Appeal form the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)
Before Wagner, Chief Judge,* and Schwelb, Associate Judge, and Gallagher, Senior Judge. Opinion for the court by Chief Judge Wagner. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Appellant, Bertrand D. Dickerson, was convicted following a jury trial of possession of a controlled substance (cocaine) with intent to distribute in violation of D.C. Code § 33-541 (a)(1) (1981 ed.) (Repl. 1993). He argues for reversal on the grounds that: (1) the evidence was insufficient to convict him; (2) the trial court erred in instructing the jury on aiding and abetting; and (3) he was denied the right to a speedy trial. We affirm.
According to the evidence presented by the government, on May 3, 1988, at about 5:00 p.m., on the corner of 18th Place and D Street, N.E., an undercover police officer purchased cocaine from Dickerson's co-defendant, Derrick Snipe, in exchange for twenty dollars in pre-recorded police funds. The undercover officer returned to a vehicle from which another officer, Kim Holland, was observing the events. Officer Holland gave the location of the transaction and a description of the drug-seller to an arrest team. Officer Holland then saw Snipe walk east on D Street and enter the right rear passenger seat of a grey Nissan Maxima in which three other men were seated. Inside the vehicle, she saw Snipe reach forward while the two men in the front (one of whom was Dickerson) turned toward Snipe, but she could not tell whether Snipe was "passing or receiving." Officer Holland broadcast these observations to the arrest team. Another officer saw Charles Smith exit the car from the driver's side, appellant, from the left front passenger side, Snipe, from the right rear passenger side, and Walter Tucker, from the left rear passenger side.
The police arrested Snipe while he stood outside of the back of the car approximately three feet from the vehicle, and they found there on the ground, in front of appellant's residence, a napkin containing eighty-three rocks of cocaine. Another officer arrested Smith after he saw him walk to the back of the car and drop a pill bottle. The bottle contained thirteen rocks of cocaine and had appellant's name and address on it. After arresting Smith, Tucker, and Snipe, the police recovered $642 from the console between the front seats of the Maxima, including the twenty dollars in pre-recorded police funds which the undercover officer had used to make the purchase. Dickerson, who by then was sitting on the steps of his house, was arrested. Dickerson, Snipe, and Smith were indicted for possession with intent to distribute a controlled substance. *fn1
After pleading guilty to attempted distribution of cocaine, Snipe testified as a defense witness at appellant's trial. He testified that although he knew Smith and Tucker, he had never seen appellant prior to the day of the offense. Snipe also testified that he heard Smith ask appellant for a bottle, but he left and sold the drugs he had obtained from Smith to an undercover officer for twenty dollars. *fn2 He then returned to Smith's car where all of the co-defendants were sitting and handed Smith the twenty dollars, which he put in his pocket. Snipe said appellant then left Smith's car, and the police arrived. During direct examination Snipe testified that appellant left the car as soon as Snipe was getting into the car after the drug transaction. On cross-examination, however, Snipe stated that appellant was in the car when he handed Smith the twenty dollars. Snipe further testified that he never saw appellant in possession of the pill bottle or any money and that appellant did not appear to be involved in the drug transactions.
Appellant testified that he arrived home from work at about 5:00 p.m. and encountered Smith, whom he knew from elementary school and as a boxing partner, near his house. According to appellant, Smith gave him money to buy chicken and asked him for a container. Appellant testified that, without inquiring about Smith's purpose, he gave Smith an empty pill bottle that once contained prescription medication. When he returned from Kentucky Fried Chicken, appellant said he got into Smith's car, and the two of them ate the chicken. Although Tucker, whom appellant also knew from school, approached Smith's car, according to appellant, Tucker never sat in the car. Appellant testified that he did not know Snipe, who entered Smith's car. Appellant then left the car.
Appellant testified that while sitting on his steps thereafter, he heard Tucker say "the jump-outs are up the street." Appellant said he saw two police officers at the corner of Eighteenth Place and D Street wrestling with another individual and an unmarked police cruiser coming down the street heading toward Smith's car. He testified that Smith, Tucker, and Snipe got out of the car and that Smith attempted to cut between the rear of his car and another parked car and dropped the pill bottle.
