Truesdale v. United States

• Court: District of Columbia Court of Appeals
• Decided: March 5, 2026
• Docket: 18-CO-1174
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CO-1174

LEON TRUESDALE, JR., APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (2010-CF1-011562)

(Hon. William M. Jackson, Trial Judge)

(Argued September 28, 2022 Decided March 5, 2026)

Gregory G. Marshall, with whom Anna M. Lashley was on the brief, for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time of argument, and Chrisellen R. Kolb, Nicholas P. Coleman, Pamela S. Satterfield, and Jocelyn Ballantine, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and HOWARD, Associate Judges.

Opinion for the court by Associate Judge BECKWITH.

Dissenting Opinion by Chief Judge BLACKBURNE-RIGSBY at page 39. 2

BECKWITH, Associate Judge: Calvin “Mike” Godsey, a marijuana dealer, was

fatally shot in the stairwell of his apartment building while making a sale. The

government’s theory was that although the appellant, Leon Truesdale, did not fire

the shots that killed Godsey, Truesdale was guilty of felony murder because Godsey

was killed during a robbery that Truesdale planned with his friend Corey Hilton, the

admitted shooter of the fatal shots. Though no physical evidence placed Truesdale

at the site of the shooting and a disinterested government witness testified that

Truesdale was not among the assailants he saw running from the scene, Hilton

testified pursuant to a plea deal that Truesdale was present, armed, and part of the

plot to rob Godsey. Another witness, Aaron Cook—a mutual friend of Hilton and

Godsey who had arranged the sale—likewise implicated Truesdale after the

government gave Cook immunity.

Truesdale’s defense theory was that he was nearby, but not present, when the

shooting occurred and that although he planned to buy marijuana, he was unaware

of and played no role in the robbery that led to Godsey’s death. While Hilton went

with Cook (the go-between) to Godsey’s building to buy the drugs, Truesdale

remained in a minivan down the street and was surprised when Hilton and Cook

came hurrying back—Hilton carrying a gun and limping—before they all made their

escape in the van. The testimony of Hilton and Cook that was at odds with this 3

account was, Truesdale contended, severely undercut by their stark bias and by the

fact that they gave conflicting descriptions of Truesdale’s purported actions in the

stairwell. A jury rejected this theory and convicted Truesdale of first-degree felony

murder while armed, armed robbery, and a number of related offenses.

At issue in this appeal is Truesdale’s assertion—first presented in a motion he

filed in Superior Court under D.C. Code § 23-110—that his otherwise viable

innocent-presence defense was doomed by the deficient performance of his trial

lawyer, who did not file a single pretrial motion, did no legal research for the case,

appeared to misunderstand the proof required to convict Truesdale of felony murder,

failed to adequately prepare Truesdale to testify, and himself did not prepare for—

and therefore often bungled—various legal and evidentiary disputes that arose at

trial. Perhaps most detrimentally, Truesdale contends, counsel put Truesdale on the

stand and elicited testimony from him that he was a big-league drug dealer who had

no need to rob anyone, opening the door to additional damning (and otherwise

inadmissible) information about Truesdale’s many prior arrests—including a

pending case—yet failing to take basic steps to mitigate the damage of the poorly

executed direct examination.

In a fallible government case that by and large came down to whether the jury

believed two markedly biased government witnesses over Truesdale, we conclude 4

that defense counsel’s lapses fell below the standard of reasonableness guaranteed

by the Sixth Amendment and that there is a reasonable probability that in the absence

of counsel’s deficient performance Truesdale would have avoided conviction. We

therefore reverse the trial court’s denial of Truesdale’s § 23-110 motion.

I. The Trial

Leon Truesdale and Corey Hilton were indicted on charges of felony murder,

armed robbery, and various other offenses related to the shooting in which Mike

Godsey was killed. Rather than risk a trial, Hilton—the man who had fired the

bullets that were recovered from Godsey’s body—accepted the government’s offer

to plead guilty to second-degree murder while armed and testify against Truesdale

in exchange for a sentence between ten and twenty years in prison. 1

Hilton’s testimony formed a central part of the government’s evidence at

Truesdale’s trial. Hilton testified that on the morning of the shooting, he, Truesdale,

and a third unidentified man—the driver—set out in a Chrysler Pacifica minivan to

commit a robbery in Baltimore. Truesdale was carrying his .380 semiautomatic

handgun. After the robbery plan fell through, the group decided to look for another

1 Hilton was ultimately sentenced to twenty years in prison. Truesdale received a ninety-four-year sentence. 5

mark. Hilton reached out to his friend, Aaron Cook, and asked if he knew anyone

who could sell him marijuana. Cook said that he did, so the group picked him up

and went to the D.C. home of Godsey, who was Cook’s dealer.

Hilton testified that he and Cook met with Godsey in the stairwell of Godsey’s

apartment building, and Godsey gave Cook a handful of the marijuana to take to

Truesdale, who had remained in the minivan with the driver. According to Hilton,

Truesdale liked the sample, and he indicated to Hilton out of Cook’s earshot that he

would go back to Godsey’s building with Hilton and Cook and signal the start of the

robbery by asking Hilton for the money. Hilton said Truesdale was the first to enter

the building, where Godsey was waiting in the stairwell. After Godsey weighed the

marijuana, Truesdale asked Hilton for the money and said “you know what time it

is” just before Hilton heard several shots fired. Surprised by what was happening,

Hilton reached for his own gun, accidentally shot himself, and then fired nine shots

in Godsey’s direction. Hilton and Truesdale fled.

The following day, police arrested Hilton. Hilton testified that he waived his

rights and—initially trying “to make it seem like [he] was the victim”—said that he

had been robbed and that Godsey had shot him. But after the officers told him that

people he “thought were loyal to” him had talked, Hilton abandoned his story. On

the stand, he said that he had lied at first because he did not want to admit what he 6

had done and he wanted to “find a way to get out of it.”

Aaron Cook also testified for the government, in some respects corroborating

Hilton’s account while differing pointedly on certain details. Specifically, Cook told

the jury that on the second trip into Godsey’s building, when the men were returning

to finalize the drug deal, Truesdale followed Hilton and Cook inside. At that point,

Hilton started “digging in his pockets and then he said to [Truesdale] . . . ‘Give me

the rest of the money so we can go ahead and get this done with.’” Truesdale turned

his back to the group, dug around in his pockets, turned back around with a gun in

his hand and told Godsey, “You know what this is, give it up.” Meanwhile, Hilton

and Godsey began “to tussl[e] over the marijuana and as they started tussling,”

Truesdale “shot two or three times.” According to Cook, Truesdale then fired at

him, grazing his right arm, while Hilton shot at Godsey. Cook dropped to the ground

and Hilton and Truesdale took the marijuana and fled. The next day, when police

brought Cook into the station to be interviewed, Cook at first lied to the police

because he was worried about “the way it looked”—as if he were “the one that did

that to” Godsey. He ultimately changed his story and received immunity in

exchange for testifying against Truesdale.

Two other civilian witnesses testified to events in the immediate wake of the

shooting. Kenneth Colbert testified that on the day of the incident, he was working 7

on his car out on the street near Godsey’s apartment building. Shortly after hearing

something that sounded like firecrackers, Colbert observed two men running from

the direction of Godsey’s building carrying “a pound of weed and a handgun.” He

testified that he did not recognize either of the two men running back to the car and

stated that Truesdale was not one of the two men he saw. 2 And Steven Dantignac,

a friend of Cook, testified that Cook ran up to his house on the day of the shooting,

told Dantignac “[t]hem n****s tried to kill me,” and showed him the place on his

arm where “he got grazed.” The prosecutor asked Dantignac whether Cook told him

“how many people had shot him” and Dantignac said, “I believe it was two.”

According to Dantignac, Cook did not say who was with him when this happened,

only that he thought Godsey was dead.

The government’s remaining evidence included a cell phone, subsequently

connected to Truesdale, that detectives found in a tree box not far from Godsey’s

apartment in the general direction of where the minivan was parked. The

2 When defense counsel was cross-examining Colbert, he directed Truesdale to stand up and then asked Colbert whether he saw “this individual right here” on that day. The dissent’s assertion that Colbert was merely unable to identify Truesdale as one of the two men he saw running from the scene skates around the categorical nature of Colbert’s response: He said “no,” which meant that he did not see Truesdale that day. The government recalled Colbert in its rebuttal case to say that he recognized Cook from the neighborhood and that Cook likewise was not one of the people he saw running back to the car. 8

government also introduced text messages between Godsey and Cook arranging the

marijuana sale and photos and testimony about Godsey’s injuries and cause of death,

the five 9mm bullets recovered at Godsey’s autopsy, the location of the bullet

casings found at the scene, and the number and type of guns (a .380-caliber and a

9mm handgun) that likely expelled those casings. The parties stipulated that DNA

testing showed that a drop of blood outside the apartment building “matched the

DNA profile of the decedent, Calvin Godsey.” The government did not introduce

any DNA, fingerprints, weapons, ammunition, or stolen property linking Truesdale

to Godsey’s murder.

