APPEAL FROM THE SUPERIOR COURT, ROBERT S. TIGNOR, J. [718 A2d Page 96]
Before King and Ruiz, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: King, Associate Judge:
Harvey K. Brown was convicted by a jury of distribution of cocaine, in violation of D.C.Code § 33-541(a)(1) (1998 Repl.), and failure to appear in court for a program review hearing on September 13, 1995, in violation of D.C.Code § 23-1327(a) (1996 Repl.). On appeal, Brown argues that the trial court erred in consolidating the two charges and then in denying his motions to sever and for a mistrial. Brown also argues that the trial court erred in denying his motion for a mistrial due to the unexplained loss of assertedly exculpatory photographs after the first day of the jury deliberations. Finding no reversible error, we affirm.
Brown was arrested on March 24, 1995, charged with one count of distribution of cocaine, and subsequently indicted on that charge. *fn1 On May 5, 1995, Brown pled not guilty and signed a notice to return to court on May 31, 1995, for the first of four possible master calendar status hearings before Judge Gregory E. Mize. The purpose of these hearings was to determine whether Brown would accept the government plea offer or reject it and go to trial. On three subsequent dates, July 7, 1995, July 19, 1995, and August 16, 1995, Brown returned to court as he had agreed to do. *fn1 On August 16, his last master calendar status hearing, Brown rejected the government's plea offer and stated his intention to go to trial.
At his first master calendar status hearing on May 31, 1995, Brown entered the Enhanced Drug Treatment Program (EDTP), *fn2 an intensive drug treatment program open to defendants who otherwise qualify and who test positive for drugs at presentment and twice thereafter, as Brown did. EDTP is a five-day-a-week, six-hour-a-day program involving frequent drug testing, daily counseling, and sanctions for failure to comply with program requirements as evidenced by positive drug tests or absenteeism. Entry into the program is voluntary and a defendant may drop out at any time, although only after obtaining leave of the court. However, participation in the drug program was a condition of Brown's release. [718 A2d Page 97]
At the times relevant to this case, Judge Mize was responsible for monitoring participants in EDTP. Participants appeared before Judge Mize for program review hearings to monitor progress in EDTP — which occurred approximately monthly and usually coincided with master calendar status hearings — as well as for failure to comply with program requirements. Before Brown had decided to reject the government plea offer and go to trial, as stated above, Judge Mize presided over Brown's master calendar status hearings as well. Once Brown elected to go to trial, however, Judge Mize certified the criminal case to Judge Truman A. Morrison, III, and a trial date was set for December 13, 1995. At that proceeding, Brown acknowledged in writing his obligation to appear before Judge Morrison for trial on December 13, 1995, as well as his separate obligation to appear before Judge Mize, who continued to monitor Brown's participation in the drug treatment program, for his next EDPT review hearing on September 13, 1995.
Following Brown's election to go to trial, Judge Mize scheduled a compliance hearing for August 31, 1995, because of Brown's numerous absences from EDTP counseling sessions and positive drug tests. Brown failed to appear, and a bench warrant was issued for his arrest. Brown also failed to appear for his scheduled September 13, 1995, EDTP review hearing before Judge Mize and Judge Mize continued the bench warrant. On September 26, 1995, Brown was arrested on the bench warrant and the next day Judge Mize ordered him held without bond under D.C.Code § 23-1329 (1996 Repl.); he remained in custody until trial. Subsequent to his arrest on the bench warrant, Brown was indicted on one count of failure to appear on September 13, 1995, in violation of D.C.Code § 23-1327(a) (1996 Repl.) (Bail Reform Act or BRA).
On November 3, 1995, the government moved to consolidate the two cases, arguing that the facts underlying the BRA charge were admissible in the drug case because Brown's failure to appear on September 13, 1995, evidenced his consciousness of guilt and intent to avoid prosecution. Brown opposed consolidation, maintaining that his failure to appear at an EDTP review hearing was unrelated to the drug prosecution and, therefore, did not evidence consciousness of guilt or flight from prosecution on the drug charge. *fn3 On November 29, 1995, Judge Morrison issued an order joining the drug charge with the BRA charge, reasoning that joinder was proper because Brown did not surrender himself after the bench warrant was issued and was eventually brought before the court only because he was arrested on the bench warrant. In short, in the judge's view, joinder was proper because Brown offered no evidence that if he had not been apprehended on the bench warrant he would have appeared voluntarily in court for his December 13 trial date. Judge Morrison also indicated that Brown was free to present evidence at trial that the BRA charge stemmed from a drug treatment program rather than from the drug prosecution.
