Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)
Before Terry, Steadman and Sullivan, Associate Judges. Opinion for the court Per Curiam. Dissenting opinion by Associate Judge Sullivan.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: This is an appeal from appellant's conviction following a non-jury trial for possession with intent to distribute heroin, in violation of D.C. Code § 33-541(a)(1) (1993 Supp.), and from the denial of his motion for a new trial. Although appellant presents us with numerous issues on appeal, only one issue requires plenary Discussion, namely, whether the trial court committed reversible error by considering appellant's potential punishment in concluding that he was not a credible witness. *fn1 We hold that the court did not and accordingly affirm.
The government's evidence at trial showed that Detective Gary O'Neal was on duty at approximately 7:00 p.m. on August 22, 1989, in an alley behind 146 "L" Street, Southeast, an area described as an "open air drug distribution center." Detective O'Neal observed appellant standing in a walkway holding several blue ziplock packets of white powder in the palm of his outstretched hand while a female, later identified as Ms. Robin Lyles, reached within one inch of appellant's hand. Suspecting a drug transaction, although he could not determine whether Lyles was moving her hand toward or away from appellant's hand, Detective O'Neal identified himself and demanded that appellant and Lyles emerge from the walkway. Lyles fled and appellant dropped his hand to his side. Detective O'Neal struggled with appellant and eventually recovered from appellant's hand nine packets of powder which field-tested positive for heroin. Officer Kemper Agee then searched appellant and found one packet of a white substance that tested positive for crack cocaine and $74.00 in cash in a bicycle pouch which was strapped around appellant's waist.
Officer David Stroud was qualified as an expert in street trafficking and packaging of illicit drugs. He testified that the nine packets of heroin had a street value of $180.00 as packaged, but the same quantity of heroin could be purchased in bulk for $60.00. He also testified that the quantity, variety, and value of the drugs were more consistent with distribution than with personal use. Further, Officer Stroud opined that the maximum amount of heroin an addict would use in a day would be six packets; and that a heroin addict would buy no more than two bags of heroin at one time.
Appellant was the sole defense witness. He testified that he was a heroin addict and that he had purchased the drugs from Ms. Lyles in exchange for his girlfriend's camcorder; further, he said that he intended to use all of the drugs within twenty-four hours. Moreover, he testified that he had two prior convictions for distribution of drugs, had been sentenced under the addict exception, *fn2 had previously participated in drug programs, and had been hospitalized because of his long-standing drug addiction.
In rendering its decision finding appellant guilty of possession with intent to distribute heroin, the trial court stated:
I have been sitting here wondering why Mr. Johnson would go to trial in this case and the minute I hear about his prior record I say, uh-huh, he wants to avoid a mandatory minimum.
I don't believe we've got any real doubt. I think I am entitled to take into account the defendant's desire to avoid the mandatory minimum sentence in evaluating his credibility. That does not substitute evidence but it does give him a very powerful motivation not to tell the truth on this specific narrow point of intent to distribute.
Following appellant's conviction and the trial court's imposition of the mandatory-minimum sentence, this appeal ensued.
Appellant contends that the trial court, sitting as the trier of fact, was bound by the same prohibition as a jury not to consider potential punishment in assessing his credibility as a witness. It is, of course, true that as a general principle, "the jury is to determine guilt or innocence on the evidence before it and should not consider the possibilities of punishment in its deliberations . . ." Brown v. United States, 554 A.2d 1157, 1160 (D.C. 1989) and cases cited therein; see also Criminal Jury Instructions for the District of Columbia, No. 2.74 (4th ed. 1993). *fn3 The reason for such a general principle is, at bottom, one of relevance. The jury's role is that of the determiner of guilt or innocence, an issue upon which the possible punishment for the crime casts no light whatever. As the court said in United States v. Patrick, 161 U.S. App. D.C. 231, 234, 494 F.2d 1150, 1153 (1974): "The jury's only function is to assess guilt or innocence on the basis of their independent view of the evidence. Sentencing decisions, on the other hand, are within the exclusive province of the court . . . ." The court then went on to quote from Miller v. United States, 37 App. D.C. 138, 143 (1911):
it is error for the court to put before the jury any considerations outside the evidence that may influence them, and lead to a verdict not otherwise possible of attainment. The deliberations of the jury should revolve around the evidence before them, ...