Appeal from the Superior Court of the District of Columbia (CMD1102-04) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, REID, Associate Judge, and KING, Senior Judge.
After a bench trial, appellant Robert J. Howard was convicted of one count of unlawful possession of a controlled substance (marijuana), in violation of D.C. Code § 48-904.01 (d) (2001). He filed a timely notice of appeal challenging the trial court's denial of his motion to suppress evidence, the sufficiency of the evidence, and the trial court's denial of his motion to require the government to produce for examination at trial the chemist who prepared the chemical analysis of the substances which the police seized from his person and from the ground.
After we affirmed the judgment of the trial court and held (1) that the trial court properly denied Mr. Howard's motion to suppress evidence, and that the evidence was sufficient beyond a reasonable doubt to convict him of possession of a controlled substance; and (2) that Mr. Howard was afforded a statutory opportunity to confront the chemist at trial, but waived that right, appellant filed a petition for rehearing en banc, which the government opposed. In our July 6, 2006 decision, we declined to resolve the constitutional issues presented by Mr. Howard, and instead, narrowly focused on Mr. Howard's statutory opportunity to present the chemist. The Public Defender Service filed a consent motion to participate as amicus curiae and to lodge its brief, which this court granted. While appellant's petition for rehearing en banc was pending, this court issued its decision in Thomas v. United States, 914 A.2d 1 (D.C. 2006).*fn2 There, we held that
[The Confrontation] Clause [of the Sixth Amendment to the Constitution] was violated when the prosecution introduced a Drug Enforcement Administration chemist's written expert testimony against appellant without calling the chemist to appear and testify in person . . . . [D.C. Code] § 49-905.06  still authorizes the government to introduce a chemist's report without calling the chemist in its case-in-chief, but only so long as the record shows a valid waiver by the defendant of his confrontation right. Absent a valid waiver, which usually must be express but under some circumstances may be inferable from a defendant's failure to request the government to produce the author of the report, the defendant enjoys a Sixth Amendment right to be confronted with the chemist in person.
Thomas, supra, 914 A.2d at 5. Unlike Mr. Howard, Mr. Thomas did not raise a Confrontation Clause objection during his trial. Therefore, we affirmed Mr. Thomas' conviction because "his invocation of the [Confrontation] Clause on appeal . . . [did not] survive [plain error] scrutiny" because the plain error, which "affected appellant's substantial rights," did not "seriously affect the fairness, integrity or public reputation of the judicial proceeding."
Following the issuance of Thomas, supra, the merits division in Howard, sua sponte, ordered the parties and amicus curiae "to file supplemental briefs solely on issues related to the Confrontation Clause [of the Sixth Amendment to the Constitution] and the impact of  Thomas  on the disposition of this case." In the same order, dated January 5, 2007, this court also decided to hold the petition for rehearing en banc in abeyance pending the filing of the supplemental briefs.
Since Thomas considered and resolved the constitutional issue presented in Howard, which we did not address in our July 6, 2006 decision, we now hold, consistent with Thomas, that Mr. Howard's Sixth Amendment Confrontation Clause right was violated when the trial court, over his objection, admitted a Drug Enforcement Administration chemist's report in lieu of the chemist's live testimony. Furthermore, on this record, we see no valid waiver by Mr. Howard of his confrontation right. Unlike Thomas, Mr. Howard's case is not subject to plain error analysis. Consequently, we now conclude that Mr. Howard is entitled to a new trial. We reverse his conviction and remand this case to the trial court.*fn3
During a hearing on Mr. Howard's motion to suppress, the government presented evidence showing that on February 6, 2004, around 10:50 p.m., Officer James Craig, a seven-year veteran of the Metropolitan Police Department ("MPD") and a member of the narcotics tactical unit, was on duty at an observation post in the 1200 block of Stevens Road (in the Southeast quadrant of the District of Columbia), "one of the largest open-air drug markets for the sales of marijuana in the District of Columbia," located in the Barry Farms Housing Complex. Officer Craig "was in the observation post for approximately two to three minutes." During that time he watched and listened as a man (later identified as Mr. Howard), who was wearing a black jacket and dark-colored pants, "attempt[ed] to flag down cars yelling, "Hey, hey, right here, right here" and "waving his arms as cars would drive by." In light of his experience, gained from "approximately five hundred observation post" operations, Officer Craig concluded that "individuals in open-air drug markets [who] wave their hands and yell at cars passing by . . . [are] attempting to stop vehicles in order to sell narcotics." After "a couple of minutes[,]" Officer Craig's position was "compromised" when a passerby saw him. Consequently, Officer Craig used his radio to alert MPD Officer Eric Siebert,*fn4 who also was working in the Stevens Road area as part of an arrest team.
Craig told Officer Siebert that he should "move in and make contact with" Mr. Howard, described then by Officer Craig as "a black male wearing a black jacket and dark-colored pants yelling at cars as they were going by, attempting to flag them down." "[D]ue to [his] experience especially in an open-air drug market," Officer Siebert recognized that "if you're flagging down numerous vehicles[,] you're attempting to stop them to sell drugs." Officer Craig kept Mr. ...