Wingate v. United States
Wingate v. United States
Opinion of the Court
After a jury trial, appellant was convicted of assault with a dangerous weapon, D.C.Code § 22-502, and related offenses
I.
A.
The theory presented by the government at trial was that on October 25, 1989, appellant, a corrections officer, had left his post guarding a prisoner at Georgetown University hospital and had gone to his wife’s apartment
In support of its position that appellant had committed the assault at 3:00 a.m., the government presented testimony from appellant’s co-worker, Officer Brian Jones, who said that appellant was missing from his post at the hospital for about an hour and a half on October 25; Jones testified that appellant’s absence had taken place sometime after Jones returned from his meal break, which he began at 1:00 a.m., and that Jones had submitted a memo to his superiors on October 26 detailing this incident.
Ms. Wingate also testified about a further incident that occurred later the same morning. She said that she left her apartment at 8:30 or 9:00 to file a complaint at the Citizen Complaint Center, and returned to find her bedroom window broken; someone had entered and broken up her furniture, smashed her china and crystal, strewn her clothes around the apartment and poured liquid or cleaning material on them, shattered her mirrors, broken the sink and toilet bowl, damaged her stereo, and taken a fox fur coat and hat and several hundred dollars.
Appellant’s defense to the assault charges
Appellant’s defense to the burglary charge, see note 1, supra, was that he was still living in the apartment with Ms. Wingate, and therefore had a right to be there; he said that he went to the apartment that evening to retrieve forms for filing for reduction in child support that he wanted to work on while he was on duty. Appellant admitted returning to the apartment the next day, ostensibly to move his propérty out, and when asked by an officer whether he had broken anything in the apartment, he had replied,
Yes, I sure did.... You come home and find your wife in bed with somebody what are you going to do? Yes, I trashed some things in there. I just broke some glasses, mirror, and some other things ... I turned the table over, the dresser over, anything standing, I turned over. Anything that was standing ... I threw a fire extinguisher into the bathroom and it hit the sink and toilet. It broke them.
Appellant’s defense for the destruction of property charges was that he had caused only some of the damage, he had damaged joint property rather than Ms. Wingate’s sole property, and Ms. Wingate had had someone else cause further destruction of the property and then had arranged items for the police photo. Appellant denied stealing the hat and coat and the money.
As rebuttal evidence to appellant’s testimony that the assault had been at 10:00 p.m., the government presented testimony from one of the police officers who responded to Ms. Wingate’s 911 call. The officer testified that they arrived at the apartment at 8:20 or 3:30 a.m., a few minutes after receiving the 911 call; he testified that Ms. Wingate was hysterical and Morton had a head wound that appeared fresh and was still bleeding.
The jury convicted appellant on four counts, and acquitted appellant on five counts. The trial court granted the defense motion for judgment of acquittal on an obstruction of justice charge at the end of the government’s case. See note 6, supra.
B.
In 1992, appellant filed a motion to vacate judgment and grant a new trial under D.C.Code § 23-110
Judge Milliken also made factual findmgs relating to what pretrial preparation had in fact been undertaken by counsel, as revealed during' the course of the § 23-110 hearing. However, Judge Milliken refrained from makmg a legal ruling on the Monroe-Farrell issue, since he believed that our earlier cases mdicated that only the appellate court should resolve the issue of whether a proper Monroe-Farrell inquiry had been made. Whatever the situation may be where the § 23-110 judge had also made the Monroe-Farrell inquiry and was thus reviewing his or her own decision, we do not fault Judge Milliken’s decision not to rule on that legal issue here. We also think Judge Milliken acted quite properly in determming whether counsel was in fact sufficiently prepared for trial in the constitutional sense, the same inquiry that a trial court would make on remand where no Monroe-Farrell inquiry had been made at all. (Leon) Matthews v. United States, 629 A.2d 1185, 1193 (D.C. 1991). If the judge in a § 23-110 motion hearing determined that trial counsel was in fact constitutionally prepared, the Monroe-Farrell issue would effectively disappear from the ease, even if the inquiry actually made had been msuffieient. (John) Matthews v. United States, 459 A.2d 1063, 1066 (D.C. 1983).
II.
A.
Appellant’s § 23-110 motion raised both a Monroe-Farrell claim and a Strickland claim. When a Monroe-Farrell claim is jomed with a Strickland claim on collateral attack, this court first ensures that the Monroe-Farrell claim has been defmitively resolved before dealing with the Strickland inquiry. McFadden v. United States, 614 A.2d 11 (D.C. 1992). Hence, we turn first to that issue.
