DISTRXCT 07 COLUMBIA COURT 07 APPEALS

Nos. 91-CF-693 &92-Co-7

RIa. PA1TEBSON,
A/KIA RICKY PA1TEBSON, APPEllANT,
v.
UNITED STATES, APPEUJm.
f
IL
E
DEC - 61993
COURTOFAPPEALS
Appeals from the Superior court of the
District of Columbia,
Criminal Division
(Hon. Joseph M. F. Ryan, Jr., Trial Judge)
(Argued November 22, 1993 Decided December 6, 1993)
Before: STEADMAN and FARREIJ.., AssociateJudges, and MACK, Senior Judge.
MlKOIWID'OJI OPINION M'D J'Q])G)IBlf'l'
Before us are two consolidated appeals, a direct appeal from
appellant's conviction of cocaine distribution, in violation of
D.C. Code 33-541 (a) (1) (1993 Repl.), and an appeal from a
denial without a hearing of appellant's motion to vacate sentence,
filed pursuant to D.C. Code 23-110 (1989 Repl.), because of
alleged ineffective assistance of counsel. We affirm.
At trial, the government's evidence revealed that, on the
evening of December 4, 1990, appellant sold crack cocaine for
twenty dollars to two undercover police officers, Chante Brodie
and Avis Jones. The sale took place near a well-lit gas station
at the 1700 block of Kalorama Road, Northwest, while the officers
and appellant stood about two feet apart. Appellant was standing
with an unidentified male and female. Appellant was given a
prerecorded twenty dollar bill in exchange for the cocaine.
After the sale, the officers walked back to their car, which
was about a block away. Officer Brodie radioed, description of
the appellant and the female to the arrest team. The team went
immediately to the 1700 block of Kalorama Road and stopped the
appellant who had fit the description. The arresting officers
notified Officers Brodie and Jones that they had stopped a suspect
fitting the description. During a drive-by, Brodie and Jones
1 Officer Brodie described the selleras a medium-complected
black male wearing a black coat that fell lower than his waist and
a blue backpack.
2
identified appellant as the person who sold them crack cocaine.
Appellant was arrested and searched, but neither cocaine nor money
was found on his person.
At trial, Officer Albert Young, the government's narcotics
expert,
2
testified that prerecorded funds which are used in
undercover narcotics investigations are often not recovered because
a drug dealer may be working with another individual who holds the
money or the dealer may have an easily accessible hiding place for
the funds. During cross-examination, the trial court precluded
defense counsel from asking Young the basis of his statement that
prerecorded funds are recovered sot of the time by the police. The
trial court reasoned that Young was not qualified as an expert as
to that statistic.
Appellant was the only defense witness. He admitted being in
the vicinity of the 1700 block of Kalorama Road on the night in
question, but he asserted that he was conversing with a few friends
at the gas station after having visited other friends who lived in
the neighborhood. During this period, he claimed that he was
stopped by the police and placed under arrest. Appellant also
testified that he purchased the black coat which he was found
wearing the night in question from an unidentified male earlier
that same evening. After closing arguments, the jury found
appellant guilty of cocaine distribution. Thereafter, the trial
court denied appellant's request to be sentenced under the "addict
exception" under D.C. Code 33-541 (c) (1993 Repl.) and sentenced
appellant to a four-to-thirty year term of incarceration.
Subsequently, appellant filed a motion pursuant to D.C. Code
23-110 seeking to vacate his sentence based upon ineffective
assistance of counsel. The trial court denied the motion without
a hearing on the grounds that appellant's allegations of
ineffective assistance of counsel were conclusory and without any
factual foundation.
On appeal, appellant contends the following errors: (1) the
officers' identification of appellant was insufficient to support
his conviction; (2) the trial court abused its discretion in
limiting defense counsel's cross-examination of the government's
expert witness; (3) alleged prosecutorial misconduct prejudiced
his case; (4) he received ineffective assistance of counsel; (5)
the trial court improperly denied his 23-110 motion without a
hearing; and (6) denial of appellant's request for sentencing under
the "addict exception" under D.C. Code 33-541 (c) (2) was an
abuse of discretion. Each of appellant' s contentions are addressed
accordingly.
2 Officer Young was qualified as an expert in the procedures
of safeguarding evidence and the distribution of narcotics.
3
I. IdentificationofNfpellqnl
As for appellant's claim that the identification was
insufficient to support his conviction, reversal is not warranted
unless the evidence is so lacking "that no reasonable juror
acting[] reasonably could convict on the evidence presented."
