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Carpenter v. United States

Court of Appeals of Columbia District

August 11, 2016

Gordon C. Carpenter and Tyrone P. Jones, Appellants,
v.
United States, Appellee.

          Argued June 16, 2016

         Appeals from the Superior Court of the District of Columbia (CF2-17930-13 and CF2-17953-13) (Hon. Patricia A. Broderick, Trial Judge)

          Marc L. Resnick for appellant Jones.

          Abram J. Pafford for appellant Carpenter.

          Danny Lam Nguyen, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Nicholas P. Coleman, and Gilead Light, Assistant United States Attorneys, were on the brief, for appellee.

          Before Thompson and Easterly, Associate Judges, and Farrell, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that judgments of conviction are affirmed.

          OPINION

          PHYLLIS D. THOMPSON. ASSOCIATE JUDGE.

         On October 8, 2013, Tyrone Jones and Gordon Carpenter were arrested in connection with a narcotics buy/bust operation. Mr. Jones filed (and Mr. Carpenter joined) a motion to suppress tangible evidence, which was denied. A jury thereafter convicted each of them of one count of unlawful distribution of a controlled substance (heroin), having heard an undercover officer testify that she gave a $20 bill to Jones, who gave the money to Carpenter, received from Carpenter in return a ziplock bag of heroin, and gave the ziplock bag to the officer. A few months after the jury verdict, but before a scheduled sentencing proceeding, the government made the following disclosure: that, near the end of trial, after hearing testimony from both Carpenter and Jones during the defense case, the courtroom clerk sent to the prosecutor an email asserting that Carpenter and Jones were "not telling the truth" when they claimed that the money Jones paid Carpenter was for losing a bet on the outcome of a professional football game the previous week. In response to that disclosure, Jones filed a motion for a mistrial, which the court denied.

         In this appeal, Carpenter challenges the denial of the motion to suppress and also argues that the trial court erred in failing to strike, or to give a curative instruction with respect to, a government witness's "unfair[ly] prejudic[ial]" trial testimony regarding a concern about officer safety. Jones contends that he is entitled to reversal of his conviction, or at least to resentencing, because of the courtroom clerk's email. For the reasons that follow, we affirm.

         I.

         A. The suppression hearing

         Jones moved to suppress the evidence, including six ziplock baggies of crack cocaine, found on his person.[1] In (orally) joining Jones's motion, Carpenter did not clarify what evidence he sought suppressed, but we understand from his appellate brief that he challenged the admissibility of a prerecorded $20 bill found on his person. At the suppression hearing, the court (the Honorable Patricia A. Broderick) heard from Metropolitan Police Department ("MPD") Detective Phillip Robinson, who testified that, on October 8, 2013, MPD was conducting a buy/bust operation in the vicinity of the 600 block of Division Avenue, N.E. Detective Robinson explained that he was on the arrest team that day when undercover officers went into the 600 block to try to buy narcotics and were positioned near the wall of a "short" stone bridge that begins at Division Avenue and Foote Street and "then keeps going into the 600 block." Upon receiving a lookout for "two African American males" "in the 600 block of Division Avenue, around that bridge" from whom the officers had received heroin in exchange for MPD funds, Detective Robinson responded to the location, arriving in "less than a minute." According to the lookout, "[b]oth [men] had hats on, one [with] a gray hoody and white shirt and one [with] a blue hoody and a cane[.]"[2] When Detective Robinson arrived at the scene, he saw two individuals fitting the lookout description.[3] The two individuals, appellants Jones and Carpenter, were standing seven or eight feet apart from each other at, close to, or by the bridge. Detective Robinson testified that there were "[m]aybe ten other people" "[i]n the immediate area" ("but not by the bridge"), [4] but "[t]here was no one else on that bridge . . . that would fit the description that the undercovers gave" for either individual.[5] Detective Robinson did not see Jones and Carpenter talking or otherwise communicating.