Truesdale was the only witness to testify for the defense. Truesdale’s

attorney, James Rudasill, began his direct examination by asking Truesdale in a

nonleading question whether he had previously been convicted of a felony offense.

Truesdale responded that he had been convicted of possession with intent to

distribute cocaine while armed and attempted possession of cocaine. Rudasill asked

“[w]hat year was the possession with intent to distribute while armed conviction?”—

it was 1994—and whether Truesdale had “serve[d] any time in jail for that”—he

had. Rudasill asked the same about the other felony—“[d]id you serve any time in

jail for that?”—at which point the court sustained the prosecutor’s relevance

objection. On Rudasill’s prompting, Truesdale also testified that at the time of the 9

shooting, he was making roughly $20,000 to $30,000 a week selling PCP and heroin.

Consistent with Hilton’s testimony, Truesdale testified that on the day of the

shooting, the two men and a driver went to Baltimore. But according to Truesdale,

the purpose of the trip was to buy heroin, not to rob anyone. Because the heroin did

not meet his standards, he did not make the purchase, and the men returned to D.C.,

stopping at a Gucci store en route. Although Truesdale—like Hilton and Cook—

testified that the group picked up Cook and went to Godsey’s home, the intention,

according to Truesdale, was simply to purchase marijuana. When they arrived, Cook

told the men to wait in the van, walked alone down the street to Godsey’s building,

and returned shortly after with a sample of marijuana for the men to inspect.

Satisfied with the quality of the marijuana, Truesdale gave Hilton $1,250, and Hilton

then joined Cook in heading back down the street to the seller’s location. The two

returned in a hurry three or four minutes later with a bag of weed and a gun.

Observing that Hilton was “hobbling down the sidewalk,” Truesdale got out of the

car and asked what was going on. Hilton said “just get me to the car” and once

inside, directed the driver to pull off.

On cross-examination, the prosecutor established that the convictions

Truesdale acknowledged on direct were not his only convictions—he had failed to

mention convictions of five other offenses: possession of a firearm during a crime 10

of violence or dangerous offense, carrying a pistol without a license, possession of

an unregistered firearm, possession of unregistered ammunition, and possession with

intent to distribute marijuana. After persuading the trial judge that Truesdale’s

testimony on direct that he was a major heroin dealer had opened the door to

questions about Truesdale’s arrests as well as his convictions—including his arrest

in a case that was pending at the time of trial—the prosecutor elicited Truesdale’s

agreement that “of the times [he had] been arrested, [he had] never been arrested for

possession of heroin” or “possession of any quantity of any drug that would yield

[him] 20 to 30,000 dollars a week in profit.” Likewise, Truesdale agreed that despite

being a large-scale drug dealer “who shops at Louis Vuitton and Gucci all around

the United States,” his cell phone bill was past due, his “official address” was his

mother’s house, and he didn’t own a car but had someone drive him around in a

“regular vehicle”—“not like a BMW or Mercedez Benz.”

On redirect, Rudasill asked a series of questions about Truesdale’s heroin-

selling practices, and Truesdale testified that he never personally sold heroin from

the street corner—instead, he sold large quantities to the street dealers. Rudasill also

mentioned one of Truesdale’s pending cases, and when asked about it at a bench

conference, acknowledged that it “slipped out of [his] mouth.” With the court’s

permission to conduct a “very limited recross,” the prosecutor asked Truesdale 11

whether the case was still pending, and Truesdale testified that it was.

The jury found Truesdale guilty on all counts. Truesdale appealed, and this

court affirmed the convictions.

II. The § 23-110 Hearing

The present dispute stems from Truesdale’s claim in his § 23-110 motion that

his trial lawyer was constitutionally ineffective. At the hearing on that motion,

Truesdale testified that he initially did not want to take the stand in his murder trial,

but the night before the defense was set to present its case (if any), Rudasill visited

him at the jail and asked him what he would say if he were to testify. According to

Truesdale’s testimony at the hearing, he told Rudasill that he would say that at the

time of the murder he did not have a reason to participate in a robbery—he “was

making between 20 and $30,000 a week” and had shopped at a Gucci store just prior

to the offense. He would tell the jury that on the day of the incident, he was in the

car with Cook, Hilton, and the driver; the group went to Godsey’s house to buy

marijuana; but because Cook said “the guy didn’t know me,” Truesdale never went

inside the building.

Rudasill then advised Truesdale to testify. According to Truesdale, Rudasill

never did any practice runs with him, never gave him any feedback about his 12

testimony, never reviewed his prior convictions with him or explained how those

convictions would be used at trial if he testified, never practiced cross-examination

with him, and never discussed how he should behave while testifying. Truesdale

nonetheless took the stand the next morning, giving an account that was “essentially

the same thing” he told Rudasill he would say.

For his part, Rudasill testified at the § 23-110 hearing that he sustained a brain

injury after Truesdale’s trial that affected his short-term memory for “a time.” And

though he said his “long-term memory was largely intact,” at times throughout his

testimony he had trouble remembering the details of Truesdale’s case six years

earlier—in part, he said, because he had three recently pending ineffective-

assistance-of-counsel claims that likewise involved his own conduct, and he had

“spoke[n] to at least seven different attorneys about the various 23-110s that were

active.” 3 He testified that at the time of Truesdale’s trial, he was suffering from

“cumulative stress disorder,” seemingly caused by having tried “trials back to back”

3 See United States v. Winstead, 890 F.3d 1082, 1087-92 (D.C. Cir. 2018) (determining that Rudasill was constitutionally ineffective in his representation of Winstead); United States v. Sams, 104 F.3d 1407, 1996 WL 739013, at *2-3 (D.C. Cir. 1996) (concluding that Rudasill “clearly presented an invalid” defense on behalf of his client and “may have failed to satisfy the Strickland standard”); United States v. Bruce, 89 F.3d 886, 893-95 (D.C. Cir. 1996) (describing Rudasill’s conduct in court as “highly problematic”). 13

for at least a decade preceding his representation of Truesdale. Rudasill was so busy,

in fact, that he told Truesdale that because he was stuck in jail “24/7” and had “more

time to spend on [his] case” than Rudasill did, he should share with Rudasill any

helpful case law he turned up. 4

With respect to the most serious charge against his client, Rudasill testified

that he told Truesdale “that he faced liability, potentially, for felony murder” because

the conduct he admitted to (namely, engaging in a large marijuana transaction)

“constituted a felony purchase of narcotics”—a perplexing statement given that the

felony underlying Truesdale’s felony murder charge was armed robbery, not a drug

offense. Rudasill testified that Truesdale did not seem to understand what he was

telling him and remained “adamant that he did not shoot and kill the man.” When

asked whether he conducted any legal research for Truesdale’s case, Rudasill

identified none, and instead returned to his concern about Truesdale’s purchase of

marijuana constituting the felony in felony murder: He testified that he “saw a

narrow window of opportunity to argue that even though [Truesdale] was legally

culpable as a co-conspirator in a felony narcotics purchase, that a jury would not

hold him responsible if it was demonstrated that he was not an actual shooter.”

4 Truesdale testified that he dropped out of high school in the ninth grade but had since received his GED while incarcerated. 14

When Truesdale’s post-conviction attorney asked, “To be clear, he wasn’t charged,

the predicate offense for felony murder in this case wasn’t a narcotics—a controlled

substances crime[], correct? It was robbery, right?” Rudasill said “yes” without

elaborating. Rudasill testified that he “kept telling” Truesdale that “this was felony

murder”—“death committed during the course of felony narcotics transaction, which

made it felony murder”—but they could still take a “jury nullification” approach and

hope that “the jury finds there’s a party more culpable than [Truesdale] and

therefore, they won’t convict [him] because there’s inherent unfairness in the

government prosecutorial discretion.”

On the subject of how he prepared his client to take the stand, Rudasill

corroborated Truesdale’s testimony that Rudasill visited him the night before he

testified and asked him what he would say on the witness stand if he were to testify.

