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DISTRXCT 07 COLUMBIA COURT 07 APPEALSNos. 91-CF-693 & 92-Co-7

RIa. PA1TEBSON,A/KIA RICKY PA1TEBSON, APPEllANT ,v.

UNITED STATES, APPEUJm.

f IL EEC 6 993COURT OF APPEALS

Appeals from the Superior court of theDist r ic t of Columbia,Criminal Division(Hon. Joseph M. F. Ryan, J r . Tria l 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 direc t appeal fromappel lant ' s conviction of cocaine dis t r ibut ion in viola t ion ofD.C. Code 33-541 (a) (1) (1993 Repl.) , and an appeal from adenial without a hearing of appel lant ' s motion to vacate sentence,f i led pursuant to D.C. Code 23-110 (1989 Repl.) , because ofalleged ineffect ive assistance of counsel. We aff irm.At t r i a l the government' s evidence revealed tha t on theevening of December 4, 1990, appellant sold crack cocaine fortwenty dol lars to two undercover pol ice off icers Chante Brodieand Avis Jones. The sa le took place near a wel l - l i t gas s ta t iona t the 1700 block of Kalorama Road, Northwest, while the off icersand appellant stood about two feet apart . Appellant was standingwith an unidentif ied male and female. Appellant was given aprerecorded twenty dol lar b i l l in exchange for the cocaine.After the sa le the off icers walked back to the i r car , whichwas about a block away. Officer Brodie r ad ioed description ofthe appellant and the female to the arres t team. The team wentimmediately to the 1700 block of Kalorama Road and stopped the

appellant who had f i t the description. The arrest ing off icersnot i f ied Officers Brodie and Jones tha t they had stopped a suspectf i t t ing the description. During a drive-by, Brodie and Jones

1 Officer Brodie described the se l le r as a medium-complectedblack male wearing a black coat tha t fe l l lower than his waist anda blue backpack.

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2ident i f ied appellant as the person who sold them crack cocaine.Appellant was arrested and searched, but neither cocaine nor moneywas found on his person.

At t r i a l , Officer Albert Young, the government's narcoticsexpert, 2 tes t i f ied tha t prerecorded funds which are used inundercover narcotics investigations are often not recovered becausea drug dealer may be working with another individual who holds themoney or the dealer may have an easi ly accessible hiding place forthe funds. During cross-examination, the t r i a l court precludeddefense counsel from asking Young the basis of his statement tha tprerecorded funds are recovered sot of the time by the police. Thet r i a l court reasoned tha t Young was not qualif ied as an expert asto tha t s ta t i s t ic .Appellant was the only defense witness. e admitted being inthe vicini ty of the 1700 block of Kalorama Road on the night inquestion, but he asserted that he was conversing with a few friends

a t the gas s tat ion af ter having visi ted other fr iends who l ived inthe neighborhood. During th is period, he claimed tha t he wasstopped by the police and placed under arrest . Appellant alsotes t i f ied tha t he purchased the black coat which he was foundwearing the night in question from an unidentif ied male ear l iertha t same evening. After closing arguments, the jury foundappellant guil ty of cocaine dis tr ibution. Thereafter, the t r i a lcourt denied appel lant ' s request to be sentenced under the addictexception under D.C. Code 33-541 (c) 1993 Repl.) and sentencedappellant to a four-to-thir ty year term of incarceration.Subsequently, appellant f i led a motion pursuant to D.C. Code

23 110 seeking to vacate his sentence based upon ineffect iveassistance of counsel. The t r i a l court denied the motion withouta hearing on the grounds tha t appel lant ' s allegations ofineffective assistance of counsel were conclusory and without anyfactual foundation.

On appeal, appellant contends the following errors: 1) theoff icers identif icat ion of appellant was insuffic ient to supporthis conviction; 2) the t r i a l court abused i t s discret ion inlimiting defense counsel 's cross-examination of the government'sexpert witness; 3) alleged prosecutorial misconduct prejudicedhis case; 4) he received ineffective assistance of counsel; 5)the t r i a l court improperly denied his 23 110 motion without ahearing; and 6) denial of appellant 's request for sentencing underthe addict exception under D.C. Code 33-541 (c) 2) was anabuse of discretion. Each of appellant ' s contentions are addressedaccordingly.

2 Officer Young was qualif ied as an expert in the proceduresof safeguarding evidence and the dis tr ibution of narcotics.

