and by four companions for the purpose of sharing it with those companions. On appeal, he contends that the trial Judge, by his instructions and by his rulings relating to the parties' proposed closing arguments, erroneously barred Long from asserting as a defense that his conduct fell outside the statutory meaning of unlawful "distribution." We affirm.
On November 28, 1990, at about 11:30 a.m., police officers, armed with a search warrant and its ominous companion, the battering ram, knocked on the door of Long's apartment and announced their presence. The officers received no response, but heard footsteps suggesting that people were running from the entrance to the apartment. Some ten seconds after having knocked and announced, the officers effected a forcible entry by breaking down the door with the ram.
There were five men in the apartment, one of whom was its tenant, Roderick Long. Long, who was in the kitchen, threw something in the direction of the stove. The police promptly recovered from a pot of hot grease which was on the stove a bundle of plastic ziploc bags wrapped together with a rubber band. These bags contained a white powder which later proved to be heroin. Ten more packets of heroin were found in a bedroom, and police also recovered a number of syringes, home-made pipes, and other narcotic paraphernalia, *fn2 as well as a shotgun.
Long, who was born in 1947, testified at trial that he had a heroin habit and that he had been using unlawful drugs for twenty-six years. He admitted that he had been in possession of the ten packets of heroin and that he had attempted to discard them by throwing them into the pot of hot grease. He denied, however, that the heroin was for sale. Rather, he maintained that each of the other four men at the apartment, one of whom was living with him, had given him money, and that a short time before the police arrived, he and one of the men had gone out to purchase heroin for the group.
The principal legal issue in the case arose during a Discussion of jury instructions and of points which counsel proposed to raise during closing argument. Noting that Long had testified that he intended to pass the heroin around to his friends, the prosecutor maintained that Long had in effect admitted his intent to distribute. The prosecutor asked for permission to make this argument to the jury. Through his counsel, Long contended that such an argument should not be permitted because it was contrary to law:
If two people go out and buy a rock of cocaine . . . but only the first person carries it down the street, and then when they get to their apartment, they both smoke it, that first person is not guilty of distribution. At least, I don't think that's what the legislature intended, for that first person to be guilty of distribution, because he's the one who carried it from the point of purchase to the point of use and then more than one person used it.
Otherwise, all users would be guilty of distribution, because I think the Court can take judicial notice of the fact that drug users share their drugs, and sharing of drugs is not the same as transferring in the language that the legislature intended.
The Judge, who gave the issue thoughtful and conscientious consideration, initially agreed with Long's submission:
If two people go out, put money together to buy a substance, with the understanding that they will share it among themselves, they are both buying, they are both purchasing. Technically, they're also aiding and abetting the distribution, but I just don't see that as the type of transfer that is sanctioned, that the legislature intended to sanction.
It just does not seem to me likely that the statute is intended to sanction, as a thirty-year felony with a mandatory minimum sentence, actions of two users who share a commonly-owned store of drugs.
The Judge indicated that he planned to instruct the jury in accordance with this view. *fn3
The prosecutor, however, requested that argument and jury instructions be deferred until the next day so that he could find authority on the point. The following morning, the Judge, while understandably remaining troubled, felt constrained to reverse his earlier tentative judgment:
As to the matter we were discussing yesterday, frankly, on reflection, I'm not sure that it's appropriate for me, based on what I perhaps think the legislature should admit, to limit the Government's argument. This statute is more stringent than the Harrison Narcotics Act. I believe it's clear that the old purchasing ...