Rudasill said he talked to Truesdale about “his version of the facts” and about “the

types of questions” he would be asked if he testified, but he did not “go through with

him each individual question that [he] thought the prosecutor would ask.” Rudasill

was “trying to get to the essence” of “what case [Truesdale] wanted to present to the

jury.” According to Rudasill, Truesdale “wanted the jury to understand” that it was

“the government’s cooperating witness,” Corey Hilton, “whose four bullets were in

the center of mass of the de[cede]nt.” Rudasill testified that if Truesdale had told 15

him “that he was going to testify that he was a big time drug dealer,” he “would have

told him not to testify to that.”

The judge orally denied Truesdale’s § 23-110 motion, explaining that, as to

Truesdale’s “claim that Rudasill . . . did not adequately prepare him for his testimony

at trial, the Court does not credit Truesdale’s testimony one bit.” Instead, the court

credited “Rudasill’s testimony that he did, in fact, prepare him for trial and that he

was surprised at some of his testimony that came out during the course of the trial,”

including the testimony that he was a big-time drug dealer making tens of thousands

of dollars a week. According to the trial judge, “Truesdale’s personality and

demeanor came across on the stand,” and not always in a good way. But “that was

Mr. Truesdale,” and “you can’t control everything that your client says or doesn’t

say when they’re on the stand.” Ultimately, the court concluded “that even assuming

any showing of deficient performance” as defined in the Supreme Court’s decisions

on ineffective assistance of counsel, “[t]he government’s case was strong,” and there

was no showing that any errors “affected the outcome in this case.”

III. Analysis

The right to the effective assistance of counsel—“the means through which

the other rights of the person on trial are secured”—is guaranteed by the Sixth

Amendment to the U.S. Constitution. Dugger v. United States, 295 A.3d 1102, 1110 16

(D.C. 2023) (quoting United States v. Cronic, 466 U.S. 648, 653 (1984)). To

succeed on a claim of ineffective assistance of counsel, a defendant must first

establish that his lawyer’s performance was deficient and then demonstrate that

those inadequacies prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

687 (1984). Both the deficiency and prejudice inquiries are mixed questions of law

and fact. Cosio v. United States, 927 A.2d 1106, 1123 (D.C. 2007) (en banc). While

we defer to findings of fact that are supported by the record, the trial court’s

“ultimate deficiency and prejudice determinations are legal in nature and are

reviewed de novo.” Dugger, 295 A.3d at 1111. Here, the trial court specifically

credited some of Rudasill’s testimony and did not specifically discredit any of it.

For purposes of our Sixth Amendment analysis, we accept Rudasill’s testimony and

defer to the trial court’s findings about it except where they cannot be squared with

the record or with Rudasill’s own testimony. Our analysis does not rely on

Truesdale’s discredited testimony.

A. Deficient Performance

Truesdale challenges Rudasill’s effectiveness on various grounds, pointing,

among other things, to his failure to file any motions to suppress or motions in

limine, to conduct sufficient factual investigation or any legal research, to adequately

prepare Truesdale to testify, and to adequately prepare himself to effectively carry 17

out Truesdale’s direct and rebuttal examinations. To satisfy the deficiency prong of

the Strickland analysis, Truesdale must show that Rudasill’s “representation fell

below an objective standard of reasonableness.” Cosio, 927 A.2d at 1123 (quoting

Strickland, 466 U.S. at 688).

We focus our analysis on Truesdale’s contention that Rudasill was deficient

in his overall handling of Truesdale’s trial testimony, which was likely the most

consequential of the errors Truesdale alleges and which implicates some of

Truesdale’s other allegations of poor lawyering as well. In trials like Truesdale’s

that largely boil down to a credibility contest, the “failure to adequately consult with

and prepare [one’s] client to testify” can constitute deficient representation. See

Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998) (holding that counsel’s

“cursory consultation” with Turner was deficient performance and “especially

shocking in light of the seriousness of the charges against [him],” the fact that

Turner’s “entire defense” hinged on subjects he testified about, and “that Turner

testified in a manner that suggests he was wholly unprepared to answer questions on

cross-examination”). 5 “This court has emphasized that a defendant is entitled to

5 See also Vaughn v. United States, 93 A.3d 1237, 1272 (D.C. 2014) (holding that meeting with a defendant “several times prior to trial” and “conduct[ing] mock cross-examinations” is “well within the range of reasonable attorney performance”); 18

adequate preparation by, and consultation with, counsel” and that such preparation

is one of the most important elements of the effective assistance of counsel. Portillo

v. United States, 62 A.3d 1243, 1252 (D.C. 2013) (quoting McFadden v. United

States, 614 A.2d 11, 13-14 (D.C. 1992)).

As a threshold matter, Rudasill’s apparent confusion over what the

government had to prove to convict Truesdale of the felony murder charge is the

kind of mistake that could dramatically skew any lawyer’s decisionmaking,

including the advice he gives about whether and how his client should testify. As

noted above, Rudasill testified at the § 23-110 hearing that he told Truesdale that he

was potentially liable for felony murder “because the underlying purpose of the

behavior that he admitted to constituted a felony purchase of narcotics marijuana.”

He later repeated that Truesdale “was legally culpable” for his role “in a felony

narcotics purchase.” But the alleged felony underlying Truesdale’s felony murder

Arthur v. United States, 986 A.2d 398, 406 (D.C. 2009) (concluding that defense counsel “has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications for doing so or not” (quoting United States v. Ortiz, 82 F.3d 1066, 1070 (D.C. Cir. 1996))); Lane v. United States, 737 A.2d 541, 551 (D.C. 1999) (dismissing claim that trial lawyer was ineffective for inadequately preparing defendant to testify where an “uncontroverted affidavit established that [the trial lawyer] met with [defendant] on numerous occasions to prepare his testimony and to discuss impeachment and cross-examination”); Lee v. United States, 769 F. Supp. 3d 706, 720 (E.D. Mich. 2025) (stating that a defense attorney is “obligated to prepare [his client] for his testimony” (quoting Rayborn v. United States, 489 F. App’x 871, 881 (6th Cir. 2012))). 19

charge was armed robbery, not drug dealing, and according to Truesdale’s testimony

at trial, he had a defense to that, which Rudasill presumably knew or should have

known: Truesdale was innocent of robbery because he thought Hilton was

purchasing marijuana, not stealing it. See D.C. Code § 22-2101 (listing robbery

among the enumerated felonies supporting a felony murder charge); see also

Robinson v. United States, 100 A.3d 95, 109 & n.34 (D.C. 2014); Kitt v. United

States, 904 A.2d 348, 355 (D.C. 2006). The indictment did not charge Truesdale

with a drug offense—felony or misdemeanor—and did not identify any statutorily

enumerated felony drug offense as having played a role in or been causally

connected to the alleged felony murder. Nor did the jury instructions require the

jurors to find that Truesdale had committed a felony drug offense. Contrary to

Rudasill’s repeated statements at the § 23-110 hearing, Truesdale could not have

been found guilty of felony murder based upon his plan to purchase marijuana from

Godsey.

Whether this lapse stemmed from Rudasill’s seeming failure to conduct any

legal research in advance of trial or simply from being spread too thin after trying

back-to-back trials for so many years, the failure to grasp what proof is required for

the main offense for which one’s client is being prosecuted amounts to deficient

performance, potentially affecting the most critical decisions an attorney makes prior 20

to and during a criminal trial. “An attorney’s ignorance of a point of law that is

fundamental to his case combined with his failure to perform basic research on that

point is a quintessential example of unreasonable performance under Strickland.”

Hinton v. Alabama, 571 U.S. 263, 274 (2014); see also Richardson v. United States,

318 A.3d 490, 497 (D.C. 2024) (declining to defer to a purportedly strategic decision

by counsel that “was grounded in an unreasonable mistake of law”). Notably,

Rudasill’s misunderstanding explains his testimony at the § 23-110 hearing that he

thought jury nullification might be Truesdale’s only hope for acquittal. 6 See Hr’g

Tr. at 13, Oct. 24, 2018 (Rudasill testifying that even though Truesdale was

essentially admitting guilt of a felony drug offense, perhaps a jury might still acquit

6 Even assuming a trial lawyer’s decision to present a jury nullification defense is not always deficient performance, it is surely deficient when the lawyer is wrong about the necessity of resorting to such a defense, such as here, where Rudasill mistakenly believed that “the behavior that [Truesdale] admitted to”— buying a pound of marijuana—qualified as the predicate felony for felony murder. Simply playing to the jury’s sympathies does not address—much less counter—any of the elements the government must prove. Thus, this court has repeatedly denied defendants’ requests for a jury-nullification instruction and upheld convictions where “the trial court instructs the jury that it is obligated to find the defendant guilty if the government meets all the elements of the charged offense.” Reale v. United States, 573 A.2d 13, 15 (D.C. 1990); see also Farina v. United States, 622 A.2d 50, 60-61 (D.C. 1993) (“While acknowledging that ‘[n]o doubt juries sometimes act out of compassion and in disregard of the law,’ this court has concluded that it ‘will not place upon such conduct by juries the stamp of judicial approval through instruction from the court.’” (quoting Arshack v. United States, 321 A.2d 845, 851 (D.C. 1974))). 21

him of felony murder “if it was demonstrated that he was not an actual shooter”). 7

The true effect of Rudasill’s misunderstanding is hard to discern because Rudasill

did not explicitly invite the jury to defy its instructions and still argued that Truesdale

should be acquitted because he was not guilty. At the very least, Rudasill’s belief—

however illusory—that Truesdale’s prospects were so dire diverted attention from

Truesdale’s innocent-presence defense and affected the calculus over whether

Truesdale should risk taking the stand.

