Appeal from the Superior Court of the District of Columbia (F-5217-01). (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Before Wagner, Chief Judge, and Terry and Washington, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted December 4, 2003
After a jury trial, appellant was convicted of distributing cocaine. On appeal he makes a twofold claim under Brady v. Maryland, 373 U.S. 83 (1963). First, he contends that he was denied due process because the trial court failed to ensure that the government complied with his Brady request. Second, he maintains that the Brady information that he sought was material to his case. We hold that there was no Brady violation because the information that appellant sought was not in the possession of the government. We therefore affirm appellant's conviction without reaching his materiality claim.
In the early morning hours of August 18, 2001, appellant, Robert Guest,*fn1 was arrested for selling cocaine to Officers John Haines and James Koenig of the Metropolitan Police. The officers were working undercover, wearing plain clothes and driving an unmarked truck. They were patrolling an area in Southeast Washington where several nightclubs are located, on the lookout for "aggressive panhandlers,"*fn2 auto thefts, and robberies. Appellant approached the officers twice in the 100 blocks of K and L Streets, S.E., both times asking if they were interested in buying cocaine. Before approaching the officers' truck for the second time, appellant had been walking with two other men, later identified as Michael Simpson and Michael Scott. After the officers agreed to buy cocaine during the second encounter,*fn3 appellant motioned to Simpson, who was standing across the street. Simpson then came over and dropped a pink ziplock bag containing cocaine into the cab of the truck.*fn4 After calling for backup, Officer Haines arrested appellant and Simpson.*fn5 Scott, who did not interact with the officers in any way, was initially stopped and questioned, but was released without being charged.
About a month before trial, defense counsel wrote a letter to the prosecutor requesting, in addition to "all the discovery materials you have provided" (for which she expressed her thanks), that the government disclose (1) Michael Scott's criminal record, (2) Scott's "history of dealings with law enforcement authorities in relation to these 8/18/01 arrests and any other cases,"*fn6 (3) any information that Scott was "the source or conduit of any of the drugs" that were the subject of the pending indictment, and (4) "any information that . . . Scott is known or was known in 2001 to police as a purveyor of cocaine." Such information, counsel wrote, "looks to me like Brady."
During a motion hearing just before the trial began, defense counsel told the court that the government had not complied with her Brady request. The prosecutor explained to the court that, after running Scott's name through the government's computers, the only information he was able to find was the police report in this case (Form PD-163) stating that Scott was present at the scene, which counsel already had. The prosecutor added that the officers had questioned Scott at the scene, but he was released because they determined that he had no apparent connection to the drug deal. The court concluded that if defense counsel had the police report, the government "didn't suppress anything," and ruled that "the government's disclosures [were] sufficient to deal with the specific Brady request." Nevertheless, the court suggested that the prosecutor make further inquiry of the officers, run a records check for Scott's last known address, and provide, if available, any information concerning Scott's address or criminal history. The prosecutor said he had already spoken to the officers "and they did not recall getting that information from him," but he agreed to "investigate about it a little further." The proceedings were then adjourned for the weekend.
The following Tuesday, after the jury had been selected and sworn, defense counsel again informed the court at a bench conference that the government still had not furnished Scott's address.*fn7 The court responded, "I can't create evidence out of non-evidence. All I can do is put the government to its constitutional obligation . . . to make sure that [if] they have any information which could be exculpatory [under] Brady, [and if] it's material, that they disclose it." The prosecutor also stated that he had talked with and examined the notebooks of "every officer" who was on the scene, and that none of the officers even remembered Scott until the prosecutor pointed out his name in the PD-163.
The trial proceeded, and at its conclusion the jury found appellant guilty of distributing cocaine.
Appellant contends that he was denied due process, in violation of Brady, because the trial court failed to ensure that the government had ascertained Scott's last known address. This claim is essentially a challenge to the court's finding that the government did not possess the information that appellant sought. We conclude that the trial court's determination was not plainly wrong. See D.C. Code § 17-305 (a) (2001). After the prosecutor explained that the only information he had about Michael Scott was the police report containing his name, but no address, the court directed the prosecutor to conduct a records check and to inquire further with the police officers who were involved in this case. He did so, but was unable to find additional information about Mr. Scott, and defense counsel made no showing that either the ...