Before Wagner, Chief Judge, and Reid and Glickman, Associate
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Lee Satterfield, Trial Judge)
After a jury trial, appellants Flossie N. Robinson and Grady Butler were convicted of distribution of heroin, in violation of D.C. Code § 33-541 (1998). *fn1 Both filed a timely notice of appeal, challenging various rulings of the trial court. In addition, Robinson filed a D.C. Code § 23-110 (1996) motion, asserting ineffectiveness of trial counsel. The motion was denied, and Robinson filed a timely appeal. We affirm the convictions of Robinson and Butler, and the trial court's denial of Robinson's § 23-110 motion. However, we remand Butler's case to the trial court for resentencing because we conclude that the trial court erred by imposing the enhancing seven year mandatory minimum sentence on him where the government failed to provide the requisite notice of intention to enhance the penalty under D.C. Code § 23-111.
According to the government's evidence, on May 17, 1993, four United States Park Police investigators or officers were involved in an undercover drug operation, around 5:50 p.m., in the area of 11th and P Streets, N.W. in the District of Columbia. At the time, Officer Katherine P. Heller, a six-year veteran, had been assigned to the narcotics and vice unit for two years. The area of 11th and P Streets was an open drug market and had been under police surveillance since April 1993. While she was on duty, Officer Heller saw Butler, Robinson and another woman, Wendy Borum, standing on the corner. Officer Heller knew both Butler and Borum from "previous contact." Butler called Officer Heller over, and she asked for two persons by their first names. Butler indicated that the two persons were not around, and Borum asked: "What do you need?" Officer Heller asked for a particular brand of heroin. In response to Borum's request for money, Officer Heller gave her $40.00 for the drug purchase. Borum took the money to a woman who was seated on some steps down the street. The woman refused to give Borum any drugs "because [she] didn't know [the officer]." Butler then told Robinson "to take care of [the officer]."
After Butler told Robinson to take care of the officer, Borum instructed Officer Heller to go to a bus stop and wait. Borum followed and again asked Officer Heller for money. The officer gave her $40.00 in marked currency. Borum then approached Robinson. Officer Heller testified that Borum and Robinson "argued shortly and then there was some on-hand movement . . . and then after there was the arm movement." Officer Heller said that she "couldn't see what was happening between [Borum and Robinson] but [she] did see that they moved their hands out and back in." Borum immediately returned to where Officer Heller was standing "and handed [the officer] two small little ziplocs containing suspected heroin which later field tested positive for opiates."
After the transaction ended, Officer Heller made contact with Lieutenant Ronald Schmidt who had used "seven power binoculars" to watch Officer Heller's interaction with Butler, Robinson and Borum from his nearby undercover observation post. He picked up Officer Heller near 11th and Rhode Island Avenue, N.W., and they returned to the 11th and P Street area where Officer Heller identified Butler, Borum and Robinson within a couple of minutes after being picked up. Look-out descriptions then were given to the officers who arrested the perpetrators. Officer Heller stated at trial that Robinson "had [a] black lycra jumpsuit on with . . . red piping [or trim] and she - - also was carrying a black sequin purse plus she was wearing a pair of sunglasses." Consistent with Officer Heller's description, Lt. Schmidt testified that Robinson wore "like a jumpsuit - - like a spandex black jumpsuit - - type of clothing with like a . . . red piping on the edges."
Officers Michael Smith and David Fennimore, "a two man back-up team" assigned "to ID targets of the [undercover] investigation," received a communication from Lt. Schmidt directing them to identify Butler, whom the back-up team knew, and the woman later identified as Robinson. Both officers testified at trial concerning the look-out descriptions they received from Lt. Schmidt. Officer Smith asserted that Ms. Robinson was described as wearing "[b]lue or black - - sweat suit with sparkles - - and [carrying] a purse." Further, he stated that she had "reddish brown hair." Officer Fennimore said the look-out description for Robinson was a black female "wearing a black spandex or lycra jumpsuit . . . ." At approximately 6:45 p.m., Officers Smith and Fennimore stopped Butler and Robinson. According to Officer Fennimore, Robinson "was wearing a black spandex lycra jumpsuit and it had gold flecks [or speckles] on both . . . outer thighs of the - - jumpsuit," and her hair was "an off reddish color." No other people in the area matched the description of Robinson. Butler and Robinson were arrested, and later were convicted of distribution of heroin.
Butler's Enhanced Sentence Issue
Butler argues that the trial court erred by not ruling that the government failed to satisfy the notice requirement, set forth in § 23-111, *fn2 for enhancing his sentence; therefore, the seven year mandatory minimum sentence provided for in § 33-541 *fn3 was improperly imposed on him. The government contends that the trial court did not commit plain error by imposing the seven year mandatory minimum sentence, and that, prior to the hearing on the suppression motion, Butler received notice that the government intended to seek enhancement of his sentence.
The record before us shows that on the morning of February 23, 1995, the court and counsel for Robinson were engaged in a discussion about pre-trial motions. After a brief discussion of a motion to suppress a "ride by" identification of Robinson, the court inquired as to what other motions "need[ed] to be dealt with in an evidentiary hearing?" Furthermore, the trial court asked whether Robinson "ha[d] other ...