Appeal from the Superior Court of the District of Columbia (Nos. F-786-03, F-775-03) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.*fn1
Appellants Doc Simmons and Olivia Smallwood were tried together with a third co-defendant, Wally Smith, on charges of unlawful distribution of cocaine and unlawful possession with intent to distribute cocaine. The jury found Simmons guilty of distribution, not guilty of possession with intent to distribute, and guilty of the lesser included offense of simple possession of cocaine. Smallwood was convicted of distribution of cocaine. Smith was acquitted of all charges.
Simmons claims that his convictions should be reversed because (1) the government violated a pre-trial promise not to introduce so-called Toliver*fn2 evidence of uncharged contemporaneous drug sales, and (2) the prosecutor misstated the testimony of a defense witness in her closing and rebuttal arguments. Smallwood asserts that the evidence was insufficient to support her conviction for distribution of cocaine, because the key testimony against her was inherently incredible. Appellants' arguments do not persuade us, and we affirm their convictions.
According to the government's evidence at trial, at 6:00 p.m. on February 4, 2003, undercover Metropolitan Police Department Officers Thomas Stephenson and Anthony Greene drove to the 2700 block of Bruce Place, S.E., to conduct a "buy-bust" operation. Greene remained in their unmarked car as Stephenson, holding a pre-recorded twenty-dollar bill in his hand, exited and approached Wally Smith. Stephenson testified that Smith asked him "what [he] was looking for." Stephenson replied that he wanted "two bags."
In response, Smith brought Stephenson across the street to meet Olivia Smallwood, who was standing in the walkway at 2726 Bruce Place. Smith asked Smallwood if she had "three bags." Smallwood did not have them but led Smith and Stephenson down the walkway, where she knocked on an apartment door. Doc Simmons opened the door and Stephenson, Smith, and Smallwood all went inside.
Several other persons were in the apartment, and Stephenson observed Simmons dispensing ziplock bags to them containing what appeared to be drugs. When it was his turn, Stephenson gave the pre-recorded twenty-dollar bill to Smith, who added ten dollars of his own and handed the money to Simmons. In return, Simmons gave Smith four small, pink ziplock plastic bags with a rocklike substance in them. Stephenson testified that Smith passed the four bags to Smallwood.
Smallwood then led Stephenson out of the apartment and handed him two of the ziplock bags. Smith soon followed them and rejoined Smallwood. With the two bags in his possession, Stephenson left and returned to his car, where his partner, Officer Greene, was awaiting him. Inside the car, Stephenson performed a field test, which indicated the presence of crack cocaine in the ziplock bags. Within minutes, a police arrest team, summoned by Greene, stopped Smallwood and Smith and brought Simmons out to the street. All three individuals were positively identified by Stephenson and placed under arrest.
From Simmons, the police recovered one small, pink ziplock bag containing crack cocaine and $156 in cash, including the pre-recorded twenty dollar bill that Stephenson had used to make his undercover purchase. The police found no ziplock bags or drugs on Smallwood, even though no officer saw her throw anything away. Smith had no drugs in his possession either.
The defendants disputed Stephenson's account and presented a very different version of events at trial. After getting off work on February 4, 2003, Simmons testified, he bought a pizza to share with his fiancée, Sherita Hester. He also bought a single ziplock bag of crack cocaine for his own personal use. He then went to 2726 Bruce Place, where Hester was expecting him. Hester lived at that address with her mother, who sold "bootleg" beer, cigarettes and other articles (but not drugs) from their apartment.
Shortly after Simmons arrived at the apartment, Smallwood visited it to purchase some beer. According to Simmons and Hester, Smallwood entered alone, and they never saw Stephenson. Smallwood remained in the apartment for a little while, drinking beer and chatting. Other defense witnesses testified that Smallwood left the apartment by herself, holding a beer in her hand,*fn3 and that she did not throw anything down before she was arrested a few minutes later. Simmons and Hester were sitting at the dining room table, still eating their pizza, when the police entered to arrest Simmons.
Simmons denied selling drugs to Stephenson or anyone else. When asked by the prosecutor on cross-examination why he had the pre-recorded twenty dollar bill in his possession, Simmons replied that he did not know, but he might have received it when giving change to one of Hester's mother's customers.
The first basis on which Simmons seeks reversal of his convictions is that the government violated its representation to his counsel in pretrial discovery that it would not present evidence of any uncharged crimes. The violation occurred, but we conclude that Simmons suffered no prejudice as a result. Simmons therefore is not entitled to the relief he requests.
The issue arose during the direct examination of Officer Stephenson. The prosecutor asked Stephenson what he saw when he entered the apartment on Bruce Place with Smallwood and Smith. Stephenson answered that he observed Simmons "giving out some small ziplock bags with little small [sic], tan rock substances inside to the other people that were in front of me."
Simmons did not object to this testimony. On cross-examination, his counsel questioned Stephenson about his inability to describe the other persons he allegedly saw obtaining ziplock bags from Simmons and his failure to issue a lookout for any of them.
On the next morning of trial, Simmons objected to Stephenson's testimony regarding his sales of drugs to other purchasers. His counsel requested a mistrial or, alternatively, that the court strike the testimony and give a curative instruction, because the prosecutor handling pretrial discovery had told him that the government did not intend to introduce "other crimes evidence as defined by Drew or Toliver."*fn4 The prosecutor had promised to inform him in writing, defense counsel added, if the government's intentions were to change. ...