In Monroe, we first ruled that m tMs jurisdiction, “[w]hen a defendant makes a pretrial challenge to the effectiveness of counsel ... on the ground that counsel, due to lack of mvestigation, preparation, or other substantial reason, is not rendering reasonably effective assistance, the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations.” Monroe, supra, 389 A.2d at 820. We have reaffirmed tMs requirement of a pretrial inquiry in a series of subsequent opmions. See, e.g., Garrett v. United States, 642 A.2d 1312 (D.C. 1994); (Leon) Matthews v. United States, 629 A.2d 1185 (D.C. 1993); McFadden v. United States, 614 A.2d 11 (D.C. 1992); Nelson v. United States, 601 A.2d 582 (D.C. 1991); Johnson v. United States, 585 A.2d 766 (D.C. 1991); Gordon v. United States, 582 A.2d 944 (D.C. 1990); Bass v. United States, 580 A.2d
The case before us is unusual in that a rather lengthy Monroe-Farrell inquiry was in fact made, and therefore appellant is challenging the sufficiency of that inquiry, rather than alleging that the court did not inquire at all into his pretrial allegations of ineffectiveness, as was the case not only in Monroe itself but also in the great majority of cases addressing the Monroe-Farrell issue. This case is most similar in posture to Farrell itself, in which the trial court asked counsel a number of questions about his preparedness.
Appellant cites Pierce v. United States, 402 A.2d 1237 (D.C. 1979), as another case where the court had made inquiry and we found the inquiry to be insufficient. Pierce is some
On subsequent occasions, we have had occasion to reassert this principle that the substance of the complaints about counsel’s performance governs the nature of the mandated inquiry. See Nelson, supra, 601 A.2d at 592 (court “had an obligation to question defense counsel directly, on the record, about the specifies of [defendant’s] complaint before making its ruling.”); McFadden, supra, 614 A.2d at 16 (court erred in not “elu-cidat[ing] from counsel information to rebut, or substantiate, the specifics of appellant’s complaint.”) (citing Monroe)', Gordon, supra, 582 A.2d at 945 (trial court must conduct detailed inquiry “to elicit the nature of the defendant’s complaint, and whether it is based in fact”). Recently, in McKenzie v. United States, 659 A.2d 888 (D.C. 1995), we applied this principle in a related context. McKenzie had sent a pretrial letter to the trial court complaining about his counsel, thereby triggering a Monroe-Farrell inquiry. At the hearing, however, the defendant indicated that he was now satisfied with his counsel. We held that the trial court properly terminated the inquiry at that point. “We are satisfied that the trial court here did all that was required in the circumstances.” 659 A.2d at 840. See also Robinson v. United States, 565 A.2d 964, 969 (D.C. 1989) (court did not err in failing to conduct Monroe-Farrell inquiry, where appellant had made many requests for new attorney but when court asked appellant to state the basis for desire for a new attorney, “appellant himself concluded that he was ready and willing to go forward with his present attorney”); Gordon v. United States, 582 A.2d 944, 947 (D.C. 1990) (judge did not eiT in failing to ask questions of defense counsel when, after judge addressed appellant’s problems and questions, appellant said she wanted to go to trial and would keep her defense attorney; “appellant’s complaints provided no basis for the judge to inquire further into the attorney-client relationship or about defense counsel’s preparation for trial”).
We turn, then, to an examination of the pretrial inquiry held in this case in light of the foregoing principles.
B.
On Thursday, December 6, 1990, the parties having announced that morning that they were ready for trial, the case was certified to Judge Henry F. Greene. At the outset of proceedings that afternoon, responding to an inquiry as to any outstanding pretrial matters, appellant’s counsel informed Judge Greene that appellant had complaints about his representation; when Judge Greene asked counsel to explain the conflict between him and his client and asked whether it was just a strategy, counsel said, “I guess it’s a strategic, basic question whether or not it’s in the client’s best interest to plead guilty.” Judge Greene then asked appellant to come to the bench with counsel, and conducted an extensive Monroe-Farrell hearing.
Judge Greene first asked why this problem had never been brought to the court’s attention until the very day of trial. Counsel replied that between the time that he had announced ready for trial and that afternoon, a conflict had developed. Over lunch, appellant had expressed concern about the direction of the trial, had said that counsel was too pessimistic about his prospects, and had said that more time was needed to gather documents for the trial. Judge Greene pointed out that counsel had announced ready that morning, and asked counsel
I believed I was ready. There were certainly some things that I would have preferred to have, but I believe that it was nothing necessarily uncommon or untoward in terms of ordinary representation.
Judge Greene then asked appellant why he didn’t believe he was ready for trial. Appellant stated that his counsel “has always wanted me to cop a plea” but appellant “from day 1 ... decided to fight,” that he had said, “[Counsel], fight on my behalf,” and had told counsel “I was not ready ... because we did not come to an agreement on my defense strategy and I was still waiting on some pertinent information along with the case ... I was still waiting on some pertinent information on my defense to come in.”
