Appeals from the Superior Court of the District of Columbia F-6894-03, F-5199-04 (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
Following a jury trial, Donald Ellis was found guilty of one count of unlawful distribution of heroin in a drug-free zone*fn1 and of one count of willful failure to appear (FTA) at a status hearing in the heroin distribution case.*fn2 On appeal from his conviction and sentence on the heroin count,*fn3 Ellis principally contends that the trial judge erred by denying his pretrial motion to suppress his post-arrest show-up identification by Officer Anthony Commodore of the Metropolitan Police Department.*fn4 According to Ellis, the police lacked probable cause to arrest him or articulable suspicion to detain him. The government concedes that the trial judge erred by declining to suppress the show-up identification, but argues that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23 (1967) (articulating standard where error is of constitutional magnitude). We accept the government's concession, and we conclude that under the Chapman standard, the error was not harmless. Accordingly, we reverse Ellis' drug conviction.
I. THE TRIAL COURT PROCEEDINGS
This case arose out of the sale of three ziplock baggies of heroin to Officer Commodore, who was acting under cover in a buy/bust operation, by two*fn5 individuals other than Donald Ellis. The offense is alleged to have occurred on November 5, 2003. The prosecution's theory was that Ellis was the "facilitator" of the unlawful sale, and that he brought Officer Commodore to the men who sold Commodore the heroin.
A. The Hearing on Ellis' Motion to Suppress Identification
On December 2, 2003 a grand jury returned an indictment charging Ellis with distribution of heroin within one thousand feet of a playground, a daycare center, and a public housing project. On June 18, 2004, Ellis filed a motion to suppress any out-of-court or in-court identification of Ellis, on the ground, inter alia, that each identification was the fruit of an unlawful seizure. A hearing was held on the motion on November 2, 2004.
The sole witness at the motions hearing was Officer James Wilson, a member of the arrest team. For the most part, Officer Wilson's testimony was not based on personal knowledge. Rather, Wilson's account was based on a post-arrest conversation with Officer Commodore and on the police documentation of the arrest. Wilson was not present when Ellis was taken into custody, nor did he observe the undercover sale.
Officer Wilson testified that he "believed" that Officer Commodore approached a suspect alleged to be Ellis at around six o'clock in the morning on Georgia Avenue near Park Road and Morton Street in northwest Washington, D.C. To the best of Wilson's knowledge, Officer Commodore and Ellis had a brief conversation about the possible purchase of narcotics by Officer Commodore, and Ellis told Commodore that he could take him to a location at which Commodore could purchase the drugs that he wanted. Officer Commodore followed Ellis to 620 Morton Street, where, according to Officer Wilson, the two men encountered two other individuals who were standing inside the building. Officer Wilson testified that the walk from Georgia Avenue to 620 Morton Street took approximately two to three minutes, and that Officer Commodore "indicate[d]" to Officer Wilson that he (Commodore) had an ample opportunity to observe the suspect's face and clothing. Officer Wilson could not recall whether it was light or dark outside at the time that Commodore and the suspect walked to the Morton Street address.
Officer Wilson testified that after Officer Commodore arrived at 620 Morton Street, he and one of the sellers engaged in a short conversation, after which Commodore purchased "I believe, it was three ziplocks of powder substance" from the two men who were standing in the hallway of 620 Morton Street. Officer Wilson confirmed that Officer Commodore did not purchase drugs from the suspect alleged to be Ellis, but from two other individuals.
Officer Wilson testified that after the purchase, Officer Commodore "broadcast a lookout for the three subjects, the facilitator and the actual two subjects who sold him the narcotics."*fn6 On cross-examination, Wilson told the court that he heard the broadcast lookouts, but that he could not recall the descriptions of the suspects:
Q. [Defense counsel]. . . Did you, yourself, hear the broadcast . . . lookout, the lookouts that were broadcast that day?
Q: What was the broadcast -- what was the description of the lookout given for Mr. Ellis?
Q: Did you yourself hear it?
Q: And who was the person giving ...