Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Wagner,* Chief Judge, and Ferren** and Steadman, Associate Judges.
The opinion of the court was delivered by: Ferren
Supplementary Statement by Associate Judge FERREN
FERREN, Associate Judge: An indictment filed on February 7, 1990 charged appellant Norman E. Minor with distribution of heroin, distribution of cocaine, possession with intent to distribute heroin, and possession with intent to distribute cocaine. See D.C. Code § 33-541 (a)(1) (1993). Before trial, the government discovered that the initial field tests performed on the controlled substances were erroneous and moved to dismiss the charges of distribution of cocaine and of possession with intent to distribute heroin from the indictment. The trial court granted the government's motion, and on June 13, 1991, a jury convicted appellant of distribution of heroin and possession with intent to distribute cocaine. Appellant raises two principal issues on appeal: (1) the trial court's reasonable doubt instruction violated his Fifth Amendment right to due process by misstating the government's burden of proof, and (2) the trial court abused its discretion by denying appellant's motion to call the undercover officer as a witness at the suppression hearing on the showup identification. In addition, appellant contends that (3) the government's presentation of hearsay testimony and of the field test results to the grand jury violated his Fifth Amendment rights; (4) the trial court improperly denied his D.C. Code § 23-110 (1989) motion for new trial without a hearing and abused its discretion by refusing to approve the discovery and special service vouchers for investigative services necessary to develop his ineffective assistance of counsel claim; *fn1 and (5) the trial court abused its discretion by denying appellant's request for investigation of a comment made by courtroom personnel to the jury. *fn2 Finding no basis for reversal, we affirm the judgments of conviction.
At approximately 5:40 p.m. on January 21, 1990, Officer Zelford Platt, working undercover, approached appellant at 18th and H streets, N.E. and asked him for two packets of "slice." *fn3 Appellant asked Officer Platt for money, the officer gave it to him, and the two walked up 18th Street together. They proceeded to 812 18th Street where they met Marc Walker, who was standing on the other side of a chain-link fence. Appellant handed Walker the money, and Walker handed him two rolled-up ziplock bags. Officer Platt and appellant then continued to walk up 18th Street toward Benning Road. When they reached Benning Road, appellant handed Officer Platt the bags, turned around, and walked back to the apartment at 812 18th Street.
Officer Platt walked to his car, parked on 18th Street before Benning Road, where Platt performed field tests on the substance he had purchased from appellant. The tests indicated the presence of heroin and cocaine, so Officer Platt broadcast a look-out for appellant and Walker. He described appellant as "a black male wearing a blue and red jacket with green neon sweathood . . . 5'7" in height, medium complexion" Officers John W. Diehl and Robin Turner responded to Platt's broadcast. Officer Platt watched as Diehl and Turner approached appellant, and Platt told them that he was one of the suspects. Officer Turner stopped appellant, and Officer Platt identified him to Officer Diehl over the radio. Officer Turner then arrested appellant and searched him. In appellant's left front pocket, Officer Turner found a purple container holding five clear plastic bags of white powder, which field-tested positive for both cocaine and heroin.
Drug Enforcement Administration (DEA) tests later performed on the substance seized from appellant showed the presence only of cocaine. The substance purchased by Officer Platt later tested to be only heroin, not a mixture of heroin and cocaine. When the government discovered that the initial field tests performed on the controlled substances were erroneous, it moved to dismiss distribution of cocaine and possession with intent to distribute heroin from the indictment.
During his final instructions to the jury regarding the government's burden to prove guilt beyond a reasonable doubt, the trial Judge inadvertently inserted the word "reasonable" where it did not belong in the standard Red Book instruction:
The government is not required to establish guilt beyond all reasonable doubt, or to a mathematical certainty. Its burden is to establish guilt beyond a reasonable doubt.
(Emphasis added.) See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA No. 2.09 (3d ed. 1978) (the "Red Book"). Appellant argues that under Sullivan v. Louisiana, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993), the instruction unconstitutionally misstated the government's burden of proof, requiring per se reversal. To the contrary, we believe that, taking the jury instructions as a whole, it is not reasonably likely that the jury applied the instruction in an unconstitutional manner; thus, reversal is not required. See Victor v. Nebraska, 127 L. Ed. 2d 583, 114 S. Ct. 1239, 1243 (1994).
Even before the government called its first witness, the trial Judge stressed that the government had the burden of proving appellant's guilt beyond a reasonable doubt:
Ladies and gentlemen, every defendant in a criminal case is presumed to be innocent. This presumption of innocence remains with the defendant throughout the trial, unless and until he is proven guilty beyond a reasonable doubt. The burden is on the Government to prove the defendant guilty beyond a reasonable doubt. And that burden of proof never shifts throughout the ...