Appeal from the Superior Court of the District of Columbia. (F5982-02). (Hon. John H. Bayly, Jr., Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB, RUIZ, and REID, Associate Judges.
A jury convicted Suheel Najafi of distribution of a controlled substance (ecstasy).*fn1 The case arose from the alleged sale by Najafi of two ecstasy pills to Metropolitan Police Officer John McDonald at the Nations Nightclub in the early morning hours of September 14, 2002. On appeal, Najafi contends that the trial judge abused his discretion by denying Najafi's motion for a mistrial.
At the beginning of his opening statement, the prosecutor repeatedly claimed that Najafi was "running a business" of selling drugs. The prosecutor further asserted that the sale of two pills to Officer McDonald occurred "while [Najafi was] running his business." The record shows, however, that the prosecution never introduced, or expected to introduce, any evidence that Najafi engaged in any unlawful conduct (or, indeed, in any business) other than the alleged sale of the two pills which the prosecutor described as having occurred "while" Najafi was conducting his business.
In our view, the prosecutor's challenged remarks were demonstrably improper. The supposed facts as described by the prosecutor went well beyond any evidence that the government expected to present, and beyond any reasonable inference from the evidence. The prosecutor implied that the government had knowledge of unlawful conduct on the part of Najafi in addition to, and more serious than, the alleged sale of the two tablets. Fundamentally, the prosecutor's statement was untrue.
The impropriety of the opening statement does not, however, end our inquiry. In this case, the government's evidence was uncontradicted and overwhelming. It is undisputed that the three twenty-dollar bills (with pre-recorded serial numbers) with which Officer McDonald purchased the pills were found on Najafi's person. No innocent explanation of this uncontradicted and incriminatory fact was provided by the defense. Accordingly, we conclude that Najafi was not substantially prejudiced by the improper remarks in the prosecutor's opening statement, that reversal of his conviction is not warranted, and that the judgment must be affirmed.
I. THE TRIAL COURT PROCEEDINGS
The principal witness for the prosecution was Officer McDonald. McDonald testified without objection that prior to his arrival on the scene, the police had information regarding "large illegal narcotics sales going on at Nations Nightclub." McDonald went to the club in civilian clothes for the purpose of purchasing illegal drugs. He was accompanied by other officers who constituted the "arrest team."
Officer McDonald testified that, after he had been at the club for what seemed to him to be a long period of time, he saw Najafi "resting on the railing overlooking [the club's] dance floor." McDonald engaged Najafi in conversation and inquired if Najafi had any ecstasy that McDonald could purchase from him. According to Officer McDonald, Najafi initially stated that he did not have any ecstasy. After the two men had briefly conversed, however, Najafi left. Shortly thereafter, Najafi returned, and he asked Officer McDonald how many pills he wanted. McDonald responded that he wanted one. Najafi departed again, returned once more, and offered to sell Officer McDonald two ecstasy pills for $50.00. McDonald accepted Najafi's offer. The officer then gave Najafi three twenty-dollar bills, the serial numbers of which the police had pre-recorded; Najafi gave McDonald $8.00 in change and stated that he still owed McDonald two dollars.
After the above-described payment had been completed, Najafi walked to an ottoman some twenty feet away and appeared to "ball up" something in a white piece of paper which was located next to a water bottle on the floor. Najafi then told Officer McDonald that the two ecstasy pills were wrapped in this white paper. The police recovered both the paper, which turned out to be an ATM receipt with Najafi's name on it, and two ecstasy pills, which were wrapped inside the receipt. Najafi was arrested, handcuffed and searched; no contraband was found on his person or in his automobile.*fn2 A member of the arrest team testified that in a search incident to Najafi's arrest, the police recovered the three twenty-dollar bills that Officer McDonald had used to purchase the pills. The serial numbers of the bills matched the numbers previously recorded by the police.
The defense rested without presenting any evidence.*fn3
B. The Prosecution's Opening Statement and the Motion for a Mistrial
In his opening statement for the government, the prosecutor began as follows:
Ladies and gentlemen, on September 14, 2002, at 1015 Half Street, Southeast, in Washington, D.C., the defendant, Mr. ...