         Approximately five to ten or ten to fifteen minutes after Detective Robinson had stopped appellants, the undercover officers who had conducted the transaction returned to the scene and positively identified Jones and Carpenter as the men with whom they had engaged in the narcotics transaction. After the undercover officers identified them, appellants were arrested.

         Neither of the defendants presented evidence at the motion hearing. Without elaborate explanation, the judge denied the motion to suppress, finding her decision "pretty easy."

         B. Trial

         At trial, Detective Lavinia Quigley testified that, on October 8, 2013, she and Officer Courtney Clark were undercover and were standing on the corner in the 600 block of Division Avenue, N.E., when a man approached and asked them what they wanted. Detective Quigley responded that they wanted "blow[, ]" a "street name for heroin." The man, whom the detective identified in court as Carpenter, told them to wait, and he walked away. Approximately a minute and a half later, another man, identified in court as Jones, approached them and asked what they were looking for, and Officer Clark responded they wanted "scramble" (heroin that has been cut up with a cutting agent). The officers walked with Jones to the nearby bridge, Detective Quigley handed Jones a prerecorded $20 bill, and Jones dropped the money off the side of the bridge to Carpenter, who the detective could see was standing in the gully about six or seven feet immediately below the bridge. Carpenter then passed up a ziplock bag containing a tannish powder.[6]After leaving the location, the detective and officer gave a prearranged signal to another undercover officer. After the arrest team moved in and stopped the defendants, the undercover officers returned three to four minutes later and positively identified them as those involved in the transaction.

         Detective Steven Manley testified that he provided surveillance and security approximately two blocks away from the area of the "buy" operation, and once he received the lookout, he moved in "to detain the two subjects who matched the description[.]" He testified that, after the undercover officers returned and positively identified the individuals, he arrested the men, whom he identified in court as Jones and Carpenter. After arresting Carpenter, Detective Manley searched Carpenter's pockets and found the prerecorded $20 bill. Asked about whether his job was to observe the actual transaction, Detective Manley explained:

[A]s an arrest team member, you don't want to be too close because then you're putting your undercover officer's life in danger. When you go into areas like Division Avenue, if they see something that sticks out like a sore thumb, they know you're either the police or . . . you're from not around [this] area. So the whole thing is[, ] I don't want to be too close to the undercover officers, because, again, I'm putting their life in danger.

         Counsel for Carpenter objected and moved to strike because "[t]here's nothing in this record that suggested anybody's life was in danger." Judge Broderick did not strike the answer but responded, "Well, there's certainly no suggestion that life was endangered by these defendants."

         Both Jones and Carpenter testified during the defense case. Carpenter testified that on the day in question, he was driving home from work when he stopped at Marvin Gaye Park in the 600 block of Division Avenue, N.E., to meet friends. He further testified that about a week earlier, he and Jones, whom he knew from previous encounters at the park, had placed a bet on a football game. Specifically, Carpenter testified that Jones had bet $20 that the Washington football team would beat Carpenter's favored team, [7] but that Washington had lost the game, and so when Carpenter saw Jones on October 8 (the first time he had seen Jones since the football game), Carpenter asked Jones for the money the latter owed for losing the bet. Carpenter testified that he then walked to a nearby store where he stayed for ten to twenty minutes, walked into a gully below a bridge near the park to urinate, and then returned to Jones to get the money. Carpenter testified that Jones handed him $20, and, "seconds" later, the police arrived and said Carpenter was under arrest for distribution of narcotics. Carpenter denied having any narcotics in his possession at the time and denied passing any narcotics to Jones.

         Jones testified that he was sitting on the bridge when he saw Carpenter, with whom he had made a $20 bet the week before. According to Jones, he had bet Carpenter that Washington would win the football game, but Carpenter won the bet, and so Jones paid him the $20. He testified that Carpenter was down behind the bridge at one point, but he denied giving any money to, or receiving anything from, Carpenter ...


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