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3I Identification ofNfpellqnl

As for appel lant ' s claim that the identif icat ion wasinsuffic ient to support his conviction, reversal i s not warrantedunless the evidence is so lacking that no reasonable juroracting [ ] reasonably could convict on the evidence presented.Beatty v. United States 544 A.2d 699, 701 (D.C. 1988) (cit ing Pattersonv. United States 479 A.2d 335 (D.C. 1984. Here, appellant wasposi t ively ident i f ied by two undercover officers when the arrestteam stopped him on the night in question and subsequently a tt r i a l : the buy took place in a wel l - l i t area: the officers were acouple of feet from appellant a t the time of the sale, and the timebetween the sale and the arrest was short . Viewing the evidencein the l ight most favorable to the government, 3 we re jectappellant 's claim that the identif icat ion was unduly suggestive andinsuffic ient to support his conviction. See i l l v. Untted States 541A.2d 1285, 1287-88 (D.C. 1988).

I I Trial Court's Restriction on IJdenseCounsel s Cross-J!xaminationAlthough the exclusion or admission of ~ r t testimony i swithin the wide discret ion of the t r i a l court , ' the ConfrontationClause guarantees the defendant an opportunity to effect ivelycross-examine an adverse witness. Delaware v. Fensterer, 474 U.S. 15,20 (1985) (per curiam). Moreover, a generally recognized principleof evidence is that the basis of an expert witness ' opinion may bechallenged during cross-examination. "The data on which an expertrests his specif ic opinion may of course be ful ly inquiredinto upon cross-examination. 3A WIGMORE EVIDENCE 992 (1) (1970) 1

see In re Melton, 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 t r i a lcourt sua sponte l imited defense counsel from questioning the basisof Officer Young's statement tha t prerecorded police funds used inundercover narcotics operations in the Distr ict are recovered 50%of the time. Since Officer Young had been qualif ied as an expertin the procedures for safeguarding evidence as well as thedis tr ibution of narcotics, t was entire ly proper for defensecounsel to inquire about the off icer s basis for th is statement.We find that the t r i a l court 's restr ic t ion of the cross-examinationto th is extent was error .Finding error , we must determine whether the impact of that

3 See Beatty, supra 544 A.2d a t 701 (cit ing Mceachin v. UnitedStates 432 A.2d 1212, 1218 (D. C. 1981.

Griggs v. United States 611 A.2d 526, 527 (D. C. 1992).

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5the qovernment's case. ' Id. (quotinq DIxon v UnttedStates 565 A.2d72, 75 (D.C. 1989. Notwithstandinq a findinq tha t a comment wasimproper, in absence of an objection by defense, a conviction wil lbe affirmed unless the defendant can demonstrate plain error .Id.

e re j ect the appel lant ' s contention tha t the prosecutorimproperly referred to his previous convictions6 durinq crossexamination. Of course, a prosecutor may refer to priorconvictions for impeachment purposes. Baptist v United States 466 A.2d452, 458 (D.C. 1983). Here the juxtaposit ion of the prosecutor 'squestions (which related to appel lant ' s credibi l i ty and thereference to appel lant ' s pr ior convictions), was not so improperas to accomplish the prohibited purpose of suqqestinq tha tappellant was qui l ty of the crime charqed because of his previous convictions. " Id. Moreover, the t r i a l court on severaloccasions provided instruct ions to the jury on the l imited use ofprior convictions.With respect to appel lant ' s claim that the prosecutor made amissinq witness arqument, we find tha t the prosecutor 's comments,a t best , amounted to a par t ia l missinq witness arqument. 7 However,the prosecutor 's fai lure to obtain the t r i a l cour t ' s permissionunder these circumstances does not amount to plain error . SeeMcGrler supra 597 A.2d a t 47 (ci t inq Irick v Untted States 565 A.2d 26,32-33 (D.C. 1989.Finally, appel lant ' s contention tha t the prosecutor improperlyreferred to h is interest in the outcome of the case i s withoutmerit as there is no rule tha t prevents a prosecutor from makinq

an arqument tha t identif ies the defendant's in te res t in the outcomeof the t r i a l . Id. a t 46. 8

6 Appellant 's previous convictions consisted of possessionwith in tent to dis tr ibute marijuana and three qun convictions.7 A part ia l missinq witness arqument i s one which thelawyer simply notes the absence of a witness but refrains fromaskinq the jury to draw the adverse inference. supra 597A.2d a t 47 (ci t inq Arnold v Untted States 511 A.2d 399, 416 (D.C.

