Appeals from the Superior Court of the District of Columbia (F-265-06, F-266-06) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Farrell, Senior Judge
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, and FARRELL, Senior Judge.*fn1
A jury found both appellants guilty of distributing cocaine to an undercover police officer. On appeal, their primary argument (indeed, Williams' sole contention) is that the admission of a DEA-7 chemist's report identifying the recovered substance as cocaine, without corresponding testimony by the chemist, violated Crawford v. Washington, 541 U.S. 36 (2004), as applied in Howard v. United States, 929 A.2d 839 (D.C. 2007), and Thomas v. United States, 914 A.2d 1 (D.C. 2006). The government concedes error on the point but argues that Williams has not preserved the error nor shown "plain error," United States v. Olano, 507 U.S. 725 (1993), justifying reversal. As to Bryant, the government agrees that her distribution conviction must be reversed, but contends that the error in admitting the chemist's report was harmless as to the (implicitly tried) lesser-included offense of attempted distribution, which required no proof of the specific identity of the controlled substance. See Thompson v. United States, 678 A.2d 24, 27 (D.C. 1996).*fn2
In light of Howard and Thomas, supra, we agree with the government's concession of error, but reject its argument of non-preservation as to Williams. On the other hand, we conclude that on the facts of this case the error in admitting the DEA-7 report was harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 24 (1967), as to the included charge of attempted distribution, leaving the government free on remand to accept entry of convictions of each defendant for that crime. We reject Bryant's remaining claim for reversal.
MPD Officer Ellerbee, acting undercover, was approached on a street corner by a woman, appellant Bryant, who asked him "what's up" or "what's wrong?" When he replied that he was "trying to get some stones" (a common street name for crack cocaine), Bryant told him she could "take him to it," and she led him to a nearby courtyard. As they walked, she instructed him that if anyone asked, he should say he was her cousin, and she gave him a fake "street name." Ellerbee gave Bryant $25 in pre-recorded police funds and asked her for "three for 25," knowing that drug dealers would often give a five dollar discount for three $10 bags of crack cocaine.
Bryant took the money and walked into the courtyard, approaching a man, appellant Williams, who was standing by a set of mailboxes. From his position at the edge of the courtyard, Ellerbee saw Bryant hand Williams the pre-recorded funds and receive something from him in return (a "hand-to-hand" exchange). Bryant then rejoined Ellerbee and, after they had walked away together, produced three ziplock bags of a white rock-like substance, giving him two and keeping one.*fn3 Leaving Bryant, Ellerbee returned to an unmarked police car where MPD Officer Brooks had been watching the undercover purchase. Ellerbee broadcast a lookout for Bryant and Williams and performed a field-test of the white substance,*fn4 which was positive for crack cocaine. An arrest team then located both defendants and arrested them. At trial, Ellerbee testified that he was "very sure" that Bryant was the "person who took [him] to the courtyard and brought [him] the drugs" and that Williams was "the person who [handed] Bryant the drugs that she . . . then . . . brought back to [Ellerbee]."
MPD Detective Washington, the government's drug expert at trial, explained that drug transactions often involve two layers of distributors, the person "in charge of the drugs" and a "buffer, . . . go between[,] or . . . freelancer." "Go-betweens" get "the money from the buyer, go to the seller, and get the drugs from the seller, and . . . take the drugs back to the buyer and give it to the buyer." A freelancer is a particular type of go-between who, rather than working directly with the seller, acts independently. A freelancer - "is . . . [an] opportunist"; unlike other go-betweens, freelancers . . . go into these areas and look for individuals who are looking to buy drugs . . . - - that's their sole purpose. . . . [T]hey'll make contact with . . . people [looking to buy drugs] because [the freelancers] know the area, they know who belong and don't belong in these areas, they'll . . . find out what they want, get the money from them, and then go and get the drugs from a person who is selling . . . . And from that point [the freelancers] take the drugs back to the [buyer], and usually what they'll try to do is get rewarded from the buyer . . . they'll try to get part of the drugs or they'll try to get a few dollars for their services rendered.
Freelancers who are "from [an] area," Washington further explained, "know everything about that area."*fn5 They "take the big risk," as they "go a little bit beyond to solicit customers because they have a purpose for that . . . to get money or to get drugs." Their success depends on "how . . . the seller feels in allowing these people to work for him," since "these drug dealers . . . will not let outsiders come into the area to work their area."
Bryant's defense was that she had been arrested innocently in the courtyard area while walking to visit friends. Williams, by contrast, offered the testimony of a friend that she and Williams were passing through the courtyard when Bryant, whom she knew, tried to solicit drugs (in vain) from Williams, then approached another person and walked away together with him, leading to Williams' mistaken arrest.
The government's primary evidence that the substance appellants sold was cocaine was the DEA-7 report confirming the laboratory analysis. Appellants both argue that, by not calling as a witness the chemist who did the analysis, the government denied them the opportunity to cross-examine him and thus "confront" the testimonial report. Given our decisions in Howard and Thomas, the government agrees with this in principle but argues, first, that Williams' failure to object on constitutional grounds at trial requires him to show plain error, Olano, supra, something he cannot do in light of our repeated rejection of similar claims. See Thomas, 914 A.2d at 22-24; accord, e.g., Otts v. United States, 952 A.2d 156, 162-163 (D.C. 2008). We are not persuaded, however, that Williams must overcome the plain-error hurdle, given Bryant's objection squarely placing the confrontation issue before the trial court.
Normally, a defendant's failure to object on a point subjects his related claim of error on appeal to plain error review. But, "at least in some circumstances, an objection may be preserved when made by a co-defendant." Johnson v. United States, 756 A.2d 458, 462 n.2 (D.C. 2000); see also Bayer v. United States, 651 A.2d 308, 311 n.1 (D.C. 1994) ("[w]hen one co-defendant makes an objection at trial which the other co-defendant does not join, the latter can nonetheless benefit from the objection, on appeal, when it applies equally to his or her own situation."). The reason for this, as we explained in Williams v. United States, 382 A.2d 1 (D.C. 1978), is that the plain error rule is not meant to be "punitive"; instead its purpose is to allow the trial judge "fully to consider issues and thereby avoid potential error, and to afford prosecutors the opportunity to present evidence on the issue raised." Id. at 7 n.12. The government cites other decisions of ours seemingly to the contrary, e.g., Thacker v. United States, 599 A.2d 52, 59 (D.C. 1991) (failure to "poseany objection at trial and [to] join in the motion of" co-defendant subjects belated claim to plain error review). Rather than insist that we resolve the conflict here, however, it limits itself to arguing that Williams should not be allowed to ride "Bryant's coattails" because his failure to join the objection "fairly can be viewed as a tactical choice" - i.e., a desire not to obscure his chosen defense of misidentification. Bryant's defense, however, was also misidentification, and the government all but concedes that it is surmising ("[c]counsel may have reasoned") that Williams was thinking tactically, and was not just asleep at the ...