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Fleming v. United States

April 26, 2007

TRAYONE FLEMING, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F6114-03) (Hon. Lynn Leibovitz, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued January 25, 2006

Before REID and GLICKMAN, Associate Judges, and COMBS-GREENE, Associate Judge, Superior Court of the District of Columbia, sitting by designation.

Appellant Trayone Fleming was convicted of possession of a controlled substance (PCP) with intent to distribute, in violation of D.C. Code § 48-904.01 (a)(1) (2001). He asserts that the trial court erred by (1) ruling that the informant was reliable and therefore the police had reasonable, articulable suspicion to stop him; (2) admitting testimony from one police officer that another officer said he voluntarily consented to the search of his person; (3) failing to rule that the testimony of two police officers at trial constituted Brady*fn1 evidence unlawfully withheld by the government during the suppression hearing; (4) admitting drug evidence since the government failed to establish the chain of custody; and (5) limiting examination of a police officer regarding his field test of the drug evidence. Discerning no error, we affirm the judgment of the trial court.

FACTUAL SUMMARY

The government presented evidence showing that Mr. Fleming was involved in a drug transaction on or about October 1, 2003, and subsequently was arrested and indicted. At a hearing on Mr. Fleming's motion to suppress evidence, the government presented two witnesses. Metropolitan Police Department ("MPD") Officer Devinci Wooden*fn2 testified that he received a call "around 3:55 p.m." from a person who had "provided information in the past about certain patterns of narcotic sellers in certain areas . . . ." The informant was not known as a drug user. On two occasions, information from the informant resulted in arrests. The informant also conveyed information about two other persons, but Officer Wooden was unable to act on it because he suffered an injury. The informant, who was not paid, told Officer Wooden that "he knew a person by the name of Tray"; that Tray "would be between Sixth and Seventh and N Street," in the Northwest quadrant of the District "selling PCP and that he had PCP on his person." The informant described Tray as "a black male . . ., wearing a brown jacket, khaki type; khaki-like color, like brown khaki-like color pants, . . . and he had a close fade-type haircut." He also was "wearing white tennis shoes." Officer Wooden contacted Sgt. David Poe of the MPD and gave him the information from the informant.

Sgt. Poe testified that the contact came at "approximately 1630 [hours]" or 4:30, and that Officer Wooden informed him "that there was a male holding narcotics in the 600 block of N Street Northwest"; and that the person was a "[b]lack male" with a "faded haircut; white tennis shoes; wearing beige khaki pants; beige coat." Sgt. Poe proceeded to the N Street area with three other police officers, including Officers Rondell Baker and Franklyn Then. The officers arrived there "around 1645-ish" and noticed "[b]etween 10 and 12 [males]." Sgt. Poe identified Mr. Fleming as one of the persons he saw. Mr. Fleming was wearing "the beige khakis and the beige colored top." The other persons present in the area had on "[b]lack tops, either sweaters or jackets, and blue jeans." No one else had on a beige jacket and beige pants.

The officers drove past the area and around the corner. Two of the officers exited the vehicle. The other two officers returned to the front of the apartment complex on N Street, got out of the car, approached Mr. Fleming, "and made a little conversation with him." Officer Baker "put his hands (around the shoulder area) on [Mr. Fleming] and started talking to him." Officer Baker said the officers "received a drug complaint." Mr. Fleming "started asking why [the officers] were bothering him, he wasn't doing anything." When the other two officers returned to the front, "they . . . took control of [Mr. Fleming]," that is, they "monitor[ed]" him while Officer Baker made a telephone call; Mr. Fleming was not handcuffed at that point. "Officer Then and [Mr. Fleming] were having some type of conversation." Officer Then asked whether Mr. Fleming "would consent to a search." Mr. Fleming said, "Yes." Officer Then proceeded "to pat [Mr. Fleming's] pockets and move his clothing around to see if he had anything on him." As Officer Then was "moving [Mr. Fleming's] shirt up around the right side, . . . [Mr. Fleming] made a motion as if he wanted to run . . . . He tried to get away." Officers Then and Baker and Sgt. Poe all "grabbed" Mr. Fleming and they fell to the ground. Officer Then "said he's got it [the drugs] on him." Mr. Fleming was handcuffed, and Officer Then "lifted up his shirt and recovered a bag from inside [Mr. Fleming's] waistband." The bag later was found to contain "[m]arijuana laced with PCP."

