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Pernell v. United States

April 12, 2001

LINDA PERNELL, APPELLANT,
v.
UNITED STATES, APPELLEE.



Before Schwelb, Ruiz and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Appeal from the Superior Court of the District of Columbia Criminal Division

Hon. Linda D. Turner, Trial Judge

Argued December 18, 2000

After a bench trial, appellant Linda Pernell *fn1 was convicted of possession of a controlled substance (cocaine), in violation of D.C. Code § 33-541 (a)(1) (1998). On appeal, Ms. Pernell contends, in part, that the trial court erred by failing to impose probation without judgment under D.C. Code § 33-541 (e). *fn2 We affirm.

FACTUAL SUMMARY

At trial, the government's evidence showed that, on May 28, 1998, at approximately 5:20 p.m., Officer Jeffrey Colleli, a fourteen-year veteran of the Metropolitan Police Department ("MPD"), was conducting a drug surveillance operation in an elevated observation post near the 5400 block of 7th Street, N.W., in the District. Officer Colleli testified that this area was selected for the operation because it was "very well known for its open-air drug markets, mainly cocaine."

As Officer Colleli was observing this area, he noticed "Ms. Pernell approach[] a subject later known as Mr. King . . ., [and] [a]fter a brief conversation[, observed] Mr. King [go] into . . . an open area, like a vacant lot." Although his observation post was actually "30 [to] 40 feet" away from her, Ms. Pernell appeared to be "within about 5 feet" of Officer Colleli, due to his use of "binoculars." About "a minute" after his departure, Mr. King returned, and "dropped . . . two small objects [] to the ground." Officer Colleli then saw "Ms. Pernell hand[] [Mr. King] a[n unidentified] sum of money . . . , ben[d] down [,] pick[] up the objects[,] and . . . walk[] south on 7th Street." Based upon this observation, Officer Colleli proceeded to broadcast a lookout to an arrest team located in the immediate area.

Officer Garvin, an eight-year veteran of the MPD who has participated in "500 to [1000] various [drug] cases," and Officer Cutler, responded to the broadcast and "stopped [Ms. Pernell] in front of 5304 7th Street, [N.W.]" Officer Garvin testified that he observed Pernell "drop[] two Ziplocs of white rock substance to the ground from her right hand." After Officer Cutler retrieved the discarded Ziplocs, and immediately discovered that they tested positive for cocaine, Ms. Pernell was placed under arrest for possession of cocaine.

Ms. Pernell testified as the sole defense witness. Although she admitted that she spoke with Mr. King on the day in question, she denied engaging in a drug transaction with him, and stated that she at no time was in possession of cocaine.

Following the completion of a bench trial, Ms. Pernell was found guilty of possession of cocaine. As the trial judge stated:

[T]he court has heard the evidence in the case and finds the defendant guilty on the count of possession of cocaine beyond a reasonable doubt. The court, in viewing and weighing the testimony of the officers as opposed to Ms. Pernell, resists the defendant's testimony. . . . [T]he court believed the officers beyond a reasonable doubt.

Prior to sentencing, defense counsel requested that Ms. Pernell be sentenced under § 33-541 (e). In denying his request, and sentencing Ms. Pernell to 180 days in prison, with all but ten days of that sentence suspended, in lieu of six months of supervised probation, the trial judge stated:

[H]aving considered the request of Ms. Pernell to be sentenced under [ยง 33-541 (e)] probation, the use of that is not ...


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