Appeals from the Superior Court of the District of Columbia. (Hon. Ellen Segal Huvelle, Trial Judge).
Before Ferren and King, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: On September 18, 1992 a jury convicted appellants Nelson and Blakeney of unlawful possession with intent to distribute cocaine. D.C. Code § 33-541 (a)(1) (1993 Repl.). Nelson was also convicted of unlawful possession of drug paraphernalia. D.C. Code § 33-603 (a) (1993 Repl.). Nelson was sentenced to a mandatory term of seven to twenty-one years in prison for possession with intent to distribute, and to one month in prison for possessing drug paraphernalia, to be served concurrently. Blakeney was sentenced to a mandatory term of four to twelve years incarceration.
In this appeal, Blakeney contends that the trial court erred by (1) admitting in evidence a pager found on Blakeney at the time of his arrest, and by (2) permitting the government's expert to testify as to the use of pagers in drug transactions. Blakeney also argues that (3) there was insufficient evidence to convict him of aiding and abetting possession with intent to distribute cocaine.
Nelson maintains that (1) the trial court erred by restricting cross-examination of the government's expert witness; (2) his sentence was illegal; and (3) the admission, solely against Blakeney, of the pager, as well as the expert testimony about the use of pagers in drug distribution, had a "spillover effect" which resulted in unfair prejudice against him. We affirm as to both appellants.
The government presented the following evidence at trial. United States Park Police Officer John Dowd obtained a search warrant for apartment #3 at 1814 North Capitol Street, N.W. Soon thereafter, on June 26, 1992, at approximately 5:15 p.m., Officer Dowd and FBI special agent John Kerr set up an observation post to monitor the front of 1814 North Capitol Street. It was light outside and Officer Dowd had an unobstructed view of the apartment building.
On four occasions between 5:15 p.m. and 6:00 p.m. Officer Dowd saw appellant Nelson walk to a tree located along the curb, bend down next to the tree, and then appear to put something inside his waistband. The tree was approximately ten feet to the north of 1814 North Capitol Street. According to Officer Dowd's testimony, after bending down next to the tree, Nelson would walk southbound on North Capitol Street with an unidentified person and exchange a small item taken from his waistband for money.
Appellant Blakeney walked "in front of behind" Nelson during these exchanges and looked up and down North Capitol Street while the exchanges were taking place. After each sale, Blakeney would meet Nelson in front of 1814 North Capitol, and Nelson would give Blakeney some cash. Just before 6:00 p.m., Officer Dowd saw Nelson give Blakeney a large sum of money, and Blakeney then went into the building at 1814 North Capitol. At approximately 6:00 p.m., Dowd radioed to his fellow officers to execute the search warrant for 1814 North Capitol #3; he also told them to stop Nelson. In the meantime, Officer Ed Brosch searched the area near the tree and recovered a cardboard box containing a large amount of debris and a "carefully folded" piece of brown paper that contained a green ziplock bag. The bag held a "large chunk" of a substance that a Drug Enforcement Administration (DEA) analysis later established was 519 milligrams of cocaine base.
When Nelson was detained, he told the police that he lived in apartment #3 at 1814 North Capitol Street and that he was unemployed. Blakeney was stopped in a hallway just outside one of the bedrooms in apartment #3. Blakeney confirmed that he "stayed" in the bedroom closest to where he had been detained. Officer Dowd, who had left his observation post and entered the apartment, recognized Blakeney as the person he had seen near Nelson during the transactions; he also recognized Blakeney as the person who had received money from Nelson. Blakeney told the police that he was unemployed and gave his address as 6212 Georgia Avenue, Northwest.
Inside dresser drawers in Blakeney's bedroom, the police found numerous empty yellow and blue ziplock bags, a small straw, and three small ziplocks that contained what appeared to be crack cocaine. A later DEA analysis showed that the three small ziplocks did not contain a controlled substance. The straw, however, had traces of cocaine on it. An inoperable .25 caliber Raven semi-automatic pistol was recovered from between the mattress and the box spring in the same bedroom. The police also found photographs there depicting Blakeney, Nelson, and the two of them together, as well as three "legal papers" with Blakeney's name on them.
The police recovered a pager and $690 from Blakeney's pockets. The $690 was comprised of three $100 bills, one $50 bill, fifteen $20 bills, three $10 bills, and two $5 bills. A total of $476 was recovered from Nelson, comprised of two $50 bills, eleven $20 bills, nine $10 bills, eleven $5 bills, and eleven $1 bills.
Lieutenant Ronald Schmidt, an expert in the handling and distribution of narcotics, testified for the government, opining that (1) it is common for one person to do the "hand to hand" transfer while someone else handles the money; (2) street drug sellers often sell from a "stash" and frequently use trash receptacles for their stashes; (3) the "money man" may keep the money on himself or in a stash, and then take the cash into a house or apartment after a certain amount has been received; and (4) street sales primarily generate $5, $10, and $20 bills. Lieutenant ...