Judge Greene then asked appellant, “What is the reason you think you’re not ready now?” Appellant stated that he didn’t have a police report from Prince George’s County; the judge asked him a number of questions about when he applied for the report, how long he had known he needed the report, and what specific efforts he had made to obtain it. Appellant then added, “The other thing is all the leg work done, getting information, getting ...”, but the judge asked him to wait on that issue until they had dealt with the question of the police report. The judge then asked counsel what he knew about the report and whether he had subpoenaed it; counsel explained that they had not been able to subpoena the report, which concerned a 1986 assault on appellant, because the report did not contain the name of the person who assaulted him,
The judge then asked appellant, “What other reasons are you not ready?” Appellant returned to the issue he’d raised a moment before, saying “That’s the other thing I was going to say,, your Honor, is that all the information that needs to be gathered, [counsel] had me gather it — witnesses, character witnesses, information ... but he’s never took the time to look over ...” The judge said he would discuss that with counsel in a minute, and asked what other reasons appellant had to think he wasn’t ready for trial. Appellant said that his counsel “seems as though he’s been working with the Government to plea bargain.” The judge replied that it was purely speculation to say that defense counsel was working for the government, and the court file gave no basis for that assertion. The judge then said, “Okay, [counsel], I want to make some inquiries of you”, but first gave appellant a chance to make any further complaints, asking, “Any other reasons you’re not ready in this case, Mr. Wingate?” Appellant replied, “Like I said, those are the two distinct — ”, and reiterated his complaint that he hadn’t received the police report and that counsel hadn’t subpoenaed the report.
Judge Greene then made a lengthy inquiry into counsel’s preparation. The judge asked for details on several issues, including how often counsel had conferred with his client
Judge Greene then asked, “Mr. Wingate, what do you want to say in response to any of the things your counsel said?” The following colloquy resulted:
THE DEFENDANT: My major concern is the lack of concern for my wellbeing and the lack of concern for my counsel on innocent until proven guilty. That is my major concern, along with the initiative to take time out to overlook the paperwork to substantiate what I’m telling him beforehand. Today was the first time he looked at it all in person briefly.
THE COURT: I want to know if there’s critical evidence in this case that’s been available to you for some period of time and you’ve only looked at for the first time today.
[COUNSEL]: It’s true there is evidence that I have seen today for the first time. Now, the question—
THE COURT: That wasn’t available to you earlier?
[COUNSEL]: That’s my point. There are things that I have been specifically requesting that Mr. Wingate provide that I have not seen. Yes, I did see some of those new documents today. Some of them — some of them are important, some of them don’t go as far as I believe my client believes they go ...
The judge then asked counsel whether he could represent his client with the vigor and zeal required by the Code of Professional Responsibility, and counsel said that he could. At the end of the inquiry, the judge said to appellant that he had to understand that his counsel was both an advisor and an advocate, and that often a defense attorney’s best advice might be that his client should plead guilty, but that if his client decided not to plead guilty, the attorney’s job would be to act as a zealous advocate; the judge said that based on the inquiries he had just made, he had no reason to believe that appellant’s counsel wouldn’t be capable of advocating with zeal and force and persuasion. Appellant then said that he was seriously concerned because when he mentioned the investigator’s name to counsel that day, counsel didn’t know who he was talking about, and therefore that was his only concern, the vigor and the zeal. Counsel replied that he hadn’t initially recognized his investigator’s name because he had just gone through a lot of documentation with a lot of names and places and times, and the investigator’s name had momentarily slipped his mind because of “just simply being on overload, in terms of trying to remember as many facts as I had to today ...” both in the documentation and in a separate appellate argument he had had that morning.
The judge then ended the Monroe-Farrell inquiry, and stated his findings for the record, saying,
I have had a fuller discussion than probably the prosecutors would have liked, just from the standpoint of how long they have been kept waiting, with [counsel] and Mr. Wingate about [counsel’s] representation, and Mr. Wingate and I have gone through as complete a Monroe-Farrell inquiry as I could go through in this case. I am satisfied that Mr. [Wingate] is competently and adequately and ably represented, and [counsel] that he is prepared for trial, and that there is no basis to either permit him to withdraw, to require him to withdraw, or to have further counsel in this case. I am also satisfied that there is no basis to grant a continuance in this case.15
We can find no abuse of discretion in the “form, substance and scope” of this inquiry. The trial court’s inquiry was tailored to carefully explore the specifics of appellant’s complaints, unlike the situation in Farrell and Pierce. Here, the trial court followed up on each of appellant’s assertions. Further, the court gave appellant several opportunities to state all of his complaints,
D.
