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Brown v. United States

August 25, 2005


Appeal from the Superior Court of the District of Columbia. (F-7356-99). (Hon. Mildred M. Edwards, Trial Judge).

The opinion of the court was delivered by: WASHINGTON,Chief Judge

Argued February 4, 2004

Before WASHINGTON, Chief Judge,*fn1 and RUIZ, Associate Judge, and BELSON, Senior Judge.

After a jury trial, appellant Henry Brown ("Brown") was convicted of two counts of unlawful distribution of a controlled substance*fn2 and one count of unlawful possession with intent to distribute a controlled substance.*fn3 On appeal, Brown contends that the trial court committed prejudicial error when it instructed the jury (1) that the government had "no duty" to collect corroborative evidence; and (2) that the jury's verdict must be based "solely on the evidence presented at the trial," arguing that the combination of these instructions prevented the jury from finding a reasonable doubt based on the absence of corroborative evidence. According to Brown, the trial court's subsequent failure to tell the jury that it could find a reasonable doubt based on a "lack of evidence" violated Smith v. United States, 709 A.2d 78 (D.C. 1998) (en banc), and compounded the error. Finally, Brown argues that the trial court erred in admitting the notes and prior testimony of a police officer because these were inadmissible prior consistent statements. We affirm.


A. The Prosecution's Case

On the morning of October 5, 1999, detectives with the United States Park Police set up a mobile observation post*fn4 at the 700 block of Park Road in Northwest Washington. At approximately 7:15 a.m., observation post officer Anastasios Kapetanakos ("Detective Kapetanakos"), parked a van on the north side of Park Road and began watching the area for drug activity. After a short time, he noticed two men, whom he identified in court as Brown and his co-defendant Anthony Ferrell, Jr. ("Ferrell"), "milling around" the area. According to Detective Kapetanakos, Brown was wearing a green jacket, blue jeans, and a black-andwhite FUBU*fn5 hat, while Ferrell was wearing black jeans, a hooded sweatshirt, and a thick blue parka.*fn6 Detective Kapetanakos testified that around 8:20 a.m. four men and one woman approached Brown and Ferrell at the corner of Park Road and Georgia Avenue. One of the men handed Brown some money, which Brown counted and handed back. Growing suspicious, Detective Kapetanakos broadcast a lookout identifying Brown and Ferrell as possible drug dealers.

Detective Richard White, Jr. ("Detective White") testified that he received Kapetanakos' call shortly after 8:00 a.m. directing him to Park Road and telling him to be on the lookout for a man in a "green jacket and blue jeans" and another wearing "a blue parka type jacket and black pants." Detective White parked his vehicle across from an alley on the 700 block of Park Road, where he pretended to be a "junkie" injecting a needle into his arm and "nodding out." At that point, Detective White saw two individuals matching the description that Detective Kapetanakos had given him. In court, he identified Brown and Ferrell as being the individuals he had seen that day.

While Detectives Kapetanakos and White watched, Brown went into the nearby alley and, after retrieving an object from the ground next to a guardrail, motioned to Ferrell and a group of others, shouting, "[H]urry up, hurry up." Both Detectives testified that Ferrell appeared to stand watch at the entrance to the alley while the group of people approached Brown. According to Detective Kapetanakos, the man who had offered Brown money outside the alley approached first, handed Brown some cash, and received a small object in return.*fn7 Immediately thereafter, two men dressed in similar-looking uniforms handed Brown some cash in return for small objects. The detectives then watched as a woman engaged in a fourth, identical transaction with Brown.

According to both detectives, after Brown and Ferrell had left the alley and were heading west along Park Road, Brown counted out a sum of money and handed it to Ferrell. Detective White testified that Brown walked to a nearby fence where he placed a small package down on the ground by the fence line. At about that same time, Detective Kapetanakos received word that two of the alleged buyers had been stopped in the area and found to be in possession of heroin. He immediately radioed the arrest teams to arrest Brown and Ferrell, directing the officers to their location at a nearby gas station. While Detective Kapetanakos was watching the arrest, Detective White was retrieving the small package that he had seen Brown place by the fence line. The small package was later found to contain eight blue ziplock bags of heroin. Shortly after their arrest, Detective Kapetanakos went to the United States Park Police Station and identified Brown and Ferrell as the seller and lookout he had observed earlier.

B. Brown's Defense

Brown proceeded to trial on the theory that Detectives Kapetanakos and White had mistakenly arrested him after observing a different man selling drugs on the morning of October 5, 1999. Brown's defense relied primarily on a police photograph that had been taken shortly after his arrest, in which he was not wearing the "black and white FUBU hat" that Detective Kapetanakos had consistently described the seller as wearing during the drug transactions. Instead, the photograph showed Mr. Brown with a full beard and mustache, a black-and-white striped shirt, and a hat with a "Dale Earnhardt" logo on it. The defense sought to discredit Detective Kapetanakos' identification by pointing out the discrepancies between his description of the seller's appearance (green jacket, blue jeans, and black-andwhite FUBU hat) and the photograph of Brown (facial hair, black-and-white striped shirt, Dale Earnhardt hat).

Brown's attorney also sought to weaken the prosecution's case by pointing out that the detectives had not obtained any corroborative evidence to support their eyewitness account of the crime. For example, while cross-examining Detective White, Brown's attorney elicited testimony that although the Park Police had the option of recording the communications made during the observation post operation, they chose to communicate using an unrecorded channel.*fn8 Detective White's testimony on cross-examination also revealed that he had not taken any photographs during the illicit transactions or following the arrests. During closing arguments, Brown's attorney twice mentioned the government's failure to collect corroborative evidence.*fn9 Specifically, counsel argued that the jury could find a reasonable doubt because the government had not taken any fingerprints, photographs, recorded communications, or videotape recordings documenting Brown's alleged participation in the crime.

In anticipation of Brown's closing argument regarding the government's failure to produce corroborative evidence linking Brown to the crime, the prosecution requested a jury instruction stating that the government was under "no obligation to put forth that type of evidence." The prosecution referred the court to dictum in Greer v. United States, 697 A.2d 1207, 1211 (D.C. 1997), in which this court suggested that, under certain circumstances, the government "probably could [] obtain[] an instruction, that it was under no legal obligation to create corroborative evidence." Id. Although the trial court refused to rule on the request until after it had heard the defense's closing arguments, it put Brown "on notice . . . that if you argue, ladies and gentlemen, you don't have a photograph, you don't have a videotape of this transaction, I think you can expect that the Government will request and the Court will grant the request for a Greer-type instruction." The following day, Brown's attorney objected on the ground that the prosecution had not laid an adequate "foundation" to support a Greer-type instruction.

Your Honor, I just would object for the record, I've asked Detective White whether he took any fingerprints and photographs,there's been no evidence that they aren't required to do so and I think an instruction from the Court or even argument from the Government that they aren't required to do so really would be prejudicial, given the fact that there's no evidence, frankly as I stand here today, I don't know whether they're required to do that, and I can't -- maybe its true with the Metropolitan Police Department but I don't know if that's true with the U.S. Park Police.

I think Greer allows us to argue, as the Court knows, that there aren't -- this is not corroborative, Greer says that the Government's probably entitled to an instruction, and that's an MPD case. I just would ask the Court not instruct, the Government not be allowed to argue, [the prosecutor] could have asked any number of his witnesses whether they were required to do that and he did ...

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