Beattyv. UnitedStates, 544 A.2d 699, 701 (D.C. 1988) (citing Patterson
v. United States, 479 A.2d 335 (D.C. 1984. Here, appellant was
positively identified by two undercover officers when the arrest
team stopped him on the night in question and subsequently at
trial: the buy took place in a well-lit area: the officers were a
couple of feet from appellant atthe time ofthe sale, and the time
between the sale and the arrest was short. Viewing the evidence
in the light most favorable to the government,
3
we reject
appellant'sclaimthattheidentificationwas unduly suggestiveand
insufficient to support his conviction. See Hill v. UnttedStates, 541
A.2d 1285, 1287-88 (D.C. 1988).
II. TrialCourt'sRestrictiononIJdense
Counsel'sCross-J!xamination
Although the exclusion or admission of ~ r t testimony is
within the wide discretion of the trial court,' the Confrontation
Clause guarantees the defendant an opportunity to effectively
cross-examine an adverse witness. Delawarev. Fensterer, 474 U.S. 15,
20 (1985) (percuriam). Moreover, a generally recognizedprinciple
of evidence is thatthe basis of an expert witness' opinion may be
challenged during cross-examination. "The data on which an expert
rests his specific opinion may of course be fully inquired
into upon cross-examination." 3A WIGMORE, EVIDENCE 992 (1) (1970)1
seeIn reMelton, 597 A.2d 892, 903 (D.C. 1991) (en banc)1 CltjJord v.
United States, 532 A.2d 628, 634-35 (D.C. 1987). Here, the trial
court suasponte limited defense counsel from questioning the basis
of Officer Young's statement that prerecorded police funds used in
undercover narcotics operations in the District are recovered 50%
of the time. Since Officer Young had been qualified as an expert
in the procedures for safeguarding evidence as well as the
distribution of narcotics, it was entirely proper for defense
counsel to inquire about the officer's basis for this statement.
We find thatthetrialcourt'srestrictionofthe cross-examination
to this extent was error.
Finding error, we must determine "whether the impact of that
3 SeeBeatty, supra, 544 A.2d at 701 (citing Mceachin v. United
States, 432 A.2d 1212, 1218 (D.C. 1981.
,
Griggs v. UnitedStates, 611 A.2d 526, 527 (D.C. 1992).
4
error requires reversal." Sousa v. Untted States, 400 A.2d 1036, 1041
(D.C.), c ~ . d ~ d 444 U.S. 981 (1979). In determining "whether
thetrialcourt'serrorwarrants reversal, theappellatecourtmust
examine the totality of the circumstances, in absence of factors
indicatinga differentstandard, see, e.g., Springer v. Untted States, [] 388
A.2d 846, 854-57 (D.C. 1978), to determine whether a litigant was
deprived of a meaningful determination." Johnson v. United States, 398
A.2d 354, 366 (D.C. 1979)1 see also Sweet v. United States, 438 A.2d 447,
451 (D.C. 1981). Despite the trial judge's error, we note thathe
immediately indicated in the presence of the jury that Young was
not qualified as an expert in "that statistic" and that Young's
statement was merely a "gratuitous estimation," which in effect,
allowed the jury to inferthatthe statement should be given little
weight. Additionally, except for the preclusion of this question,
no other restriction was placed on defense counsel's cross-
examination of Young. In light of these circumstances and given
the strength of the government's case against appellant, we
conclude that the trial court's curtailment of cross-examination
did not rise "to the level of abridgement of the defendant's
constitutionalrighttoeffectivecross-examination,"Springer, supra,
388 A.2d at 856, and that the errorwas harmless. See Giles v. United
States, 432 A.2d 739 (D.C. 1981)1 Kotteakos v. Untted States, 328 U.S. 750
(1946).
III. AI/eged Prosecutorlal MUconduct
Appellant contends that the prosecutor engaged in several
instances of misconduct
5
which prejudiced appellant's case. In
reviewing a claimofprosecutorialmisconduct, we must firstdecide
whether "any or all of the challenged comments by the prosecutor
were improper." McGrler, supra note 5, 597 A.2d at 41 (citations
omitted). If the prosecutor's comments were improper, then,
viewing thestatements incontext, we "'considerthegravityof the
[impropriety], its relationship to the issue of guilt, the effect
of any corrective action by the trial judge, and the strength of
5 Appellant complains that the prosecutor did the following:
(1) made opinionated statements regarding the intelligence of drug
dealers: (2) argued facts during opening and closing arguments
which had not been established at trial: (3) improperly referred
toappellant'spriorconvictionsduringcross-examination; (4) made
a missing witness argument without obtaining advance permission
from the trial court; and (5) referred to appellant's interest in
the outcome of the case.
