dissenting:
I agree with the majority opinion’s rejection of the appellant’s first argument, viz, that the evidence seized during the search of his person should have been suppressed. As to his argument that he received ineffective assistance from his trial counsel, I agree with the majority opinion’s discussion of the importance of preparation and investigation by defense counsel. I will also assume for the purposes of discussion only that appellant’s trial counsel rendered ineffective assistance in that he failed to complete adequate investigation and trial preparation regarding the significance of the relatively high purity of the heroin that was seized.1 But I do not agree that appellant has made the showing of prejudice required for reversal.
Appellant’s argument on appeal is, essentially, that if a narcotics expert like Mark Stone, a former MPD detective, who testified for appellant at the hearing on the § 23-110 motion, had been interviewed before trial by defense counsel and then called to testify at trial about the significance of the high strength of the seized heroin and the way heroin was sold in the area where the appellant’s offense allegedly occurred, it is reasonably probable that the jury would have found appellant not *1203guilty. The majority opinion agrees with appellant’s argument.
I cannot agree. The testimony of Stone at the § 23-110 hearing was itself so ambiguous and inconclusive that it would not have led the jury to disbelieve the police officers’ uncomplicated testimony about appellant’s actions.
A basic weakness of appellant’s argument is that, notwithstanding all of Stone’s testimony about how 28% pure heroin was likely to be marketed in the area where appellant was arrested, what the officers saw take place was clearly a drug transaction. Officers Johnson and Battle had been eating while seated in a car close to the front window of the carry-out. The officers had first seen appellant a short time before the exchange when he had been dropped off by an expensive Mercedes SUV and crossed the street and spoken with Knox in front of the carry-out. After they spoke, they entered the carryout where the officers saw them speak further as they stood by the front window. They were the only persons in the small carry-out aside from an employee who stood behind a plexiglass window.
After appellant and Knox entered the carry-out and continued talking, Officer Johnson entered the carry-out to get ketchup. At that point, appellant and Knox briefly stopped their ongoing conversation, but then concluded it with language signifying that they had struck a deal. Appellant asked Knox, “How much do you have?” Knox answered, “I got you, baby ... I got almost 50 on me” and appellant replied, “yeah, it’s going to be — it’s going to cost you at least 50.” Knox counted out money and gave it to appellant who, in turn, handed Knox a small object that Officer Battle, from outside the window, could see was brown in color.
Most damaging to appellant’s effort to show prejudice is that Stone had to acknowledge that drug transactions take place in an almost “infinite variety of ways.”
The essential thrust of Stone’s testimony was that the charged drug transaction could not have taken place in the manner described by the officers. Stone’s testimony was based on the fact that the heroin was found to be of a level of purity well above that of the heroin usually sold in the area of the sale. Starting with that premise, Stone testified that he “can’t think of any reason” why the heroin would have sold at such a discounted price.
Stone also said that arrangements between dealer and retail seller would usually be negotiated beforehand because of concerns about the police presence in the area or a potential robbery. Stone, however, had no knowledge of what conversation had taken place between buyer Knox and seller appellant leading to the exchange. The officers witnessed them conversing outside the carry-out and then within it before Officer Johnson entered to get ketchup and heard the final words before the exchange. Nor did Stone know whether they had spoken by telephone or otherwise before they met, almost certainly by appointment rather than by coincidence, outside the carry-out, or what appellant was doing before the officers saw him. For this reason, Stone’s testimony that the terms of a deal would normally be worked out beforehand and that parties to such a deal would not normally bargain in a carry-out casts no doubt on the officers’ testimony about the transaction.
In an attempt to discredit the evidence that appellant and Knox were engaged in a narcotics transaction, testimony was adduced from Stone that, in a transaction for resale, a dealer usually hands over to a reseller a 12 or 13 pack instead of a pack of only 10 bags. The reseller could then “either use or sell the extra bags” as payment. But this testimony does not help *1204appellant because of the undisputed fact that the packet of heroin recovered from the floor of the carryout immediately after the transaction was a ten pack.
