Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Terry, Steadman, and King, Associate Judges. Opinion Per Curiam. Concurring opinion by Associate Judge Terry.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Appellant, convicted of distribution of heroin, *fn1 possession of heroin, *fn2 and possession of drug paraphernalia, *fn3 contends on appeal that the trial court erred in failing to give three jury instructions that he requested. He argues first that, with respect to the first count of the indictment, the court improperly refused to give an instruction on possession of heroin as a lesser included offense within the crime of distribution. Second, he maintains that he was entitled to an instruction on the primary theory of his defense, namely, that he was acting as an "agent of the buyer" in the underlying heroin sale and therefore lacked the requisite intent to commit the crime of distribution. Finally, appellant argues that the trial court erred when it refused to instruct on his secondary defense of entrapment, when the government's evidence showed that an undercover police officer "induced" the heroin sale by asking appellant about the availability of the drug. We reject all three claims of error and affirm appellant's convictions.
Appellant Minor was arrested after participating in the sale of heroin to an undercover police officer. The evidence showed that Officer John Marsh of the United States Park Police, while working under cover, parked his unmarked car early one evening at an intersection near Anacostia Park, a known heroin market. Minor, who was standing on the opposite side of the street with a small group of people, made eye contact with the officer and then approached his car. When Marsh asked him about the availability of drugs, *fn4 Minor went back across the street and spoke to an unidentified woman. He then returned to the officer's car and told Marsh that a certain type of heroin known as "O.D." was available. Minor asked, "Do you want some of that, you interested in that?" Marsh replied that he was and that he would "take a couple of bags." Minor started back toward the woman, but as he walked in her direction, the woman got into a car and drove away.
Minor then approached a man named James Beaner, and Beaner and Minor together returned to Marsh's car. Minor asked Marsh how many bags he wanted, and Marsh responded by asking how much they cost. Minor quoted a price of $25 per bag and then stepped aside, letting Beaner make the actual sale. Beaner gave the officer two bags of heroin, and the officer gave Beaner $50 in return. As Beaner and Minor walked back across the street together, Marsh testified, "there was some kind of exchange between them as they were walking." When they were about halfway across the street, Minor turned and walked back to Officer Marsh. Minor asked Marsh whether he needed any syringes, but Marsh said he did not and drove off.
Officer Marsh promptly broadcast a description of Minor and Beaner to a waiting arrest team. Both men were arrested and later identified by the undercover officer. *fn5 A search of Minor's person revealed a small amount of cash, including a pre-recorded $10 bill (which had been used with two prerecorded $20 bills to purchase the heroin from Beaner and Minor), other heroin, and syringes.
"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988) (citations omitted); accord, e.g., Adams v. United States, 558 A.2d 348, 349 (D.C. 1989); Gray v. United States, 549 A.2d 347, 349 (D.C. 1988). This standard applies here to our review of the trial court's refusal to give each of the requested instructions. See, e.g., Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973) (lesser included offense instruction); Montgomery v. United States, 384 A.2d 655, 661 (D.C. 1978) (theory of defense instruction); Mathews v. United States, supra, 485 U.S. at 63 (entrapment instruction). In determining whether the evidence before the jury supported any of appellant's requests, we must view that evidence in the light most favorable to appellant. Adams v. United States, supra, 558 A.2d at 349.
A. The lesser included offense instruction
Minor contends that the trial court, in charging the jury on the count alleging distribution of heroin, should also have given an instruction on the lesser included offense of possession. His theory seems to be, at least in part, that if he is deemed to be an agent of the buyer rather than an agent of the seller (a matter which we address in part B, (infra)), then he is guilty only of aiding and abetting simple possession -- i.e., the possession of the buyer and not aiding and abetting the distribution of the seller.
Our Concurring colleague suggests that such an instruction is precluded as a matter of law because possession "can never be a lesser included offense of distribution . . . ." Post at 14. We deem it sufficient to observe, however, that before the jury could find, on this record, that Minor was guilty of possession but not distribution, it would have to engage in the sort of "bizarre reconstruction" of the facts which we have repeatedly disapproved. Anderson v. United States, 490 A.2d 1127, 1130 (D.C. 1985); accord, e.g., Lampkins v. United States, 515 A.2d 428, 432-433 (D.C. 1986). We hold accordingly that there was not "a sufficient evidentiary basis for the lesser charge," Rease v. United States, 403 A.2d 322, 328 (D.C. 1979) (citations omitted), and do not reach the issues raised in the Concurring opinion.
B. The "agent of the buyer" instruction
Minor argues next that the trial court erred in refusing to instruct the jury on the principal theory of his defense. He sought a jury instruction that his defense was that he was acting as an "agent of the buyer," i.e., the undercover officer, rather than the seller, and therefore that he lacked the requisite intent to distribute the heroin. *fn6 The trial court refused to give this instruction on the ground that, under District of Columbia law, "distribution" occurs regardless of whether one aids the seller or the buyer. See Griggs v. United States, 611 A.2d 526, 528-529 (D.C. 1992). *fn7 The court offered instead to instruct the jury that the theory of ...