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Parker v. U.S.

February 9, 1995

JAMES E. PARKER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ellen S. Huvelle, Trial Judge)

Before Wagner, Chief Judge, and Steadman and King, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Chief Judge: Appellant was charged with one count of distribution of a controlled substance (cocaine) (D.C. Code § 33-541 (a)(1) (1993 Repl.)) and one count of unlawful possession of a controlled substance (heroin) with intent to distribute (PWID) (D.C. Code § 33-541 (a)(1) (1993 Repl.)). Following a jury trial, appellant was found guilty of PWID, but not guilty of the distribution offense. Appellant argues for reversal on the grounds that (1) the evidence was insufficient to convict him and (2) the trial court erred in denying his motion for new trial where it had improperly denied his request for the jury to view certain evidence. He also contends that the trial court erred in enhancing his sentence. We affirm.

I.

Sergeant Moses Vines testified that on April 18, 1991, he and Officers Jewel and Watkins were making observations from an unmarked police car in the area of Second, L, M, and K Streets, S.E. Around 7:30 p.m., while there was still daylight, he saw a white male, later identified as Donald Machado, Jr., approach appellant and walk with him to a gray automobile. Appellant got into the front seat, and Mr. Machado got into the back passenger side. Sergeant Vines testified that he saw appellant bend forward out of sight, straighten up, and hand small white packages to Mr. Machado, who gave appellant money in exchange. According to Sergeant Vines, Mr. Machado appeared to "pluck" the packages as if inspecting them. Sergeant Vines testified that he was approximately 50 to 100 yards from the automobile at the time, but he was using binoculars which made it appear like 15 to 20 feet.

He testified that he radioed for the arrest team which arrived less than a minute later. According to Sergeant Vines, Detective Byron Wallace apprehended Mr. Machado after he left the car. Sergeant Vines stated that he arrived at the car about one minute after the arrest team, and Detective Wallace handed him four small white bags of a substance which field tested positive for heroin. Sergeant Vines testified that he then searched the front passenger area of the car on the floor board and found 14 additional bags, eight bags of a brown-white substance and six of a white substance. Sergeant Vines testified that the carpet was loose, and he moved the material from the wall by the floor board and found the drugs. Subsequently, he testified that when he lilted the portion of the bottom of the floor panel, the drugs, which were later determined by chemical analysis to be heroin, fell to the floor of the vehicle.

Detective Wallace testified that he observed a white male, later identified as Mr. Machado, get out of the car and throw some white packets on the ground. Detective Wallace also testified that he arrested appellant and recovered $40 in currency from his hand. Investigator Lennie Mitchell testified that he observed Detective Wallace seize the money which Wallace then gave to him. Investigator Mitchell testified that he also searched appellant and recovered $30 from him.

Officer Charles Culver, an expert witness on the use, sale and trafficking of narcotics, testified that the amount of cocaine and heroin recovered was a usable amount, and that the packaging of the drugs was consistent with the type used for street sales and distribution.

Donald Machado, Jr. testified that he went to the area where the police arrested him to buy drugs and that he met someone willing to sell them. He recounted that he and the drug seller went to a nearby car where he got into the back seat while the drug seller got into the front seat. Mr. Machado stated that the drugs cost about $30 to $40. According to Mr. Machado, he "checked out" the drugs, to insure their quality, before leaving the car and heading for the nearest Metro. A car came speeding toward him, and Machado threw his drugs into the grass before he was arrested. He testified that he entered a plea of guilty to one count of possession of heroin and received a one-year suspended sentence and 18 months probation. Mr. Machado did not identify appellant at trial, but he testified that he was certain that the police had arrested the man who sold him the drugs that night.

Mr. Raymond Parker, appellant's brother, testified that his mother had owned the car in which appellant was arrested for 14 years. According to Parker, he had attempted to move the right panel on the floor board of the car on numerous occasions, that it is difficult to move, that it can only be moved a half inch, but it springs right back. He testified that the panel on the car now is the same one which was there in April 1991. Appellant also testified that he had attempted to move the right front panel on the passenger side and that it was very difficult to move. After appellant's testimony, the trial court denied appellant's motion to have the jurors view the car. A photograph of the interior of the vehicle was admitted in evidence.

II.

Appellant argues that the evidence was insufficient to convict him. Specifically, he contends that Sergeant Vines' testimony was not credible and uncorroborated. Viewing the evidence in the light most favorable to the government and recognizing the province of the finder of fact to weigh the evidence, determine the credibility of witnesses, and to draw reasonable inferences from the testimony, we conclude that the evidence was adequate to support the conviction. Leonard v. United States, 602 A.2d 1112, 1114 (D.C. 1992) (citations omitted); In re A.B., 556 A.2d 645, 649 n.8 (D.C. 1989). Any inconsistencies in Sergeant Vine's testimony or between his testimony and that of any other witness was for the jury to resolve, and a reasonable jury could find appellant guilty beyond a reasonable doubt on the evidence presented. See Payne v. United States, 516 A.2d 484, 495 (D.C. 1986).

III.

Appellant also argues that the trial court erred in denying his motion for a new trial which was based upon the denial at trial of his request for a jury view of the vehicle from which the drugs were retrieved. Appellant had contended at trial that since the panel of the car was difficult to move, it was unlikely that drugs could have been stored behind it. He had also argued that a reconstruction of appellant's position when he was alleged to have retrieved the drugs for Mr. Machado would have revealed for the jury the difficulty of removing the panel. In denying appellant's request at trial, the trial court was persuaded that a view would not be probative, given the 18 months which had elapsed since the offense, the inability to duplicate the circumstances as they existed at the time, and the court's observation that the panel could be moved easily now. *fn1 In denying appellant's motion for new trial, the trial court elaborated on the reasons previously given for its ruling. It remarked again that in the lengthy interval between the offense and the trial, the car had been used by a number of people and that its condition was not the ...


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