Thomas v. United States

772 A.2d 818, 2001 D.C. App. LEXIS 114, 2001 WL 520965

Opinions

REID, Associate Judge:

After a jury trial, appellant Charles Thomas was convicted of assault with a dangerous weapon (“ADW”), in violation of D.C.Code § 22-502. On appeal, Thomas raises one direct, and two collateral challenges, to his conviction. We affirm.

FACTUAL SUMMARY

According to the government’s evidence presented at trial, on November 21, 1991, Junious W. Roberts, Jr., now deceased due to an unrelated matter, took a short afternoon break from his job as a janitor with the Walter Reed Army Hospital, in the District of Columbia, during which he consumed approximately forty ounces of beer. As he returned from his break, an individual approached him and hit his lower left leg with what appeared to be a pipe. Mr. Roberts testified that he “got a really good ... look” at his assailant, and that he “remembered his face” from “all up and down Georgia Avenue,” in the District.

Detective Loren Cook, an eleven-year veteran of the Metropolitan Police Department (“MPD”), who had interviewed Mr. Roberts while he was recovering from his injuries at the Washington Hospital Center, testified on cross-examination that “[Mr. Roberts] stated that he had been drinking,” but agreed that “[a]side from the fact that he said that, [he] did [not] appear to be under the influence of alcohol.” Defense counsel did not pose an objection to this testimony. Although Mr. Roberts could not recall the name of his assailant, he “described the individual as a Black male, approximately twenty-six to thirty-two years of age. Approximately five foot eleven, weighing approximately 195 pounds,¹ dark complected ... wearing [a] black hat, black pants and a grey sweatshirt....” Mr. Roberts also stated that his assailant had “[b]rown” eyes and “black” hair.

Detective Melvin Hemphill, an MPD Officer with over twenty years of experience, testified that on January 3, 1992, as Mr. Roberts examined a photograph array, he “got to the picture of Mr. Thomas” and said, “[t]his is him right here.” He then “continued to go through the stack of pictures and came back to [Mr. Thomas’s picture] and said ‘[t]his is him right here.’ ” Based upon this identification, Detective Hemphill scheduled a line-up of eight individuals, and, on February 21, 1992, Mr. Roberts selected Thomas from the line-up.

Thomas was found guilty on the ADW count, but the jury deadlocked on the mayhem while armed count. Subsequently, he was sentenced to a term of thirty to ninety months in prison. He filed a timely direct appeal.

ANALYSIS

The Direct Appeal

The Pre-Trial Claims of Ineffective Assistance of Counsel

Thomas contends that the trial court conducted an inadequate pre-trial hearing concerning his assertions of ineffective assistance of counsel. “[W]hen a criminal defendant complains pretrial about the performance of counsel, the trial judge must make an on-the-record inquiry to elicit whether or not the criteria of professional competence have been met and make findings of fact sufficient to permit appellate review of the ability and preparedness of counsel to render effective assistance.” Gordon v. United States, 582 A.2d 944, 945 (D.C.1990) (citing 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)). The trial court may, in its discretion, determine “ ‘the exact nature of the inquiry....’ ” Lane v. United States, 737 A.2d 541, 552 (D.C.1999) (quoting Nelson v. United States, 601 A.2d 582, 592 (D.C.1991)); see also Wingate v. United States, 669 A.2d 1275, 1279 (D.C.1995).

The record before us shows that the trial court fully explored Thomas’s alleged dissatisfaction with his counsel. Prior to trial, the trial judge specifically asked Thomas:

[I]s there anything about your preparation for trial with [defense counsel] that causes a problem for our proceeding to trial? I mean, are you ready for trial? ... [D]ifferences in personality and style can exist no matter who your lawyer is. [B]ut objectively ... are there any witnesses ... is there any evidence, is there something that is out there that [defense counsel] has not investigated for you?

To this question, Thomas responded:

Just about everything I think he did, that I think that he did. I can’t think of nothing right offhand that he hasn’t.... I think all I would like to do is contact some people, but I have no access to that, so.

Defense counsel stated:

If I might, Your Honor, one of the witnesses that Mr. Thomas is referring to is somebody who we think was an eyewitness to the offense. And my investigator is trying to get him served _[a]s we speak. My understanding from my investigator is that he had contact -with this individual on Tuesday.... And apparently did not serve a subpoena on him for reasons known to him, and what I understand were good reasons, but I have told him to go back again and try to locate this individual and serve him.

After learning that Thomas’s counsel essentially had resolved the main issue behind his pre-trial claim, the trial judge then stated, “[s]o I gather all of these matters are being worked on even as we speak?” Defense counsel agreed.

