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Cunningham v. United States

June 25, 2009


Appeal from the Superior Court of the District of Columbia (F-7497-05), (Hon. Jeanette J. Clark, Trial Judge).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued March 17, 2008

Before KRAMER, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

After a bench trial, Appellant Ricardo Cunningham was convicted of one count of possession of marijuana in violation of D.C. Code § 48-904.01 (2001). On appeal, he contends that (1) the evidence was insufficient to convict him; and (2) the trial judge erred by denying his right to cross-examine, as to bias, the key government witness, a police officer, regarding the officer's motive to curry favor by testifying because he was under investigation for the alleged use of excessive force. We conclude that the evidence was sufficient to support the conviction; however, we remand for further inquiry by the trial court to determine whether the officer was aware of the pending investigation against him. Such knowledge arguably would provide a motive for him to curry favor with the government.


Mr. Cunningham was observed by three undercover police officers in the driver's seat of a grey, older model Ford conversion van parked in a parking lot of an apartment complex. Metropolitan Police Department ("MPD") Officer Angelo Battle saw Mr. Cunningham in the driver's seat wearing a black jacket, a black shirt, and black pants. Officer Battle saw another passenger in the front seat of the vehicle rolling what appeared to be "a blunt or marijuana cigarette." The officer contacted members of the arrest team*fn1 and issued a lookout.

As the arrest team entered the parking lot and approached the van, Mr. Cunningham exited the vehicle and began to run through the parking lot. Officer Whaley saw him "make this kind of motion, lean down to the center console[,] and then open the door, jump out [of] the vehicle[,] and run, fleeing from the vehicle."*fn2 Officer Whaley believed that Mr. Cunningham was "[t]aking off a jacket and moving something around the center console area or dropping something." Officer Mason, along with other officers, chased down Mr. Cunningham on foot and brought him back to the van. When he was returned to the van, he was wearing a black shirt and black pants.

While other officers were chasing Mr. Cunningham, Officer Whaley approached the van and blocked the passenger-side door, preventing other occupants of the van from exiting. He noticed a jacket on the driver's seat. Officer Mason also saw a jacket on the driver's seat that looked "like somebody took it off and laid it right there on the driver's seat." The officers searched the jacket and recovered three bags containing a green weed-like substance and empty ziplock bags from the jacket pockets. Officer Mason also observed that there were other items of clothing strewn throughout the van, including another coat on the right rear passenger seat and a pair of pants on the front passenger seat. Officer Whaley kept "his eye on the [jacket] in which the drugs were found" and "he did not see anyone else [in the van] touch the jacket."

Moments before Officer Whaley testified at trial, the government alerted the court and defense counsel to a Lewis*fn3 issue relating to the officer. Officer Whaley was being investigated for the use of excessive force in an incident that occurred in March 2006. The government explained to the trial court that the officer believed that the subject of the investigation was "someone else in his chain of command," and he was merely "on the witness list" and had in fact testified against someone else also under investigation. The government asserted that Officer Whaley "ha[d] no idea that the United States ("U.S.") Attorney's Office [was] investigating him" and requested that "no inquiry be made of the officer" concerning the investigation, so as not to alert Officer Whaley of the ongoing investigation against him.

Mr. Cunningham's trial counsel countered, "It seems like we should be able to cross-examine the witness about something that would go to bias, and bias is pretty liberally construed when it comes to corruption and things like that." The court asked counsel what the officer's incentive to curry favor would be if he had no knowledge that he was under investigation. Appellant's trial counsel replied:

Well, he is aware that there is an investigation going on, and that he is involved in it because he's been a witness in the investigation. And if there is an allegation by someone that he participated in excessive force then he would have every reason to try to curry favor of the U.S. Attorney's Office . . . .

The trial court ruled that the officer did not know about the investigation and had no reason to curry favor. Therefore, the trial court allowed him to testify and instructed that "[w]e don't need to ask the officer about the investigation because he doesn't know anything about it . . . ."

After closing arguments, the trial court issued its oral findings and credited the testimony of each officer. The court found that Mr. Cunningham's flight and removal of his jacket evinced consciousness of guilt that he possessed illegal controlled substances in ...

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