Before Ruiz, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Joseph M.F. Ryan, Jr., Trial Judge)
Appellants Garfield A. Gordon and Wesley S. Williams were tried jointly and convicted of various criminal offenses in early 1992. *fn1 At trial, Williams was convicted of second-degree murder while armed, assault with a dangerous weapon, possession of a firearm during a crime of violence, carrying a pistol without a license, conspiracy to distribute drugs, and possession with the intent to distribute (PWID) cocaine. The jury found Gordon guilty of assault with a dangerous weapon, possession of a firearm during a crime of violence, conspiracy to distribute drugs and PWID cocaine. On appeal, appellants raise several issues as grounds for reversal of their convictions. Appellants' primary contentions are: 1) the evidence was insufficient to support their convictions for PWID cocaine on February 8, 1990; 2) the PWID convictions must be reversed because the jury was not properly instructed on co-conspirator liability as required by Pinkerton v. United States, 328 U.S. 640 (1946); 3) the trial court erred by allowing the prosecutor to introduce, at trial, hearsay evidence contained in a police radio broadcast; 4) the trial court erred by permitting the prosecutor to introduce evidence of a witness' fear of the appellants; and 5) the prosecutor's closing and rebuttal arguments were improper. We reverse and remand.
The government prosecuted Garfield Gordon, Wesley Williams, and Junior Higgins *fn2 for their involvement as co-conspirators in a drug distribution operation that turned deadly. According to the government, Gordon, Williams, and Higgins operated their drug distribution business out of an apartment located on 11th Street N.W., and sold their drugs primarily in the 700 block of Lamont Street, N.W. The government alleged that each of the co-conspirators played a unique role in the overall business. Gordon was primarily responsible for manufacturing and packaging the crack cocaine. Williams' primary role was to recruit drug dealers and collect proceeds from drug sales. Higgins was the primary street dealer for the operation in the 700 block of Lamont Street. In addition to prosecuting Gordon, Williams, and Higgins for their participation in the conspiracy to distribute drugs, the government also charged the appellants with various violent crimes and weapons offenses that arose out of their desire to protect their business enterprise. The specific events which led the government to prosecute the three men occurred on February 8, March 9, and March 11, of 1990.
On February 8, 1990, the police received an anonymous tip that two people were selling drugs in front of 762 Lamont Street. The caller described one of the participants selling drugs as wearing a maroon or burgundy sweater. When the officers arrived at the scene, they discovered Higgins in the open basement area of 762 Lamont Street wearing a sweater that fit such a description. After asking Higgins to step out of the basement, the police officers found nineteen plastic bags containing crack cocaine lying on the floor near where Higgins had been standing. Higgins was arrested for PWID cocaine although the charge against him was "no papered," and he was released. Subsequently, all three defendants were indicted for this offense based on the government's theory that they were co-conspirators in the drug business.
By March 9, 1990, Higgins had returned to selling drugs on the 700 block of Lamont Street. On this occasion, Higgins was in the process of selling drugs to one of his regular customers, Booker T. Broadway, when he discovered his stash had been stolen. Higgins believed that a rival dealer, Kirk Cheeks, was responsible, so he sought him out and threatened him. After issuing his threat, Higgins apparently tried to leave, but Cheeks followed him into an alley and shot him. According to the government, when Gordon found out about the shooting, he drove over to the 700 block of Lamont Street, N.W. with some friends to seek revenge. The government contends that Gordon, unaware that Cheeks was the shooter, mistakenly assaulted an individual known as Eddie Dickens, as well as others with him, in retaliation for the shooting of Higgins. Gordon was subsequently charged with the assault and related weapon offenses.
Finally, the government alleged that on March 11, 1990, Williams drove over to the 700 block of Lamont Street in a black Honda looking for Cheeks. When Williams saw Cheeks, he called out to him by his nickname, "New York." As Cheeks approached the car, Williams pulled a gun and began shooting at him. Williams missed Cheeks but hit Lamont Simms and his brother, Keith Simms, who were innocent bystanders. Lamont Simms died from his wounds. As a consequence of the armed assault on Cheeks that culminated in the shooting death of Lamont Simms, Williams was charged with committing various violent crimes and weapons offenses.
