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Douglas Nelson v. United States

November 1, 2012

DOUGLAS NELSON, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CF2-25141-08 & CF2-28439-08) (Hon. Anthony Epstein, Trial Judge)

Per curiam.

Submitted September 27, 2012

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and PRYOR, Senior Judge.

In this consolidated appeal, appellant Douglas Nelson appeals his convictions stemming from two separate trials. In the first trial, appellant was convicted of unlawful distribution of cocaine, in violation of D.C. Code § 48-904.01 (a)(1) (2001); and possession of drug paraphernalia ("PDP"), in violation of D.C. Code § 48-1103 (a) (2007). On appeal, appellant argues that he was prejudiced by the trial court‟s admission of "effectively expert testimony" from an arresting officer, who was called as a lay witness, regarding the use of scales for weighing narcotics. Appellant also claims that his counsel was unduly restricted from examining another arresting officer as to his possible bias. In the second trial, appellant was convicted of possession of marijuana, in violation of D.C. Code § 48-904.01 (d)(1) (2001); carrying a pistol without a license ("CPWL"), in violation of D.C. Code § 22-4504 (a) (2001); possession of an unregistered firearm, in violation of D.C. Code § 7-2502.01 (2001); possession of unregistered ammunition, in violation of D.C. Code § 7-2506.01 (3) (2001); and commission of offenses during release, in violation of D.C. Code § 23-1328 (a)(1) (2001). On appeal, appellant argues that his CPWL conviction should be reversed because there was insufficient evidence to show that the pistol was operable, and even if the evidence was sufficient, the trial judge committed plain error by failing to instruct the jury that operability was an essential element of that offense. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

A.

An undercover Metropolitan Police Department ("MPD") officer purchased crack cocaine from appellant, who was subsequently arrested and positively identified by undercover officers. At trial, Officer James Craig, one of the arresting officers, testified that a small scale was seized from appellant. The record also reflects that Officer Craig‟s experience as a police officer includes over twelve years of service in the MPD. During that time, he completed approximately sixteen week-long training courses in narcotics, and took part in "several thousand" narcotics-related arrests. Over appellant‟s objections, Officer Craig was allowed to testify that, in his experience, scales like the one seized from appellant are often used for "weighing narcotics." Given his experience, the trial judge permitted this testimony on the basis that "it naturally fits in with why [the scale] was . . . seized."

During cross-examination of Officer David Smith, another arresting officer, appellant‟s counsel attempted to elicit testimony showing potential bias; appellant‟s theory was that Officer Smith‟s desire for a transfer or promotion motivated his decision to make this arrest. However, Officer Smith testified that he did not rely on this arrest in his application for a transfer. Afterfurther questioning in this regard, the trial judge precluded further questions on the subject. However, other cross examination was permitted.

B.

Prior to appellant‟s second trial, officers observed appellant driving a Buick sedan with Maryland tags, which the officers recognized were generally issued to larger vehicles. The officers directed appellant to stop, then approached his vehicle. Appellant produced "a type of identification the officers had never seen before" and orally claimed diplomatic immunity. Noticing that appellant‟s identification did not appear to be authentic, the officers returned to their vehicle and confirmed that the name on the identification did not match any known diplomat. When the officers again approached appellant‟s vehicle, appellant rolled up the windows, began playing music loudly, and ignored the orders of the officers. When additional officers arrived on the scene, appellant continued to ignore the orders of the officers. When appellant rolled down his window to speak to an officer, one of the officers was able to reach through the window and grab appellant‟s arm. Appellant then stated that he had a gun; a second officer reached through the passenger side of the vehicle and confirmed that appellant had a revolver; a third officer broke through the driver‟s side rear window to help restrain appellant; and a fourth officer was able to take the revolver from the waist band of appellant‟s pants. The revolver was loaded with six rounds of ammunition.

At appellant‟s second trial, appellant did not contest the issue of operability. Neither party objected to the trial judge‟s instruction to the jury regarding the offense of CPWL, in which the term "firearm" was defined as "a weapon regardless of operability, which will expel a bullet by the action of an explosive." Although at the time of trial the operability requirement had been removed from the offense of CPWL, at the time appellant was arrested the offense required proof that the weapon was operable.

II. The First Trial

A.

We review the trial court‟s admission of lay witness opinion testimony for abuse of discretion. Bedney v. United States, 684 A.2d 759, 766 (D.C. 1996). Non-expert witnesses usually provide testimony that is not in the form of an opinion at all, but rather, is "simply part of [a] narrative of [their] own role in the events" leading up to an arrest. Id. at 767. However, non-expert witnesses may also express opinions "as long as those opinions ...


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