Thomas v. United States

SULLIVAN, Associate Judge,

concurring in part and dissenting in part:

I join in the court’s opinion affirming appellant’s conviction for distribution of cocaine. Where I part company with the majority, however, is with regard to its holding that “a government expert witness is not the appropriate person to provide the jury with the definition of ‘usable amount.’ ” Ante at 26. In my opinion, this holding conflicts with this court’s holding in Gray v. United States, 600 A.2d 367, 369 (D.C.1991), wherein we approved a virtually identical definition of usable amount, offered by a government expert witness, in a virtually identical factual context. Thus, because no division of this court can overrule a prior decision of this court, M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), I respectfully dissent.

Judge FERREN, writing for the majority, states that the government’s “expert cannot, as in this ease, provide his or her own legal definition of usable amount for the jury, especially one that excludes material parts of the definition established by our cases.” Ante at 26 (footnote omitted). In Gray , however, which upheld the government expert’s virtually identical definition of usable amount, Judge FERREN, writing for the majority, “conclude[d] that [the expert’s] definition, while perhaps not as precise or thorough as one might desire, was adequate on this record to support his expert opinion that the cocaine seized was a usable amount.” Id. at 369 .

In Gray , in response to a question— “What is a usable amount?” — id. at 368 , the expert stated that: “[a] usable amount is any amount of the drug that can be ingested into the system through its normal use.” Id. at 369 . That definition, considered with the expert’s additional testimony regarding the manner in which the drugs were packaged and marketed on the street, the testimony that the drugs seized were consistent with “dime cocaine” (bags sold for $10.00 each), and the fact that the drugs were analyzed to contain .278 grams of cocaine, persuaded the Gray court to conclude that the definition was adequate “to support [the] expert[’s] opinion that the cocaine seized was a usable amount.” Id. at 369 .

In the present case, the government expert was qualified without objection as an expert “in the use of illegal narcotics, the sale of narcotics, the way the police departments] safeguard [] narcotics, and also what a usable amount of narcotics [is].” (Emphasis added). In response to a question — “[C]ould you please, ... give a definition to the jury of usable amount of narcotics?” — the government’s expert testified that “[a] usable amount is any amount that can be taken into the system in the usual way that a drug is used_” Ante at 26. Having provided a factual predicate for an opinion, the expert then opined that the seized cocaine, which had been analyzed as 93 percent pure cocaine and found to weigh 200 milligrams, was a usable amount.

The expert in the present case testified in precisely the same manner as the expert in Gray ; i.e., he provided the jury with an adequate definition and factual basis to support his expert opinion that the cocaine *29 seized was a usable amount. In other words, having been qualified as an expert on the use of illegal drugs and what constitutes a usable amount, it was clearly appropriate for the expert to explain to the jury his understanding of the term usable amount, in order to place in context for the jury his ultimate conclusion that the cocaine distributed in this case was a usable amount. Thus, the majority should not decide this issue inconsistently with our decision in Gray .

The majority states, without any explication, that the expert in the present case provided his own “legal definition of usable amount.” Ante at 26. The majority then attempts to reconcile its holding with Gray by stating that the Gray court affirmed the appellant’s conviction because “the expert’s ‘definition was intended not as a legal definition of the term “usable amount” but rather as a way of distinguishing, on a factual level, the amount of cocaine seized in this case from a trace amount or from residue on drug paraphernalia.’ ” Ante at 27 (quoting Gray, supra, 600 A.2d at 369 ). My colleagues, however, point to nothing in the record that remotely suggests that the expert in the present case, like the expert in Gray , offered a definition of usable amount for any purpose other than to support his expert definition that the cocaine seized was a usable amount.

Accordingly, in view of the foregoing and our decisions in Gray v. United States, supra, 600 A.2d at 369 , and M.A.P. v. Ryan, supra, 285 A.2d at 312 , I respectfully dissent from that portion of the majority’s holding that a government expert witness is not the appropriate person to provide the jury with a definition of usable amount.

My last concern is best raised in the form of a rhetorical question. The majority opinion conflicts with Gray, supra, although in both cases the court was confronted with identical testimony offered by a government expert witness in a context that was factually and procedurally identical. With this conflict in our opinions, how will lawyers, trial judges, or, indeed, future divisions of this court be able to determine in similar cases that a government expert’s definition of usable amount is offered as a legal definition and not merely as factual support for the expert’s opinion?