It is, of course, true that the pretrial inquiry did not elicit some of counsel’s deficiencies in preparation that were disclosed at the post-trial § 23-110 hearing. But we must evaluate the court’s Monroe-Farrell inquiry on the basis of the situation presented to the court pretrial, rather than by hindsight examination, a procedure that cuts two ways. See McFadden, supra, 614 A.2d at 14 (“this court has scrupulously preserved Monroe-Farrell rights against erosion by hindsight examination of at-trial performance of counsel.”); Bass, supra, 580 A.2d at 672 n. 6; Monroe, supra, 389 A.2d at 821 (D.C. 1978) (“Our review of such an inquiry will focus— as must the trial court’s — on the situation existing at the time of the inquiry.”); (Leon) Matthews, supra, 629 A.2d at 1193 (on remand, trial court determines “whether or not, viewed pretrial, appellant was denied the effective assistance of counsel.”)
At the § 23-110 hearing, and on appeal, appellant’s complaints about trial counsel’s pre-trial preparation were more specific
Appellant now points to several of counsel’s statements to show that the trial court knew of deficiencies in counsel’s preparation, even in areas that appellant had not complained about. Appellant asserts that the court learned that counsel had failed to subpoena a witness, hadn’t prepared an opening statement, and hadn’t made a motion to suppress. However, counsel in fact explained to the trial court his reasons for acting as he had: he planned to subpoena the witness that afternoon, since he expected the government’s case to last for a couple of days; he planned to give his opening statement at the conclusion of the government’s case, and therefore did not have it written out pretrial; and he had not believed that they
Judge Milliken made his finding that counsel’s pretrial investigation into appellant’s alibi defense was constitutionally inadequate after a full-fledged trial-type hearing which lasted for two days, complete with witnesses and cross-examination; he was able to consider counsel’s pretrial performance in light of his trial performance, and because of the nature of the § 23-110 hearing, he was able to reflect for several months before issuing a decision. But hindsight is a powerfully deceptive weapon. It is not difficult to identify how such and such an additional question would have uncovered such and such a fact, especially when the facts into which to inquire are now known. But what we must decide is whether Judge Greene abused his discretion in his conduct of the hearing on counsel’s readiness for trial, based on the complaints and the facts articulated before him at that time. We conclude that he did not.
III.
Turning to appellant’s Strickland claim, we affirm Judge Milliken’s ruling that the claim founders on the prejudice prong.
Judge Milliken also found that even if counsel had produced the hospital’s sign-in and sign-out security log at trial, the log would not have established appellant’s alibi, since it was admitted that the security procedures were not foolproof.
The trial court also took note that the evidence against appellant was strong, that he had the opportunity to present each of his defense theories, including alibi, and that any additional evidence supporting his alibi would have been cumulative. Indeed, one of the counts of which appellant was convicted, destruction of the landlord’s property, had been admitted by appellant in his statement and on the stand (although he tried to retreat from his earlier statement by claiming that he had only done some of the damage; the conviction for burglary (entering the apartment with intent to destroy another’s property) followed almost inevitably from his admission that he had entered the apartment and “trashed some things” because “[y]ou come home and find your wife in bed with somebody what are you going to do?”, and from his admission that he had broken the bathroom fixtures belonging to the landlord.
Affirmed.
. The other offenses were possession of a firearm while committing assault with a dangerous weapon (§ 22-3204(b)), second degree burglary with intent to destroy the property of another (§ 22 — 1801(b)), and destruction of property (§ 22-403). All references to title 22 of the D.C.Code are to the 1989 volume.
. Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), and Farrell v. United States, 391 A.2d 755, 760 (D.C. 1978) were our seminal cases on concerns raised pretrial about the competency of defense counsel. The trial court inquiry mandated by those cases is commonly de
. The Wingates were divorced by the time of the trial, but were still married at the time of the incident that led to appellant’s conviction. They were married in 1983 and separated in 1986; in January or February 1989, Ms. Wingate moved into appellant's apartment because of financial straits. In August 1989, appellant gave the apartment manager a written notice that he was vacating the apartment due to financial problems; at that time, back rent was due and an eviction notice had been served on appellant. On September 1, 1989, Ms. Wingate signed a new lease in her name only, and requested that the locks be changed. At trial, appellant contended that he was still living in the apartment on October 25, 1989, despite the change in the lease and locks, but Ms. Wingate and other witnesses stated that appellant had moved out in August 1989.
. Ms. Wingate testified that she had changed the locks and that she possessed the only two sets of keys.
. He asserted these same facts to the police in a lengthy statement to them several weeks after the incident.
