Appeal from the Superior Court of the District of Columbia (CF2-14256-10) (Hon. Anthony Epstein, Trial Judge)
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
Following a jury trial, appellant Jimi Dalton was convicted of unlawful possession with intent to distribute phencyclidine (PCP), unlawful possession with intent to distribute cocaine, and unlawful possession of marijuana.*fn1 On appeal, appellant challenges: (1) the trial court‟s denial of the motion to suppress the drug evidence; (2) the trial court‟s refusal to release the jury despite two deadlock notes and a Gallagher anti-deadlock instruction; (3) the trial court‟s imposition of an allegedly vindictive sentence, which punished appellant for exercising his right to trial; and (4) the trial court‟s refusal to conduct a Jencks Act*fn2 inquiry regarding statements made by the testifying police officers related to the use of force investigation. We affirm the trial court‟s ruling with respect to the first three issues, but remand with respect to the final issue for the trial court to conduct the requisite Jencks Act inquiry regarding statements by the testifying police officers related to the use of force investigation.
On the evening of August 3, 2010, appellant Jimi Dalton was bicycling, and several officers of the Metropolitan Police Department‟s mountain bike tactical unit were patrolling, near the 800 block of K Street in Northeast Washington, D.C.
Upon seeing the police officers on bicycles behind him, appellant accelerated and, shortly thereafter, abandoned his bicycle in a traffic lane and ran onto the sidewalk. Appellant testified that the officers caused him to stumble off his bicycle onto the sidewalk, where several officers beat him and handcuffed him to a fence. The police officers testified that appellant had his hands in his waistband while running onto the sidewalk and failed to respond to several police orders to show his hands. The police officers also testified that they physically struggled with appellant to place him under arrest and that, during the struggle, a black plastic bag which was later found to contain PCP, cocaine, and marijuana fell from appellant‟s person. Although the parties disputed what led appellant to fall off his bicycle and the circumstances of his altercation with the police officers, it was undisputed that appellant was in a physical altercation with the police that caused appellant to suffer facial contusions and necessitated appellant being taken to the hospital. Because one of appellant‟s bones was broken, his case was referred to the Metropolitan Police Department‟s Force Investigation Team.*fn3
At the pre-trial suppression hearing on December 17, 2010, appellant‟s counsel learned that a use of force investigation was pending against at least one of the police officers in the instant case and requested a continuance in order to develop a "full record" before proceeding with witness testimony in the suppression hearing. Appellant‟s counsel argued that the pending investigation report might be material to the defense and might have a bearing on the court‟s understanding of the sequence of events, as well as the officers‟ bias and credibility.*fn4 However, the government stated that it had provided all discoverable material to appellant‟s counsel and that there was no use of force investigation report. The trial court denied appellant‟s request for material related to the use of force investigation because appellant did not have the right to delay the proceedings until the investigation was completed. On at least two occasions, the date of the suppression hearing and the morning before the presentation of evidence at trial, the court asked whether the government had provided Jencks material to appellant and accepted the government‟s affirmative reply without any further inquiry. Subsequent to the court‟s inquiries, but prior to the presentation of evidence at trial, the government informed the court that all four officers involved in appellant‟s arrest had been subjects of the use of force investigation and that the government declined to further investigate or prosecute the officers. Appellant‟s trial counsel then renewed his request for material related to the use of force investigation, but the trial court denied this request.*fn5
During the pre-trial suppression hearing, appellant challenged the admission of the drug evidence. Previously, at the initial scheduling hearing, the court and appellant‟s trial counsel agreed that the motion to suppress would be dispositive. That is, if the suppression motion was denied, appellant would plead guilty and reserve his right to appeal the motion decision, but there would be no trial. The trial court reiterated its understanding of the dispositive nature of the motion at the close of the pre-trial suppression hearing. Following the testimony of two government witnesses (Metropolitan Police Department officers Richard Mazloom and Mohamed Ibrahim) and five defense witnesses (Christopher Young, Wilbert Atkins, Willie O‟Neal, Vincent Gomillion, and appellant himself),*fn6 the trial court found the government witnesses credible based upon their demeanor, their lack of embellishment (i.e., they testified that there was nothing suspicious about appellant prior to his flight), and the fact that appellant‟s injuries were consistent with the officers‟ account of events. Additionally, the trial court found that the testimony of appellant‟s friend, Christopher Young, and appellant himself confirmed some details of the officers‟ testimony. The court found it implausible that the officers would assault appellant, whom they did not know, without reason or merely because he was cycling with Young, someone in whom they were interested. The court also found it implausible that the officers would have knocked appellant off his bicycle without first telling or asking him to stop (as they did with Young), and noted that the officers did not strike or physically abuse Young. Finally, the court did not think that the officers‟ knowledge of a pending use of force investigation regarding their conduct with appellant would give them motive or bias in testifying against him.
