Appeal from the Superior Court of the District of Columbia (F-1992-96) (Hon. Wendell P. Gardner, Jr., Trial Judge)
Before Ruiz, Glickman and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appellant was convicted of possession of marijuana, *fn1 and possession with intent to distribute crack cocaine, *fn2 and received consecutive sentences of one year for marijuana possession and twenty to sixty years (all but ten years suspended) for possessing crack cocaine with intent to distribute. On appeal he challenges several evidentiary rulings that he claims prevented him from presenting evidence that he was a crack addict in order to rebut the government's evidence that he intended to distribute crack cocaine. We reverse the conviction for possession with intent to distribute crack cocaine based on the trial court's exclusion of appellant's proffered surrebuttal witness, and remand for a new trial.
The incident that formed the basis of the convictions is straightforward and was not disputed by appellant. During its case in chief, the government established that after appellant offered to sell marijuana to undercover police officers, he was apprehended and discovered to be holding, in addition to several ziplocks bags of marijuana, a yellow M&M candy bag containing twenty-three ziplock bags of crack cocaine. At trial, appellant admitted to possessing the marijuana and cocaine, but he denied that he intended to sell the cocaine. Instead, he claimed that he was a crack cocaine addict who sold marijuana to support his habit, and that he had just stolen the crack cocaine for his own use from another drug dealer's stash of drugs, which he had observed was hidden under a car. He did not intend to sell it, however, because he "loves it too much," and would not think of parting with it, as it would last him all weekend.
During cross-examination, the government asked appellant whether he had told the pretrial services officer, who interviewed him the day after he was arrested, about his addiction to crack cocaine. After some equivocation, appellant said that he did. *fn3 The government then called the pretrial services officer, Vincent Watson, and showed him a folder with notes on his interview with appellant. When Watson began to testify, defense counsel objected on "relevance grounds," saying that Watson needed to testify from memory. *fn4 Watson said that he could not independently remember the interview, but that referring to the folder would "refresh his recollection." After the prosecutor showed Watson the pretrial services folder, Watson reviewed its contents, the prosecutor retrieved it, and Watson testified as to the content of the pretrial services interview with appellant. According to Watson, when asked about current drug usage for which he had received drug treatment, appellant answered that he had used drugs within the last three days and that he was "on heroin and methadone" and "receiving treatment at D.C. General." *fn5 Defense counsel did not object to this procedure, nor did he voice an objection later, when the trial court referred to the witness' present recollection having been refreshed by reference to the folder. Notwithstanding that Watson had said during direct examination that his memory of his interview with appellant could be refreshed by reviewing the folder, during cross-examination Watson said that he did not specifically remember talking to appellant after his arrest -although he did remember seeing him at the time - and that all his information came from what was in the folder. There was no objection or request to strike Watson's earlier testimony about his interview with appellant. The folder was not admitted into evidence and is not part of the record on appeal. After Watson's testimony on cross-examination, the trial court announced that the parties had rested and that there would be no more testimony.
The next day, defense counsel sought to call appellant's parole officer as a surrebuttal witness, proffering that the officer would testify that "on numerous occasions" appellant had told him that he was addicted to crack cocaine, that by signing a form, appellant indicated that he had used crack cocaine, and that drug tests confirmed that appellant had used crack cocaine. Defense counsel stated that the officer was available to testify and that the prosecutor previously had an opportunity to talk to him. The government objected, arguing that the request came too late and that the prosecutor had just been informed about the surrebuttal witness, and talked to him briefly outside the courtroom. The trial court observed that appellant's "whole case was built around the fact that [appellant is] a drug addict" and that evidence of his drug addiction could have been presented earlier. Defense counsel disagreed, arguing that a "new matter" had been introduced by the government's rebuttal witness (Watson), i.e., an inference that appellant was not a cocaine addict from the fact that he had not told the pretrial services investigator that he was addicted to crack cocaine. The trial court denied the request, saying that appellant testified that
[i]n all probability [appellant] did tell him [that he was a cocaine addict]. [Watson's testimony is] rebutting that he didn't tell him. I'm not going to go back and forth, back and forth, back and forth.
When defense counsel requested that the prosecutor not be allowed to argue that appellant was not addicted to crack cocaine, the trial court appeared to agree that the prosecutor could not argue that appellant was not a crack addict, but permitted the prosecutor to argue that appellant had not mentioned his addiction to the pretrial services investigator, so that his non-addiction to cocaine was "a fair inference from the evidence." In closing argument, the prosecutor did, in fact, make that its first argument to the jury, as one of five reasons why the jury should disbelieve appellant's claim that he possessed the crack cocaine for his own use and not for sale. *fn6
On appeal, Bynum claims that the trial court committed reversible error in three rulings related to the government's rebuttal witness, Watson. Specifically, appellant argues that Watson's testimony was impermissible hearsay because it was based on the information in the folder, that the information was confidential and could not be used at trial, and that introduction of appellant's statements to Watson, given after he had received Miranda warnings, was an impermissible use of his post-Miranda silence. Appellant also contends that the trial court abused its discretion in denying his request to present his parole officer as a surrebuttal witness on the issue of his addiction to crack cocaine.
We reverse on the issue of appellant's request to present surrebuttal testimony. We discuss first the questions surrounding Watson's testimony and then turn our ...