. Appellant testified that he had gone to his sons' Little League practice that afternoon with a coworker, James Coverton, and that Coverton had dropped him at the apartment around 10:00 or 10:30 p.m.; he said that Coverton waited outside and drove him to work afterwards, and that Coverton lent him his car the next morning to go back to the apartment and move out his things. However, Coverton testified that he had not been with appellant that day or lent him his car the next morning; he testified that appellant had asked him to say that they had been together, and that appellant had told him that "he hit a guy with a gun.” Coverton's testimony was the basis for an obstruction of justice charge; the trial judge granted the defense motion for judgment of acquittal on that charge, on the ground that the government had not proven all of the required elements.
. Morton and appellant both testified that in 1986, after appellant and his wife had separated, appellant came to his wife's apartment and found Morton there, and Morton assaulted appellant.
. Appellant filed a timely notice of direct appeal in 1991. After he filed the § 23-110 motion in the trial court, he asked this court to stay his direct appeal pending resolution of the § 23-110. This court ordered such a stay. After Wingate's § 23-110 motion was denied, he noted an appeal from that denial and moved to consolidate the two appeals. This court granted the motion to consolidate the two appeals and vacated the earlier stay of the direct appeal. Appellant raises no issues other than Monroe-Farrell and Strickland.
. Judge Milliken also considered several alleged trial errors by counsel, but concluded that these actions by counsel were either strategic choices or were not in error, a conclusion with which we agree.
. Appellant had told his counsel that the two nurses and the security guard could verify that he had not left the hospital, and that his supervisor, a corrections officer, could verify that he had called in to report the status of the prisoner and therefore could not have left the hospital. At trial, one nurse and the security guard were witnesses, but both testified that they were not sure whether they had seen appellant on the night of the incident. The corrections officer testified at trial that he had no specific memory of the night of the incident. Counsel did not contact the second nurse to testify at trial, because he was told that she was recovering from childbirth and that she knew nothing that could help the defense.
. Many other jurisdictions also use the abuse of discretion standard to review the adequacy of a trial court's inquiry into pre-trial complaints about counsel. See, e.g., Augsberger v. State, 655 So.2d 1202, 1204 (Fla.Dist.Ct.App. 1995); State v. Kazee, 146 Wis.2d 366, 432 N.W.2d 93, 96 (1988); State v. Pursifell, 746 P.2d 270, 273 (Utah App. 1987); Commonwealth v. Chavis, 415 Mass. 703, 616 N.E.2d 423, 428 (1993); U.S. v. Fagan, 996 F.2d 1009, 1014-15 (9th Cir. 1993); United States v. Allen, 789 F.2d 90, 92-93 (1st Cir.), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986); United States v. Laetividal-Gonzalez, 939 F.2d 1455, 1466 (11th Cir. 1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 505 (1922). A higher standard applies when the trial court made no Monroe-Farrell inquiry whatsoever; in such cases we cannot defer to the trial court’s discretion, since the court has failed to exercise any discretion. Instead, the government has to show by clear and convincing evidence that the defendant was represented at trial by an attorney who was prepared within the normal range of reasonable competence. (John) Matthews, supra, 459 A.2d at 1066. However, we emphasized in Matthews that "[w]e adopt the clear and convincing standard of proof only for the particular situation here: where it is demonstrated after trial that the trial court failed to hold any hearing at all prior to trial ...” Id.
. In Farrell the trial court had twice denied the defendant's request for a new attorney before making any inquiry about the defendant’s complaints. "It was only after the trial court had denied each of appellant’s motions that it engaged in any inquiry into appellant's claim. However, the nature of the inquiry belatedly conducted does not mitigate the error.” 391 A.2d at 761. Thus, ”[t]he trial court’s denial of appellant's motion to change counsel without any inquiry, and the deficient nature of the inquiry which it did subsequently conduct into the level of counsel’s preparedness, failed to manifest the requisite solicitude for an accused’s essential right to have the effective assistance of counsel guaranteed by the Sixth Amendment.” 391 A.2d at 762.
. This was defendant's only mention of any possible disagreement on strategy. Coming as it did shortly after the colloquy about the dispute over the "strategy” of plea bargaining, we think the trial court could reasonably conclude that defendant was referring to that disagreement, especially since any disagreement over strategy was never raised again.
. Appellant had made a complaint to police after Morton had assaulted him in 1986, see n. 7, supra. However, appellant had not known Morton’s name when he filed the complaint, as Ms. Wingate had refused to provide any information to appellant or to police. When counsel finally did obtain the report, during trial, it merely said that appellant had been assaulted by an unknown suspect and had been treated at the hospital. As already noted, see n. 7, supra, Morton admitted at trial that he had assaulted appellant in 1986.