The trial court found that the defense witnesses were not credible based on their demeanor and other factors. Specifically, the court noted that O‟Neal and Gomillion "used hostility toward the police," and that their testimony contained factual inaccuracies (e.g., the direction of the officers‟ chase and the location of the altercation). The court doubted whether O‟Neal and Gomillion were present at the scene. Also, because O‟Neal and Atkins testified that they were together the evening of appellant‟s arrest, the court‟s doubts about O‟Neal affected its assessment of Atkins‟s credibility. The trial court discounted the testimony of Young and Atkins "because of their friendship" with appellant, which gave them motive to testify in support of appellant. Finally, the court found appellant not credible based on his incentive to have his case thrown out and his admittedly recent use of PCP.*fn7 The court concluded that appellant‟s PCP usage affected his ability to accurately perceive and recall events and that it bolstered the officers‟ testimony that they smelled PCP when they approached him. At the conclusion of the suppression hearing, the court denied appellant‟s motion. However, appellant did not plead guilty; instead, he decided to proceed to trial.*fn8
The presentation of evidence at trial took approximately one day; the jury then deliberated for a number of hours over the course of three days. During that time, the jury sent several notes to the court (two notes regarding the evidence presented and two notes indicating that they had not reached agreement).*fn9 After deliberating for four-and-a-half hours, the jury sent a note stating: "[w]e, the jury, are not all in agreement." Appellant‟s counsel requested a mistrial based upon jury deadlock, but the government noted that the jury did not use the word "deadlock." The trial court decided to provide an initial jury instruction encouraging the jurors to deliberate further.*fn10 After two-and-a-half additional hours of deliberation, the jury sent another note, stating, "[w]e, the jury, are deadlocked and feel that further deliberation would not lead to an agreement." Appellant again requested a mistrial, but the trial court instead found it "reasonable" to provide a Gallagher anti-deadlock instruction.*fn11 The jury returned to deliberate for another hour before being dismissed for the evening with the trial judge‟s direction that they return the next morning. The next day, the jury deliberated for another two hours before returning a guilty verdict on all counts.
The trial court sentenced appellant to concurrent one year suspended sentences on each of the two counts of possession with intent to distribute, followed by three years of supervised release, also suspended, and one-year supervised probation with ninety days in a halfway house. Additionally, the court imposed a fine of $1,000 for each of these two counts. On the possession of marijuana count, the trial court sentenced appellant to a ninety-day suspended sentence, one year supervised probation, and a fine of $500. The trial court required the minimum payment into the crime victims fund on each count, which totaled $250.
At sentencing, the trial court cited appellant‟s decision to "put on a parade of witnesses [at the suppression hearing] who . . . clearly perjured themselves" without "even call[ing] them at trial" as a factor in its decision-making. The court stated that it did not consider appellant‟s decision to "renege" on his agreement that the motion to suppress would be dispositive (i.e., that appellant would plead guilty if the motion was denied, rather than proceed to trial), or the fact that appellant did not testify truthfully (noting that appellant may not have remembered events clearly because he was high on PCP). The court also considered that, since his arrest, appellant had tested negative for drugs, that the amount of drugs confiscated upon his arrest was relatively small, and that appellant had a job and was working to support his wife and child.
Several months after appellant‟s trial and sentencing were completed, on January 13, 2012, the Metropolitan Police Department (MPD) responded to appellant‟s Freedom of Information Act (FOIA) request for records related to appellant‟s allegation of excessive force. Among the records provided by the MPD were the Use of Force Incident Reports regarding the conduct of each of the four police officers concerned; ...