Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia
Hon. Judith Retchin, Trial Judge
Submitted September 5, 2000
A jury found appellant guilty of, among other offenses, possession with intent to distribute cocaine (PWID) while armed in a drug free zone (Count I), D.C. Code §§ 33-541 (a)(1) (1998), 22-3202 (1996), 33-547.1, and possession of a firearm during commission of a dangerous crime (Count II), id. § 22-3204 (b). *fn1 He contends that the trial judge erred in denying his motion to compel disclosure of an informant's identity, and that the evidence was insufficient to prove that he possessed the cocaine within a drug free zone, i.e., within 1000 feet of a school. We agree with the latter contention and, therefore, will vacate the portion of appellant's armed PWID conviction resting upon the "schoolyard" statute (§ 33-547.1) and remand for resentencing on that count. Otherwise, we affirm all of appellant's convictions.
On September 22, 1998, a Metropolitan Police Department (MPD) officer applied for a search warrant to search apartment No. 807 at 3700 Ninth Street, Southeast. As relevant to the first issue on appeal, the affidavit stated that
[w]ithin the past seventy-two hours, a confidential and reliable source advised that it had observed several handguns within the above listed premises The source further advised that the handguns belong to two (2) subjects only known to the source as "FRED" and "SKEET."
The warrant was issued, and three days later members of the FBI-MPD Safe Street Gang Task Force entered the named apartment, a small efficiency unit with a living room/bedroom area and a small kitchen. They found appellant and a woman asleep in bed. On top of a television set in the living room area was a .9 millimeter Smith and Wesson pistol and ammunition; on a table in the same area were twelve ziplock bags containing cocaine, a digital scale, and bags holding other illegal drugs. Ammunition, a large amount of cash, and personal documents belonging to appellant were found under the bed in which he had been sleeping. Additional handguns and ammunition were found in the kitchen area. *fn2
Before trial, appellant moved unsuccessfully for disclosure of the identity of the informant mentioned in the warrant application. On appeal he renews his contention that the informant, if known to him, might have furnished information tending to support his claim that at the time of the search he was occupying the apartment only momentarily, for a "tryst," and did not own or possess the gun and drugs found in the living room area.
In recognizing that a request for disclosure of the identity of a confidential informant requires the court to "balance the public interest in protecting the flow of information against the individual's right to prepare his defense," this court has stated:
The burden is on the person seeking disclosure to demonstrate that the informer is not merely an informer but rather a participant, an eyewitness, or someone who could give direct testimony on the events at issue. * * * Mere speculation that the informer might possibly be of some assistance is not sufficient to overcome the public interest in the protection of the informer. United States v. Lyons, 448 A.2d 872, 874 (D.C. 1982) (citations and internal quotation marks omitted); see Guishard v. United States, 669 A.2d 1306, 1317-18 (D.C. 1995).
The trial court's decision on whether to order disclosure is reviewed only for abuse of discretion. ...