7 The government argues that Rudasill did not adopt a jury nullification defense, that he actually advised Truesdale against a proposed jury nullification defense, and that “Rudasill’s theory of defense at trial was that appellant was not vicariously liable for the murder because he was responsible for the drug purchase, not the robbery or the resulting murder.” In support of this argument, the government cites to three pages in the 23-110 hearing transcript: On the first cited page, Rudasill testified that he told Truesdale “there’s a situation [sic] the jury nullification. We present all the facts and the jury finds there’s a party more culpable than you and therefore, they don’t convict you because there’s inherent unfairness in the government prosecutorial decision.” On the second cited page, Rudasill testified, “I saw a narrow window of opportunity to argue that even though he was legally culpable as a co-conspirator in a felony narcotics purchase, that a jury would not hold him responsible if it was demonstrated that he was not an actual shooter.” And on the final page the government cites, Rudasill testifies that he “was trying to establish that Mr. Truesdale was the least culpable of the people involved in that whole exchange of gunfire in that stairway.” Each of these citations supports rather than undermines the conclusion that Rudasill’s theory of defense at trial was, in effect, my client is guilty but you should acquit him anyway. See also 02/13/2012 Tr. at 48 (Rudasill urging the jury in closing argument “to scrutinize this evidence for what it’s worth and accept Corey Hilton’s testimony that he’s the one that killed Calvin Godsey. He’s the one that put those bullets in him and all the ballistics evidence are consistent with one shooter and one killed.”) 22

What is easier to discern is the consequence of Truesdale’s less than effective

turn on the witness stand and Rudasill’s role in the way that testimony played out.

The trial court expressed no doubt that Truesdale’s tack of presenting himself as a

big-time drug dealer was chancy and ineffectual—at one point noting that the

strategy allowed the prosecutor to score points in closing argument by asking the

jury why Truesdale was “living with his mama” and did not own a car if he actually

was a big-time drug dealer who made $30,000 a week and shopped at Gucci. The

trial court was mistaken, however, in its view that the fallout from the strategy was

Truesdale’s own fault. According to the court, Rudasill himself was surprised by

Truesdale’s testimony and rather than “giv[ing] up his client,” Rudasill had to “put

on [his] game face” and “roll with it as if it was planned.”

Contrary to the trial court’s ruling, Rudasill did not unequivocally state that

Truesdale’s testimony in this respect had caught him off guard. 8 Although Rudasill

8 Although we generally defer to a trial “judge’s factual findings anchored in credibility assessments derived from personal observations of the witness[] . . . . not all credibility determinations are equal,” Stringer v. United States, 301 A.3d 1218, 1227-28 (D.C. 2023), and Rudasill’s testimony that he did not anticipate Truesdale’s testimony about being a “big time drug dealer” amounts to the sort of inconsistency that demands skepticism, id. at 1228 (A witness’s story “itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985))); id. (“[I]n such circumstances, we ‘may well find clear error even in a finding purportedly based on a credibility determination.’” (quoting Anderson, 470 U.S. at 575)). 23

testified that Truesdale “didn’t tell [him] that he was going to testify that he was a

big time drug dealer,” he also said Truesdale told him that he “didn’t deal with that

low-level penny-ass stuff,” that “he was like a business man,” and that “selling weed

was not his thing. . . . [H]e wasn’t at that level in the game as they structure the

business models on the street.” And when the prosecutor explicitly asked Rudasill

if he could single out an aspect of Truesdale’s trial testimony that did surprise him,

Rudasill identified something unrelated. 9

More fundamentally, Rudasill’s actions at trial demonstrated that Truesdale’s

testimony that he made $20,000 to $30,000 each week dealing drugs was an integral

part of Rudasill’s trial strategy from the get-go. Contrary to his assertion at the

hearing that he would have advised Truesdale against the big-time-drug-dealer

storyline, Rudasill expressly asked Truesdale on direct examination “what type of

drugs [he was] selling,” how much profit he would make selling 50 grams of heroin,

and “how much money [he was] making a week.” He also foreshadowed that

testimony during his opening statement when he told the jury that Truesdale “sold

drugs” and had “always had money” and when he asked Hilton whether he knew

9 Rudasill stated instead that Truesdale surprised him by testifying at trial that he briefly got out of the car (and that’s when he must have dropped his phone), when Rudasill thought he would say he had remained in the van the whole time. 24

Truesdale “as a person that gets money” and who gave Hilton the money to buy a

cell phone. 10 It is thus clear from the record that Truesdale’s testimony about his

high-level drug dealing was not out of the blue, but an intentional strategy Rudasill

contemplated from the start.

In another case, under the right circumstances, such a trial strategy

(essentially, “I’m a criminal but not that kind of criminal”) might conceivably be

reasonable where counsel can precisely convey the exculpatory point while

containing the prejudice. 11 It was not reasonable here, in concept or in execution.

The strategy was already fraught because inherent to the theory—and inherent to the

government’s inevitable impeachment of the theory—was that Truesdale had a

particularly extensive criminal past. See Ohler v. United States, 529 U.S. 753, 757

(2000) (“[O]nce the defendant testifies, she is subject to cross-examination,

10 Other aspects of Rudasill’s hearing testimony call into question his credibility. For example, Rudasill testified that Truesdale was shot during the incident and that his defense theory was to make Truesdale appear to be the least culpable of the men who were shooting guns. But there was no evidence that Truesdale was shot, and at trial he testified (and Rudasill argued) that he was not at the scene when the shooting occurred. These inconsistencies between Rudasill’s testimony and what actually happened at trial are perhaps explained—at least in part—by his “cerebral vascular accident,” which affected his memory, and the “cumulative stress disorder” that he suffered around the time of Truesdale’s trial. 11 Motions in limine could be a useful tool for knowing and limiting the strategy’s risks. 25

including impeachment by prior convictions, and the decision to take the stand may

prove damaging instead of helpful.”); Smith v. Regan, 583 F.2d 72, 76-77 (2d Cir.

1978) (concluding that it would have been “unwise” for counsel to suggest that

defendant testify in his own defense given the defendant’s multiple prior criminal

convictions). Evidence of a defendant’s prior convictions “is always . . . prejudicial

to a defendant” and “diverts the attention of the jury from the question of the

defendant’s responsibility for the crime charged to the improper issue of his bad

character.” Eady v. United States, 44 A.3d 257, 265 (D.C. 2012) (quoting United

States v. Jones, 67 F.3d 320, 322 (D.C. Cir. 1995)). The strategy entailed Rudasill

questioning Truesdale about multiple serious crimes he had committed and was

continuing to carry out around the time Godsey was killed. A pair of puzzling

followup questions then led to Truesdale’s irrelevant and yet highly damaging

testimony that he had served time in prison. 12 And ultimately Truesdale’s responses

opened the door—predictably—to evidence of even more bad acts when the

12 The prosecutor herself objected on relevance grounds to Rudasill’s question whether Truesdale had served time in jail for one of his felony convictions. See Proctor v. United States, 343 A.3d 592, 606 (D.C. 2025) (acknowledging the possibility of “increased prejudice caused by” reference to prior incarceration as compared to stipulations relating to past convictions); Curry v. United States, 322 A.2d 268, 270 (D.C. 1974) (concluding that government’s questioning of defendant about his prior time in prison was not impermissible because it “was merely repetitious of his own testimony on direct that he had been in Lorton more than once”). 26

prosecutor impeached him with a string of prior arrests, including a case that was

pending at the time of the trial here. As a result of Rudasill’s apparent failure to

accurately assess the plausibility of this line of questioning and to prepare Truesdale

accordingly, the prosecutor effectively impeached Truesdale with evidence that he

was actually not too big-time to bother with robbing a marijuana dealer—he was just

someone who spent a lot of time around drugs and guns. As she put it in closing

argument, he “lives with his mother,” he “can’t pay his cell phone bill on time,” and

he’s “only ever been arrested for street-level cocaine and marijuana dealing, never

for heroin or PCP dealing[].”