. The judge continued dealing with pretrial matters, including a brief hearing on one of the issues that had been raised during the Monroe-Farrell inquiry, namely, whether appellant's statement to the police should be suppressed. Counsel had not filed a motion to suppress earlier, but said during the inquiry that something appellant had said to him a couple of days before had led him to believe (contrary to his earlier analysis) that he might have grounds to move to
. The judge asked appellant at the outset of the inquiry what reasons he had to think that he was not ready for trial, and asked three more times what other reasons appellant had for believing that he was not ready. After appellant had articulated all of his reasons, the judge made many inquiries as to counsel’s preparation, and then the judge returned to appellant, asking him if he had a response to what counsel had said. The judge then followed up on the concerns appellant articulated at that point, and then concluded the inquiry.
. See also State v. Hamilton, 636 A.2d 760, 762-4 (Conn. 1994), holding that a trial court did not abuse his discretion in refusing to grant a continuance for the purpose of possibly retaining new counsel; the court held that
an appellate court should limit its assessment of the reasonableness of the trial court's exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion...
. At the § 23-110 hearing, appellant described documents other than the police report that counsel failed to subpoena, i.e., a sign-in log from Georgetown Hospital and records from the Dept, of Corrections. However, appellant conceded that during the Monroe-Farrell hearing, he had said that the police report was the only piece of information he thought was lacking.
. At the § 23-110 hearing, appellant testified that he had initiated all conversations with counsel, and that counsel had left him completely in the dark about the defense theory they would present at trial. However, Judge Milliken did not credit appellant's assertions. Appellant also testified that counsel never prepared him to testify and that he was forced to testify without preparation because no other witnesses were available, but Judge Milliken did not credit that assertion either.
. Appellant had attended Montgomery College and Langston University and was a Marine Corps veteran.
. Near the end of the inquiry, after appellant had aired several complaints, he raised his concern with the fact that counsel had not immediately recognized the investigator’s name when appellant mentioned it, and that appellant was therefore worried about counsel’s zealousness as his advocate. At that time, appellant said, "[t]hat is my only concern — the vigor and the zeal. That is my only concern, is the vigor, the zeal and the concentration. That is my only concern." This statement starkly conveyed the message that appellant had no further concerns which he had not aired as yet.
. Cf. Pursifell, supra note 11, 746 P.2d at 272-74 (Utah App. 1987) (where court mainly inquired into issue that was focus of defendant's complaint, no reversible error, even though defendant suggests on appeal that “had the trial court conducted a more extensive inquiry into the reasons for defendant's dissatisfaction, it would have uncovered a myriad of complaints about the quality of defendant's representation.”)
. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel's performance was constitutionally deficient, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. See Kinard v. United States, 635 A.2d 1297, 1303 (D.C. 1993). Since we agree here with the trial court that there was no such prejudice, we do not reach the question of whether counsel was in fact ineffective. Id. (since failure to make either showing of prejudice or deficiency will defeat the § 23-110 motion, court may resolve the motion by examining only the prejudice prong).
. Although Judge Milliken did not specifically make a finding of why there was no prejudice with regard to the other two witnesses (the corrections officer and the second nurse, see note 10, supra), the same reasons would seem to apply to these witnesses as to the security guard and the first nurse.
. Furthermore, Judge Milliken specifically found that since appellant did not have the nurses or the security guard testify at the § 23-110 hearing, he did not credit appellant’s assertions that he had spoken to these witnesses soon after the incident and that they had remembered his being at the hospital on October 25, 1989.
. Similarly, while Judge Milliken found that counsel was deficient in delaying until the second day of trial to subpoena business records from the Department of Corrections relating to appellant's duty assignment, the judge concluded that they did not support the alibi defense and would not have affected the outcome of the trial.
. We see no basis for concluding that counsel’s failure to listen to the radio run until trial resulted in cognizable prejudice to appellant. Despite appellant’s creative depiction in his brief of a closing argument that could have been based on the radio run, an argument based on such depiction is completely speculative and there was no "reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068. Furthermore, appellant claims that if counsel had listened to the radio run earlier, he could have argued that the 911 call showed that Ms. Win-gate at first denied knowing the man who entered her apartment. His counsel, however, made that very point when cross-examining Ms. Wingate.
. Furthermore, appellant does not suggest that the proposed alibi witnesses could have given any testimony that would have exonerated him from the burglary or destruction of property charges.
Dissenting Opinion
dissenting:
Unlike my colleagues, I cannot say that the trial court’s pretrial inquiry was sufficient to meet the strictures of Monroe-Farrell. A more searching inquiry would have revealed the inadequacies in trial counsel’s performance as subsequently disclosed in the hearing under D.C.Code § 23-110, which the trial court found to be constitutionally deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Even on the basis of the pretrial record developed, it appears that counsel was “unprepared to give effective representation at trial, [and] appellant was constitutionally entitled to the appointment of new counsel.” Farrell v. United States, 391 A.2d 755, 762 (D.C. 1978).