According to appellant, an officer searched Smith's car and recovered a substantial amount of cash from the area between the driver's and passenger's front seat. Appellant testified that after the officers arrested Snipe, Smith, and Tucker, an officer returned to the area around Smith's car, went to the base of the lamp post, and retrieved drugs. After about ten minutes, according to appellant, Officer Pender picked up from the ground the pill bottle containing appellant's name and address which Smith had dropped. Officer Pender asked appellant for identification, and then arrested him.
Appellant denied ever using, selling or possessing drugs, or seeing Tucker, Smith, or Snipe possess drugs on May 3, 1988. He denied that there was any conversation about drugs while he sat in Smith's car. Appellant also denied knowledge of the stash at the lamp post and in the pill bottle.
Appellant argues that the evidence was insufficient to establish that he actually or constructively possessed any of the drugs recovered, that he intended to possess the drugs, or that he even had knowledge of their existence. In determining the sufficiency of the evidence, this court applies the same standard as the trial court. We view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony. Leonard v. United States, 602 A.2d 1112, 1114 (D.C. 1992) (citations omitted); Nelson v. United States, 601 A.2d 582, 593 (D.C. 1991); In re A.B., 556 A.2d 645, 649 n.8 (D.C. 1989) (quoting Ford v. United States, 498 A.2d 1135, 1137 (D.C. 1985)); accord, Head v. United States, 451 A.2d 615, 622 (D.C. 1992), cert. denied, 130 L. Ed. 2d 95, 115 S. Ct. 156 (1994). No distinction is drawn between direct and circumstantial evidence, id., and the evidence need not compel a finding of guilt beyond a reasonable doubt. In re T.M., 577 A.2d 1149, 1151 (D.C. 1990); Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). "The government is not required to negate every possible inference of innocence." Jones v. United States, 625 A.2d 281, 288 (D.C. 1993). When the defendant introduces evidence after the government's case in chief, this court may consider all of the evidence when determining the sufficiency of the evidence. Hairston v. United States, 497 A.2d 1097, 1104 n.12 (D.C. 1985).
Viewing the evidence, both direct and circumstantial, against these standards, we conclude that the evidence was adequate to support the jury's finding that appellant jointly and constructively possessed the drugs. See Bernard v. United States, 575 A.2d 1191, 1195-96 (D.C. 1990); Curry, supra, 520 A.2d at 263. First, there was evidence that a substantial amount of drugs was in a bottle bearing appellant Dickerson's name and address. In addition, there was evidence that after making a drug sale, Snipe joined Dickerson and Smith in a car and reached into the area of the console from which a large amount of money was recovered. The funds recovered from that area included the money used by the police to make the drug purchase. Snipe, who was a witness for Dickerson at trial, *fn3 admitted that he and Tucker were selling crack for Smith and that appellant Dickerson was present when he gave Smith the money for the drugs which he sold to the undercover officer. The remaining drugs were found outside of the car from which Dickerson and the others had just exited and directly in front of Dickerson's residence.
It was within the province of the jury to reject, as it apparently did, appellant's innocent explanation for the transfer and use of his bottle and his innocent presence defense. We conclude that there was sufficient evidence for the jury to infer that there was a concert of illegal action involving the drugs by Dickerson and his companions, the disclaimer of appellant and Snipe notwithstanding. Such evidence "tend to dispel any fear that the 'constructive possession' doctrine has cast too wide a net." *fn4 See Wheeler v. United States, 494 A.2d 170, 173 (D.C. 1985). See also United States v. Covington, 459 A.2d 1067, 1071 (D.C. 1983).
Appellant also argues for the first time on appeal that his right to a speedy trial was violated by a twenty-four month delay between his initial arrest and the commencement of his trial. Appellant claims he was prejudiced by the delay because by the time of trial he had turned twenty-two years of age, and therefore was ineligible for sentencing under the Youth Rehabilitation Act (YRA), D.C. Code §§ 24-801-807 (1981 ed.) (Repl. 1989). This court must consider the well-established multi-factor balancing test in analyzing appellant's speedy trial claim: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972); Lyons v. United States, 645 A.2d 574 (D.C. 1994). None of these factors is "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial," and the court must undertake a sensitive balancing process of all four factors in order to reach its decision. Barker, 407 U.S. at 533.
