Appeal from the Superior Court of the District of Columbia (FEL2133-05) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, and REID and GLICKMAN, Associate Judges.
Opinion for the court by Associate Judge REID.
Concurring opinion by Associate Judge GLICKMAN at p. 12.
A jury found appellant, Gad Doreus, guilty of possession of a controlled substance with intent to distribute (cocaine) while armed.*fn1 He challenges his conviction on the ground that the trial court violated (1) his constitutional Sixth Amendment confrontation right by admitting the Drug Enforcement Administration ("DEA") chemist's report over his objection and without ordering the government to make the chemist available for cross-examination, and (2) his constitutional Fourth and Fifth Amendment rights by denying his motion to suppress physical and identification evidence. In addition, he contends that the government presented insufficient evidence to satisfy the "while armed" penalty enhancement factor. We vacate the trial court's judgment and remand this case for a new trial.
During a hearing on Mr. Doreus's motion to suppress physical and identification evidence, the government presented the testimony of Metropolitan Police Department ("MPD") Officers Carole Turner and Eric Fenton. Officer Turner, a fifteen-year veteran with five years experience in narcotics and 300 to 400 drug buys while working undercover, was part of an April 14, 2005 "buy/bust operation" on Keefer Place, a high drug area, in the Northwest quadrant of the District of Columbia. Two other officers were with Officer Turner in an unmarked vehicle, Officers Darrick Wallace and Denise Roy. The officers saw a man, later identified as Mr. Doreus, standing on the street with other people; they stopped their vehicle and observed the scene. Soon a white car pulled in front of the officers' vehicle, and a female exited, approached Mr. Doreus and spoke with him for about a minute. Mr. Doreus left the woman and headed for a house in the 600 block of Keefer Place. Upon arriving at a house, he walked "behind the bushes" and down some basement steps, "picked up something, then put it back down." Officer Turner could not see what he retrieved and "didn't see anything in his hands." He returned to the female, gave her "something," ("a small object") and she in turn "gave him something back." Based on her experience, Officer Turner believed she had witnessed a "hand-to-hand" narcotics transaction.
Soon after the transaction, Officer Wallace broadcasted a lookout for the female, and for Mr. Doreus who was described as a "black male with a white T-shirt, black hat and blue pants." The arrest team, Officers Fenton, Jeffrey Bruce, and James Greene, received the broadcast. Within "five or six minutes," the arrest team officers saw Mr. Doreus whom Officer Fenton described as "a perfect match," at the corner of 6th and Keefer Place. They stopped him, placed him in handcuffs and took him "10 to 15 feet" down the block for a show up identification. When the undercover officers drove by and looked at Mr. Doreus, they identified him as the man who had engaged in the transaction with the female; the female was never found. Officer Fenton stated that Officer Greene searched the area around the house where the undercover officers had seen Mr. Doreus bend down to retrieve something. In a brick area, he discovered a drain, lifted it up and saw a piece of plastic "like a sandwich bag that contained . . . five white tablets, which were individually packaged in zip-lock bags, and also . . . 32 zip-lock bags containing white rock substance which later field tested positive for cocaine . . . ." Mr. Doreus was arrested after Officer Greene told other officers what he had found. MPD Officer Durriyyah Habeebullah conducted a search incident to arrest, which revealed $31.00 and a hand knife on Mr. Doreus's person.
The trial judge denied Mr. Doreus's suppression motion, and the case proceeded to trial. The government presented as its witnesses Officers Wallace, Bruce, Greene, and MPD Officer Wayne Knox. Officer Knox, who had no personal knowledge of the incident involving Mr. Doreus and who had not visited the crime scene, testified as an expert on drug-related matters, including "the use, the pricing, packaging and distribution techniques for the street-level sale of controlled substances," as well as MPD and DEA "procedures . . . to safeguard the integrity of suspected drug evidence." He stated that the market value of each of the small zip-lock bags containing a cocaine base substance (80 to 150 milligrams per bag) was around $20.00.*fn2 On cross-examination, Officer Knox agreed that "a typical street user would buy two or three bags."
The other officers essentially recounted the events that unfolded on the evening of April 14, 2005. Officer Wallace described his observations of the female on the street and Mr. Doreus's actions, indicating that he saw Mr. Doreus go to the basement area of the Keefer Place residence, "fumbl[e"] with some small objects, after which he returned to the female on the streets and handed her an object for which he received something in return; based on his experience, he "believed" the female gave Mr. Doreus "U.S. currency." Officer Greene described in detail his recovery of the items from the drain or downspout, located under the porch of a house in the 600 block of Keefer Place; no other officer was present during the recovery of the drugs. One item which Officer Greene removed from the downspout consisted of a plastic bag containing five zip-lock bags, with a total of five white pills. He also discovered "a clear zip-lock bag, which contained a total of 32 smaller zip-lock bags of a rock-like substance." Officer Greene did not mention conducting a field test (Officer Fenton referenced field testing during his testimony), and apparently none was done.*fn3 Rather, he placed what he had removed from the drain into a zip-lock bag, put the bag in his vest pocket, took it "back to the major narcotics branch," "prepared the heat-seal, DEA-7 [form], and PD form 81," and after Officer Bruce dusted the zip-lock bags for fingerprints, Officer Greene retrieved the package with the PD form 95 which he also had completed, and dropped it in the property control box.
Officer Bruce added details about the knife found on Mr. Doreus during the search. He removed "[a] folding knife" which had been "clipped" to Mr. Doreus's waistband, with "the blade and the casing" inside his pants and "the . . . clip was facing out"; the blade of the knife was "approximately four inches" and the "overall length . . . about eight and three-quarters." In addition to the testimonial evidence, the government introduced the DEA chemist's report but did not make the chemist available for cross-examination.*fn4
Mr. Doreus contends that his constitutional Sixth Amendment confrontation right was violated because, despite his objection, "[t]he [DEA] chemist whose analysis and findings were critical to the government's proof that the substance purportedly seized from [him] contained a controlled narcotic [cocaine], never testified at trial nor otherwise was made available to the defense for cross-examination." The government acknowledges that Mr. Doreus's conviction for possession of a controlled substance (cocaine) with intent to distribute must be vacated (1) in light of our decisions in Howard v. United States, 929 A.2d 839 (D.C. 2007) and Thomas v. United States, 914 A.2d 1 (D.C. 2006), (2) given defense counsel's objection to the introduction of the DEA chemist's report, and (3) because no other direct evidence was introduced to prove that the substance ...