During the Monroe-Farrell hearing, appellant made the following complaints to the trial court about his counsel’s representation: (1) that counsel had pressured him to plead guilty;
Although the Monroe-Farrell inquiry was lengthy, the trial court failed to “ascertain the concrete steps taken by counsel in preparation of the case and to evaluate their sufficiency under the circumstances.” See Monroe v. United States, 389 A.2d 811, 819 (D.C. 1978). Specifically, the trial court did not focus on appellant’s claim that his counsel had not investigated the case or prepared a defense. Instead, the court directed its attention to counsel’s reasons for not seeking a continuance and appellant’s claim of lack of preparation for trial based on his failure to receive a police report from Prince George’s County. The court’s remaining inquiry, concerning discovery, witnesses, physical evidence, investigation of the crime scene, and counsel’s failure to file pre-trial motions, eon-sisted of standard questions to which the court did not insist upon specific answers. Such a routine inquiry “ ‘[left the] judge entirely unaware of the facts essential to an informed decision [as to defense counsel’s preparedness for trial].’ ” Farrell v. United States, 391 A.2d 755, 761-62 (D.C. 1978) (quoting von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948)). The court’s inquiry failed “to determine at the time of the defendant’s complaint ‘the truth and scope’ of his allegations.” Matthews v. United States, 459 A.2d 1063, 1065 (D.C. 1983).
While the scope of the inquiry depends upon the circumstances in each case, this court has identified criteria for determining whether counsel’s preparation falls within the range of competence required by defense counsel in a criminal case, none of which were fully met here. The criteria include:
(1) whether counsel conferred with the defendant as often as necessary and advised him of his rights, (2) whether counsel elicited from the defendant matters of defense and then ascertained if any potential defenses were unavailable, and (3) whether counsel conducted both a factual and legal investigation sufficiently in advance to permit reflection and to determine if matters of defense could be developed.
First, although the court inquired about, and counsel informed the court that he had conferred with appellant about trial issues between 10 and 15 times and had spoken with him between 30 and 40 times, the trial court did not question whether that time was devoted to preparing a defense, as opposed to plea discussions. Since appellant claimed that counsel had not developed a defense, had left investigation to him, and had not reviewed his “paperwork,” the court failed in its responsibility to elicit information to determine whether appellant’s allegations about counsel’s failure to prepare to defend were true. Counsel admitted that he had not informed appellant initially of his rights because appellant had previously given a lengthy statement to police. However, the court did not inquire whether counsel informed appellant of his rights at any time.
Second, despite appellant’s allegations that counsel had not “overlooked” his “paperwork” until the day of trial and had not developed a defense, the trial court did not inquire into the type of investigation counsel undertook in an effort to establish a defense or to ascertain the viability of any defense. Such an inquiry would not have required the court to “evaluate the strategic options open to an attorney ... or to otherwise engage in speculative judgments[ ]”, but it would have allowed the court to “evaluate the[ ] sufficiency [of counsel’s preparation] under the circumstances.” Monroe, supra, 389 A.2d at 819. The trial court elicited no information about the “concrete steps taken by counsel in preparation of the case.” Id. Instead, it accepted counsel’s general assertions that witnesses had been contacted and that two investigators had been hired. The trial court was not informed of whether appellant provided counsel with defense leads or whether any such leads were investigated by counsel.
The third criterion, which focuses on whether counsel has made a factual and legal investigation sufficiently in advance to permit reflection and to determine if a defense could be developed, was not met. The court’s inquiry revealed that counsel had failed: (1) to investigate the crime scene, (2) to subpoena a particular police report, (3) to file a motion to suppress appellant’s lengthy statement to the police, (4) to subpoena defense witnesses, and (5) to prepare for voir dire and opening statements. Nevertheless, the court found counsel’s explanations for his omissions to be satisfactory, and it never questioned the extent of counsel’s actual preparation. The trial court inquired only generally about such matters as whether counsel had sought discovery and whether there were issues of identification. Although the court asked counsel whether he had time to prepare, it did not ask whether he actually had prepared for trial. The trial court’s failure to elicit the information required by Matthews and to “ascertain the concrete steps taken by counsel in preparation of the ease,” Monroe, supra, 389 A.2d at 819, shows that the Monroe-Farrell inquiry was not “sufficient to determine the truth and scope of the defendant’s allegations.” Nelson, supra, 601 A.2d at 591.