The record reflects that appellant was arrested on May 3, 1988. The original indictment was dismissed for want of prosecution on September 13, 1988, and appellant was not re-indicted until January 11, 1989. The period between the dismissal and re-indictment is not considered when evaluating the Sixth Amendment speedy trial claim. *fn5 United States v. Loud Hawk, 474 U.S. 302, 310-12, 88 L. Ed. 2d 640, 106 S. Ct. 648 (1985); MacDonald, supra note 5, 456 U.S. at 7-9; accord, United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992). Therefore, the total delay for purposes of our analysis is twenty months. While a twenty-month delay is substantial, this court has held that delays of that length and even longer do not, standing alone, constitute a violation of the right to a speedy trial. See, e.g., Graves v. United States, 490 A.2d 1086, 1090 (D.C. 1984) (en banc) (25 months), cert. denied, 474 U.S. 1064, 88 L. Ed. 2d 788, 106 S. Ct. 814 (1986); (Ulysses) Jones v. United States, 483 A.2d 1149 (D.C. 1984) (34 months), cert. denied, 471 U.S. 1118, 86 L. Ed. 2d 263, 105 S. Ct. 2363 (1985); Cates v. United States, 379 A.2d 968, 970 (D.C. 1977) (59 months).
With respect to the second factor in this analysis, the reasons for the delay, this court applies different weights depending upon the basis for it.
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker, supra, 407 U.S. at 531. This court has created an intermediate category of significant delay which is applied to government actions less culpable than deliberate foot-dragging, but more culpable than the neutral category. Graves, supra, 490 A.2d at 1092.
In this case, forty-four days are attributable to the government's negligence in losing its file, and eighty-five days are attributable to the government's requests for continuances of two scheduled trial dates because of committed leave of its various witnesses. *fn6 At least four months of delay, from September 5, 1989 through January 24, 1990, are attributable to counsel for co-defendant. *fn7 The forty-four days of delay between August 1, 1988 and the dismissal of the case on September 13, 1988 are weighed against the government as significant, but less heavily than where the government delays deliberately to gain some tactical advantage. See id. at 1092-93. The remaining delay was institutional, which is weighed less heavily against the government. Barker, supra, 407 U.S. at 531; Graves, supra, 490 A.2d at 1094. Therefore, the only "significant" delay attributable to the government occurred very early in the case. The rest of the delay was for neutral, institutional reasons, and none of the delay appears to be attributable to a deliberate attempt by the government to gain a tactical advantage.
The third factor is assertion of the right. "The defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Sell v. United States, 525 A.2d 1017, 1023 (D.C. 1987) (quoting Barker, supra, 407 U.S. at 531-32). The "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532. Although not dependent on particular language, we have consistently stressed the importance of a direct assertion of the right, emphasizing that the assertion has more credence when a speedy trial is requested directly. E.g., Turner v. United States, 622 A.2d 667, 678 (D.C. 1993); Lyons, supra, 645 A.2d at 583; Graves, supra, 490 A.2d at 1098; Sell, 525 A.2d at 1024-25. In evaluating this factor, we "weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." Barker, 407 U.S. at 529; e.g., Graves, 490 A.2d at 1090; Sell, 525 A.2d at 1025; Jackson v. United States, 503 A.2d 1225, 1228 (D.C. 1986).
Appellant concedes that he never asserted his right to a speedy trial in the trial court. Thus, this factor weighs heavily against him. Although appellant twice moved to sever his trial from his co-defendants (on March 3 and August 2, 1989) on the ground that the evidence against him was weaker than that against his co-defendants, and twice opposed the government's motions for continuance of trial dates (on April 27 and July 20, 1989), he never moved for an immediate trial. On the April date, appellant merely stated that he was "anxious to resolve this case." It was not until July when he filed the same objection that he finally apprised the court about the imminence of his twenty-second birthday. He added to his objection to a continuance, a one-line handwritten statement mentioning finally that ...