Appeal from the Superior Court of the District of Columbia (F-832-05) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued September 28, 2007
Before FARRELL, RUIZ, and BLACKBURNE-RIGSBY, Associate Judges.
Appellant appeals from a jury conviction of possession of marijuana.*fn2 See D.C. Code § 48-904.01 (d) (2001). The parties agree that the "DEA-7," a report prepared by the Drug Enforcement Administration, which determined that the green weed substance found on and near appellant was marijuana, was erroneously admitted into evidence in violation of appellant's constitutional right to confrontation. See Howard v. United States, 929 A.2d 839, 847 (D.C. 2007); Thomas, 914 A.2d at 5.
The parties disagree as to the appropriate remedy. The government argues that the case should be remanded with instructions to the trial court to vacate the conviction of possession and enter a conviction for the lesser-included offense of attempted possession of marijuana. See Mitchell v. United States, 595 A.2d 1010, 1012 n.3 (D.C. 1991) ("[A]ttempted possession is . . . a lesser-included offense of simple possession."). Appellant counters that he is entitled to reversal and a new trial because the admission of the DEA-7 is not harmless error even as to the lesser-included offense of attempted possession. We agree with appellant and reverse and remand the case for a new trial.
Officer John Bolden of the Metropolitan Police Department testified that in the evening of February 11, 2005, he was on patrol in an unmarked police cruiser as part of the Third District Focus Mission Unit,*fn3 along with Officers Bret Brown and Christopher Petz. Around 7:35 p.m., the officers received over the radio a complaint of drug activity near Georgia Avenue and Hobart Street, in Northwest Washington. As the officers pulled into the area, Officer Bolden saw appellant leaning over a burgundy car and talking to the people inside the car. Appellant appeared to look in the direction of the officers, stood straight up, and walked away from the car toward the officers. As Officers Bolden and Brown alighted from the cruiser, appellant started to run. The officers gave chase.
As they were running, Officer Bolden saw appellant clenching something in his right hand. He then heard a "metal sound" as appellant threw a "dark item" over a privacy fence. A short while later, Officer Bolden discovered a gun in the yard behind the fence.
Officer Petz followed in the cruiser and arrested appellant. The officer testified that he saw appellant being searched within a few minutes of the arrest, before he was placed in a car. The police did not discover anything despite appellant being "searched thoroughly from head to toe."
Officer Bolden processed appellant at the police station house. Appellant told Officer Bolden that his name was Gregory Jackson. As the officer was removing loose property from appellant -- which the officer described as "his belt, shoelace[s], the contents of his pockets, [and] things of that nature . . . ." -- a "green weed substance" fell out from the "crotch area of [appellant's] pants."*fn4
Officer Bolden also saw "a clear plastic bag with a green weed substance underneath the bench" in the holding cell where appellant had been placed. Appellant was the only person in the cell at the time.
At Officer Bolden's request, Officer Ralph Davis -- who had been processing another person -- took photographs of the green weed substance located "maybe a foot" from appellant,*fn5 and of the plastic bag containing a green weed substance, three to four feet away. Separate photographs of appellant standing inside the cell block, of the green weed on the ground, and of the plastic bag underneath the bench in the holding cell were admitted into evidence.
Officer Davis testified that "[he] conducted a field test on the green weed substance [found in the cell block], and it tested positive for THC, which is the active chemical ingredient found in marijuana." As the officer began to explain the field test to the jury, the trial court cut short his testimony saying, "Okay. I think we can dispense with this part of the testimony since we have the DEA-7, so we don't need to talk about the preliminary field test."
The green weed substance, which had been placed in a heat-sealed envelope, was admitted into evidence. The DEA-7 report, which showed that the green weed substance contained a measurable amount of marijuana, was admitted into evidence over appellant's ...