Johnson v. United States

613 A.2d 888, 1992 D.C. App. LEXIS 213, 1992 WL 193735
District of Columbia Court of Appeals·Decided August 14, 1992·No. 89-CF-818, 91-CO-218·Published·Cited by 29 cases

Opinions

PER CURIAM:

On February 6, 1989, appellant was convicted by a jury of first degree burglary, D.C.Code § 22-1801(a) (1989 & 1991 Suppl.), assault with a dangerous weapon, iron, id. at § 22-502, malicious disfigurement while armed, id. at §§ 22-506, -3202, and rape while armed, id. at §§ 22-2801, -3202. After he filed a timely notice of appeal, appellant filed a motion for a new trial under D.C.Code § 23-110 (1989) claiming ineffective assistance of counsel and newly discovered evidence. Following a hearing, the trial court denied most of appellant’s collateral claims.1

[891]*891Appellant now asserts the following claims on consolidated appeal: (1) the trial court erred in denying his § 23-110 motion for a new trial based on his claim of ineffective assistance of counsel; (2) appellant did not knowingly waive his constitutional right to testify at trial; (3) the evidence presented at trial was insufficient to support a conviction for burglary; (4) the evidence was insufficient to support a conviction for armed rape; (5) the trial court abused its discretion in admitting a photograph of complainant’s injury; (6) the trial court abused its discretion by examining the complainant and the government’s medical expert; (7) the trial court erred when it failed to declare a mistrial or provide a curative instruction after the prosecutor commented on appellant’s theory of the case during rebuttal argument; and (8) the trial court abused its discretion when it imposed a sentence based on inadequate information and unfounded assumptions.

We unanimously affirm with respect to seven of the questions presented for the reasons set forth hereafter.2 As to the contention that the evidence was insufficient to support the burglary conviction, a majority of the court rejects appellant’s contention and concludes that the evidence presented was sufficient for the reasons set forth in Judge Kern’s opinion following the per curiam opinion. Judge Ferren’s dissent on this issue is contained in his opinion.

I.

Between 1982 and 1987, appellant and the complaining witness, Nieolle Townes, engaged in what might best be described as an up-and-down romance, punctuated by frequent arguments and fighting. Ms. Townes testified that she attempted to break up with appellant during December 1987 and January 1988. On January 27, 1988, appellant called Townes and asked to see her. She agreed to see him at her house the next day. Sometime around 1:30 a.m. on January 28, 1988, appellant telephoned Townes, but her mother, Antonia DaSilva, who lived with her, answered the phone and hung up. DaSilva testified that appellant then called over and over and that each time she hung up on him. About a half hour later, DaSilva heard appellant knocking on their front door and calling out Townes’ name. Both DaSilva and Townes ignored appellant, and he soon left. Later, DaSilva heard another knock on the door and looked out the window and saw appellant’s van. Appellant returned to his van and blew his horn for “quite awhile” before leaving again.

Around 8:30 a.m., after DaSilva had left for work and while Townes was ironing in her bedroom, appellant returned again and knocked on the front door, called out Townes’ name, and, when no one answered, entered the house. There was no evidence of forced entry, but there was evidence that appellant knew a pane of glass was missing from a door on the ground floor of the house. Appellant walked up the stairs and into Townes’ bedroom. According , to Townes, she crouched down in her doorless closet. After appellant entered the room and saw her, he hugged and kissed her once and told her that he missed her. The two then began to argue about where she recently had been. After the argument intensified, Townes told appellant to leave. He refused, struck her, picked up the hot iron off of the ironing board and, according to Townes, “put it on [my] stomach and [my] breasts.” Appellant returned the iron to the ironing board as Townes ran downstairs to the front door in an attempt to escape. Appellant somehow prevented her from leaving, and Townes then ran to the basement in an effort to flee through the basement door, but appellant stopped her again. Appellant told her to go upstairs, take off her pants, and lie down on her bed. In great pain from the burn, Townes complied, fearing appellant might hurt her again. Appellant then had sexual intercourse with her.

[892]*892Over the next several hours, Townes tried once to hide from appellant in her mother’s room, a friend of her mother’s knocked on the front door but left when no one answered, and at some point appellant fell asleep lying in bed with Townes. Townes did not attempt to escape while appellant was asleep. When appellant woke up, Townes made him a sandwich at his request, then the two left the housé together around 5:00 p.m. Once outside, Townes fled screaming and crying to the home of a neighbor, Juanita Rose. Townes told Rose that appellant had burned and raped her and showed Rose her terrible burn. Townes called her mother, who immediately left work to come to take her home. Sometime later, DaSilva called the police and an ambulance. The Washington Hospital Center admitted Townes at about 9:00 that night, and she stayed there for five days.

Townes spoke to the police at the hospital but did not tell them she had been raped because she was not sure “if it was considered rape” since she and appellant had been “going together.” Dr. Marion Jordan, director of the Hospital’s burn unit, treated Townes and later testified for the government at trial. According to Dr. Jordan, Townes received superficial to moderate second degree burns over a Y-shaped area extending across the left breast down almost to the navel and up on to the right breast. The burn was extremely painful and left a permanent scar.

II.

Appellant claims the trial court erred in refusing to rule that his defense counsel had provided ineffective assistance by failing to investigate and present favorable medical evidence, failing to understand the necessary, evidentiary foundation for presenting a theory of self-defense, and failing to advise appellant fully concerning his right to testify. Before evaluating these claims, we briefly recount the relevant events at trial and the evidence at the § 23-110 hearing where burn specialist Dr. Carlos Silva, appellant’s trial counsel, and appellant testified.

Before trial, defense counsel consulted a D.C. General Hospital intern or surgeon who was not a burn specialist about the nature of Townes’ burn. Counsel, however, did not show the physician one of the many available photographs of the burn. At trial, defense counsel used medical records to cross-examine the government’s medical expert, Dr. Jordan, but did not present a medical expert of his own. At the § 23-110 hearing, appellant argued that defense counsel had been deficient in failing to discover and present favorable medical evidence at trial. Dr. Silva testified for appellant at the hearing. He agreed in large part with the testimony of the government’s expert at trial, Dr. Jordan, regarding the severity of Townes’ burn and other technical details. Based on his review of the medical record and photographs of the burn, however, Dr. Silva concluded that the most likely cause of the burn was water or steam and not direct contact between the iron and Townes’ skin.

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Johnson v. United States, 613 A.2d 888, 1992 D.C. App. LEXIS 213, 1992 WL 193735 (D.C. 1992).

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