1986.e also note tha t defense counsel in i t i a l ly raisedcredibi l i ty concerns with respect to the qovernment's witnesseswhich in effect opened the door for the prosecutor to point out theappel lant ' s in te res t in the outcome of the t r i a l . See Jones v UnttedStates 579 A.2d 250, 254 (D.C. 1990); Hinkle v Untted States 544 A.2d283, 285 (D.C. 1988).

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7these witnesses would not aid his defense. 10 Assuming defensecounsel erred in fai l ing to subpoena these alleged witnesses,appellant has not established tha t in absence of the error , thejury would have had a reasonable doubt respecting his gui l t .Therefore, we find no merit to appel lant ' s claim of ineffect iveassis tance of counsel.

v. Motion to Vacate SentenceWhile there i s a presumption tha t a t r i a l court should conducta hearing on a 23-110 motion based on ineffect ive assis tance ofcounsel, see Gaston v United States 535 A.2d 893, 898 (D.C. 1988), adefendant i s not ent i t led to a hearing i f his motion consis ts of(1) palpably incredible claims, (2) vague and conclusoryal legat ions, or (3) al legat ions tha t would merit no r e l i e f even i f

t rue. Ramseyv. UnitedStates 569 A.2d 142, 147 (D.C. 1990) (c i ta t ionsomitted) [T]o prevail on a 23-110 motion, the [appellant]must, as a threshold matter , al lege with par t icular i ty those factsand circumstances as would demonstrate the al legat ions ofineffect iveness . Ellerbe supra 545 A.2d a t 1198 (ci tat ionsomitted) Here, appellant contended in his motion to vacate sentencetha t defense counsel 's fai lure to invest igate his case deprivedhim of a fa i r t r i a l because he had no witnesses to corroborate histestimony a t t r i a l . However, as indicated above, appellant nei therprovided the names of the witnesses nor the subject matter of the i rproposed testimony in his 23-110 motion. Compare Rice v United

States 580 A.2d 119, 121 (D.C. 1990) (defendant appended signedstatements from named witnesses to support his al legat ions) . Asthe specif icat ion of appel lant ' s motion fa i l s to withstand in i t i a lchecking for the probabili ty of veri ty, n Sessions v United States 381A.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 l ight of our reasons for re j ecting appel lant s claim ofineffect ive assistance of counsel, we f ind no abuse of discret ionin the t r i a l cour t s denial of his 23-110 motion without ahearing.

A t r i a l judge may waive the mandatory minimum sentence for a

1 During cross-examination of the appellant , the governmentasked whether the persons appellant claimed to be with on the nightin question knew tha t he had been arrested. In response, appellantt e s t i f i ed tha t [ t]hey know of the arres t , but what can they do i ft e l l them What would they do? I didn t see anyreason to discuss tha t with them nI

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8defendant who shows tha t (1) he was an addict a t the time of theoffense, (2) his primary purpose for committing the offense was toobtain drugs he required for his personal use because of hisaddiction, and (3) he has no prior convictions of specif ied drugoffenses. D.C. Code 33-541 (c) (2) (1993 Repl.) ; see also Moze k vUnited States 612 A.2d 221, 223 (D.C. 1992) (ci ta t ions omitted).EVen i f a defendant meets the s tatutory requirements, t i s s t i l lwithin the t r i a l judge's sound discretion to waive the mandatoryminimum sentence. Grant v. United States 509 A.2d 1147, 1154 (D.C.1986).

Here, appellant has no disqualifying convictions. However,the t r i a l judge indicated that he was disincl ined to apply theaddict exception based on the information se t forth in theappel lant ' s probation report . W he r e . . . a judge does notproceed with an addict exception hearing because he has determinedfrom the presentence report that he wil l implement the mandatoryminimum sentence, there i s no abuse of discret ion." Mozeae supra612 A.2d a t 224. Based upon the record as presented before us, wefind no evidence to support appel lant ' s contention that the t r i a lcourt abused i t s discret ion in refusing to apply the addictexception. Accordingly, t i sORDERED and ADJUDGED tha t the judgment on appeal herein be,and the same i s hereby, affirmed.

FOR THE COURT:

William H NgClerk of the CourtCopies to:Honorable Joseph M.F. Ryan, Jr .Clerk, Superior CourtRichard Todd Hunter, Esquire801 North Pi t t Street , Suite 209The Port RoyalAlexandria, V 22314John R Fisher, EsquireAssistant United States Attorney