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09/21/90 LOMEL A. ALLEN v. UNITED STATES

September 21, 1990

LOMEL A. ALLEN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Rufus G. King, III, First Trial Judge, Hon. Susan R. Winfield, Second Trial Judge

Rogers, Chief Judge, and Terry and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry

These consolidated appeals arise from two separate trials in which appellant was convicted of several drug offenses. Appellant presents three arguments in challenging both convictions and the sentence in the second case. We reject all three and affirm the judgments in all respects. *fn1

I

A. The First Case

Appellant was charged with one count of distributing cocaine, in violation of D.C. Code § 33-541 (a)(1) (1988). Before trial he filed a motion to suppress the cocaine and all identification evidence, which was denied by Judge King after an evidentiary hearing.

At the hearing, Officer Debra Vanadia testified that on June 5, 1986, while working under cover, she purchased a package of white powder from appellant which purported to be cocaine. After a short conversation about bother matters, appellant walked away. Vanadia quickly broadcast a lookout which included a description of his clothing and his direction of travel. Two other officers, part of an arrest team, heard the broadcast and saw appellant run into an apartment building. They followed him into the building, and soon one of them brought him outside, where Officer Vanadia positively identified him as the man from whom she had bought the cocaine. *fn2 Her on-the-scene identification occurred within "a minute or two" after appellant had left the corner where the sale had taken place.

At the Conclusion of Officer Vanadia's testimony, defense counsel pointed out that Officer Vanadia had not been asked to identify appellant in court as the man involved in the drug transaction, and urged that the cocaine he suppressed for that reason. Judge King ruled, however, that "there is no requirement that she make a present [in-court] identification for purposes of the motion." Focusing instead on the lawfulness of the arrest and the circumstances surrounding the on-the-scene identification, the Judge denied the motion, concluding that the seizure of appellant was lawful and that the identification was not unduly suggestive.

A jury trial began the next day, and at its Conclusion the jury found appellant guilty as charged. Several weeks later Judge King sentenced appellant to five years' incarceration under the Youth Rehabilitation Act of 1985 (Youth Act), D.C. Code § 24-803 (1989).

B. The Second Case

Shortly before appellant's first trial began, a second grand jury returned an indictment charging him with five counts of violating D.C. Code § 33-541 (a)(1): distribution of phencyclidine (PCP), distribution of cannabis (marijuana), possession of PCP with intent to distribute it, possession of marijuana with intent to distribute it, and distribution of cocaine. The last count charged the same June 5 offense that was alleged in the first indictment, and hence it was dismissed by the government after appellant was found guilty on that charge in the first trial. The other four counts, however, charged offenses occurring on a different date, March 6. After a jury trial before Judge Winfield, appellant was found guilty on all four of those counts.

Officer Donald Bell of the Metropolitan Police testified bat at about 3:20 p.m. on March 6, 1986, he and his partner, Officer Bradley Belden, were conducting an undercover narcotics investigation in the vicinity of 21st Street and Maryland Avenue, N.E., an area known for high-volume sales of narcotics. As Officer Bell was driving along 21st Street, he noticed three men, one of whom was appellant, standing together on the sidewalk. Bell testified that appellant was "handing" a tinfoil object to the man standing on his right. Just then, however, one of the three men turned his head and saw the officers' car driving past. Apparently recognizing the unmarked car as a police cruiser, he said something to his two companions. Immediately appellant, "who had the tinfoil and was handing it to one of the individuals, pulled his hand back with the tinfoil in his hand, brought it back to himself, pulled it back." It is clear from Bell's testimony that although appellant reached out toward the other man with the tinfoil in his hand, the tinfoil never actually left appellant's possession, and no money changed hands.

The officers did not stop but drove around the block. When they came back to the same spot on 21st Street, Officer Bell again saw appellant "standing at almost the same position," with his hand extended to one of the two men standing with him. *fn3 Bell could not discern what appellant was holding, but after he and Officer Belden stopped their car and got out, Bell could see a shiny object in appellant's right hand, even though it was closed. As Officer Bell attempted to pry the hand open, appellant threw three tinfoil packets on the ground. He was then arrested.

Testifying as an expert witness, Detective Lawrence Coates said that each tinfoil packet at issue contained PCP-laced marijuana and was of the average size sold on the street. The total weight of the PCP and marijuana seized was 1,212 milligrams, of which 21 milligrams was PCP. Coates stated that this was a usable amount of both PCP and marijuana. Although ...


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