Appeal from the Superior Court of the District of Columbia ( F-4176-00). (Hon. Zoe Bush, Trial Judge).
Before Schwelb, Glickman and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
A grand jury indicted Demetrius D. Plummer on three counts of distribution of cocaine, in violation of D.C. Code § 33-541 (a)(1). Each count arose from Plummer's alleged sale of crack cocaine to Patrick Hughes, a "special employee" of the Metropolitan Police Department working under cover, on three separate dates: December 1, 1999, February 18, 2000, and April 7, 2000.
At Plummer's first trial, which began on March 28, 2001, the trial judge declared a mistrial on April 4, 2001, after the jury was unable to reach a unanimous verdict on any of the three counts. At Plummer's second trial, which began on August 28, 2001 and ended on September 5, the jury found Plummer guilty of distributing cocaine on December 1, 1999, but was unable to reach a unanimous verdict on either of the other two counts.*fn2 The judge sentenced Plummer to imprisonment for a term of no less than ten years but no more than thirty years, but suspended execution of all but five years.*fn3
On appeal, Plummer contends, inter alia, that the judge erred by permitting jurors to propose questions for the judge to pose to witnesses, by overruling defense objections to certain questions proposed by jurors, and by improperly examining a defense witness as a follow-up to juror-initiated questions. Plummer also claims, more generally, that the judge was biased against him and that she failed to conduct the trial in an impartial manner. We affirm.
I. THE TRIAL COURT PROCEEDINGS
In 1999, the Police Department initiated "Operation Blockbuster," a narcotics investigation centered upon the Sursum Corda Cooperative, a housing development located in northwest Washington, D.C. In connection with this operation, the police equipped an automobile with a video camera which was hidden in the driver's door, and which focused on the front-seat passenger side window. Wireless audio transmitters were also placed in the automobile. The police enlisted the assistance of several "special employees" to make drug buys. One of these "special employees" was Patrick Hughes, a known "crack head" who had grown up a short distance from Sursum Corda and who knew some of the dealers in the area. Hughes had a substantial criminal record; he had failed to appear for sentencing for robbery in Virginia; in order to avoid detection of his problems with the law, he used his brother's name in dealing with the police; and he stole some of the crack cocaine and marijuana that he had purchased as part of the investigation.
During Blockbuster, Hughes made 148 videotaped drug buys. He was paid thirty-five to fifty dollars for each such purchase. Towards the end of the investigation, when the police believed that they had purchased drugs from most of the dealers in Sursum Corda, Hughes was paid fifty dollars per day to buy food or pay for housing. Shortly after the completion of the investigation, Hughes was placed in the witness protection program. As a result of his cooperation with the police, Hughes received very lenient punishment for several of his offenses, including probation for the drug thefts and unlawful drug possession during Blockbuster and probation for the Virginia robbery for which he had failed to appear for sentencing. Hughes was not prosecuted at all for failure to appear.
Hughes testified that on December 1, 1999, he purchased two dime bags of crack cocaine from appellant Plummer, whom he claimed to have known for about a year by his alleged nickname, "Goof." Hughes asserted that he had purchased drugs twenty to forty times from Goof before he started working for the police,*fn4 and also that he had lived with Goof. The videotape of the transaction was introduced into evidence and played to the jury. After viewing the tape, Investigator Joseph Abdalla, one of the police officers with whom Hughes was working, and several of Abdalla's fellow-officers, went to Sursum Corda to look for the man who had sold drugs to Hughes. The officers spotted Plummer in a nearby park and concluded that he was the seller shown in the videotape. The officers stopped Plummer*fn5 and asked him for identification, which he provided, but on this occasion they did not arrest or search him. Investigator Abdalla testified that, thereafter, he saw Plummer in the Sursum Corda area about three times a week.*fn6 Hughes subsequently identified Plummer as the seller at the trial, but no identification procedure was attempted prior to that.
Plummer's principal defense was misidentification. Although he did not testify, he claimed, through counsel, that he was not the man in the videotapes. Two female friends of Plummer, Arga Jackson and LaTonya McCrae, testified, inter alia, that Plummer differed from the man in the videotapes in the following respects:
1. Unlike the videotaped seller, Plummer had facial hair for many years, and had worn his hair in cornrows;
2. So far as the witnesses were aware, Plummer did not own a green Eddie Bauer jacket or a wool cap; Hughes had described Plummer as wearing both at the time of at least one of the alleged sales;
3. Plummer had a chipped tooth;
4. Although Plummer had other nicknames, neither witness had heard him called "Goof" (the nickname that Hughes attributed to him);
5. Plummer did not eat sunflower seeds (Hughes reported that the seller had been eating them); and
6. Plummer is near-sighted and usually wears prescription glasses; the police officers had not seen him wear spectacles.*fn7
The jury apparently rejected much of the defense testimony, and Plummer was found guilty of one count of distribution. At sentencing, the judge was also unimpressed by the alleged discrepancies; she indicated that Plummer had, in effect, attempted to alter his ...