Stone testified at a different point that a typical arrangement between buyer and retail seller is “to be fronted2 the ten pack or whatever they are being given and bring the money back to the seller and then repays in drugs.”3 He then said that it was “highly unlikely” that the reseller would make a partial payment (like $50.00) at the time he received the drugs.
All of Stone’s statements about what would typically occur are of limited value because he was unaware of the conversations that preceded the transaction, and did not know the existing relationship between appellant and Knox, particularly whether a debt was owed from a prior transaction. Stone also recognized that an immediate need for cash or inexperience could affect the terms of a transaction.4
Moreover, the value of Stone’s testimony would have been called into question by his statement that the floors of carry-out restaurants “have often been used as stashes as well.” The testimony was obviously adduced to explain the presence of the bag of heroin on the floor near Knox. The government responds that the idea that a drug dealer or seller would “stash” illicit drugs on the floor in the middle of a public restaurant is “incredible.” This response has added force where the floor of the restaurant in question was bare, and the restaurant was empty except for appellant, Knox, Officer Johnson and an employee behind a plexiglass window.
In light of all of the significant factors as to which Stone had no knowledge and the almost infinite variety of forms that drug transactions can take, Stone’s testimony, even if not challenged by contrary expert testimony, is simply too indefinite and lacking in materiality to create a reasonable doubt that the officers saw the drug transaction that they testified they saw.
The already slim likelihood that Stone’s proffered testimony would give rise to reasonable doubt in the minds of the jurors is lessened by another factor. The government stated that it would call a narcotics expert whose qualifications equal Stone’s to counter Stone’s testimony. The government offered the affidavit of Detective Anthony Washington in opposition to the § 23-110 motion. Washington averred that he had testified as an expert more than 500 times in Superior Court and the U.S. District Court for the District of Columbia. As the trial judge brought out at the § 23-110 hearing, Stone and Washington were colleagues, and “were basically the supervisors around [Superior Court] for the resident drug experts.”
Washington agreed with Stone that the nature of transactions between a drug dealer and a reseller can vary widely. Contrary to Stone, Washington stated that *1205a reseller may “front” a portion of the total amount owed to the dealer for a ten pack, i.e., pay for part of the value of the ten pack at the time it was received. “This arrangement may occur when the drug dealer and re-seller have engaged in transactions before and have built up a degree of trust in each other.” Also contrary to Stone, Washington stated that a dealer sometimes will furnish a reseller with “testers,” which are “a small supply of drugs from a new source that a dealer will give or offer at a reduced price to a reseller.” The reseller will then distribute the drugs to users, and report back to the dealer on how they were received by buyers or users. While, as appellant’s counsel pointed out, Washington was not subjected to cross-examination because he did not testify at the § 28-110 hearing, the thrust of his testimony is clear, even allowing for the fact that he was not cross-examined. Washington’s testimony would likely diminish the force of Stone’s testimony. But, even unrebutted, Detective Stone’s testimony is not enough to establish prejudice.
The majority opinion places considerable reliance on the court’s recent opinion in Kigozi v. United States, 55 A.3d 643 (D.C.2012). The majority states that here, as in Kigozi, a crucial question that needed expert testimony was a “technical question.” Id. at 652-53. But, respectfully, the question in this case is hardly comparable to the issue the expert addressed in Kigozi. Writing the majority opinion for a divided panel in Kigozi, Judge Ruiz observed that, in a case in which the dying declarations of the victim of a shooting were central to the prosecution’s case, counsel should have “at least consult[ed] an expert about the possibility that [the dying declarant] was under the influence of PCP ... and the effect that PCP could have had on [declarant’s] ability to accurately perceive, recall and report the identity of his assailant.” Id. at 651-52.