Any defendant who takes the stand can expect to be confronted with prior

convictions of felonies involving dishonesty. 13 Rudasill’s introduction of the big-

time-drug-dealer theme, however, made the entirety of Truesdale’s convictions and

arrests relevant and therefore allowed the prosecutor to inflict damage that far

exceeded what would normally result from the impeachment of a testifying

13 Criminal offenses may be introduced to impeach a witness only if the witness was convicted of the offense and the offense “was punishable by death or imprisonment in excess of one year” or “involved dishonesty or false statement.” D.C. Code § 14-305(b)(1). The prior conviction may be introduced only “for the purpose of showing him as lacking credibility” and not “to prove general disposition to commit crime or a specific crime.” Ward v. United States, 386 A.2d 1180, 1182 (D.C. 1978). 27

defendant’s credibility based on past crimes.

Further, in failing to prepare and to execute a strategic direct examination,

Rudasill forfeited opportunities to mitigate the prejudice stemming from Truesdale’s

prior convictions and walked headlong into avoidable snares. The trial court

credited Rudasill’s testimony regarding the steps he took to prepare Truesdale to

testify and did not credit Truesdale’s testimony that he did not want to testify but

Rudasill persuaded him to take the stand. We find no clear error in this particular

aspect of the court’s ruling. But in certain respects—much the same as our

conclusion that Rudasill was not surprised by Truesdale’s testimony about his drug

dealing—the inadequacy of Rudasill’s preparation is inescapable based on

Rudasill’s own testimony and how things played out at trial. See supra note 10.

Rudasill’s credited testimony was, for example, that he did not practice cross-

examining Truesdale and did not go through all the questions he anticipated the

prosecutor would ask his client. He seemingly did not tell Truesdale what specific

questions he himself planned to ask him on direct examination. Rudasill also did

not say that he gave any feedback to Truesdale about his testimony, discussed

Truesdale’s prior convictions with him, or advised Truesdale about how to behave

on the stand. The trial court’s crediting of Rudasill’s testimony about the steps he

took to prepare Truesdale is thus not tantamount to a conclusion that Rudasill’s 28

preparation was adequate. Faced with a case so dependent on witness credibility, a

competent trial lawyer would have thoroughly worked through his client’s testimony

with him before calling him as a witness. See Fatumabahirtu v. United States, 148

A.3d 260, 264 (D.C. 2016) (“Competent trial counsel would have gone over [his

client’s] testimony with her prior to putting her on the witness stand and thus would

have been aware that she denied selling” drug paraphernalia to officers.)

Once his client was on the stand, Rudasill did no better. It is, of course, a

“legitimate defense tactic to elicit during the direct examination of a defense witness,

including the defendant, the witness’[s] prior convictions in order to lessen the

potential impact of the government’s use of such evidence as impeachment.” Dyson

v. United States, 450 A.2d 432, 442 (D.C. 1982); see also Beale v. United States,

465 A.2d 796, 800 (D.C. 1983). But it may still require “careful attention” to avoid

the significant prejudice associated with the admission of past crimes evidence.

Erlinger v. United States, 602 U.S. 821, 849 (2024). Attorneys have many tools at

their disposal to minimize the harm attendant to other-crimes evidence: They

generally can (and should) ask leading questions about undisputed specific criminal

convictions, avoid any discussion of penalties associated with those convictions, and

request a jury instruction about the proper use of past convictions. See Coates v.

United States, 558 A.2d 1148, 1149-50 (D.C. 1989); Proctor, 343 A.3d at 606. 29

Rudasill did not adopt these strategies. At times Rudasill acknowledged that

allowing the jury to hear about Truesdale’s criminal record was bad for him—in one

instance, he pledged to “try to avoid further pratfalls” when the trial judge had to

stop him from referring again to Truesdale’s pending case. But Rudasill never asked

the court for a limiting instruction. 14 See Dixon v. United States, 287 A.2d 89, 99-

100 (D.C. 1972) (“[T]he omission altogether of any cautionary instruction on a prior

conviction admitted for impeachment would seem to affect defendants’ substantial

rights, unless it could be shown under the facts of the particular case that such

omission was harmless.”). Further, by asking Truesdale open-ended questions about

whether he had “been previously convicted of a felony offense” and by eliciting only

a fraction of those convictions, Rudasill left Truesdale vulnerable to the

government’s more trenchant questioning about the myriad prior felony convictions

that Rudasill had not asked about—and Truesdale had not mentioned. Truesdale

thus came across as either trying to hide those initially omitted convictions or having

14 In Truesdale’s direct appeal, the government even conceded that the trial court erred (though in its view harmlessly) by not sua sponte instructing the jury to consider Truesdale’s prior convictions only in evaluating his credibility as a witness generally and not as evidence of his guilt otherwise. See Truesdale v. United States, No. 12-CF-1307, Mem. Op. & J. at 18-19 (D.C. June 7, 2017) (addressing a number of challenges to the admission of evidence of Truesdale’s prior convictions and arrests, stating that “[a]ll of these claims of error were forfeited in the trial court and therefore are subject to review only for plain error,” and holding that Truesdale had for various reasons failed to demonstrate plain error). 30

trouble remembering his priors because he had so many. See Thompson v. United

States, 546 A.2d 414, 419 (D.C. 1988) (“[O]ther crimes evidence may ‘result in

casting such an atmosphere of aspersion and disrepute about the defendant as to

convince the jury that he is a habitual lawbreaker who should be punished and

confined for the good of the community.’” (quoting Pinkney v. United States, 363

F.2d 696, 698 (D.C. Cir. 1966))).

And while Rudasill’s handling of Truesdale’s testimony stands out among

Rudasill’s deficiencies, it was exacerbated by a steady stream of mistakes that

undermined confidence in the defense theory and in Rudasill himself. The following

are a few examples of these lapses, most of which could have been avoided or

mitigated by better preparation or by litigating evidentiary matters pretrial.

(1) During opening statements, Rudasill asserted facts that he would not be able to

support with evidence, causing the trial court to interrupt proceedings to direct the

jury to disregard Rudasill’s statement. (2) Right before Cook took the stand,

Rudasill (unsuccessfully) sought more time because he had not reviewed Cook’s

video statement and other materials and was not prepared to cross the witness.

(3) Unable to lay the foundation for an excited utterance through his client’s

testimony, Rudasill was forced to give up on eliciting statements from Cook asking

Hilton “why the fuck did you do that” immediately after the shooting. (4) Rather 31

than make his own legally supported judgment calls about when to object at trial,

Rudasill repeatedly explained that he was objecting because Truesdale had asked

him to. (5) During closing argument, Rudasill misstated the standard for reasonable

doubt, misstated the government’s burden (and took that burden onto the defense),

incorrectly framed the jury instructions, and inaccurately characterized Cook’s

testimony.

“The proper function of the adversarial process demands appropriate

investigation and preparation by counsel,” and we must take care “not to slap the

label of objective reasonableness on fanciful or unrealistic rationalizations for an

attorney’s conduct.” Cosio, 927 A.2d at 1123, 1127. Here, it would be unrealistic

to describe Rudasill’s handling of Truesdale’s testimony as anything other than

deficient, particularly when Rudasill seemingly took no steps to minimize the

prejudice and risk inherent in the trial strategy and affirmatively undermined the

defense with his many other missteps.

B. Prejudice

We next consider whether Truesdale can demonstrate a reasonable probability

of a different result in the absence of Rudasill’s deficient performance. Cosio, 927

A.2d at 1131-32 (quoting Strickland, 466 U.S. at 694). “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Strickland, 466 32

U.S. at 694. “[W]here there are multiple alleged deficiencies, we evaluate whether

the ‘cumulative impact’ of the deficiencies prejudiced the defendant.” Dugger, 295

A.3d at 1111 (quoting Gardner v. United States, 140 A.3d 1172, 1197 n.38 (D.C.

2016)).

As an initial matter, “a verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors than one with overwhelming

record support.” Strickland, 466 U.S. at 696. Though the trial court here

characterized the evidence against Truesdale as strong, the defense had a path to

avoid conviction if one juror were persuaded to believe Truesdale’s account over

that of Cook and Hilton. See Wiggins v. Smith, 539 U.S. 510, 537 (2003) (finding

prejudice where “there is a reasonable probability that at least one juror would have

struck a different balance”); Super. Ct. Crim. R. 31(a) (“The verdict must be

unanimous.”). Neither Cook nor Hilton was an ideal government witness. They

both initially lied to officers—Hilton testified that he “didn’t want to admit to what

[he] had done” and wanted to “find a way to get out of it” and Cook said he was

worried about “the way it looked.” By testifying for the government, they both did,

at least partially, “find a way to get out of” the consequences they feared.