A. Appellants' PWID Convictions
Appellants offer two separate grounds as support for their contention that their PWID convictions must be reversed. First, they argue that there is insufficient evidence in the record to support Higgins' conviction for PWID and, thus, as co-conspirators there is insufficient evidence in the record to support their convictions for the same offense. Second, even if there was sufficient evidence to convict Higgins of PWID, appellants' convictions must be overturned because the trial court failed to properly instruct the jury in a manner consistent with the Supreme Court's decision in Pinkerton.
(1) Sufficiency of the Evidence
On February 8, 1990, Higgins was arrested for PWID cocaine when he was stopped by Officers William Richardson and Victor Bruschnevewitz of the Metropolitan Police Department during a routine drug investigation. According to the officers, they were responding to a radio broadcast that indicated two men were selling drugs in front of 762 Lamont Street, N.W. The tipster who reported the drug activity to the police described one of the individuals selling drugs as wearing a maroon or burgundy sweater, blue jeans, and a black coat. When the officers arrived in the 700 block of Lamont Street, they spotted Higgins talking with the other individual they believed was selling drugs while standing in the open basement area of 762 Lamont Street. Higgins was wearing clothing that matched the description given by the tipster. The officers testified that they told the individual to whom Higgins was speaking to leave the area while they asked Higgins to step out of the basement. Officer Richardson then entered the basement area and recovered nineteen plastic bags of crack cocaine from the ground next to where Higgins had been standing at the time the officers arrived in the area. The officers arrested Higgins, and a search incident to that arrest revealed that Higgins had $651.00 in small bill denominations on him.
In addition to the officers' testimony, eleven other witnesses testified that Higgins regularly sold drugs in the 700 block of Lamont Street, N.W., and one of those witnesses, Dianne Harrison, testified that she saw Higgins selling drugs from a brown paper bag in front of 762 Lamont Street earlier on February 8, 1990. Finally, the government presented expert testimony that the quantity of drugs recovered and the packaging in which the drugs were found, indicated that the drugs were intended for distribution.
In reviewing sufficiency claims, we view the evidence and draw all inferences in the light most favorable to the government. Speight v. United States, 671 A.2d 442, 454 (D.C. 1996). The prosecution need not negate every possible inference of innocence, see Irick v. United States, 565 A.2d 26, 30 (D.C. 1989), and evidence is legally insufficient to support a conviction "only where there is no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Patterson v. United States, 479 A.2d 335, 338 (D.C. 1984). In order to find Higgins guilty of PWID, the government must prove beyond a reasonable doubt that Higgins possessed the crack cocaine, that he did so knowingly and intentionally, and that when he possessed the cocaine he had the intent to distribute it. See D.C. Code § 33-541 (a)(1) (1996 Repl.). To prove that Higgins constructively possessed the crack cocaine found near his feet, the government had to prove that he "knowingly had both the power and the intention, at a given time, to exercise dominion or control over the cocaine." Bernard v. United States, 575 A.2d 1191, 1995 (D.C. 1990) (internal citation omitted). See also United States v. Hubbard, 429 A.2d 1334, 1338 (D.C. 1981).
Gordon and Williams argue that the government failed to present sufficient evidence that Higgins intentionally possessed the nineteen bags of crack cocaine that the police found near him in the basement of 762 Lamont Street. They contend that the only probative evidence tying Higgins to the drugs recovered on the night of February 8, 1990, was his proximity to those drugs, and that mere proximity to contraband, without more, cannot support a conviction based on constructive possession. While we agree that Higgins' mere proximity to the drugs is not, by itself, sufficient evidence to support a conviction based on constructive possession, we are satisfied that the evidence in this case sufficiently established that Higgins possessed the drugs found at his feet on the night of February 8, 1990, as part of "an ongoing criminal operation of which that possession [was] a part." Curry v. United States, 520 A.2d 255, 263 (D.C. 1987) (citations omitted). See also Hubbard, 429 A.2d at 1338.