In my view, reversal is warranted in this case because the Monroe-Farrell inquiry was inadequate and because the record of that hearing demonstrates that trial counsel was not prepared “ “within the normal range of reasonable competence demanded of attor
. The following are examples of appellant’s efforts to inform the court about his own decision to defend the case and his counsel's attempt to persuade him to enter a plea of guilty while failing to discuss with appellant defense strategy:
[F]rom day 1 [my attorney] has represented me, from day 1 I was arrested, he has always wanted me to cop a plea.
:£ ‡ * * * *
When I lost my job, [my attorney] conveyed to me to again accept the plea offer.... He strongly urged me to accept it.... From day 1 I decided to fight_" (emphasis added).
* & * * * *
[My attorney] — seems as though he’s been working with the Government to plea bargain. He's not talking about any defense, he's always talked to me about settling, plea bargain, (emphasis added).
. In this regard, appellant stated:
[TJoday when I produced this [complaint form], I said, ... fight on my behalf. When we were before Judge King, I tried to tell him I was not ready. Tuesday I told him I was not ready, I said because we did not come to an agreement on my defense strategy and I was still waiting on some pertinent information along with the case, (emphasis added). During the lunch break I produced this and said, 'Talk on my behalf or I will fill this out and send it to bar counsel.
When we were before Judge King, I told [him] — I was trying to get his attention and said, "Look, I'm not ready.” He told me to be quiet and he told Judge King that he was ready. Tuesday night when we talked, I told him I was not ready and I was still waiting on some pertinent information on my defense to come in.
. In response to the court's question as to why appellant thought he was not ready for trial, appellant stated, “All right. One key piece of information was a police report that I need to obtain from P.G. County.” Appellant referred to the report again when the trial court asked if there were other reasons he felt unprepared for trial: "Like I said, those are the two distinct reason — because I haven’t received the papers, and he hasn’t tried to subpoena them or anything.”
. Appellant told the trial court that:
That's the other thing I was going to say, Your Honor, its that all the information that needs to be gathered, [my attorney] had me gather it — witnesses, character witnesses, information.
. Appellant stated:
My major concern is the lack of concern for my wellbeing and the lack of concern for my counsel on innocent until proven guilty. That is my major concern, along with the initiative to take time out to overlook the paperwork to substantiate what I’m telling him beforehand. Today was the first time he looked at it at all in person briefly.
. After the trial court explained that when a client decides not to plead guilty, an attorney’s "job is to advocate before the Court and the jury with zeal and force and persuasion,” appellant responded:
*1289 Like I say, that is the only thing I request, and I have serious concern with that because when we were talking at lunchtime I mentioned to [my attorney] that one of his investigators, Mr. Glydd (phonetic), he was like — he didn't even know who I was talking about. That is my only concern — the vigor and the zeal. That is my only concern, is the vigor, the zeal and the concentration. That is my only concern.
. See notes 1 and 2 supra.
. The following questions and answers between the court and counsel occurred:
Q: [Counsel], do you have any reason to believe that if this case goes to trial, you cannot represent your client with the vigor and the zeal that the Code of Professional Responsibility requires in this case?
A: Subject to one proviso, that I would need to take some amount of time to be with my wife.
******
Q: But I mean while the case is in trial, could you represent—
A: In other words, I was here if I was given some amount of time to be there?
Q: Yes.
A: I don’t see any reason why I couldn't.
Q: Well, would you? Would you represent him with the zeal and the vigor that is required of counsel under the Code of Professional Responsibility?
A: I could and it’s my — been my intention to provide such representation.
Q: And you would do so? Is that what you’re telling me?
A: I hope I would do so, yes.
Q: Well, sir, do you have some reason to think you wouldn’t?
A: No, there is no reason to think that I wouldn’t, Your Honor.
. Contrary to the government's argument, this case is similar to the situation presented in McFadden v. United States, 614 A.2d 11 (D.C. 1992), where this court reversed the judgments of conviction because of trial counsel's inadequate preparation for trial. See id. at 18. In McFadden, the trial court had failed to make a " 'substantive inquiry ... to elucidate from counsel information to rebut, or substantiate the specifics of [defendant's] complaints.' " Id. at 16 (quoting Monroe, supra, 389 A.2d at 821). However, unlike this case, counsel admitted more fully and explicitly that he had failed to confer adequately with the defendant, had not investigated the case factually or legally, had not located or ascertained the witnesses and had not determined the theory or defense as of the scheduled trial date. We reversed "because the record revealed both that the type of inquiry contemplated by Monroe did not occur ... and that there was inadequate trial preparation and consultation by counsel.” Id. at 18.
Reference
- Full Case Name
- Joseph D. WINGATE, Appellant, v. UNITED STATES, Appellee
- Cited By
- 16 cases
- Status
- Published