Finding no merit in appellant's first two claims of alleged
misconduct, we need not address these claims at length. SeeMcGrler
v. Untted States, 597 A.2d 36, 43 (D.C. 1991).
5
the qovernment's case.'" Id. (quotinqDIxon v. UnttedStates, 565 A.2d
72, 75 (D.C. 1989. Notwithstandinq a findinq that a comment was
improper, in absence of an objection by defense, a conviction will
be affirmed unless the defendant can demonstrate "plain error."
Id.
We rej ect the appellant's contention that the prosecutor
improperly referred to his previous convictions
6
durinq cross-
examination. Of course, a prosecutor may refer to prior
convictions for impeachment purposes. Baptist v. United States, 466 A.2d
452, 458 (D.C. 1983). Here the juxtaposition of the prosecutor's
questions (which related to appellant's credibility and the
reference to appellant's prior convictions), was not so improper
as to accomplish the prohibited purpose of suqqestinq that
appellant was "quiltyof the crime charqed because of his previous
convictions." Id. Moreover, the trial court on several
occasions provided instructions to the jury on the limited use of
prior convictions.
With respect to appellant's claim that the prosecutor made a
missinq witness arqument, we find that the prosecutor's comments,
atbest, amounted to a partialmissinq witness arqument.
7
However,
the prosecutor's failure to obtain the trial court's permission
under these circumstances does not amount to "plain error." See
McGrler, supra, 597 A.2d at 47 (citinq Irick v. Untted States, 565 A.2d 26,
32-33 (D.C. 1989.
Finally, appellant'scontentionthattheprosecutorimproperly
referred to his interest in the outcome of the case is without
merit as "there is no rule that prevents a prosecutor from makinq
an arqument that identifiesthedefendant's interestintheoutcome
of the trial." Id. at 46.
8
6 Appellant's previous convictions consisted of possession
with intent to distribute marijuana and three qun convictions.
7 A "partial" missinq witness arqument is "one which the
lawyer simply notes the absence of a witness but refrains from
askinq the jury to draw the adverse inference." supra, 597
A.2d at 47 (citinq Arnold v. Untted States, 511 A.2d 399, 416 (D.C.
1986.
We also note that defense counsel initially raised
credibility concerns with respect to the qovernment's witnesses
which ineffectopened the door for the prosecutortopoint out the
appellant's interest in the outcome of the trial. See Jones v. Untted
States, 579 A.2d 250, 254 (D.C. 1990); Hinkle v. Untted States, 544 A.2d
283, 285 (D.C. 1988).
8
6
For these reasons, we must reject appellant's contention that
these alleqed instances of misconduct cumulatively prejudiced his
case. Compare Bowler v. United States, 480 A.2d 678, 687 (D.C. 1984)
(prosecutor's remarks which were tantamount to a comment on
defendant's failuretotestify;violationofmarital privileqe; and
misleadinq and unreasonable statements durinq closinq arqument
deprived defendant of his riqht to a fair trial).
IV. l1Uf/fectlve Assistance ofCounsel
To prevail on a claim of ineffective assistance of counsel,
a defendant must demonstrate that (1) the performance of his
counsel was deficient, and (2) the deficiency prejudiced his case.
Strickland v. Washington, 466 U.S. 668, 687-89 (1984); GIllts v. United
States, 586 A.2d 726, 728 (D.C. 1991) (per curiam). This second
pronq requires a showinq that inabsence ofcounsel's errors, there
is a reasonable probability that "'the factfinder would have had
a reasonable doubt respectinqquilt.'" White v. United States, 484 A.2d
553, 558 (D.C. 1984) (quotinq supra, 466 U.S. at 695). A
failure to establish either of these elements under St.rlCkland will
result in the rejection of a claim for ineffective assistance of
counsel. See Ellerbe v. United States, 545 A.2d 1197, 1198 (D.C.) (per
curiam), em. denied, 488 U.S. 868 (1988). Furthermore, trial
counsel's conduct is presumed to be reasonable unless shown
otherwise. GiUts, supra, 586 A.2d at728 (citinqSt.rlCkland, supra, 466
U.S. at 689).
Appellant contends that trial counsel's performance was
prejudiciallydeficient by failinq tosubpoena witnesses on behalf
of his defense. While an attorney has an obliqation to make a
reasonable investiqation in preparation of a defense, his actions
are usually based upon the information supplied by the defendant.