In viewing the record, we conclude that the trial judge’s specific inquiry was “sufficient to determine the truth and scope of [Thomas’s] allegations,” Monroe, supra, 389 A.2d at 820, and was “designed to elicit whether or not the ... criteria of professional competence ha[d] been met.” Id. at 821. Defense counsel devoted time during a two-year period to the preparation of Thomas’s case and there is no indication, as there was in McFadden v. United States, 614 A.2d 11 (D.C.1992), that he had insufficient time to prepare Thomas’s case. Thomas’s chief complaint was that he wanted to contact certain witnesses. However, the record shows that none of the witnesses would have testified that Thomas did not commit, or could not have committed, the acts with which he was charged. Furthermore, based upon Thomas’s responses to the trial judge, the trial court was not required to appoint new counsel because there was clearly no “ ‘good cause, such as conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which [could] lead ... to an apparently unjust verdict.’ ” Johnson v. United States, 585 A.2d 766, 771 (D.C.1991) (quoting McKee v. Harris, 649 F.2d 927, 931 (2d cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982)). Therefore, we conclude that defense counsel “was prepared ‘within the range of competence demanded of attorneys in criminal cases.’” Nelson, supra, 601 A.2d at 592 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). In addition, we are satisfied that the trial court did not abuse its discretion in conducting its inquiry into Thomas’s complaint, since Thomas was questioned on the record about his complaint, and defense counsel provided details for the trial judge. Id.

Detective Cook’s Testimony That Mr. Roberts Did Not Seem To Be Intoxicated

Thomas argues that the trial court committed plain error in permitting Detective Cook to testify that Mr. Roberts did not appear to be under the influence of alcohol, because the government did not provide “[a]n adequate foundation for [the Detective’s] lay opinion.” In Harris v. District of Columbia, 601 A.2d 21 (D.C.1991) we held that “lay witness [ ] testimony] as to whether a person is under the influence of alcohol” id. at 25 n. 5, is admissible as long as a foundation has been established showing that “the witness ha[d] a reasonable degree of experience in observing persons who are under the influence of [alcohol].” Id. at 25. However, we further held that in situations “where that matter has not been explored, such a foundation has been assumed to exist.” Id. at 25 n. 5 (quoting Durant v. United States, 551 A.2d 1318, 1324 (D.C.1988)).

In the instant case, it is clear that the predicate or foundation for Detective Cook’s lay testimony was “not [] explored,” id., at trial because, as Thomas concedes, defense counsel failed to pose any objection to Detective Cook’s testimony concerning his belief that Mr. Roberts was not intoxicated. Under these circumstances, “such a foundation [is] assumed to exist,” id., and “alcohol intoxication is considered to be a matter of common knowledge,” Durant, supra, 551 A.2d at 1324. Moreover, as the trial court concluded, Detective Cook’s testimony enabled the jury “[to] determine for itself Mr! Robert’s level of impairment.” Therefore, we see no error, let alone plain error. Brawner v. United States, 745 A.2d 354, 357 (D.C.2000).

Defense Counsel’s Failure To Object To Evidence Presented At Trial Concerning Thomas’s Prior Convictions

Thomas maintains that the “trial court committed plain error by permitting the prosecutor to”: 1) “admit extrinsic evidence of prior convictions [ ] that [ ] he did not deny”; and 2) “argue in closing and rebuttal that [he] had lied.” In addition, he contends that the trial court erred by permitting the government to conduct an improper cross examination of him, with regard to his prior convictions. ‘“Under the plain error standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.’ ” Brawner, supra, 745 A.2d at 357 (quoting Coates v. United States, 705 A.2d 1100, 1104 (D.C.1998)) (other quotations and internal quotation marks omitted). This court will reverse under the plain error standard “‘only in exceptional circumstances where a miscarriage of justice would otherwise result.’ ” Id. (quoting Peterson v. United States, 657 A.2d 756, 762 (D.C.1995)) (other quotations and internal quotation marks omitted). Furthermore, “[questions assuming the existence of a factual predicate must be grounded in a good faith belief that those facts are susceptible to proof by competent evidence.” Ali v. United, States, 520 A.2d 306, 313 (D.C.1987) (citation omitted).

Even assuming, without deciding, that the trial court committed error, Thomas has failed to show that he suffered “substantial prejudice” as a result of trial court error. See Bowman v. United States, 652 A.2d 64, 71-72. Furthermore, “given the strength of the government’s case and the weakness of the defense ..., any possible harm ... was ‘too trivial too worry about.’ ” Washington v. United States, 760 A.2d 187, 196 (D.C.2000) (quoting Scott v. United States, 619 A.2d 917, 929 (D.C.1993)).

First, with respect to the use of extrinsic evidence regarding Thomas’ pri- or convictions, for impeachment purposes, the prosecutor based his questions on a Pretrial Services Agency report indicating that Thomas had two prior felony carrying a dangerous weapon (“CDW”) convictions. Thus, the factual predicate for the prosecutor’s questions was “grounded in a good faith belief that ... [he could establish the prior convictions] ... by competent evidence.” Ali, supra, 520 A.2d at 313. Furthermore, although the government introduced a certification of Thomas’s convictions for carrying a pistol without a license (“CPWL”), unregistered firearm (“UF”), and unlawful possession of ammunition (“UA”) during its rebuttal, we cannot say that the trial court plainly erred in admitting the certification, given the close relationship between CDW and CPWL. See Cooke v. United States, 107 U.S.App. D.C. 223, 224-25, 275 F.2d 887, 888-89 (1960); Lucas v. United States, 256 A.2d 574, 575 (D.C.1969).