In many respects, the evidence in this case is similar to the evidence that we found sufficient to withstand a motion for judgment of acquittal (MJOA) in Hubbard. In that case, two police officers testified that they saw the defendant engaged in what appeared to be two separate narcotic transactions in a high drug trafficking area. Hubbard, supra, 429 A.2d at 1338. Specifically, they testified that on one occasion they saw Hubbard exchange what they believed to be drugs for money, and on another occasion they saw Hubbard introduce a prospective buyer to another drug dealer. Id. Armed with this information, the police stopped Hubbard and the other individual they believed were selling drugs, and recovered from the area near them a white paper bag that they had seen the other drug dealer handling earlier in the day. Id. The paper bag contained drugs, and both Hubbard and her alleged accomplice were arrested and charged with PWID. Hubbard argued in her case, as Gordon and Williams argue here, that the only probative evidence presented tying her to the drugs found in the paper bag was her mere proximity to the drugs and that mere proximity is not enough to prove constructive possession. After the jury had convicted, the trial court agreed and granted Hubbard's MJOA.
On appeal, we reversed and held that based on the evidence presented, a jury could reasonably conclude beyond a reasonable doubt that Hubbard's conduct, in engaging in and assisting others in engaging in purported drug transactions, amply demonstrated her ability to "guide the destiny" of the drugs that were ultimately recovered from the paper bag found in close proximity to her at the time of arrest. Id. Thus, despite the fact that no one testified that they saw Hubbard handle the paper bag or its contents, we found that there was sufficient evidence in the record to conclude that she constructively possessed those drugs.
In this case, as in Hubbard, there was substantial evidence presented that Higgins was seen selling drugs in the same location and on the same day that he was arrested. In addition, there was substantial evidence introduced that Higgins regularly and repeatedly sold drugs in and around that same area as "part of an ongoing criminal operation of which possession of the drugs [was] a part." See Curry, supra, 520 A.2d at 263. That evidence, combined with the fact that the police recovered nineteen packages of crack cocaine, wrapped in plastic, in close proximity to where Higgins was standing, is convincing proof that there was sufficient evidence to support a finding that Higgins, like Hubbard, constructively possessed the recovered drugs. Consequently, viewing the evidence in a light most favorable to the government, there is sufficient evidence upon which a reasonable juror could infer appellants guilty of PWID beyond a reasonable doubt.
(2) Pinkerton Instruction
Alternatively, appellants argue that even if we find that there is sufficient evidence in the record to sustain Higgins' conviction for PWID, their convictions for the same offense must be overturned because the jury was not properly instructed as to the basis for finding such liability.
Because no objection was raised by appellants to the failure of the trial court to give such an instruction, we review this claim for plain error. Under this very stringent standard, reversal is warranted "`only in exceptional circumstances' where a miscarriage of justice would otherwise result." Robinson v. United States, 649 A.2d 584, 586 (D.C. 1994) (citations omitted). Thus, appellant "bears the heavy burden of showing that the [jury] instructions as given `were so clearly prejudicial to substantive rights as to jeopardize the very fairness and integrity of the trial.'" Id. (citations omitted). Further, Super. Ct. Crim. R. 30 provides that "no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." While Rule 30 could be read literally to bar any review of an appellant's claim of instructional error absent an appropriate objection, the Supreme Court, in interpreting the identical federal rule, held that an appellate court may conduct a limited review of such claims for plain error. Jones v. United States, 527 U.S. 373, 388 (1999) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)). Thus, while limited plain error review is appropriate under these circumstances, we must be very cautious in our approach to this issue. Specifically, appellants contend that based on the Supreme Court's decision in Pinkerton, supra, 328 U.S. at 640, they could not have been found guilty of PWID unless the jury had been instructed and, thus, had considered whether the substantive crime committed by Higgins was in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiracy.
In Pinkerton, the Court held that a co-conspirator who does not directly commit a substantive offense may nonetheless be held liable for that offense if it was committed by another co-conspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement. Pinkerton, supra, 328 U.S. at 646-47. Thus, in order to convict a co-conspirator for the substantive crimes by another conspirator, the jury must be instructed that they must find that the substantive offense was committed in furtherance of the conspiracy and was a reasonably foreseeable consequence of the agreement. Nye & Nissen v. United States, 336 U.S. 613, 621 (1949). See also United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990). The purpose of such an instruction is to ensure that the jury does not convict a co-conspirator for the substantive crimes of another co-conspirator merely because they reached an agreement, the essence of conspiracy, without considering whether the necessary connection exists between the acts committed by the co-conspirator and the conspiracy. Thus, even though there may be sufficient evidence in the record of this case for a jury to conclude beyond a reasonable doubt that Higgins was selling drugs on the evening of February 8, 1990, in furtherance of the conspiracy and that the sale was a reasonably foreseeable consequence of the agreement, a Pinkerton instruction was necessary to ensure that its verdict on the PWID count with respect to Gordon and Williams reflected their considered judgment that the PWID crime was not an independent act unconnected to the conduct of the conspiracy. In Nye, the Supreme Court explained that adhering to these requirements is critically important because "only when a jury has been properly instructed as to the relevant standards to be applied to the evidence does a basis exist for determining whether evidence sufficient to support the verdict was presented to it." Nye, supra, 336 U.S. at 621 (citation omitted).