In considering our numerous published opinions which address, in one way or another, proof of usable amount, 1 and our decisions today in the present case and in Washington v. United States, 619 A.2d 20 (D.C.1992), maybe the time has come for the en banc court to address the issue of whether the government should continue to bear the burden of establishing the judicially-created usable amount requirement in narcotics prosecutions in the District of Columbia. 2 It appears that the District of *30 Columbia is one of only three jurisdictions that even requires proof of a usable amount in the prosecution of narcotics cases. 3

. Johnson v. United States, 611 A.2d 41 (D.C.1992); Gray v. United States, 600 A.2d 367 (D.C.1991); Judge v. United States, 599 A.2d 417 (D.C.1991); Davis v. United States, 590 A.2d 1036 (D.C.1991); Bernard v. United States, 575 A.2d 1191 (D.C.1990); Seeney v. United States, 563 A.2d 1081 (D.C.1989), cert. denied, 498 U.S. 858 , 111 S.Ct. 158 , 112 L.Ed.2d 124 (1990); Singley v. United States, 533 A.2d 245 (D.C.1987); Wishop v. United States, 531 A.2d 1005 (D.C.1987); Craig v. United States, 490 A.2d 1173 (D.C.1985); Harris v. United States, 489 A.2d 464 (D.C.1985); Hawkins v. United States, 482 A.2d 1230 (D.C.1984); Beach v. United States, 466 A.2d 862 (D.C.1983); Blakeney v. United States, 366 A.2d 447 (D.C.1976); Thomas v. United States, 352 A.2d 390 (D.C.1976); Jones v. United States, 318 A.2d 888 (D.C.1974); Edelin v. United States, 227 A.2d 395 (D.C.1967).

. Thirty-one states have rejected the usable amount requirement in narcotics prosecutions. Allen v. State, 382 So.2d 1147 (Ala.Crim.App.), cert. denied, 382 So.2d 1158 (1980); Moreau v. State, 588 P.2d 275 (Alaska 1978); Fagin v. People, 484 P.2d 1216 (Colo.1971); State v. McCarthy, 25 Conn.App. 624 , 595 A.2d 941 (App.Ct.), appeal denied, 598 A.2d 366 (1991); State v. Eckroth, 238 So.2d 75 (Fla.1970); Scott v. State, 170 Ga.App. 409 , 317 S.E.2d 282 , aff’d, 253 Ga. 147 , 317 S.E.2d 830 (1984); State v. Vance, 61 Haw. 291 , 602 P.2d 933 (1979); People v. McNeely, 99 Ill.App.3d 1021 , 55 Ill.Dec. 321 , 426 N.E.2d 296 (1981); Schwartz v. State, 177 Ind.App. 258 , 379 N.E.2d 480 (1978); State v. Brown, 245 Kan. 604 , 783 P.2d 1278 (1989); Commonwealth v. Shivley, 814 S.W.2d 572 (Ky.1991); State v. McGowan, 541 A.2d 1301 (Me.1988); Frasher v. State, 8 Md.App. 439, 260 A.2d 656 , cert. denied, 400 U.S. 959 , 91 S.Ct. 360 , 27 L.Ed.2d 269 (1970); People v. Hunten, 115 Mich.App. 167 , 320 N.W.2d 68 (1982); State v. Siirila, 292 Minn. 11 , 193 N.W.2d 467 (1971), cert. denied, 408 U.S. 925 , 92 S.Ct. 2503 , 33 L.Ed.2d 336 (1972); *30 Hampton v. State, 498 So.2d 384 (Miss.1986); State v. Willers, 794 S.W.2d 315 (Mo.Ct.App.1990); State v. Brown, 195 Neb. 321 , 237 N.W.2d 861 (1976); Sheriff, Clark County v. Benson, 89 Nev. 160 , 509 P.2d 554 (1973); State v. Pike, 134 N.H. 690 , 597 A.2d 1071 (1991); State v. Humphreys, 54 N.J. 406 , 255 A.2d 273 (1969); State v. Grijalva, 85 N.M. 127 , 509 P.2d 894 (Ct.App.1973); People v. Mizell, 72 N.Y.2d 651 , 536 N.Y.S.2d 21 , 532 N.E.2d 1249 (1988); State v. Thomas, 20 N.C.App. 255 , 201 S.E.2d 201 (1973), cert. denied, 284 N.C. 622 , 202 S.E.2d 277 (1974); State v. Daniels, 26 Ohio App.3d 101 , 498 N.E.2d 227 (1985); Spriggs v. State, 511 P.2d 1139 (Okla.Crim.App.1973); State v. Forrester, 29 Or.App. 409 , 564 P.2d 289 (1977); State v. Warner, 788 P.2d 1041 (Utah Ct.App.1990); Robbs v. Commonwealth, 211 Va. 153 , 176 S.E.2d 429 (1970); State v. Williams, 62 Wash.App. 748 , 815 P.2d 825 (1991), review denied, 118 Wash.2d 1019 , 827 P.2d 1012 (1992); State v. Dodd, 28 Wis.2d 643 , 137 N.W.2d 465 (1965), overruled on other grounds by State v. Woods, 117 Wis.2d 701 , 345 N.W.2d 457 (1984).

. The other jurisdictions are Arkansas (Harbison v. State, 302 Ark. 315 , 790 S.W.2d 146 (1990) and Arizona (State v. Moreno, 92 Ariz. 116 , 374 P.2d 872 (1962) (en banc)).