Appeal from the Superior Court of the District of Columbia. F7049-01. Hon. Judith E. Retchin, Trial Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Before SCHWELB and REID, Associate Judges, and FERREN, Senior Judge.
Appellant Robert Trapps was convicted of the offense of possession of cocaine with intent to distribute.*fn1 He filed a timely notice of appeal challenging his conviction on the grounds that the trial court erred by (1) giving the jury an improper aiding and abetting instruction; (2) twice charging the jury with anti-deadlock instructions during its deliberations; and (3) failing to grant his motion for judgment of acquittal. Discerning neither instructional nor evidentiary error, we affirm the judgment of the trial court.
To establish its case against Mr. Trapps, the government presented the testimony of several police officers from the Metropolitan Police Department ("MPD"). Officer Anthony Greene, an investigator for the Seventh District Narcotics Unit, who had participated in over 1,000 "narcotics-related arrests," was engaged in an undercover "pre-search warrant surveillance of . . . 3731 Horner Place, [in the] Southeast [quadrant of the District of Columbia]," on November 6, 2001. Within a thirty-minute period of time, "there was a lot of foot traffic going to the door and knocking on the door," but none who knocked actually gained entrance. Eventually a green Cadillac drove up and a man, later identified as Moses Brown, exited the vehicle. "[A]ll [of] the people [who] were waiting out in front of the house rushed to the Cadillac." After Mr. Brown had "a brief conversation" with the people who had rushed to his car, he "reach[ed] into . . . what appeared to be a center console" and "[with] a razor blade" he began "cutting some objects up." Money was given to Mr. Brown in exchange for some of the objects. Officer Greene believed that a drug transaction was in progress, and radioed information to members of the Seventh District vice unit.
Mr. Brown entered the Horner Place residence, and Officer Greene "advised" members of the Seventh District vice unit that it was "a good time to do the search warrant," which Officer Boyd, who was seated in the vehicle with Officer Greene, had obtained prior to the surveillance. Officer Chris Huxoll, also of the Seventh District vice unit, was part of the search team. "In the basement of the [Horner Place] house [he] found empty ziplock bags, small empty bags, . . . with some . . . white powder residue, and some razor blades" as well as "a large quantity of a white rock substance that was also in ziplocks . . ."; the empty ziplocks, as well as razor blades, and two plates with white powder residue "were located on top of the bar area," and some ziplocks, including those with a white substance, were inside of a drop ceiling. These items were seized by Officer Durriyyah Habeebullah, who at the time was part of the Seventh District's focus mission unit. Later, Officer Anthony Moye conducted a "field test [which] was positive for the presence of cocaine."
Officer Huxoll spoke with Mr. Trapps inside the Horner Place residence when the police seized the drugs found on the premises. In addition to the drugs, the police seized mail from the Horner Place residence dining room table which belonged to Mr. Trapps. Detective Mark Christopher Stone, assigned to MPD's major narcotics branch, gave expert testimony regarding the "distribution and use of narcotics" as well as the packaging and pricing of drugs. In his experience the street value of the cocaine seized from the Horner Place residence was in the range of $4,000.00.
Mr. Trapps was the only defense witness. He stated that he owned the Horner Place residence, and had lived there since 1978. He regularly went into the basement of his home because it had the only working bathroom in the house. Mr. Trapps allowed Mr. Brown into his home "three or four times." He admitted telling Officer Cephas that "once or twice [he] had seen [Mr. Brown] sell drugs from [his] house," but that he had explained to Kenny Edmonds, an acquaintance of Mr. Brown who stayed in Mr. Trapps' basement for a period of time, that he did not "want the traffic . . . [or] the hassle . . . [or] the headache."
On cross-examination, in response to the question of whether "[he] knew [Mr. Brown] sold crack cocaine," Mr. Trapps stated: "Yes, I did. Yes." He acknowledged that "on certain occasions" others would "use [him]" to purchase drugs for themselves. As he put it, "I was like a go between sometimes if I was standing outside and they would ask where [Mr. Brown] was." Mr. Trapps was aware that Mr. Brown would go to the basement when he entered Mr. Trapps' home, and that "people from the neighborhood would come by knocking on [his] door looking for [Mr. Brown]." Mr. Trapps was asked whether he had "told [Officer Cephas] that [he] had seen [Mr. Brown] sell . . . narcotics from [Mr. Trapps'] house." Mr. Trapps replied, "Yes, ma'am. I did tell him that." In addition, Mr. Trapps was asked whether he informed Officer Cephas that Mr. Brown "had in fact sold drugs to [him]." He answered, "Yes," but later denied that this statement was true.
The Aiding and Abetting Instruction and the Challenge to the Sufficiency of the Evidence
Mr. Trapps primarily argues that even if a basis existed for giving the aiding and abetting instruction, "the [trial court] erred by incorrectly instructing the jury on the law." Specifically, he contends that the court improperly told the jury, "you must find that [the defendant] knowingly associated himself with the person who committed the crime," but should have stated, "you must find that the defendant knowingly associated himself with the commission of the crime," (emphasis in original). The government contends that Mr. Trapps raised no objection in the trial court to the judge's aiding and abetting instruction and that, under the plain error doctrine applicable here, "there was no error of any stripe," let alone one "structural" or "plain."
Before considering the applicable law for the resolution of Mr. Trapps' aiding and abetting contention, we briefly set forth the factual context for this issue. The government argued in its opening statement that "Mr. Trapps by allowing [Mr.] Brown to use his house, to store . . . drugs in his house with the full knowledge that [Mr. Brown] was selling drugs, . . . he facilitated that drug operation, [and] he is as guilty as Mr. Brown himself." Near the end of the government's case, the trial judge alerted both counsel to her belief that an issue likely to surface is "whether it's appropriate for the [trial court] to give an aiding and abetting instruction on the charge of possession with intent to distribute." The government agreed, stating that it "will be requesting that instruction." Defense counsel said nothing about the trial court's inquiry. At the conclusion of the defense's case, the trial judge generally informed counsel about the instructions she planned to give, and asked if there was "any objection ...