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Millard v. United States

March 12, 2009


Appeal from the Superior Court of the District of Columbia (F-801-05) (Hon. Lynn Leibovitz, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued October 16, 2008


On May 8, 2006, a jury convicted appellant Kenneth Millard of possession of marijuana, see D.C. Code § 48-904.01(d); possession of cocaine, see id.; carrying a pistol without a license ("CPWL"), see D.C. Code § 22-4504(a); possession of an unregistered firearm ("UF"), see D.C. Code § 7-2502.01; and unlawful possession of ammunition ("UA"), see D.C. Code § 7-2506.01(3). By order dated June 5, 2008, we granted appellant's unopposed motion to vacate both of his drug possession convictions on the ground that the trial court's admission of a Drug Enforcement Administration ("DEA") substance analysis report (a so-called "DEA-7 report") without testimony by the authoring chemist violated the Sixth Amendment Confrontation Clause and was not harmless error.*fn1 We now vacate appellant's weapon convictions as well because we believe there is a reasonable possibility that admission of the DEA-7 report contributed to the jury's guilty verdict on those charges.


In summary, the evidence at trial was as follows. Metropolitan Police Department (MPD) Officer Howard Anderson testified that, shortly before 8 p.m. on February 9, 2005, he and Officers Marc Wilkins and Mark Harrison, all wearing police vests, were parked in the 2700 block of Jasper Road, S.E. in their unmarked police vehicle.*fn2 The vehicle was at the bottom of a dirt path or "cut" that ran down a steep, wooded hill to the roadway. Appellant Millard "popped out of the woods" and ran into the left front quarter panel of the officers' vehicle. After bouncing off the vehicle and falling, appellant grabbed his right waist area with his right hand as he rose to his feet. Perceiving appellant's grabbing motion as an indication that appellant had a gun, Officer Anderson exited the car and began chasing appellant down the sidewalk. When they had run just a few feet away from the car, Officer Anderson tried to hit appellant's shoulder, but appellant jerked away and again 3 grabbed his right waist area. Officer Anderson then slapped appellant's right elbow and a handgun "flew out" from appellant's waistband. Appellant reversed direction and, as he was passing the police vehicle again, Officer Harrison emerged and helped Officer Anderson tackle and handcuff appellant. Besides appellant, police detained two other individuals who were in the vicinity that night. Officer Anderson also acknowledged that, in his Gerstein affidavit, he wrote that there were other individuals who ran through a "cut" in the area that night.*fn3

Officer Harrison substantially corroborated Anderson's testimony. Although he did not see a gun fly out from appellant's person, he recalled hearing the "clang" of a metallic object hitting the sidewalk when Officer Anderson was struggling with appellant. While searching appellant incident to his arrest, Officer Harrison found in the right front pocket of the jumpsuit that appellant was wearing an envelope containing cash and ten zip-lock bags containing a "greenish weed substance" and a "white chunk-like substance." The DEA-7 report that the government offered into evidence and that was admitted over defense objections identified the "greenish weed substance" as marijuana and the "white chunk-like substance" as cocaine.

Officer Matthew Nickerson testified that he recovered a loaded Colt .22 semi-automatic handgun from the sidewalk on Jasper Road. An MPD fingerprint expert testified that the analysis of latent fingerprints recovered from the gun was inconclusive. Police also recovered a second handgun from a dumpster between Jasper Road and Robinson Place. The government's evidence also included a Certificate of No Record of License to Carry a Pistol, and a Certificate of No Registration of a Firearm. Defense counsel objected to these exhibits on the basis of Crawford.

The defense called Investigator Adam Choka, who testified that he visited Jasper Road and located the three sites where (according to the defense's interpretation of the government evidence) MPD officers saw appellant emerge from the woods, effectuated the arrest, and recovered the Colt .22 handgun. Referring to photographs of the area, Investigator Choka testified that, relative to the point where appellant ran out of the woods above Jasper Road, the location from which police retrieved the gun was several feet in the opposite direction from the place where police tackled appellant. Investigator Choka further testified that the only street-lamps on Jasper Road are across the street from the sidewalk bordering the woods, and that the sidewalk itself (where police found the Colt .22 handgun) was unlit.

