Appeal from the Superior Court of the District of Columbia (No. F-1076-03) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Belson, Senior Judge
Before GLICKMAN and KRAMER, Associate Judges, and BELSON, Senior Judge.
Appellant Anthony Yelverton was found guilty in a jury trial of one count of unlawful possession of heroin with intent to distribute and one count of unlawful possession of cocaine with intent to distribute.*fn1 Appellant argues that the trial court erred by (1) responding to a juror's questions regarding third-party perpetrator evidence with a supplemental instruction that included extraneous and distracting information and was unbalanced in the government's favor; and (2) instructing the jury that the investigating officers were not required to photograph the controlled substances at the crime scene, despite the government's failure to present evidence that no such requirement existed. Although we agree that the first instruction was erroneous, and the government concedes that the second was as well, we conclude that the errors in both instances were harmless, and therefore affirm.
On February 19, 2003, members of the District of Columbia Metropolitan Police Department's (MPD) Focus Mission Team were on patrol in Southeast Washington, D.C. Some of the officers traveled in an unmarked Ford Crown Victoria, while others followed in an unmarked Chevrolet Lumina.*fn2 Although none of the officers wore full uniforms, most wore either vests emblazoned with the word "Police," blue jackets bearing "MPD markings" or both.*fn3
When the two vehicles reached the 5500 block of Central Avenue, several of the officers noticed appellant standing in front of a liquor store, speaking with an unidentified man. Appellant made at least one "tossing" motion, and something landed in the snow next to him.*fn4 On the ground near appellant, officers found a brown paper bag. Inside the paper bag they discovered many smaller ziplock bags. Some of the ziplock bags contained "white rock-like substance[s]," which later tested positive for crack cocaine, while others held a white powder, which later tested positive for heroin. Additional ziplock bags containing crack cocaine were found on the ground near the brown paper bag. The police officers took no photographs of the drugs at the scene.
Appellant was arrested at the scene. The officers did not stop, search, or question the man initially seen standing with appellant. According to one of the officers, the man "was not searched because he was not observed doing anything . . . illegal or that would draw suspicion to him." Another officer testified that he was "almost certain other officers stopped [the man seen standing with appellant], but they did not search him." None of the other evidence at trial confirmed this assumption.
At trial, defense counsel called Ebony Stoddard, a friend of appellant's brother, who testified that she had witnessed the arrest. According to Ms. Stoddard, moments before appellant's arrest, she saw appellant standing in front of a liquor store on Central Avenue, speaking with a man she knew only as "Warren." Ms. Stoddard did not see appellant toss anything. In fact, Ms. Stoddard testified that the only thing in appellant's hands prior to his arrest was what she described as a phonebook. Police records admitted into evidence at trial established that officers did, in fact, seize a phonebook from appellant at the time of his arrest. Ms. Stoddard further testified that the man she called Warren quickly left the scene when the police arrived.
Defense witness Adrienne Banks testified that, on the evening of February 19, 2003, she encountered appellant as she exited a liquor store on Central Avenue. Ms. Banks stated that she did not see a paper or plastic bag in appellant's hands, although she did notice that he carried a book. Ms. Banks further maintained that she never saw appellant toss anything. Ms. Banks admitted, however, that she did not know what occurred outside while she was in the liquor store.
During the defense's closing argument, defense counsel contrasted appellant's behavior with the conduct of the man referred to as "Warren." She reminded the jury that appellant never attempted to flee, while Warren "immediately left the area" when the police arrived. According to defense counsel, while "[appellant's] behavior [was] consistent with someone innocent of a crime," Warren's conduct was "consistent with someone who had drugs on [him]."
Defense counsel further reminded the jury that when the officers searched appellant they failed to uncover additional drugs, and they found no drug paraphernalia, weapons, or other tools of the drug dealer's trade. She asked the jury, "Don't you wonder what that [Warren] would have said if he were questioned? Don't you wonder if that person had been searched if [he] would have had drug paraphernalia, if [he] would have had weapons or a beeper"? Immediately after posing these questions, counsel stated:
When you have questions, remember where the burden lies. The burden lies with the prosecution. Not only do they have to prove that a crime was committed but they have to prove who did that crime. If you have a doubt about who tossed those drugs or who left that area and why that person left the area etcetera, that's a reasonable doubt. That's a doubt upon which you have a reason and you need to look to the government.
Defense counsel followed immediately with the argument that the police conducted a "sloppy" investigation, and went on to fault the arrest team, in particular, for failing to take ...