Appeal from the Superior Court of the District of Columbia (F-8942-98) (Hon. Frederick H. Weisberg, Trial Judge)
Before Terry, Schwelb, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted February 6, 2003
After a jury trial, appellant was convicted of possession of cocaine with intent to distribute it, possession of marijuana, and carrying a dangerous weapon (a knife). On appeal he contends that the evidence was insufficient to support the weapon conviction, that the trial court erred in allowing an expert witness to testify, and that the court should have granted his motion for a mistrial based on allegedly improper comments by the prosecutor during closing argument. We affirm.
Two Metropolitan Police officers, while driving on Orange Street, S.E., arrested appellant at about 10:30 p.m. after they discovered him sitting alone in the driver's seat of a parked car with expired tags. Appellant had an open container of cognac in the car, visible from where the officers were standing, and a bag containing marijuana was lying on the console. As he struggled with the officers, appellant told them that he had a dagger, which Officer D ennis Spalding promptly located and removed from appellant's waistband. After the police restrained appellant, they searched him and discovered in the pocket of his jacket forty-two small plastic bags containing crack cocaine, one large chunk of crack cocaine, eight bags of marijuana, and $266 in cash.
Detective Mark Stone testified as an expert witness for the government about the nature of the drug trade. Ten months before trial, the government had notified defense counsel by letter that it was going to call an expert witness. The letter named two possible experts, but stated that the identity of the witness would not be known until shortly before trial because of scheduling uncertainties. Nevertheless, the government summarized the substance of the expert testimony and gave detailed background information for the two named experts. Six months before trial, appellant filed a motion in limine to exclude the expert testimony, arguing that such testimony was not necessary to explain the drug trade to the jury.
At trial, when the prosecutor called Detective Stone, defense counsel reminded the court of the pending motion. He also asserted that the prosecutor had not supplied background information about Detective Stone (who was not one of the two potential witnesses named in the earlier letter) and requested a hearing on Stone's qualifications outside the presence of the jury. In response, the prosecutor turned over a copy of Stone's curriculum vitae, which he had obtained about a half-hour earlier when he found out who his expert would be that day. The court denied counsel's motion and the request for a hearing. Voir dire proceeded, and the court accepted the expert as qualified, over defense counsel's general objection.
In his opening statement, defense counsel had said, "You will hear testimony, we expect, that this jacket, in which the proven drugs, they have been analyzed by the DEA Lab and were found belong to an individual by name of Nathaniel Blakeley." At the end of the trial, the prosecutor made the following comments in his closing argument which related back to defense counsel's opening statement:
And that's the evidence. You have evidence from any other eyewitness who was there? No, you do not have.
But we certainly don't have any evidence in this case, although it was promised to you, that you would hear evidence that the drugs belonged to Nathaniel Blakeley. That the defendant went to see Nathaniel Blakeley at that particular location.
And did you hear any reason to doubt Detective Stone on that? Any reason whatsoever? In fact, you heard . . . the defense come back after lunch break and say we got nothing really to cross-examine this guy on.
In response to these comments, defense counsel moved for a mistrial, arguing that the prosecutor had impermissibly suggested to the jury that the burden of proof had shifted to the defendant and that police officers were entitled to a higher level of credibility. The court denied the motion, stating, "I didn't think there was any risk that the jury would take that inference." In addition, the court noted that it would instruct the jury on the ...