APPEAL FROM THE SUPERIOR COURT, LEE SATTERFIELD, J. [709 A2d Page 88]
Before Steadman and Schwelb, Associate Judges, and
Gallagher, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge:
Appellant Jay Bullock was convicted by a jury of one count of unlawful distribution of a controlled substance and one count of unlawful possession with intent to distribute a controlled substance ("PWID"). At the same trial, appellant Kenneth V. Rawlinson was convicted of one count of PWID. *fn1 All charges relate to a quantity of heroin that was stashed beside a tree near the corner of Georgia Avenue and Otis Place, N.W. Bullock contends that (A) the evidence was insufficient to convict him of distribution and PWID, (B) in any event he cannot remain convicted of both offenses insofar as they relate to the same quantity of heroin, and (C) the government impermissibly introduced "other crimes" evidence. He also alleges a violation of the government's duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Rawlinson contends that the evidence was insufficient to convict him of PWID. We find no error and affirm the convictions of both appellants.
On the morning of March 12, 1994, Officer Richard Fitzgerald of the Metropolitan Police Department manned an observation post near the "high drug area" of Georgia Avenue and Otis Place, N.W. From approximately 10:20 a.m. until 11:10 a.m., Fitzgerald observed the two appellants and a third person, Cynthia Davis, *fn2 through binoculars.
A. The Open-Air Heroin Enterprise.
At around 10:20 a.m., appellant Bullock emerged from an alley known for drug trafficking, engaged Davis in conversation, and gave her a bundle of objects wrapped in a plastic band. Fitzgerald believed the objects were cellophane ziplock bags. Through his binoculars, Fitzgerald watched Davis count out ten objects by "flipping through" the bundle. Davis stashed the bundle at the base of a nearby tree. Davis remained near the tree while Bullock wandered up and down the street, often looking back toward the tree.
Shortly after Bullock gave the bundle to Davis, appellant Rawlinson entered the scene. Rawlinson approached Davis and struck up a conversation. Fitzgerald could not hear what was said, but he observed Davis gesture toward the base of the tree with her head. Rawlinson nodded in response to this gesture, and he and Davis walked a short distance together. Rawlinson continued to associate with Davis throughout the surveillance period. Fitzgerald testified that Rawlinson once "motioned and directed" a passerby to Davis, who then appeared to sell drugs from the stash to the passerby.
During the fifty minutes of Fitzgerald's surveillance, a total of five or six pedestrians appeared to buy drugs from Davis. After every one or two sales, Davis would approach Bullock, appear to give him money, and then return to the tree while Bullock disappeared into the alley. Fitzgerald testified that Bullock appeared to be "more or less overlooking what [was] going on, supervising his troops." Fitzgerald also saw Rawlinson appear to make two or three drug sales to different passersby, although his testimony was unclear as to whether these sales were linked to the stash by the tree or to a different source. At one point during the observation, all three suspects conferred in a group.
At 11:10 a.m., two arrest teams moved into the area and apprehended Bullock, Rawlinson, and Davis. After Bullock's arrest, police found $115 in one of his pockets. Police found no drugs on Bullock's person, and they did not find drugs or money in the alley. Police recovered neither drugs nor money from Rawlinson after his arrest. A police officer searched the base of the tree and found two small cellophane ziplock bags hidden inside a bottle-cap. There were no other [709 A2d Page 90]
items of significance beneath the tree. The contents of the ziplock bags were identified as heroin in a field test.
At trial, an expert explained how open-air drug enterprises tend to operate. The expert identified a common pattern in which one individual, designated a "runner," would solicit potential customers and direct them to the "holder," who supervised the supply of drugs. A holder in an enterprise rarely keeps the drugs on his or her person for fear of being caught with incriminating evidence. Instead, the holder might stash the drugs in a vehicle, near a tree, or in a bag amongst litter. For the same reason, the participants in an open-air drug enterprise might arrange to have incoming cash stashed separately. Finally, the expert identified "an executive lieutenant or captain who will pass [the drugs] out to the street lieutenants for selling on the street."
Neither defendant presented any ...