Denardo S. HOPKINS, Appellant,
UNITED STATES, Appellee.
Argued Dec. 18, 2013.
T. Gail Maddox-Levine for appellant.
Nicholas P. Coleman, Assistant United States Attorney, for appellee, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and Ann K.H. Simon, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.
GLICKMAN, Associate Judge:
In his opening statement at appellant Denardo Hopkins's trial, defense counsel informed the jury that Hopkins was contesting only the firearms charges against him, not the drug distribution charges, which counsel conceded were true. This strategy was not unsuccessful— the jury convicted Hopkins of (unarmed) possession with intent to distribute (" PWID" ) heroin and cocaine, but not of the other offenses— and Hopkins does not claim that his counsel was ineffective or acted against his wishes. Hopkins asks us to reverse his convictions, however, because the trial judge did not intervene sua sponte to determine whether he knowingly and voluntarily agreed to his counsel's concessions in opening— concessions that Hopkins argues were tantamount to a guilty plea. We reject Hopkins's claim of error and affirm his convictions.
On February 26, 2008, according to the government's evidence at trial, two Metropolitan Police Department officers entered a building at 5316 E Street, Southeast, and
interrupted a group of people engaged in a craps game. Hopkins, who was one of the players, got up and ran toward the staircase. Officer Barry Gomez ran after him. Just before Hopkins started up the stairs, Gomez saw him throw something. The object hit the wall and fell to the ground with a metallic clang. Gomez apprehended Hopkins, patted him down for weapons, and felt a plastic bag in his pants. Suspecting Hopkins was carrying narcotics, Gomez proceeded to remove forty-four " zips" of crack cocaine, seven of heroin, and $230 in cash from Hopkins's pockets. Gomez then went back to where he had seen Hopkins throw something. There on the ground, the officer observed a semiautomatic pistol.
Hopkins was charged with two counts of PWID while armed (one count for the cocaine, the other for the heroin), two counts of possession of a firearm during a crime of violence, and one count each of carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition.
Prior to trial, defense counsel informed the court that Hopkins would stipulate to the anticipated testimony of a forensic chemist that the zips seized from Hopkins contained .44 grams of heroin and 3.1 grams of cocaine. Before the stipulation was read to the jury, the judge inquired of Hopkins personally and confirmed that he understood he had the right to have the chemist appear and testify in court.
This stipulation was part of the defense strategy to contest the firearm charges and the " while armed" enhancement to the PWID counts while not disputing the underlying PWID charges. Before trial, counsel explained to the court that Hopkins was " amenable to resolving this case short of admitting the gun was his. He cannot and will not admit the gun was his." The government insisted, however, that any plea agreement would have to include a plea of guilty to a weapon count.
In his opening statement, Hopkins's counsel told the jury that Hopkins conceded the PWID charges, but that the evidence would show he was not armed and had nothing to do with the gun that Officer Gomez had recovered:
I will start out by saying that the theme of this is honor among thieves, okay. Mr. Hopkins is going to admit to some very difficult things right from the beginning. He is going to take that out of your equation. Because there's some things that we're just going to be forthright and honest with you right from the beginning.... Mr. Hopkins had drugs on his person, okay. He had 44 zips of cocaine on his person. He had some small zips of heroin on his person. All right. And he had the ...