Second, the jury was presented with significant damaging testimony from Thomas, himself, during trial. Thomas testified that he was a crack cocaine abuser and that he had been previously convicted of attempted possession of PCP, possession with intent to distribute marijuana, and, on two occasions, possession of marijuana. Nonetheless, after hearing the government’s assertions that Thomas “lied” during trial, the jury deadlocked on the mayhem while armed count, and convicted Thomas on the lesser included offense of ADW. Thus, even assuming, without deciding, that the government’s closing and rebuttal arguments, as well as the cross-examination of Thomas, as to his prior convictions, were improper, they were “harmless beyond a reasonable doubt because there is no reasonable possibility that [they] contributed to [Thomas’s] convictions.” Brewer v. United States, 559 A.2d 317, 323 (D.C.1989) (citing Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

In short, we conclude that the trial court’s failure to intervene, sua sponte, to correct the government’s alleged errors, did not result in substantial prejudice to Thomas, requiring a reversal. See Morrison v. United States, 547 A.2d 996, 1000 (D.C.1988).

The Collateral Attacks

On March 18, 1996, Thomas filed a D.C.Code § 23-110 motion to vacate his sentence. He maintained that he was denied the effective assistance of trial counsel because his counsel: (1) failed to introduce a toxicology report into evidence or call an expert witness on intoxication; (2) failed to give an opening statement; and (3) failed to elicit damaging hearsay evidence from Mr. Roberts on cross-examination. Based on the evidence presented at trial, the trial court denied the motion. On August 26,1996, Thomas filed a motion for reconsideration, which was denied on October 11, 1996. Thomas noticed a timely appeal.

Thomas lodged a second § 23-110 motion on March 19, 1999, alleging trial counsel failed to: (1) hire an expert to interpret blood-alcohol concentrations; (2) prepare adequately for trial; (3) impeach witnesses with inconsistent statements; (4) object to hearsay; and (5) object to the use of his CPWL conviction as a CDW conviction. The trial court denied this motion on August 12, 1999, essentially because “[n]one of the allegedly new issues ... warranted] consideration .... ” and Thomas failed to show cause for the failure to raise the new issues in his first § 23-110 motion or “a fundamental miscarriage of justice.”

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we see no merit to Thomas’s § 23-110 claims, see also Brown v. United States, 726 A.2d 149 (D.C.1999); nor are we persuaded by his assertion that the trial court “improperly denied without a hearing [his] second post-conviction motion.” ² Strickland, supra, requires Thomas to “show that counsel’s performance was deficient ..., [and] that the deficient performance prejudiced the defense .” Id. at 687. Under the second Strickland prong, Thomas cannot show prejudice with regard to his first § 23-110 motion. Mr. Roberts described and specifically identified Thomas as his attacker on three occasions, and testified that he was certain Thomas was his attacker. Mr. Roberts had an opportunity to see Thomas during the assault, and recognized him as a member of the local community surrounding Georgia Avenue. He stated that he would “never forget” Thomas’s face. In addition, Thomas was unable to present any witnesses to corroborate his alibi that he was working at a beauty parlor at the time of Mr. Roberts’ assault. Therefore, the trial court did not abuse its discretion in denying Thomas’s first § 23-110 motion.

With regard to Thomas’s second § 23-110 motion, we have said that when a defendant “ ‘has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.’ ” Matos v. United States, 631 A.2d 28, 30 (D.C.1993) (quoting Head v. United States, 489 A.2d 450, 451 (D.C.1985) (citation omitted)).³ Indeed, the “abuse of writ” doctrine precludes consideration of “claims not raised, and thus defaulted, in the first [collateral] proceeding,” McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); and § 23-110(e) states that, “the court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”

Thomas provided no “affidavit or other credible proffer” to support his allegations of ineffective assistance of counsel, and thus, was not entitled to a hearing on his second collateral attack motion. Ready v. United States, 620 A.2d 233, 235 (D.C.1993); see also Lane, supra, 737 A.2d at 552. Furthermore, we agree with the trial court’s conclusion that he has not sustained his burden to show cause and prejudice.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

So ordered.

Footnotes

1

. At trial, the parties stipulated that in November 1991, Mr. Charles Thomas was five feet eleven inches tall and weighed 198 pounds.

2

. With regard to Thomas’s appeal of the denial of his motion for reconsideration of his first § 23-110 motion, we note that: "The denial of a [mjotion for [r]econsideration, by itself, is not an appealable order.” Perry v. Sera, 623 A.2d 1210, 1221 n. 10 (D.C.1993) (other citations omitted).

3

. There was a three-year delay between Thomas’s first and second § 23-110 motions. Although he argued, for the first time, that defense counsel was ineffective because he failed to use Mr. Robert’s grand jury testimony to impeach him, and raised other new particulars, Thomas failed to meet the requirement of Matos, supra, that he show “both cause for his failure to [include these matters in his first § 23-110 motion,] and prejudice as a result of his failure.” Id. at 30. (quotation and citation omitted).