Appeals from the Superior Court of the District of Columbia (F-7685-03) (Hon. Judith Retchin, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before REID and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
Appellant, Andre Otts, was charged with distributing a controlled substance (heroin) and unlawful possession of a controlled substance (heroin), both in violation of D.C. Code § 48-904.01 (a)(1) (2001).
In this consolidated appeal, appellant presents four arguments for reversal, of which the first two, are the primary focus of this opinion. Appellant first contends that the trial court plainly erred in admitting two DEA-7 chemist reports at trial when the chemist did not testify at trial. Second, appellant argues that the trial court erred in denying his D.C. Code § 23-110 (2001) motion for relief, in which he alleged that his trial counsel was ineffective for failing to raise an objection under the Confrontation Clause of the Sixth Amendment to the introduction of chemist reports, and for failing to move the trial court to reopen its pretrial ruling on the admissibility of appellant's statement made while in custody. Third, appellant contends that the trial court committed plain error in failing to reverse sua sponte its sua sponte pretrial ruling denying suppression of a statement appellant made while in police custody, when evidence introduced at trial revealed that the statement was made in response to interrogation. Fourth, appellant contends that the trial court erred in denying his Motion for Judgment of Acquittal as to the unlawful possession charge because the evidence was insufficient to establish that appellant possessed a "measurable" amount of heroin. We reject all four of appellant's arguments and affirm the decision of the trial court.
On December 11, 2003, Metropolitan Police Department ("MPD") officers were conducting a narcotics surveillance operation in the 300 block of L Street, S.E., Washington, D.C. Observation post officers observed appellant standing in the 300 block of L Street, S.E., and a teal-colored Ford vehicle drive onto the block. A male passenger, later identified as appellant's co-defendant, Robert Drummond, exited the vehicle, approached appellant, and the two men engaged in a conversation. Then, the two men walked a short distance and observation post officers saw appellant give Mr. Drummond a small object in exchange for U.S. currency. Mr. Drummond then left the area.
Upon witnessing this transaction, observation post officers gave a lookout description of the teal-colored vehicle, and arrest team officers detained Mr. Drummond and recovered three green Ziploc bags of a substance that later field tested positive for heroin, and one blue-colored Ziploc bag of a substance that later field tested positive for cocaine base. Arrest team officers then stopped appellant at the corner of Third and L Streets, S.E. MPD Officers Michael Jewell, Donald Smalls, and William James, each testified that they were able to see appellant place an object in his mouth after he was stopped by the arresting officers. Specifically, Officer Smalls testified that when appellant noticed him and the other arresting officers, he "motion[ed] to his mouth with his right hand," prompting the officers to jump out of their vehicle and ask appellant what he had just placed in his mouth, to which appellant did not say anything. The transcript indicates that Officer Smalls testified on direct examination that appellant responded to the arresting officers' inquiry of "what do you have in your mouth" by repeatedly saying "he didn't have anything." However, on cross examination, Officer Smalls testified that appellant said nothing in response to this inquiry, but began to move his [A]dam's apple as if trying to swallow, and further testified: "He didn't say anything until after he spit it out. When he spit it out, Mr. Otts said there's nothing in there." Viewing the evidence in a light most favorable to the government, as we must, we are satisfied that appellant made the at-issue statement after expelling the green bag from his mouth. See, e.g., United States v. Turner, 761 A.2d 845, 850 (D.C. 2000);Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc).
Officer Smalls, along with arrest team Officer James, approached appellant and brought him over to their police cruiser. At this time, Officer Smalls could see appellant's "Adam's apple trying to swallow something," and ordered appellant to "spit it out." Another arrest team officer then placed his hand around appellant's collar in an effort to force him to expel the object from his mouth. Appellant finally spit the object out, and remarked "there's nothing in there." The officers determined that it was a "[green] plastic bag with a white residue in it that was chewed up."
1. Crawford Challenge to the Admissibility of the Chemist Reports
Appellant argues, for the first time on appeal, that the admission of the two DEA-7 chemist reports at trial violated his Sixth Amendment confrontation rights because the chemist was not called to testify.*fn1 Specifically, appellant argues that the chemist reports constituted "testimonial hearsay" under Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court announced that "[t]estimonial statements of witnesses absent from trial [are] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59. The government relies on the statutory authority for the admission of these reports pursuant to D.C. Code § 48-905.06 (2001) (chemist report is admissible as business record), as well as our decision in Howard v. United States, 473 A.2d 835, 840 (D.C. 1984),*fn2 in which we held that DEA reports were properly admitted at trial as business records, and that the Confrontation Clause did not require barring the admission of these reports. Appellant concedes that his trial counsel failed to raise a Confrontation Clause objection at trial to the government's introduction of the chemist reports. Therefore, we review appellant's current constitutional claims under the rigors of plain error, which require appellant to show that the trial court's allowance of the chemist reports into evidence was "(1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006) (citing United States v. Olano, 507 U.S. 725, 732-36 (1993)).*fn3 Although appellant satisfies the first two prongs of Olano, we conclude that appellant is unable to meet the remaining predicates.
We conclude that appellant satisfies the first Olano prong based on our prior holdings in Thomas, where we found both error, and plain error where the court admitted chemist reports without the live testimony of the chemist and absent a valid waiver by appellant of his Sixth Amendment confrontation rights. See Thomas, supra, 914 A.2d at 20-21. However, appellant cannot show that the plain error in this case affected his substantial rights and the existence of "a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial." Id. at 21-22; see Olano, 507 U.S. at 735.
Appellant contends that absent the chemist reports and the related officers' testimony, the government would not have been able to prove that the substance recovered from appellant was, in fact, an illegal substance. However, unlike in Thomas, where the chemist's report was the government's main proof that the contested Ziploc bags contained a measurable amount of cocaine, see 914 A.2d at 22, here, evidence of appellant's guilt was supported by other factors. Specifically, several officers testified at trial that they observed appellant in an open air drug market and, moments before his arrest, hand Mr. Drummond a small object in exchange for U.S. currency. After arrest team officers stopped appellant in response to a lookout given by observation post officers, Officers Jewell, Smalls, and James each testified that they could see appellant place an object in his mouth and begin to chew as they approached. Officer Smalls could see appellant's "Adam's apple trying to swallow ...