White, supra, 484 A.2d at 559. Here, appellant does not state that
he informed his that there were witnesses which would
support his alibi. While the appellant provided the names of
witnesses durinq cross-examination, his testimony suqqests that
9 We also take note that appellant failed to provide the
names of the alleqed witnesses and theirproposed testimony in his
23-110 motion to the trial court. We will "not enqaqe in vaque
speculation about the kind of investiqation trial counsel miqht
have made orwhat witnesses he miqht have called." Atkinson v. United
States, 366 A.2d 450, 453 (D.C. 1976) (citinq United States v. Parman,
149 U.S. App. D.C. 117, 119, 461 F.2d 1203, 1205 (1971) (per
curiam.
7
these witnesses would not aid his defense.10 Assuming defense
counsel erred in failing to subpoena these alleged witnesses,
appellant has not established that in absence of the error, the
jury would have had a reasonable doubt respecting his guilt.
Therefore, we find no merit to appellant's claim of ineffective
assistance of counsel.
v. Motion to Vacate Sentence
While there isa presumption thata trialcourtshould conduct
a hearing on a 23-110 motion based on ineffective assistance of
counsel, see Gaston v. United States, 535 A.2d 893, 898 (D.C. 1988), a
defendant is not entitled to a hearing if his motion consists of
(1) palpably incredible claims, (2) vague and conclusory
allegations, or (3) allegations that would merit no relief even if
true. Ramseyv. UnitedStates, 569 A.2d 142, 147 (D.C. 1990) (citations
omitted) "[T]o prevail on a 23-110 motion, the [appellant]
must, as a threshold matter, allegewith particularity those facts
and circumstances as would demonstrate the allegations of
ineffectiveness." Ellerbe, supra, 545 A.2d at 1198 (citations
omitted)
Here, appellant contended in his motion to vacate sentence
that defense counsel's failure to investigate his case deprived
him of a fair trialbecause he had no witnesses to corroborate his
testimony attrial. However, as indicatedabove, appellantneither
provided the names of thewitnesses nor the subject matter of their
proposed testimony in his 23-110 motion. Compare Rice v. United
States, 580 A.2d 119, 121 (D.C. 1990) (defendant appended signed
statements from named witnesses to support his allegations). As
the specification of appellant's motion fails towithstand initial
checking for "the probability of verity,n Sessions v. United States, 381
A.2d 1, 2 (D.C. 1977) (quoting MitcbeU v. United States, 104 U.S. App.
D.C. 57, 62, 259 F.2d 787, 792, c ~ denkd, 358 U.S. 850 (1958,
and in light of our reasons for rej ecting appellant's claim of
ineffective assistance of counsel, we find no abuse of discretion
in the trial court's denial of his 23-110 motion without a
hearing.
A trial judge may waive the mandatory minimum sentence for a
10 During cross-examination of the appellant, the government
asked whether the persons appellant claimed tobe with on the night
in question knew thathe had been arrested. In response, appellant
testified that II [t]hey know of the arrest, but what can they do if
tell them What would they do? I didn't see any
reason to discuss that with them n
I
8
defendant who shows that (1) he was an addict at the time of the
offense, (2) his primary purpose for committing the offense was to
obtain drugs he required for his personal use because of his
addiction, and (3) he has no prior convictions of specified drug
offenses. D.C. Code 33-541 (c)(2) (1993 Repl.); seealso MozeIk v.
United States, 612 A.2d 221, 223 (D.C. 1992) (citations omitted).
EVen ifa defendant meets the statutory requirements, itis still
within the trial judge's sound discretion to waive the mandatory
minimum sentence. Grant v. United States, 509 A.2d 1147, 1154 (D.C.
1986).
Here, appellant has no disqualifying convictions. However,
the trial judge indicated that he was disinclined to apply the
addict exception based on the information set forth in the
appellant's probation report. "Where... a judge does not
proceed with an addict exception hearing because he has determined
from the presentence report that he will implement the mandatory
minimum sentence, there is no abuse of discretion." Mozeae, supra,
612 A.2d at 224. Based upon the record as presented before us, we
find no evidence to support appellant's contention that the trial
court abused its discretion in refusing to apply the addict
exception. Accordingly, itis
ORDERED and ADJUDGED that the judgment on appeal herein be,
and the same is hereby, affirmed.
FOR THE COURT:
William H. Ng
Clerk of the Court
Copies to:
Honorable Joseph M.F. Ryan, Jr.
Clerk, Superior Court
Richard Todd Hunter, Esquire
801 North Pitt Street, Suite 209
The Port Royal
Alexandria, VA 22314
John R. Fisher, Esquire
Assistant United States Attorney