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,
Jones moved to suppress the evidence, including six ziplock baggies of crack cocaine, found on his person.
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
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.
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:
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,
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 while Carpenter was there. Jones also denied being in possession of the heroin that was introduced into evidence.
After Jones's testimony, the jury was released for its lunch break at 12:50 p.m. Upon the jury's return, the prosecutor announced that the government would not need any rebuttal time, and the case proceeded to closing arguments, followed by jury instructions and deliberations.
After the jury announced its guilty verdicts, Judge Broderick commented that the defendants should "get their affairs in order because ... [t]his is serious. They lied under oath. At least, that's what the jury found. I take that very seriously." She then addressed "another option" besides releasing the defendants until the sentencing date (having already rejected the prosecutor's request that the defendants be held pending sentencing). Recognizing that this was a felony case and that the defendants therefore would not qualify for work release after sentencing, Judge Broderick provided the defendants with the option of either earning incarceration credit while in a halfway house while awaiting sentencing (while continuing to work for as long as possible) or being released into the community. Carpenter accepted the option of earning time in the halfway house pending sentencing, but Jones did not.
On December 12, 2014, when court convened for the scheduled sentencing hearing, Assistant United States Attorney ("AUSA") Gilead Light sought a postponement,
Carpenter proceeded with sentencing on January 15, 2015; Judge Broderick sentenced him to fifteen months' incarceration and three years' supervised release, execution of sentence suspended as to all except served (the two months Carpenter had served in the halfway house) and two years' supervised probation.
On March 3, 2015, Jones moved for a mistrial "based [on] ... the courtroom clerk conduct[ing] her own investigation and shar[ing] that information with the prosecutor and judge in this case." Judge Broderick denied the motion for a mistrial, stating, "[t]here's just no evidence that any of this information, ... which was public information ... [that] anyone could've gotten[,]... ever got to the jury" and observing that Jones therefore had no "basis to show any prejudice[.]" Judge Broderick further stated, "it's information that ... I'm allowed to use for sentencing, but ... I quite frankly don't need to [use] because the jury rendered its verdict after hearing the defendant[,] [a]nd that's where I get my basis for believing that the jury didn't believe him."
Judge Broderick reminded Jones that, after the verdicts had been rendered, she had given both defendants the option of getting credit for time served by staying in a halfway house pending sentencing or doing straight time after sentencing, and that Carpenter chose a halfway house while Jones chose to remain in the community and accept the potential of doing straight time. Before announcing Jones's sentence, Judge Broderick commented that she "want[ed] to be fair to both [Carpenter and Jones]" in her ruling.
Contending that his arrest was not supported by probable cause, Carpenter argues that Judge Broderick erred in denying his motion to suppress the prerecorded $20 bill recovered during the search incident to arrest. Specifically, he claims that the "lookout was too generic on its face to support a finding of probable cause" and that the overall number of people in the arrest area "diluted" "[a]ny limited value ascribed to" the description. Although Carpenter's opening brief states the issue as whether there was probable cause for his arrest, the facts upon which he relies (the generality of the lookout and the activity at the scene) relate instead (as appellant's Reply Brief appears to recognize) to whether the arrest team officers were justified in stopping him.
A stop based on an undercover officer's lookout description is "not an arrest, but rather a brief detention designed to give the undercover officer an opportunity to advise the arrest team if they had apprehended the perpetrators." King v. United States, 550 A.2d 348, 357 (D.C. 1988).
"Our review of a trial court's denial of a motion to suppress is limited." Joseph v. United States, 926 A.2d 1156, 1160 (D.C.2007). "[T]he facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court's ruling." Howard v. United States, 929 A.2d 839, 844 (D.C.2006) (alteration omitted). "The court's legal conclusions on Fourth Amendment issues, however, are subject to de novo review." Joseph, 926 A.2d at 1160 (internal quotation marks omitted).
The evidence at the suppression hearing was that Detective Robinson received a lookout for two individuals from whom the undercover officers had purchased narcotics near the bridge in the 600 block of Division Avenue, specifically, "two African American males[,] [b]oth had hats on, one had a gray hoody and white shirt and [the other] had a blue hoody and a
Further, although Detective Robinson's description of the role that undercover surveillance Detective Lewis played was not crystal clear, Detective Robinson testified that Detective Lewis had "stayed in the area" and "was helping with the lookout for Mr. Carpenter and Mr. Jones." That testimony and "all reasonable inferences therefrom[,]" viewed in the light most favorable to the government as the party that prevailed on the suppression motion, Pridgen v. United States, 134 A.3d 297, 302 (D.C.2016), are additional support for a conclusion that the detectives who stopped Jones and Carpenter had particularized suspicion that they were involved in the narcotics transaction. Moreover, although Carpenter emphasizes that the officers approached him "in the midst of a busy street scene" and failed to pay attention to other people who were in the park, Detective Robinson explained that the park is on the other side of the street, that some of the people who frequent the park are children (who, it seems, could readily have been eliminated from suspicion) and that Jones — who was standing near Carpenter — had a cane and a blue hoody and a light hat that "you can't really miss[.]" Considering that "[t]he reasonable suspicion standard ... requires substantially less than probable cause and considerably less than proof of wrongdoing by a preponderance of the evidence[,]" Henson v. United States, 55 A.3d 859, 867 (D.C.2012) (internal quotation marks omitted), we are satisfied that the officers had sufficient justification for stopping Carpenter (and Jones).