Defense counsel sought to call Officer Mark Harrison back to the stand to testify that, on the day after the arrest, MPD officers searched appellant's house pursuant to a warrant for drugs and drug paraphernalia, but found nothing incriminating. The trial judge (the Honorable Lynn Leibovitz) precluded the proffered testimony as irrelevant.


Appellant argues that the erroneous admission of the DEA-7 report tainted the entire trial, entitling him to reversal not only of his drug-possession convictions, but also of his weapon convictions. As appellant emphasizes, where constitutional error has occurred at trial, we may affirm a judgment of conviction only if the error was "harmless beyond a reasonable doubt" as to the conviction. Chapman v. California, 386 U.S. 18, 24 (1967); Fields v. United States, 952 A.2d 859, 860 (2008). Here, reversal is required if there is a "reasonable possibility" that the error in admitting the DEA-7 report "might have contributed" to the guilty verdict on the weapon charges. Smith v. United States, __D.C. App. LEXIS ___, * ___(D.C., Feb. 26, 2009) (citing Chapman, supra, 386 U.S. at 23). Only if there was "overwhelming evidence" of guilt, aside from the DEA-7 report, may the weapon convictions stand. Smith, ___ D.C. App. LEXIS ___ at *___,(citing Harrington v. California, 395 U.S. 250, 254 (1969)).

We conclude that there is a reasonable possibility that admission of the DEA drug analysis report did contribute to the guilty verdict on the weapon charges. During closing arguments, defense counsel's remarks focused exclusively on the evidence related to those charges. In rebuttal, the prosecutor urged the jury to reject the defense theory that there was a merely coincidental relationship between appellant's possession of drugs when he ran through the cut toward Jasper Road, and the gun found on the sidewalk along Jasper Road. Telling the jury that "the defendant is not, as the defense seems to want you to believe, the unluckiest person in the world," the prosecutor mocked the defense suggestion that appellant "just happened to be on Jasper Road with cocaine and marijuana in his pocket and a gun was lying there." Thus, the prosecution invited jurors to draw a connection between the drugs that appellant was carrying (which the defense did not deny during closing argument) and the Colt .22 handgun found in the vicinity of appellant's arrest. In this context, the DEA-7 report confirming that the weed substance and white "chunk-like" substance that police found on appellant actually were marijuana and cocaine could well have helped persuade the jury that appellant had been carrying the loaded gun that police recovered.

Further, we cannot say that the government's evidence against appellant as to the weapon charges was overwhelming. Officer Harrison heard a metallic "clang" but never saw appellant with a gun. Officer Anderson testified to seeing a gun fly out of appellant's waistband, but the defense challenged the accuracy and credibility of his testimony on several grounds. The incident took place on the unlit side of Jasper Road around 8 p.m. on a February night, when it would have been dark outside, making clear observation more difficult. Defense counsel argued to the jury that Officer Anderson's general credibility was undermined by his "reluctan[ce]" to "admit that it would be nighttime."*fn4 Defense counsel also emphasized that a photograph entered into evidence showed that on the night of his arrest, appellant was wearing coveralls, an article of clothing on which "[t]here is no waistband and there is no way a gun pops out of that waistband." The latent fingerprints lifted from the gun that police recovered could not be matched to anyone, and (the defense argued, on the basis of Investigator Choka's testimony) the gun was found some distance from where it would likely have fallen if it had "flown" out of appellant's possession at the location where Officer Anderson slapped appellant's arm. Both Officers Anderson and Harrison testified that appellant was holding his waistband area after he got up from falling and continued running, but that action was not inconsistent with the possibility ...

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