Appeal from the Superior Court of the District of Columbia (M-15113-00) (Hon. Anna Blackburne-Rigsby, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Glickman, Associate Judges.
The opinion of the court was delivered by: Wagner, Chief Judge
Submitted September 26, 2002
Appellant, Christopher Smith, was convicted following a bench trial of one count of possession of a controlled substance (cocaine) in violation of D.C. Code § 33-541 (d) (1998 Repl.). *fn1 He argues for reversal on the grounds that the evidence was insufficient to convict him and that the trial court erred in declining to permit him to call his former co-defendant as a witness at trial, thereby denying him due process and the right to present a defense. We conclude that the evidence was sufficient to support the conviction; however, we reverse and remand for a new trial because the court erred in precluding appellant from calling his former co-defendant as a witness, and the error was not harmless beyond a reasonable doubt.
A. Evidence Presented by the Government
Since appellant's initial argument concerns the sufficiency of the evidence to support the charge, we recount in some detail the facts presented at trial. According to the testimony of Investigator Curtis Prince of the Metropolitan Police Department's Fourth District, on December 28, 2000 at about 7:15 p.m., while in an observation post looking for drug activity, he saw several people standing in front of the Serengeti Club in the 6200 block of Georgia Avenue, Northwest. He recognized appellant, who was wearing "a hat, a tan jacket and . . . some dark colored pants or some dark colored jeans." Appellant's jacket was a "parka-style jacket, a heavy coat," according to Investigator Prince. After about fifteen to twenty minutes, a man, later identified as Leroy McNeil, approached appellant and conversed briefly with him. Investigator Prince testified that McNeil walked up to appellant and handed him a small green object that appeared to be currency. Appellant took the money from McNeil and motioned for McNeil to step behind him. Appellant then "reached back towards the right side of his waist and he handed [McNeil] an object from behind." Investigator Prince testified that he could actually see the two "when their hands came together," but he could not identify exactly what the objects were or their specific color. The investigator testified that he saw McNeil "[take] the object and he apparently had dropped them to the ground because after he retrieved the objects, he bent down and picked up two separate objects from off the ground," and he "looked at them and . . . he walked away." Investigator Prince gave a look-out description for McNeil.
Investigator Jasper Jackson testified that within two minutes of receiving the description, he spotted an individual, later identified as McNeil, who matched it exactly, just one block from the location of the reported transaction. Investigator Jackson, who was a part of an arrest team, stopped McNeil. Investigator Prince had informed members of the arrest team by radio that it was likely that the individual would be carrying the two objects that he had received from appellant in his right hand. When the officers approached McNeil, he dropped two small objects that he had been carrying in his right hand. The police recovered the objects, which were clear, ziplock bags containing a "white rock substance," a portion of which field tested positive for cocaine. *fn2
According to Investigator Prince's testimony, after he learned that the arrest team had stopped McNeil and that he possessed a quantity of cocaine, Investigator Prince broadcasted a look-out for appellant and had members of the arrest team come by the observation post to get him. Investigator Prince, along with members of the arrest team, tried to locate appellant at the Serengeti Club, but learned that he had left. While outside the club, they saw appellant walking across Georgia Avenue at Rittenhouse Street, and stopped him in the 900 block of Rittenhouse. Appellant's arrest occurred within 30 minutes and one block of the transaction between appellant and McNeil. In a search incident to appellant's arrest, the officers found $180.00 in cash inside appellant's sock.
Appellant's version differed. He testified that at around 6:30 p.m. on the evening of December 28, 2000, he was at the Serengeti Club in the 6200 block of Georgia Avenue. He said that he was wearing a "big white coat, a overcoat, and some blue jeans and some tennis shoes," and that one of his friends, "MTRs Mohammed," was wearing a big tan, parka coat like his, blue jeans and tennis shoes. Appellant described Mohammed as 5'8'' or 5'9'' tall, with hair and facial hair similar to his own that day. Appellant testified that he was outside of the Serengeti Club for about ten minutes waiting for a ride and that after it came, he went around the corner to the gas station. He testified that he went back to the club, but someone in front of the club told him that he could not go inside because the police were in there. Appellant testified that he then went up the street to purchase a beer from the newsstand and that his companion purchased it for him because his money was in his shoe. After purchasing the beer, he and his friend walked across the street, where he saw a female officer who he thought whispered something to Investigator Prince. According to appellant, Investigator Prince then came over to him, called him by name, and arrested him. Appellant testified that he did not know McNeil before he was arrested and that he did not give McNeil anything or receive any money from him that evening.
Appellant also called Investigator Prince who testified that another individual, later identified as MTRs Mohammed, was stopped that night and was also wearing a tan jacket. Investigator Prince explained that he believed that MTRs Mohammed had been acting "as a lookout" and that is why he stopped him. When asked to compare the appearance of appellant and MTRs Mohammed, Investigator Prince ...