This was not a small problem for the government. The prosecutor

acknowledged in her opening statement that because the government had given both 33

Cook and Hilton “benefits in this case in exchange for their testimony,” the jury

should “consider their testimony with caution.” See also Trial Tr. 23, Dec. 16, 2011

(prosecutor stating at a pretrial hearing that the government would “be relying on

the testimony of a cooperator and the testimony of an individual who was involved

in the case and as the Court and everybody in the courtroom is aware, there’s always

substantial bias involved.”). The court echoed this advice in its instruction to the

jury. Indeed, witnesses who have “bartered for some sort of consideration in return

for” their testimony can make the government’s case weaker rather than stronger

because the jury is unlikely to trust them. Stephen S. Trott, Words of Warning for

Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1388 (1996); cf.

Dugger, 295 A.3d at 1120 (“As the Supreme Court has noted, ‘[j]urors suspect

informants’ motives from the moment they hear about them in a case, and they

frequently disregard their testimony altogether as highly untrustworthy and

unreliable.’” (quoting Banks v. Dretke, 540 U.S. 668, 702 (2004))).

In addition to their bias, Cook’s and Hilton’s testimony was marred by their

markedly different accounts of the offense. Most significantly, they gave different

descriptions of how the robbery and shooting began: Hilton testified that Truesdale

initiated the robbery by asking him for the money and said that he was talking to

Cook and standing with his back to Godsey and Truesdale when he heard Truesdale 34

start firing at the decedent. Cook, in contrast, said that Hilton asked Truesdale for

the money, adding that Hilton and Godsey began tussling over the marijuana and

“that’s when the defendant shot two or three times.” Cook and Hilton also disagreed

about who brought the sample of marijuana back to Truesdale (each man said the

other carried it) and the order in which the men entered the building on the second

trip (Cook said that Truesdale entered last as Godsey was closing the door, while

Hilton said that Truesdale led the way). 15

Other than their often inconsistent testimony, there was not a lot to

substantiate Cook and Hilton’s assertion that Truesdale took part in the robbery and

shooting. The government introduced no physical evidence directly linking

Truesdale to the stairwell where the shooting occurred, 16 and the other eyewitnesses’

15 Cook and Hilton testified inconsistently about more minor matters as well, such as what and when Hilton communicated to Cook about the marijuana (Hilton testified that he told Cook on the way to Godsey’s home that the marijuana was for Truesdale and the driver, while Cook said he learned after they were in Godsey’s apartment building that Truesdale and Hilton were splitting the marijuana) and what happened when they first arrived at Godsey’s building (Hilton said Truesdale stepped out of the vehicle but Cook stopped him from coming inside, while Cook said that Truesdale remained in the car the whole time). 16 Although the government did introduce Truesdale’s cell phone at trial, that phone was found outside in the grass and thus did not place Truesdale in the building. And the government’s argument that the presence of .380 casings at the scene implicated Truesdale was based solely on Hilton’s testimony that Truesdale 35

testimony could be reconciled with Truesdale’s defense. Kenneth Colbert (the man

working on a car at the time of the shooting) testified that Truesdale was not one of

the men running away after shots were fired and Steven Dantignac (Cook’s friend)

said he “believed” that Cook had said two men had shot at him—but not who those

men were. The conspicuous weaknesses in the government’s case may explain why

part way through their deliberations, the jurors sent a note requesting that the court

elaborate on the term “reasonable doubt.” See State v. Hammell, 653 A.2d 1122,

1124 (N.H. 1995) (jury question about reasonable doubt standard could suggest “that

the jury was confused as to what they should do if they found that the State had not

met its burden of proof”).

This was therefore not a case where Truesdale’s only hope for acquittal was

through his own testimony. With an accurate understanding that his client faced

felony murder for his alleged involvement in the robbery in the stairwell—and not,

as Rudasill testified at the § 23-110 hearing, his admitted marijuana deal—Rudasill

had the option of a straightforward defense that highlighted the many reasons to

doubt the government’s narrative while forgoing the hail-Mary big-time-drug-dealer

possessed an extremely common type of firearm that uses .380 ammunition. See Michael P. O’Shea, The Concrete Second Amendment: Traditionalist Interpretation and the Right to Keep and Bear Arms, 26 Tex. Rev. L. & Pol. 103, 145 (2021) (describing .380 caliber as a common ammunition chambering for compact handgun designs). 36

strategy (and the heap of prejudice that came with it). There was an ample basis in

the record—without Truesdale’s testimony—for counsel to argue forcefully that

Truesdale was not in on the robbery of the marijuana dealer. Cf. Farmer v. United

States, 341 A.3d 1131, 1140, 1149 (D.C. 2025) (defendant had “substantial support

for his insanity defense” even though he did not testify); Gray v. United States, 589

A.2d 912, 917 (D.C. 1991) (“It is possible, therefore, for a defendant to rely on self-

defense, based on circumstantial evidence of reasonable fear of imminent serious

bodily injury, without the defendant’s own testimony.”). The lack of physical proof

that Truesdale was in the stairwell when the shooting occurred aligned with the

evidence (1) that Godsey sought to exclude Truesdale, who unlike Hilton, was a

stranger to both Godsey and Cook, and (2) that multiple rounds were fired within

the tight area of the building lobby, yet Truesdale—if he was in fact there—was the

only person to walk away unharmed, (3) that Kenneth Colbert said Truesdale was

not one of the fleeing suspects, and (4) that Hilton and Cook differed as to very

specific facts involving Truesdale’s role and had such strong incentives to place the

blame elsewhere. The text messages in which Cook and Godsey—and not

Truesdale—were arranging the sale were also consistent with Truesdale’s innocent-

presence defense. 37

Alternatively, a better prepared Truesdale could have testified in a way that

challenged Hilton and Cook’s accounts and minimized the opportunities for the

government to discredit him. But instead, the incoherence of Rudasill’s defense on

Truesdale’s behalf obscured the weakness of the government’s case. Rudasill’s

repeated unforced errors handed the government the chance to skewer Truesdale’s

credibility—“a central issue” in a case where “the only evidence presented” by the

defense is “his own testimony at trial.” Turner, 158 F.3d at 458. If Rudasill had

asked yes-or-no questions directing Truesdale through his entire criminal history,

then the government would not have impeached him with the crimes he forgot to

mention—making him look like “a lying liar.” Jones v. United States, 263 A.3d

445, 456 (D.C. 2021). If Rudasill had not asked Truesdale about his weekly income

and his career as a drug dealer, then the government would not have impeached him

with his many previous arrests and the evidence that he was not really that big-league

and not really that rich. And in the absence of Rudasill’s questions about the time

Truesdale spent in jail for at least two of his prior convictions, the jury would not

have focused on his time in prison—a fact that likely made him appear, at least to

some jurors, as a “bad m[a]n.” See United States v. Tucker, 12 F.4th 804, 823 (D.C.

Cir. 2021). 38

Whether he testified or not, Truesdale had a viable defense, and given the

multiple reasons a juror might harbor a reasonable doubt about Truesdale’s

involvement in the robbery and shooting, Rudasill’s deficient performance

undermines our confidence in the verdict. “It is no answer to argue that” Truesdale’s

credibility might have suffered regardless of the preparation offered by his counsel.

See Cosio, 927 A.2d at 1134. “That cannot be said with any level of confidence,

inasmuch as the record does not reveal how” he would have responded to well

conducted and tactically prepared direct examination. Id.

Considering together the instances of Rudasill’s deficient performance,

particularly those mistakes affecting Truesdale’s testimony, we conclude that “there

is a reasonable probability that [Rudasill’s] deficiencies tilted the balance in the

government’s favor, and that but for his unprofessional errors, there is a reasonable

probability that the jurors would not have convicted” Truesdale. Dugger, 295 A.3d

at 1120.

IV.

For the foregoing reasons, we reverse the trial court’s denial of Truesdale’s

§ 23-110 motion and remand for further proceedings consistent with this opinion.

So ordered BLACKBURNE-RIGSBY, Chief Judge, dissenting: I respectfully dissent. The

government presented a case that was strong and the strength of its case was not

derived from deficiencies on the part of Mr. Truesdale’s counsel, Mr. Rudasill. The

strength of the government’s case negates the reasonable probability that the

outcome of Mr. Truesdale’s trial would have been different.

