Before Terry, Farrell, and Washington, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Lee F. Satterfield, Motions Judge) (Hon. Truman A. Morrison, III, Trial Judge)
A grand jury indicted appellant on one count of distribution of cocaine and one count of possession of cocaine with intent to distribute it, in violation of D.C. Code § 33-541 (a)(1) (1998). After the grand jury was empaneled, but before it considered appellant's case, a Metropolitan Police Department ("MPD") detective came before the grand jury in the course of its orientation. Although he was not sworn as a witness, the detective provided the grand jury members with background information about various drug-related matters in the District of Columbia, including the packaging and identification of narcotics. Prior to trial, appellant filed a motion to dismiss the indictment on the ground that any presentation to the grand jury of narcotics-related information contaminated the grand jury and fatally tainted the indictment. The trial court denied the motion and also denied appellant's request for transcripts of the grand jury orientation proceedings. The government later dismissed the charge of possession with intent to distribute, and the case went to trial on the remaining charge of distribution. Appellant was found guilty as charged and was later sentenced to a term of imprisonment.
Appellant's primary contention on appeal is that the trial court erred in denying his motion to dismiss the indictment because the detective's presentation to the grand jury violated both Super. Ct. Crim. R. 6 and the statutory prohibition on unsworn testimony. In addition, appellant argues that the Jencks Act, 18 U.S.C. § 3500 (1994), required the government to turn over the tape recording of the grand jury orientation and that the trial court erred in denying his motion to suppress identification testimony. We affirm.
A. Proceedings before the Grand Jury
After the grand jury that indicted appellant was sworn, an MPD detective knowledgeable about narcotics-related activities in the District of Columbia made an appearance before the grand jury as part of its orientation. Before the grand jury heard evidence about any specific case, the detective gave the grand jury some general background information about drug trafficking, including the packaging and identification of narcotics.*fn1 The detective was not sworn, and no one was present except the detective and the grand jurors. In addition, although the detective's session with the grand jury was recorded on tape, it was not transcribed.
Appellant filed a pre-trial motion to dismiss the indictment, arguing that this presentation contaminated the grand jury and that the detective was not under oath as required of all grand jury witnesses. The court denied the motion, saying, "If what you're referring to is what I think you're referring to, that is, the orientation of the grand jury prior to them hearing specific cases, then I don't see any violation of Rule 6 . . . ." In addition, the court denied appellant's request for a transcript of the detective's presentation.
B. The Motion to Suppress
Appellant also filed a motion to suppress identification, arguing that his identification was the product of an illegal arrest. The only witness at the hearing on the motion was Collis Timlick, an undercover police officer who participated in the purchase of drugs from appellant. Timlick testified that he and Officer Michelle Green initially approached appellant in the 4100 block of Georgia Avenue, N.W. After they engaged him in "a brief conversation about buying some coke," appellant walked across Georgia Avenue and spoke to Victor Rogers, who was waiting there.*fn2 From across the street, Officer Timlick saw Rogers hand appellant "something in the form of a small object." Appellant then walked back to where the officers were standing and handed the object - a ziplock bag "containing a white rock substance" -to Officer Timlick, who in return gave appellant $20 in pre-recorded funds.
After a field test showed that the rock-like substance was cocaine, Officer Green broadcast a lookout, including descriptions of both men, to an arrest team waiting nearby. About forty-five seconds later, Officer Timlick, now traveling along Georgia Avenue in an unmarked police car, saw appellant, Rogers, and several other individuals standing together on a corner, where they had been stopped by members of the arrest team. Timlick testified that he passed within eight to ten feet of the group and identified appellant "by his face and what he was wearing."
Following the testimony, defense counsel argued that the government had not put on any evidence showing why the officer who arrested appellant had stopped him. Counsel noted that "the government for whatever reason did not want to put on the officer who made the stop." Notwithstanding this argument, the court denied the motion to suppress, saying:
I believe that there is an inference the court can draw, which is that the officer who stopped Mr. Williams was aware that he had just engaged in an apparent drug transaction, because we know that he was stopped by members of the arrest team, that is what the officer testified to. And the officer testified that he broadcast a lookout, or that Michelle Green broadcast a lookout of the ...