At the conclusion of the suppression hearing, the trial court denied Mr. Fleming's motion to suppress evidence, finding, in part, that the person who called Officer Wooden was "a reliable informant within the Fourth Amendment," and that Officer Wooden "could rely on information he had provided." Furthermore, "[t]he police at the very least had reasonable suspicion on which they could stop [Mr. Fleming] at the point that they observed him in this block matching the description provided by the [informant]." The trial court regarded the question of probable cause as "an extremely close question." The trial judge stated that "there would be better evidence in the record of [Mr. Fleming's] consent had Officer Then himself testified," but that "hearsay is admissible." The judge then "credit[ed] entirely Sgt. Poe's testimony regarding the events of [the] day and that he was told by Officer Then that the consent had taken place." The court proceeded to "find that [Mr. Fleming's] consent and the circumstances in which the defendant then began to run after the officer observed a plastic bag sticking out of the pants gave the police probable cause to believe that [Mr. Fleming] in fact possessed contraband." And, "in the event that [Mr. Fleming] withdrew his consent, the officers had already seen the bag and felt it and had probable cause to believe that it contained contraband. As a result, they could lawfully remove the bag and discover its contents."

At trial, the government's witnesses were Officers Baker and Then, as well as Officer Kristian Paul Kimbell who dusted the bag removed from Mr. Fleming's waist for fingerprints, and Officer Christopher Stone, who testified as an expert on drug matters, including testing and reporting procedures. Officer Baker testified that he identified himself to Mr. Fleming, "grabbed his arm," and that, "based on [his] experience," he "smelled an odor of PCP on Mr. Fleming." He "patted Mr. Fleming down for any type of weapons," but found none. He asked Officer Then to "watch Mr. Fleming" and then he called Officer Wooden.

Officer Then stated that he was in an unmarked car with Sgt. Poe, Officer Baker, and another officer when they saw Mr. Fleming. Officer Then, who had on his "raid jacket" with MPD on the back and side, and another officer, exited the vehicle and walked until they met Sgt. Poe and Officer Baker who had stopped Mr. Fleming. Officer Then and the fourth officer "engaged in a small conversation with [Mr. Fleming]" who asked "why [the officers] were stopping him out of all the individuals that were out there." The officers replied that they were conducting an investigation. In response to Officer Then's question, Mr. Fleming said he had no weapons on his person. Officer Then "asked him if he didn't mind if we went ahead and searched him." Mr. Fleming "indicated he had no problem with [the search]." Officer Then began to "pat" Mr. Fleming down, tried "to feel what was in his pockets," "lifted up his shirt" and saw what "appeared to be a plastic bag which was stuck in the middle of his waist." Mr. Fleming "attempted to physically . . . become free from [Officer Then] . . . and flee." He "attempted to run." The officers and Mr. Fleming "struggle[d]." Mr. Fleming was handcuffed and Officer Then "retrieved the object from his waist." The object "was a plastic bag which contained 21 small foils" with "a green, greenish weed-like substance."

Two witnesses were called for the defense, Markeith A. Banner, a manager of Airborne Express who grew up with Mr. Fleming, and Officer Baker. Mr. Banner stated that the officers asked whether Mr. Fleming was Tray and proceed[ed] to search him. He did not hear the officers ask Mr. Fleming whether they could search him. Nothing was recovered and Mr. Fleming was handcuffed. A second and third search of Mr. Fleming also turned up nothing. However, Mr. Banner saw the officers with a plastic bag but "didn't see them get it off of [Mr. Fleming]." Officer Baker initially testified that the substance in the tinfoils recovered from the plastic bags was not field tested, but he later acknowledged that the PD-251 incident report, which he completed, indicated that the substance tested negative for marijuana. He did not remember who conducted the field test.

ANALYSIS

The Reliability of the ...


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