Appeal from the Superior Court of the District of Columbia (CF2-7005-09) (Hon. Jennifer M. Anderson, Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
Before OBERLY and BECKWITH, Associate Judges, and REID, Senior Judge.
A jury convicted appellant, Deandrai*fn1
James, of unlawful possession with intent to distribute
cocaine, in violation of D.C. Code § 48-904.01 (a)(1)
(2001).*fn2 He claims that the evidence submitted to
the jury by the prosecution was insufficient to convict him of the
charged conduct beyond a reasonable doubt. We conclude that, even when
the evidence is viewed in the light most favorable to the government,
the prosecution did not sustain the burden of proof required by our
decision in Rivas v. United States, 783 A.2d 125 (D.C. 2001) (en banc). Hence, we reverse Mr.
James's conviction and remand this case to the trial court with
instructions to enter his acquittal on the charge of unlawful
possession with intent to distribute cocaine.*fn3
The government presented its case against Mr. James through four witnesses, as well as through documentary evidence. Detective Bernard Wood of the Metropolitan Police Department ("MPD") testified that around 3:00 p.m. on November 25, 2008, he was dispatched to the 1700 block of T Street, in the Southeast quadrant of the District of Columbia, to investigate a shooting. The victim, who had been inside a vehicle when he was shot, had exited the car and sought assistance from a neighborhood resident. During his investigation of that shooting,*fn4 Detective Wood discovered that a black and orange Ford Mustang, with a Virginia license plate, had been "riddled with bullet holes." The Mustang was located "in the rear" of a residence in the same block of T Street. The police recovered the Mustang as evidence and moved it to MPD's mobile crime laboratory, a locked garage, where it was secured.
A records check revealed that the Ford Mustang belonged to Mr. James. Detective Wood ascertained that MPD officers who were assigned to the T Street area believed "they possibly see [Mr. James] in the neighborhood from time to time." Detective Wood asked these officers to inform Mr. James that he wished to speak with him about "his vehicle being shot." In response to the message received from MPD officers, Mr. James voluntarily went to the Sixth District police station on the evening of November 25, 2008.
Detective Wood testified that as he was walking with Mr. James to the interview room at the Sixth District, he informed Mr. James that he wanted to discuss the "orange Mustang being shot up." Mr. James made a statement, "F that vehicle, you all can have it." Detective Wood revealed that at the time of the interview, the Ford Mustang had not been searched.
Through Detective Wood, the government introduced a videotape of MPD's
interview of Mr. James; the tape was shown to the jury.*fn5
The tape depicted Mr. James entering the interview room with
another detective, Detective Blatson, around 7:00 p.m. Later,
Detective Wood arrived, informed Mr. James that he was not under
arrest, and read Mr. James his rights. Mr. James filled out the rights
card. He indicated that he did not want to talk about the Mustang.
Detective Wood asked several questions about the vehicle and
established that it was registered to Mr. James, and that he had left
the registration and other information in the car. After Mr. James
revealed his address, phone numbers, and social security number,
Detective Wood left the room and Detective Blatson and Mr. James
conversed until Detective Blatson was called out of the interview
room. Detective Blatson returned and asked Mr. James several
questions, including how he had spent the day, whether he
worked, whether the Ford Mustang was his first car, and whether he had been
threatened or arrested.*fn6
Mr. James responded, in part, that he had been picked up by his cousin who took his (the cousin's) mother to the doctor; it was the first time anything of the sort (the shooting up of his car) had ever happened; no one had threatened him; and he had been arrested once before. Detective Blatson again left the room. Detective Wood returned, took Mr. James out of the room and later brought him back and left. At approximately 7:25 p.m., Detective Wood returned and announced that they were finished, and Mr. James was free to leave the police station. Mr. James inquired: "What's the procedure for me getting my car back?" Detective Woods' response is not recorded.
On cross-examination, defense counsel sought to establish that Mr. James had stated that he did not want to talk about the car, but that, nonetheless, the detectives had posed questions to him about his car.*fn7 Defense counsel also confronted Detective Wood with his March 4, 2009 affidavit in support of an arrest warrant, which revealed that Mr. James had made the "F the car" statement in the videotape interview room rather than prior to his entrance into the interview room.*fn8 Detective Wood maintained that the statement was made in the hallway. On redirect examination, Detective Wood declared that he had filled out the arrest warrant affidavit "four and one half months" after Mr. James's interview and again insisted that Mr. James made his statement in the hallway and not in the interview room.*fn9
Three vehicles that had been recovered from the 1700 block of T Street
as evidence arrived at the mobile crime laboratory around November 25
or 26, 2008, including the Mustang. Mary Wise, an MPD evidence
technician, did not process Mr. James's vehicle until November 28,
2010; the delay in processing was due to her inability to open the
unlocked doors of Mr. James's car. She described the doors as "suicide
doors" and she said they opened "up" rather than "out."*fn10
Her instructions were to recover "any type of firearms
Upon inspecting the Ford Mustang, Ms. Wise observed "an armrest that opens up and . . . a compartment . . . under there" which had "a clear Ziploc bag containing 39 very small orange bags containing crack cocaine." Ms. Wise identified a government exhibit, a picture of the center console and the armrest. She testified that "the armrest would be the part that closes down on top of it"; that she had opened the armrest and had "t[aken] a picture of the inside." Ms. Wise identified the clear Ziploc bag she had removed from the armrest and the smaller Ziplocs inside the larger Ziploc. In addition to the Ziplocs, Ms. Wise "found a hundred dollars in U.S. currency over top of . . . the driver's visor." She retrieved "[a] wallet and a vehicle registration in the glove box in the name of Deandrai James."
Two experts testified for the government, Dr. Steven Shin, a forensic chemist at the Drug Enforcement Administration and an expert in "analysis of controlled substances," and Rene Dessin, an MPD detective who was qualified as an expert in the packaging of narcotics. Dr. Shin stated that the Ziploc bags contained 2.5 grams of cocaine base. Detective Dessin opined that 39 bags would yield $390, and that one would not purchase 39 bags for personal use.
Mr. James testified in his own defense. He was off from work on November 25, 2008, and he went to his mother's house in the 1700 block of T Street, S.E. He arrived there around 10:00 a.m. and parked his car in the rear of the house because he had Virginia license tags. He stayed at his mother's home for about two and one half hours until his cousin picked him up. His cousin took his mother to the doctor's office and Mr. James then proceeded to his girlfriend's house. While he was there, he received a telephone call from his mother; she notified him that the police wanted to speak with him. Mr. James acknowledged that the wallet (which had no money) and car registration found in the car belonged to him, but he denied ever seeing the drugs found in his car, and he claimed that the money in the driver's visor was not his. He denied giving anyone permission to use his car on November 25, 2008. He admitted that he had been convicted of theft in July 2007, in Maryland. In addition, he denied making the statement that the police could keep his car.
The trial court denied Mr. James's motions for judgment of acquittal. Prior to closing arguments, the trial court gave final instructions to the jury. With respect to ...