For the foregoing reasons, we discern no error in the trial court's denial of the motion to suppress the tangible evidence. In addition, after Detective Quigley and Officer Clark returned to the area and positively identified Carpenter and Jones as the individuals involved in the drug transaction, probable cause existed to arrest and search both men.
Carpenter also argues that the trial judge should have stricken (or provided a curative instruction with respect to) Detective Manley's testimony that, as a member of the arrest team, he "d[idn't] want to be too close [to the undercover officers] because
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Plummer v. United States, 813 A.2d 182, 188 (D.C.2002). Here, Judge Broderick seemingly agreed that Detective Manley's comment about putting the officers' lives in danger was irrelevant, but she did not strike this testimony. It would have been preferable for the court to do so. However, in light of the facts that Judge Broderick at least signaled to the jury that this testimony had no bearing on Carpenter's trial;
Jones's issues on appeal relate to the courtroom clerk's email. Jones first argues that Judge Broderick abused her discretion in denying his motion for a mistrial because the email amounted to (or occasioned) a violation of the Code of Judicial Conduct (2012) ("Code") prohibition against ex parte communications. Jones cites Rule 2.9(A) of the Code ("A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter[.]").
A clear implication of the Rule 2.9(A) prohibition against a judge's "permit[ting]" ex parte communications is that a judge should caution her staff against seeking out extraneous information concerning a pending matter or conveying such information to the judge, a party, or counsel. That obligation is made explicit in Rule 2.9(D), which provides that "[a] judge shall make reasonable efforts, including providing appropriate supervision, to ensure that [the Rule against ex parte communications] is not violated by court staff, court officials, and others subject to the judge's direction and control."
Jones does not claim that the email impacted jury deliberations; he acknowledged in his motion for mistrial that the prosecutor, "Mr. Light[,] did not take any action based upon [the courtroom clerk's] information[,]" and he states in his appellate brief that "the issue was not, and is not, whether ... Jones was prejudiced during jury deliberations[.]"
Jones alternatively claims that Judge Broderick displayed "apparent partiality" before and during sentencing, and, pursuant to Rule 2.11, should have recused herself for the sentencing phase.
This court repeatedly has recognized that "justice must satisfy the appearance of justice[,]" Foster v. United States, 615 A.2d 213, 219 (D.C.1992) (quoting Belton, 581 A.2d at 1214), and that we must consider both "the risk that the denial of relief [where there was an appearance of partiality] will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process[,]" id. at 220 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). For that reason, we have reversed convictions or vacated sentences in cases where an observer would have reasonably questioned the trial judge's impartiality. See, e.g., Turman v. United States, 555 A.2d 1037, 1039 (D.C.1989) ("To announce to the parties that the court had previously gained a good impression of a witness' credibility, and then to proceed to weigh that witness' credibility in the case at bar without assuring the parties that the previous assessment would play no role in judging the pending case, created an appearance of partiality, if not an implication of actual partiality, which tainted the trial process.") (emphasis added); Belton, 581 A.2d at 1214-15 (remanding the case for resentencing of defendant Cowan
Here, by contrast, we are satisfied that the record provided no basis for a hypothetical objective observer to question Judge Broderick's impartiality post-email disclosure and prior to sentencing.
We are therefore satisfied that there was no actual or apparent partiality that required the judge to recuse herself from sentencing or that requires a new trial or resentencing.
For the foregoing reasons, the judgments of conviction are hereby
Affirmed.
Accordingly, Judge Broderick did not abuse her discretion in denying the motion for a mistrial. See Harrison v. United States, 76 A.3d 826, 839 (D.C.2013) ("Absent a showing by appellant[] that [the] severe remedy was mandated, we cannot find that the trial court abused its discretion in denying appellant['s] motion for a mistrial."); Evans v. United States, 12 A.3d 1, 7 (D.C.2011) ("We will reverse a trial court's denial of a mistrial only where it appears irrational, unreasonable, or so extreme that failure to reverse would result in a miscarriage of justice.") (internal quotation marks omitted).