RAYMOND O. WASHINGTON, APPELLANT,
UNITED STATES, APPELLEE
Argued January 27, 2015
Appeal from the Superior Court of the District of Columbia. (CF2-13592-12). (Hon. Herbert B. Dixon, Jr., Trial Judge).
Deborah A. Persico for appellant.
Lauren Bates, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, and Veronica Jennings, Assistant United States Attorneys, and Susan M. Simpson, Special Assistant United States Attorney, were on the brief for appellee.
Before FISHER and MCLEESE, Associate Judges, and REID, Senior Judge.
Reid, Senior Judge :
A jury found appellant, Raymond O. Washington, guilty of drug offenses. He contends that (1) the trial court undermined
the presumption of innocence and plainly erred by admitting evidence that he was on release when the drug offenses occurred; (2) his Sixth Amendment constitutional right to effective assistance of counsel was violated because his trial counsel failed to object to the admission of evidence regarding the commission of the crimes during his release on another crime;  and (3) some of his convictions must merge. For the reasons stated below, we affirm Mr. Washington's convictions, in part, and we remand this case to the trial court with instructions (a) to vacate his possession of liquid PCP conviction as well as his conviction on the incorrectly indicted charge of offenses committed during release, and (b) to resentence him.
To prove the drug offenses, the government presented the testimony of several Metropolitan Police Department (" MPD" ) officers. Investigator Clarence Brooks, a twenty-four year veteran of the MPD, worked undercover on August 3, 2012, in a " buy bust operation," in the Southeast quadrant of the District of Columbia. He was in the 4500 block of Benning Road, along with three other undercover officers, including Officer Christopher Hall. Both Officers Brooks and Hall had received pre-recorded funds with which to purchase drugs. Officer Hall saw a man named Patrick and asked, " [w]as anybody out," meaning was " anybody selling drugs." As Officer Hall walked with Patrick, Mr. Washington approached and " said, 'I have that water,'" meaning that he had PCP. Officer Hall requested " a dub," or $20.00 worth of PCP. Mr. Washington made a phone call and indicated that he needed " one." When Officer Hall informed Patrick that he did not have a cigarette (to dip into the PCP), Patrick gave him a cigarette box containing one cigarette.
Upon the arrival of a man in a Miami Dolphins jersey, Mr. Washington stated, " [h]ere's my man here." Mr. Washington declared that Officer Hall was " cool," and instructed the man to get something from his (Mr. Washington's) pocket. The man in the jersey removed a brown paper bag from Mr. Washington's front pants pocket and directed Officer Hall to follow him. Officer Hall gave the man the cigarette box containing one cigarette, and $20.00 in pre-recorded funds. When they reached the rear of a gas station, the man in the jersey dipped the cigarette into a vial and told Officer Hall " to pull back on it," that is to " pull the fluid into the far end of the cigarette." Officer Hall made a motion to suggest he was following the instruction. He recognized the distinctive smell of PCP. He left the scene, and signaled to another undercover officer that " the buy was good." The arrest team moved in; Officer Manuelle Duvall received a radio description of the persons involved in the ...