Brown's trial before Judge Robert S. Tignor began on January 2, 1996. *fn4 The government's evidence showed that Brown sold crack cocaine to Officer Darrick Wallace at around 8:46 p.m. on March 24, 1995, in the 900 block of Shepherd Street, N.W., receiving prerecorded funds in exchange. *fn4 Wallace provided an in-court identification of Brown, *fn4 [718 A2d Page 98]
as did Tonce Cutler, *fn5 Milton Norris, and Thomas Fontz, the three other officers involved in the undercover-operation who testified at trial.
Over his radio, Wallace gave a "lookout," or description of the seller and his location, to an arrest team. Wallace testified that he described the seller as "a heavy-set, fat, black male wearing blue jeans [and a] tan jacket, [who] had a bald head, and . . . a scar on his head," and who was "light-complected." About five minutes later, Wallace drove past the corner where Brown was standing with members of the arrest team and identified Brown as the person who had sold him the drugs.
Officer Norris, a member of the arrest team, testified that Wallace broadcast a description of an individual wearing "blue jeans, light-colored coat, kind of heavy, had a bald head." *fn6 Within minutes, Norris reached the 900 block of Shepherd Street, where he "recognized the subject fitting the description and — actually he stood out from what everybody else had on." Norris approached Brown, who was standing with a number of other males and holding a beer in his hand, "grabbed [him] and explained . . . what was going on." Brown said, "Officer, I just came from out of the store." Another member of the arrest team, Officer Fontz, testified that the lookout given by Wallace "was for a black male, heavy-built, tall, wearing a tan jacket, I believe. Maybe blue jeans, I believe boots, some kind of tan boots." Fontz recalled that none of the other people in the area looked like Brown or matched the lookout. *fn6
The government also called Phyllis Jackson, a courtroom clerk familiar with Superior Court procedure and specifically with Drug Court procedure. *fn7 Concerning EDTP, Jackson testified that participation was a condition of Brown's release. She also testified that defendants are notified orally and in writing of future court dates and of the consequences of failure to appear, and that defendants must sign their names to a written notice of their next court date. *fn7
On cross examination, Jackson testified that Brown had failed to appear for a compliance hearing on June 22, 1995, and that a bench warrant for his arrest was issued at that time. However, that bench warrant was quashed when Brown appeared for his July 7, 1995, status hearing. *fn8 Jackson also testified [718 A2d Page 99]
on cross examination that Brown's court record indicated that he had relapsed on several occasions — including on August 16, 1995, the date he opted to go to trial — but that each time Brown elected to stay in the drug treatment program.
Alec Christoph, Project Manager for Superior Court's Drug Intervention Program, testified for the defense concerning the nature of EDTP and Brown's participation in the drug treatment program. *fn9 Christoph testified that entry into the program is voluntary but that once an individual enters the program, participation is mandatory and attendance is taken at every segment. He also testified that a new release order is issued once a defendant enters the program. A defendant can withdraw from the program after electing to go to trial, at which time the defendant's criminal case is assigned to a new judge, or at any other time, but must appear before the judge administering the program in order to do so. *fn9
Before closing arguments, the government requested that the trial judge give a "flight" instruction with respect to the drug charge. *fn10 Such an instruction would permit the jury to find that Brown's failure to appear for his EDTP review hearing was evidence of flight from prosecution for the drug charge and thus of consciousness of guilt of that charge. *fn10 The trial judge denied the request, observing that there wasn't a sufficient basis for a flight instruction with respect to the substantive drug charge. *fn10 The trial judge explained that his ruling was based upon the government's failure to present any evidence at trial that Brown had been arrested on the bench warrant on September 27, 1995, and that he was therefore before the court for trial because he had been arrested on the bench warrant and held for trial. So far as the trial ...