Given the Supreme Court's determination that adherence to the Pinkerton requirements is critically important, the government essentially concedes that if Gordon and Williams were convicted of PWID based on a conspiracy theory, it was plain error for the trial court not to have given a Pinkerton instruction to the jury. Despite that concession, however, the government contends that reversal is not warranted in this case because the PWID convictions of Gordon and Williams were not premised on their participation in a conspiracy, but were based on a reasonable inference drawn by the jury that Gordon and Williams supplied Higgins with the drugs that he possessed on February 8, 1990. See United States v. Staten, 189 U.S. App. D.C. 100, 108, 581 F.2d 878, 886 (1978) (commenting that "a PWID conviction does not require a showing that appellants had an intent to distribute personally . . . as long as distribution by someone is the end purpose of possession"). This latest theory of culpability, however, was never presented to the jury at trial. While the government may have introduced sufficient evidence from which a reasonable juror could conclude beyond a reasonable doubt that Gordon, Williams, and Higgins were involved in a large drug trafficking operation, the government failed to present any evidence to support the argument it makes here that Gordon and Williams provided Higgins with the specific drugs he was found to possess on the night of February 8, 1990. In fact, from the beginning of the trial, the government's theory was one of conspiracy, a fact that was reaffirmed when the prosecutor, in referring to the PWID counts in closing, argued to the jury: "once we have established that a conspiracy existed and a person, one of the co-conspirators, committed an overt act in furtherance of the conspiracy, then each participant in the conspiracy is responsible for any of the actions of the other co-conspirators in furtherance of the conspiracy." However, we need not rule definitively on this plain error issue, since the PWID convictions of Gordon and Williams must be reversed in any event along with the remaining convictions for the reasons discussed in the balance of this opinion.
B. Eliciting Evidence of A Witness' Fear of Testifying on Re-Direct Examination
Appellants also argue that the trial court erred when it failed to grant their request for a mistrial after Kandie Gravette tearfully testified that she feared for her life because of her involvement as a witness against the appellants. In response, the government argues that the trial court did not err in denying appellants' motion for a mistrial because the evidence was properly admitted to explain Gravette's reluctance to testify at trial, as well as to explain the inconsistencies between her grand jury testimony and her trial testimony.
The decision to order a mistrial is subject to the broad discretion of the trial court and our standard of review is deferential. Wright v. United States, 637 A.2d 95, 100 (D.C. 1994). This court is only inclined to reverse "in extreme situations threatening a miscarriage of justice." Id. (citing Goins v. United States, 617 A.2d 956, 958 (D.C. 1992)). We review a trial court's decision regarding the admissibility of evidence for abuse of discretion. Mercer v. United States, 724 A.2d 1176, 1182 (D.C. 1999). The trial judge may "exclude relevant and otherwise admissible evidence `if its probative value is substantially outweighed by the danger of unfair prejudice.'" Id. at 1184 (citation omitted). "We review the trial court's decision regarding the admissibility of evidence for abuse of discretion.'" Id. at 1185 (citation omitted).
Gravette was called as a witness by the government to testify about her personal observations of the appellants' involvement in the distribution of drugs. As a follow-up to her testimony that she had seen crack cocaine in the kitchen area of an apartment that the government alleged was used as the headquarters for the drug operation run by appellants, she was asked to identify the persons she had seen in the apartment handling the drugs. At that point, and contrary to her grand jury testimony, Gravette testified that she did not see appellants in the apartment with the drugs. The actual exchange was as follows:
Q: Did you see, Ms. Gravette, anybody involved with anything you saw in the apartment?
A: I didn't actually see them with the drugs.
Q: When you say you didn't see them actually ...