Appeal from the Superior Court of the District of Columbia (F-3663-99) (Hon. Patricia A. Wynn, Trial Judge)
Before Steadman and Ruiz, Associate Judges, and Nebeker, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Stephen A. Holt was indicted on one count of unlawful distribution of a controlled substance (heroin) within 1,000 feet of a "drug-free" zone and one count of unlawful possession of a controlled substance (heroin) with intent to distribute ("PWID") within 1,000 feet of a "drug-free" zone. *fn1 In October, 1999, a jury found Holt guilty of possession of a controlled substance, the lesser included offense of the PWID charge, but could not agree on a verdict on either the PWID count or the distribution count. Upon motion by Holt's counsel, the trial court declared a mistrial.
In January of 2000, Holt was once again tried on the distribution and PWID counts and, after a three day trial, found guilty of both offenses. He now appeals, raising double jeopardy and collateral estoppel claims as well as contending that the trial court erroneously instructed the jury in the second trial. We affirm.
Officer Ronzell Baker of the Metropolitan Police Department testified that on May 29, 1999, he and Officer Darryl Lingham were on patrol near 8th Street, N.W., in Washington, D.C. The officers, assigned to a drug enforcement unit, were in plain clothes and driving an unmarked police car. Officer Baker testified that at approximately 12:30 p.m., while stopped at a stop sign in the 800 block of 8th Street, he noticed a man, later identified as Bobby Lee James, give appellant Holt some money. The officer then observed Holt reach into his right front pants pocket and retrieve a small object, which he placed in James' left hand. Officer Baker asked Officer Lingham, "Did you see that?," and turned the patrol car to the left, parking right in front of where Holt and James were standing. As Officer Baker stepped out of the car, he saw James drop a small ziplock bag to the sidewalk. Officer Baker retrieved the bag, which contained a white powder substance. The officer identified himself to Holt, placed him under arrest and searched him. Officer Baker recovered from Holt's right front pants pocket a plastic ziplock bag which contained nine clear bags of a white powder substance, later determined to be heroin, and found $148 in his left pants pocket. The distance between where Holt and James had been standing on the sidewalk and Cleveland Elementary School was measured by Officer Lingham to be 100 feet. *fn3
Bobby Lee James, the man whom Officer Baker had seen engage in a drug transaction with Holt, testified at the first trial in Holt's defense. According to James, he and Holt were standing on the corner of 8th and T Streets, N.W., at around 12:30 p.m., where they had been talking for about 15 to 20 minutes. At that time, he handed Holt a bag of heroin to open for him because the "tag was on it real tight, and [he] didn't have no nails." As appellant handed the bag back, James explained, the police approached them and he threw the bag away. James denied that Holt had sold him heroin or given him the ziplock bag, or that he had given Holt any money.
Harry Miller, who had known Holt and Bobby James for a couple of years, also testified at Holt's first trial for the defense. Miller stated that he was also on the corner of 8th and T Streets on May 29, 1999, at around 12:30 p.m and that he had seen James walk up to Holt and that either he or Holt had asked James for "a blow," which Miller explained meant powder heroin. Miller stated that Holt then began to walk toward James as a police car turned the corner onto 8th Street. He saw James reach into his pocket and retrieve the ziplock bag, but never saw Holt handle the bag.
After the close of the evidence, the trial court instructed the jury on the elements of distribution of a controlled substance within 1,000 feet of a drug-free zone; possession of a controlled substance with intent to distribute within 1,000 feet of a drug-free zone; and possession of a controlled substance, which the court explained was a lesser included offense of possession of a controlled substance with intent to distribute. *fn4 The trial court also instructed the jurors on the sequence in which they should consider the greater and lesser offenses, charging that:
You at first consider whether or not the Government has proven beyond a reasonable doubt the greater offense of possession with intent to distribute a controlled substance - heroin, within 1,000 feet of a drug free zone. If you find the defendant guilty of that offense, you don't have to return a verdict as to a lesser offense because that's necessarily included. If you find the Government has failed to prove beyond a reasonable doubt any element of a greater offense, then you would consider and return a verdict with respect to this possession offense.
A short time later, before sending the jury to deliberate, the trial court explained to the jurors that a verdict form would be sent back with them. The court instructed that:
After you discuss the case to your satisfaction, you reach your verdicts, you would also fill out this verdict form. It just has a place for you to check guilty or not guilty as to the charges. It again reinforces the relationship between the greater offense of possession with intent to distribute controlled substance, heroin, and simple possession. It tells you that if you find the defendant guilty of the greater offense, don't even check the box with respect to possession. If you find him not guilty, of course you ...