Appeal from the Superior Court of the District of Columbia (FEL4406-05) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and GLICKMAN, Associate Judges, and BELSON, Senior Judge.
A jury found appellant, Nathaniel J. Digsby, guilty of unlawful possession with intent to distribute a controlled substance (heroin) and unlawful possession with intent to distribute a controlled substance (marijuana),*fn1 both in violation of D.C. Code § 48-904.01 (a)(1) (2001); and unlawful possession of drug paraphernalia, in violation of § 48-1103 (a).*fn2 Mr. Digsby contends that his conviction must be reversed because the trial court violated his constitutional Sixth Amendment confrontation right by ruling, over his objection, that a Drug Enforcement Administration report, the "DEA-7," prepared by a DEA chemist, would be admitted into evidence without the testimony of the chemist. The government agrees, but argues that the error in allowing the DEA-7 into evidence without testimony from the chemist was harmless beyond a reasonable doubt, and that even if this court concludes that the convictions for possession with intent to distribute heroin and marijuana ("PWID") must be reversed, it should remand the case "for entry of judgment on the lesser-included offenses of attempted PWID heroin and attempted PWID marijuana." We affirm the trial court's judgment of conviction on the marijuana charge, but we reverse the trial court's judgment of conviction on the heroin charge and remand the case for a new trial on the heroin count.
A grand jury charged Mr. Digsby with two specific crimes that are at issue in this case: (1) "unlawfully, knowingly, and intentionally possess[ing] with intent to distribute a quantity of heroin, that is, heroin, a schedule II controlled substance"; and (2) "unlawfully, knowingly, and intentionally possess[ing] with intent to distribute a quantity of cannabis, that is, marijuana, a schedule III controlled substance." At Mr. Digsby's trial on these charges, the government presented evidence showing that on August 3, 2005, at approximately 6:30 a.m., several police officers, including Officers Andrew Keness, Peter Ward, and Jonathan Hofflinger of the United States Park Police, participated in the execution of a search warrant in the 1200 block of Half Street, in the Southwest quadrant of the District of Columbia. After Officers Keness and Hofflinger knocked on the door and announced that they had a warrant, they watched as Mr. Digsby looked out of a second floor window and then turned away.*fn3 Officer Keness identified the window as being in the front bedroom. After the officers forced their way into the home, Officer Keness saw Mr. Digsby on the second floor in front of the bathroom. Mr. Digsby's wife was in the rear bedroom with two young children, and the teenage son was sleeping on the first floor.
Officer Ward testified that he collected evidence from the kitchen counter, the dining area, and the front upstairs bedroom. He identified government exhibits which contained items seized from Mr. Digsby's residence. Specifically, he recovered: (1) from the kitchen counter, thirteen small yellow plastic bags (each containing a beige powdery substance) inside a clear plastic bag with a red and green logo;*fn4 (2) "a bag containing a green leafy substance that was adjacent to the thirteen yellow bags on the kitchen counter in open view";*fn5 (3) from a kitchen drawer underneath the counter, a number of empty small red plastic bags; (4) from the dining room, a digital scale and a plastic bag containing numerous empty small ziploc bags;*fn6 (5) from the upstairs bathroom toilet bowl, sixty-four small packaged bags of marijuana;*fn7 (6) from the second floor front bedroom with the window, twelve yellow plastic bags containing a beige powder substance wrapped in a white plastic bag in a plastic bowl;*fn8 (7) a plastic bag with an apple logo containing empty green ziploc bags from the night stand drawer in the second floor front bedroom; (8) $110 and $73 in cash from a pair of men's shorts and $160 in cash from a pair of lady's pants from the floor of the second floor front bedroom; (9) photographs, including those of Mr. Digsby and his wife from the second floor front bedroom closet; and (10) from the second floor front bedroom mail matter addressed either to Mr. Digsby or his wife at the Half Street location.*fn9
Officer Ward testified that he field tested the beige powdery substance in the thirteen bags taken from the kitchen counter and the test "indicated it was heroin." When shown Government Exhibit 7, which contained the green leafy substance , also found on the kitchen counter, Officer Ward did not mention a field test and did not identify the substance except to say that it was "a green leafy substance." He referred to the sixty-four bags recovered from the toilet bowl as "marijuana," but he did not mention a field test. Nor did he say that a field test was done on the twelve bags of beige powder that were found in the second floor front bedroom.
The prosecutor used the DEA reports in its direct examination of Officer Ward. For example, the prosecutor referred to Government Exhibit 10, "the lab report for the 13 yellow zips of heroin," and asked Officer Ward, "what does the DEA say the substance was in those yellow zips?" The officer replied, "The active drug ingredient in that substance was heroin hydrochloride and cocaine." The prosecutor inquired, referencing "Government Exhibit 11, which is the DEA lab report for the bag of the green leafy substance, Government's Exhibit 7, 'what does the DEA say that leafy substance was?'" Officer Ward answered: "The active drug ingredient established or common name was marijuana."*fn10
During his testimony, Officer Hofflinger stated that after Mr. Digsby and his wife had been arrested and transported to a police station, Mr. Digsby asked him why his wife had been arrested. When Officer Hofflinger indicated that the reason for the wife's arrest was the recovery of drugs from the house, Mr. Digsby said "it was only some weed and some dope [,] . . . only 14 bags of dope or so, . . . and just put it all on me. Put it all on me." In response to the prosecutor's question, "[d]id he say it was his drugs[,]" the officer replied, "[y]es, he said it was his." Based on his "training and experience" Officer Hofflinger declared, "'weed' is marijuana" and "'[d]ope' is heroin."
Although the government did not present the testimony of a DEA chemist, the trial court admitted the DEA reports.*fn11 The government called a drug expert, Detective Wayne Knox, who testified about the packaging of drugs and relied on the DEA reports introduced by the government. Detective Knox referenced the findings of the reports, and asserted that the ziploc bags retrieved from the Half Street house were used to package heroin and marijuana and the amount of drugs found on the premises was consistent with an intent to distribute drugs rather than personal use; the digital scale measured drugs; tally sheets like those found in the house were used to keep a record of drug sales and money owed by the purchasers; and that it is common for drug dealers who are on the premises at the time of a search to put the drugs in the toilet.
Mr. Digby's defense was innocent presence, that is, he was present in the home but did not have constructive possession of, nor the intent to distribute the heroin or the marijuana because these drugs belonged to someone else. Mr. Digsby's mother, the only witness for the defense, testified that her deceased daughter's husband, Edward Fields, who had previously been convicted on a drug offense, often stayed at the Half Street home, but she acknowledged that she did not see him there on the day the police executed the search warrant.
The trial judge instructed the jury on both of the drug counts of the indictment -- possession with intent to distribute heroin and possession with intent to distribute marijuana, as well as the lesser-included offenses of possession of heroin and possession of marijuana, but the court did not instruct the jury on attempted possession of heroin or marijuana, or attempted possession of an unidentified controlled substance. The jury verdict form posed two major questions: (1) "How do you find the defendant Nathaniel Digsby on the charge of Possession with Intent to Distribute Heroin?" and (2) "How do ...