Appeal from the Superior Court of the District of Columbia (FEL5804-02) (Hon. Gerald I. Fisher, Trial Judge).
The opinion of the court was delivered by: Wagner, Senior Judge
Submitted September 24, 2009
Before REID and GLICKMAN, Associate Judges,and WAGNER, Senior Judge.
Following a jury trial, appellant, Antwan Shelton, was convicted of unlawful distribution of a controlled substance.*fn1 He argues for reversal on the grounds that: (1) the trial court erred in instructing the jury that there is no mandatory minimum period of incarceration for the offenses charged, thereby impermissibly permitting the jury's consideration of punishment; and (2) the trial court abused its discretion in allowing certain rebuttal evidence. We hold that assuming error in the court's instruction, it was harmless, and we find no abuse of discretion in the remaining challenged rulings. However, we remand the case for correction of the Judgment and Commitment Order to reflect the trial court's grant of appellant's motion for judgment of acquittal on the greater offense of distribution of a controlled substance in a drug free zone.
According to the evidence, Officers Anthony Manley and Ronald Royster were observing an area in the 5100 block of Call Place, S.E. in the afternoon on September 5, 2002. There, they observed appellant sitting on a fence where he was approached by an individual with whom he had a brief conversation. Appellant then went between two fences, bent down and picked up a clear, plastic bag containing a loose rock-like substance. Appellant and the other person went into an apartment building before coming back outside and parting company. Appellant repeated the conduct with another individual who approached him. The next episode involved one Jerome McIlwain. This time, appellant slid between the fence and handed Mr. McIlwain a rock-like substance in exchange for cash. Officer Royster gave a description of Mr. McIlwain to other officers who stopped him and recovered from him a rock of crack cocaine. The officers then observed Ms. Belinda Wheeler approach appellant and give him cash in exchange for something he retrieved from the plastic bag. Ms. Wheeler was stopped shortly thereafter, and the police recovered from her a rock of crack cocaine. The police then stopped appellant near the fence. They found in that area an empty clear plastic bag. The police arrested appellant and recovered from him $268 in cash. The chemist's report at trial indicated that the substances taken from Mr. McIlwain and Ms. Wheeler were crack cocaine.
Appellant argues that the trial court erred by instructing the jury that there are no mandatory periods of incarceration for individuals convicted of the offenses under consideration in the case. He contends that the court's instruction impermissibly invited the jury to consider punishment in its deliberations and that the error was not harmless.
Appellant objected when the trial court indicated its intention to instruct the jury that there are no mandatory periods of incarceration for individuals convicted of the offenses charged. Citing Brown v. United States, 554 A.2d 1157 (D.C. 1989), appellant argued that such an instruction would impermissibly invite the jury to speculate about possible punishment. The government argued that the proposed instruction was proper because it was an accurate statement of the law, and the court had indicated that it would instruct the jury that the question of possible punishment should not influence the jury's deliberations. The trial court decided to give the instruction over the defense's objection, explaining essentially that it would eliminate improper perceptions that jurors might have about mandatory sentencing in the event of conviction.*fn2 The court rejected appellant's argument that the Brown case prohibited such an instruction. The court instructed the jury, in relevant part, as follows:
This case is being tried under the laws of the District of Columbia, and there is no mandatory period of incarceration if someone is convicted of... any of the charges that you are considering.
Moreover, the question of possible punishment of a defendant should not enter into or influence your deliberations in any way. The duty of imposing sentence in the event of a conviction rests only with me. You should weigh the evidence in the case and determine the guilt of innocence of the defendant based solely on the evidence presented at this trial without any consideration of the matter of punishment.
It is well established that the jury's function is to determine guilt or innocence based on the evidence and the law and that it should not consider possible punishment, which is the exclusive province of the court. Brown, supra, 554 A.2d at 1160 (citing Alston v. United States, 383 A.2d 307, 314 (D.C. 1978), appeal after remand, 412 A.2d 351 (D.C. 1980)) (other citations omitted).*fn3 In Brown, this court held that it was error for the trial court to instruct the jury that the court had "wide latitude" in sentencing the defendant because the instruction "impermissibly encouraged the jury to speculate on punishment, thereby undermining the fundamental purpose of Instruction of No. 2.71 to apprise the jury that its role is to determine guilt or innocence solely on the evidence before it." Id. at 1158.*fn4 The danger of putting before the jury matters outside the evidence that might influence their verdict has long been recognized. See United States v. Patrick, 161 U.S. App. D.C. 231, 234-35, 494 F.2d 1150, 1153-54 (1974) (citing Miller v. United States, 37 U.S. App. D.C. 138, 143, 1911 WL 20116, *4 (1911)) (recognizing this longstanding principle and finding error where the trial court informed the jury that it could ...