As a threshold matter, when assessing whether an alleged deficiency created

a reasonable probability that the outcome of a trial would have differed, we must

consider the strength of the government’s case. See, e.g., Dugger v. United States,

295 A.3d 1102, 1119-20 (D.C. 2023). This analysis must also assess whether “the

strength of the government’s case may itself be a product of trial counsel’s

ineffectiveness.” Shepherd v. United States, 296 A.3d 389, 396 n.9 (D.C. 2023)

(quoting Rice v. United States, 580 A.2d 119, 122 (D.C. 1990)). Here, the strength

of the government’s case derived from the testimony of the government’s witnesses,

as well as other corroborative evidence. The government did not bootstrap its case

on the back of counsel’s errors. Therefore, even assuming deficient performance of

counsel, Mr. Truesdale cannot show prejudice. “[W]e need not determine whether

[appellant’s] trial counsel rendered constitutionally deficient representation because

we are convinced that [appellant] has not shown a reasonable probability or a

substantial likelihood that the outcome of the proceeding against him would have 40

been different.” Gardner v. United States, 140 A.3d 1172, 1196 (D.C. 2016) (citing

Strickland v. Washington, 466 U.S. 668, 697 (1984)).

Despite the strong testimonial evidence of the government’s three key

witnesses, the majority minimizes or ignores significant testimony, claiming that the

testimony of two of the government’s witnesses is biased because there are some

inconsistencies. However, key parts of the testimonies of these witnesses is

consistent and incriminating and is further bolstered by other evidence. Mr. Cook

and Mr. Hilton both testified that Mr. Truesdale accompanied them the second time

they walked from the van to the victim, Mr. Godsey’s, apartment building, where

the robbery and shooting took place. Mr. Hilton testified that Mr. Truesdale carried

a .380-caliber handgun that he took out and aimed at Mr. Godsey during the robbery.

Both Mr. Cook and Mr. Hilton testified that Mr. Truesdale aimed the gun at Mr.

Godsey and said either, “You know what time it is,” or “You know what this is, give

it up,” and started shooting at Mr. Godsey. Both Mr. Hilton and Mr. Cook were also

shot—Mr. Hilton by his own gun and Mr. Cook by Mr. Truesdale. Both Mr. Cook

and Mr. Hilton testified that after the shooting, Mr. Truesdale grabbed the marijuana

and ran back to the van accompanied by Mr. Hilton. This is strong and, critically

important, consistent testimony from two of the government’s witnesses.

Further, Mr. Colbert, an independent third witness, saw two men he did not 41

recognize running from the direction of the shooting toward the van, and he testified

that only the driver was in the van at that time. The majority raises Mr. Colbert’s

in-court inability, nearly two years after the shooting, to identify Mr. Truesdale as

one of the two men he saw running from the scene in support for the theory that Mr.

Truesdale was not involved in the shooting. However, Mr. Colbert’s testimony two

years after the shooting does not contradict or negate his earlier statement from the

day of the shooting, in which he told the police that he could not identify either man

and that he did not recognize either of them as people he had seen prior to that day.

Mr. Colbert further testified that he “didn’t really see” and “didn’t really get a good

view of” one of the two men and could not provide details about the second man,

other than to say that he had not seen either of the two men before. Moreover, Mr.

Colbert definitively stated that Mr. Cook, who he did know by sight from “the Third

Street area,” was not one of the two men running towards the van. Mr. Colbert also

testified that he did not see anyone get out of the van to run towards and render aid

to the two men running to the van. Mr. Colbert’s testimony flatly contradicts Mr.

Truesdale’s claims that Mr. Cook (and not Mr. Truesdale) was one of the two men

running to the van, that Mr. Truesdale remained in the van with the driver during the

robbery and shooting, and that Mr. Truesdale only left the van to help Mr. Cook and 42

Mr. Hilton as they approached. 1 Instead, Mr. Colbert’s testimony corroborates the

testimony of Mr. Hilton and Mr. Cook: that two, and not three, men ran from the

building to the van after the shooting and that Mr. Cook was not one of the two men.

Additionally, Mr. Truesdale’s testimony that he remained in the car the entire time

was further contradicted by the fact that he testified that he dropped his cell phone

when he stepped out of the van. Therefore, Mr. Colbert’s testimony bolstered Mr.

Cook and Mr. Hilton’s testimony and flatly contradicts Mr. Truesdale.

Cellphone evidence from Mr. Godsey’s phone led the police to Mr. Cook,

who in turn led the police to Mr. Hilton. The police recovered a phone in a grassy

area outside Mr. Godsey’s apartment building, which belonged to Mr. Truesdale.

The police obtained search warrants for Mr. Hilton and Mr. Cook’s phones and

discovered texts and calls between the two of them and texts and calls between Mr.

Cook and Mr. Godsey. Cell-site location data from Mr. Truesdale’s recovered phone

also corroborated Mr. Hilton’s and Mr. Cook’s accounts of their movements. The

police also recovered a bullet and bullet fragments, a digital scale, and thirteen

1 Additionally, Mr. Colbert described an accident that occurred down the street involving an unrelated vehicle about five minutes prior to the shooting, stating that the van was parked on the street at the time and that the driver got out to look at it. However, in Mr. Truesdale’s account of the time he was allegedly waiting in the van for Mr. Hilton and Mr. Cook to return with the purchased marijuana, he did not mention witnessing a car accident. 43

cartridge casings from the scene as well as five bullets and one bullet fragment from

Mr. Godsey’s body. The cartridge casings and bullets were determined to have been

fired by a 9mm handgun and a .380-caliber handgun, the type of gun Mr. Hilton

testified that Mr. Truesdale was carrying. This combined physical evidence—the

cell-phone location data, timeline of calls, text messages, bullets from two specific

types of guns, and the presence of the digital scale on the stairs—corroborates the

accounts of Mr. Hilton and Mr. Cook.

Notwithstanding the consistent testimony and corroborating evidence, the

majority argues that the inconsistencies in Mr. Cook and Mr. Hilton’s accounts and

their biased incentives due to their cooperation agreements in return for their

testimony, undermine the strength of their testimony. I disagree. The jury was aware

of the inconsistencies in their testimony and of the cooperation agreements that Mr.

Cook and Mr. Hilton received. Despite this, the jury convicted Mr. Truesdale on all

counts, presumably crediting the testimony of Mr. Hilton, Mr. Cook, and

Mr. Colbert and the corroborating evidence. The inconsistencies in Mr. Cook and

Mr. Hilton’s testimony that the majority points to as undercutting their testimony are

minor, for example, whether Mr. Truesdale was in front of or behind Mr. Cook and

Mr. Hilton when walking into the building. A reasonable juror could assess and

weigh the testimony of Mr. Cook, Mr. Hilton, and Mr. Colbert and conclude that the

consistencies in their testimony are very credible and outweighed any 44

inconsistencies. This is exactly what a jury or any fact-finder is supposed to do. As

this court has said, “[i]t is the role of the fact-finder, in determining a witness’s

credibility, to consider whether other evidence corroborates or contradicts the

witness . . . .” Thomas v. United States, 137 A.3d 166, 169 (D.C. 2016). Moreover,

“this court is not in a position to substitute its judgment for that of the fact-finder

when it comes to assessing the credibility of a witness.” Proctor v. United States,

343 A.3d 592, 605 (D.C. 2025) (quoting Robinson v. United States, 928 A.2d 717,

727 (D.C. 2007)). “Almost without exception, ‘[t]he determination of credibility is

for the finder of fact and is entitled to substantial deference.’” Carrington v. United

States, 344 A.3d 663, 668 (D.C. 2025) (quoting Bouknight v. United States, 867 A.2d

245, 251 (D.C. 2005)); see also Miller v. United States, 209 A.3d 75, 77-78 (D.C.

2019) (“Credibility . . . ‘is determined by the trier of fact, . . . and this court must

defer to its credibility findings if they are supported by the evidence.’” (quoting

Bryant v. United States, 859 A.2d 1093, 1102 n.13 (D.C. 2004))).

It is not the role of this court to “re-try” the case, making its own credibility

assessments and factual findings more than a decade after the trial. This is squarely

the purview of the fact-finder. Yet that is exactly what the majority purports to do

here—substitute its own credibility determinations and findings for those of the jury

and the trial court and thereby downplay the strength of the government’s case. 45

Notwithstanding these efforts, the government’s case was strong. The

inconsistencies or weaknesses of the government’s case were outside Mr. Rudasill’s

influence and had minimal impact on the jury’s determination of guilt.