Kigozi argued that he was prejudiced by counsel’s ineffective assistance in that counsel failed to call a witness like the nationally-recognized pharmacologist who testified for Kigozi at the § 23-110 hearing. The witness gave technical scientific testimony explaining how the dying declar-ant’s behavior at the time he named appellant Kigozi as his shooter could have been symptomatic of PCP intoxication. Such testimony, Kigozi argued, could have put the dying declarant’s identification of Ki-gozi into doubt. The Kigozi majority held that there was a reasonable probability that the outcome of the case would have been different because “[w]ithout [the dying declarant’s] accusatory statements, or if the jury had doubts about their reliability, the government’s evidence was entirely circumstantial and seriously contradicted by eyewitnesses.” Id. at 657. In a comparable situation, where available exculpatory evidence would have brought into question the motives of the complaining witness, this court has found prejudice. Cosio v. United States, 927 A.2d 1106, 1134-35 (D.C.2007) (en banc).
Reasonable doubt “is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason.” Criminal Jury Instructions for the District of Columbia, No. 2.108 (5th ed. rev.2012). To acquit, there must be some reasonable doubt as to appellant’s guilt. Unlike the Kigozi witness’s technical testimony about a specific scientific issue, Stone’s broad testimony about the way the drug trade is practiced in the area and the myriad ways in which drug deals take place is so unfocused and lacking in certainty that, when it is considered together with the other evidence, there is not a reasonable probability that it would have caused the jury to reasonably doubt the reliability of the testimony of the officers about what they saw *1206and heard.5 As the Supreme Court stated in Harrington v. Richter, supra note 1,— U.S.-,-, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011), “[t]he likelihood of a different result must be substantial, not just conceivable.” Respectfully, appellant’s showing here falls well short of meeting that test.
Accordingly, I would affirm.
. It can be argued with some force that trial counsel’s performance was not so deficient that “counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel attested in an affidavit that he has "handled hundreds of criminal cases in the Superior Court of the District of Columbia. Many of [his] clients in these cases had been charged with narcotics offenses.” At the § 23-110 hearing, trial counsel testified that he had consulted with experts for similar cases and found that "for the most part it was not helpful for [his] client.” Trial counsel testified that he had believed, correctly as it turned out, that the government would not call an expert at trial, although the government filed notice of an intent to call a narcotics expert. Even if such a witness had been called, it should be noted that the Supreme Court has cautioned that "Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.” Harrington v. Richter, - U.S. -, -, 131 S.Ct. 770, 791, 178 L.Ed.2d 624 (2011). Indeed, ”[a]n attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense.” Id. at 789-90. As I point out in note 5 below, Stone’s testimony might well have harmed appellant's defense.
. The government asked Stone what he meant by "fronted the ten pack.” Stone replied, "They are given the ten pack with the obligation or promise to come back with the money. They know again how much money is supposed to be brought back to the person who gave it to them.”
. Stone’s reference to "repaying] in drugs” is confusing, as he then said that the retail seller must bring back the money or pay the consequences, such as "being shot or beat up if that task is not carried out.”
.The majority would dismiss the many plausible variables of the Knox-appellant transaction of which Stone was unaware, suggesting that it was somehow the government’s burden to adduce evidence of matters such as debt, pre-existing relationships and the like. While appellant and Knox would know about such things, it is unreasonable to expect the government to know about them and to produce evidence about them. Nor are such facts essential elements of the offense of which appellant was convicted.
. Moreover, if Stone had testified at trial, his testimony, even if not rebutted, could have harmed appellant. Stone described the Nannie Helen Burroughs neighborhood in 2003 as a "close knit veteran heroin trafficking area” and the relationship between the buyer and seller as "a close relationship ... a trusting relationship.” A jury, listening to Stone’s testimony, could become more likely to convict appellant after hearing him associated with a "veteran heroin trafficking area” and impliedly described as having close relationships with drug dealers and sellers. The majority again attempts to demonstrate that Stone’s testimony would have called the government's evidence into doubt, but it just as likely could have been detrimental for appellant.