The majority’s substitution of its own credibility and factual findings created

a false dichotomy and led to the majority’s conclusion that the choice to testify was

forced on Mr. Truesdale, such that, but for the deficient performance of his trial

counsel, he would either (1) not have testified (and been found, indirectly, more

credible than the government’s three witnesses) or (2) would have testified but would

have avoided the damaging elements of his testimony, including the surprising reveal

that he was a “big time drug dealer” and his combative demeanor with the prosecutor

during cross-examination. To the contrary, the record supports the trial court’s

finding that it was likely Mr. Truesdale’s desire to testify all along and that, despite

preparing his client to testify, Mr. Rudasill was caught off guard by some of Mr.

Truesdale’s testimony during direct examination. The jury’s ultimate decision to not

credit Mr. Truesdale’s testimony, while crediting the testimony of the government’s

witnesses, with full knowledge of their biases, cannot fall at the feet of Mr.

Truesdale’s trial attorney because he did not prevent his client from taking the stand

or because he did not anticipate his client’s unplanned statements and combative

demeanor during his examination. Nor does the majority demonstrate that had these 46

pitfalls been entirely absent from Mr. Truesdale’s testimony, there was a reasonable

probability that the jury would not have found him guilty, given the strength of the

government’s case. 2

The jury’s decision to credit the government’s three witnesses and the other

corroborating evidence, over Mr. Truesdale’s testimony, demonstrates the “strengths

of the government’s case” against him and undermines the majority’s conclusion that

there was a reasonable probability that but for his counsel’s errors, the result of the

proceeding would have been different. Dugger, 295 A.3d at 1119-20 & 1119 n.13;

Strickland, 466 U.S. at 694.

A. Preparation for Trial Testimony

The majority holds that Mr. Rudasill’s failure to prepare Mr. Truesdale to

testify at trial affected the outcome of his case and that, contrary to Mr. Rudasill’s

testimony at the Section 23-110 hearing, Mr. Rudasill knew that his trial strategy

was to paint Mr. Truesdale as a “big time drug dealer.” The majority cites Vaughn

v. United States for the proposition that meeting with a defendant “several times

prior to trial” and “conduct[ing] a mock cross-examination” during pretrial

2 This court has previously determined that assessing the strength of the government’s case is critical to assessing ineffective assistance of counsel claims. See, e.g., Dugger, 295 A.3d at 1119-20. 47

preparation is “well within the range of reasonable attorney performance.” 93 A.3d

1237, 1272 (D.C. 2014); see also Lane v. United States, 737 A.2d 541, 551 (D.C.

1999) (dismissing an ineffective assistance of counsel claim where an

“uncontroverted affidavit established that [the trial lawyer] met with [the defendant]

on numerous occasions to prepare his testimony and to discuss impeachment and

cross examination”). Here, Mr. Rudasill testified that he “talked to [Mr. Truesdale]

about his version of the facts and the type of questions he w[ould] be confronted

with if he testified,” and “[went] over his narrative of the facts and the potential

cross-examining questions that [h]e [would] face every time that [he] met with [Mr.

Truesdale].” Mr. Rudasill testified that they did practice runs in order for him to

“get to the essence of his understanding of what case [Mr. Truesdale] wanted to

present to the jury.” Mr. Rudasill testified that Mr. Truesdale was “very proactive”

about his case. Mr. Rudasill also testified that he told his client to accept the plea

offer, but that Mr. Truesdale refused, saying “my mother ain’t paying you to

negotiate a plea offer for me. She paying you to try this case. I want you to try this

case and this is the theory I want you to advance before the jury.” Mr. Rudasill

added that had he known Mr. Truesdale was going to tell the jury that he “was a big 48

time drug dealer,” he would have told him not to testify. 3 At the Section 23-110

hearing, Judge Jackson found the idea that Mr. Truesdale did not initially want to

testify but was somehow persuaded to do so against his wishes by trial counsel to be

“patently incredible,” stating that “[t]here was no indication of that at all in this

case.” The judge added that, at trial, Mr. Truesdale seemed to him “competent,”

“did not seem hesitant,” and “did not seem unprepared.” The judge also definitively

credited Mr. Rudasill’s testimony that he met with Mr. Truesdale to prepare him to

take the stand and to go over his testimony at trial. The majority dismisses the trial

judge’s findings on this issue and contends that Mr. Truesdale’s trial performance is

evidence enough that he stepped uninformed and ill-advised into the witness stand.

However, the trial judge’s findings, which were based on his firsthand observations

of Mr. Truesdale’s demeanor and presence at trial and his observations of Mr.

Rudasill, contradict this conclusion.

According to Mr. Truesdale’s testimony at the Section 23-110 hearing,

Mr. Rudasill only discussed with Mr. Truesdale the possibility of testifying the night

3 The question of whether Mr. Rudasill pressured Mr. Truesdale to testify at trial was raised in Mr. Truesdale’s hearing before the trial court where it found it “patently incredible” that Mr. Truesdale was persuaded by counsel to testify on the eve of trial. However, the issue was not reraised in Mr. Truesdale’s brief to this court. Yet, the majority seems to presume, based solely on Mr. Truesdale’s discredited testimony, that Mr. Rudasill pressured Mr. Truesdale to testify. 49

before he took the stand, without practicing or reviewing questions likely to be asked

during direct or cross-examination. Mr. Rudasill testified that he adequately

prepared Mr. Truesdale to testify by “talk[ing] to him about his version of the facts

and the type of questions he w[ould] be confronted with if he testified,” but that he

did not “go through . . . each individual question that [Mr. Rudasill] thought the

prosecutor would ask [Mr. Truesdale].” Mr. Rudasill also testified that Mr.

Truesdale was “very proactive about his case,” going so far as to conduct his own

research in the jail law library. In denying Mr. Truesdale’s Section 23-110 motion,

the trial court credited Mr. Rudasill’s testimony and discredited Mr. Truesdale’s,

noting Mr. Truesdale’s assertion that he only testified at Mr. Rudasill’s

encouragement was “patently incredible.” Mr. Rudasill testified that Mr.

Truesdale’s claim of a single, brief eleventh-hour preparation session was

inaccurate, stating that, in fact, there were multiple iterations of preparation and

meetings between him and Mr. Truesdale. The trial court credited this testimony.

The trial court did not clearly err in crediting Mr. Rudasill’s testimony.

In turn, the majority emphasizes a number of “obvious errors and

contradictions” in Mr. Rudasill’s hearing testimony, including stating twice that Mr.

Truesdale was shot without any evidence to that effect; asserting that he advised Mr.

Truesdale on a plea deal based on one judge’s sentencing record when another judge 50

was actually presiding; and testifying that he pursued a joint-offender defense even

when he also confirmed that Mr. Truesdale had told him he had never left the vehicle.

The majority contends that it is permissible for them to conclude that the

inconsistencies of Mr. Rudasill’s testimony “demand skepticism,” potentially to the

extent that “a reasonable factfinder would not credit it.” Stringer v. United States,

301 A.3d 1218, 1228 (D.C. 2023) (quoting Anderson v. City of Bessemer City, 470

U.S. 564, 575 (1985)). Yet disregarding the fact-finder’s credibility determination

and factual findings is clearly the exception to the rule, and it is not appropriate to

apply the exception in this case. We are obligated to respect the trial court’s

credibility determinations in the absence of clear error. See Williams v. United

States, 187 A.3d 559, 564 (D.C. 2018) (A trial court’s “factual findings anchored in

credibility assessments derived from personal observations of the witnesses [are]

beyond appellate reversal unless those factual findings are clearly erroneous.”

(quoting Caston v. United States, 146 A.3d 1082, 1099 (D.C. 2016))). Indeed, this

court “tend[s] to be more deferential to those [factual] findings by the trial judge

which are facilitated by his presence in the courtroom and his ability to observe the

players first hand; findings based on documents or other writings merit little

deference or none at all.” Byrd v. United States, 614 A.2d 25, 30 (D.C. 1992). This

is a high bar, which Mr. Truesdale has not met. But more importantly,

Mr. Rudasill’s testimony was consistent, not contradictory, with regards to his 51

preparation of Mr. Truesdale to testify at trial, as the trial court found. 4 It is therefore

unfounded here for the majority to substitute its own credibility and factual

determinations for those of the trial court. Furthermore, Mr. Truesdale does not

argue that the trial court abused its discretion in finding his own testimony to be non-

credible.

In light of the strength of the government’s evidence, Mr. Truesdale falls short

of demonstrating that Mr. Rudasill’s pre-testimony preparation prejudiced the

outcome of the trial. Mr. Truesdale acknowledged at the Section 23-110 hearing

that, in response to Mr. Rudasill asking him what he would say if he were to testify,

he was “specific about it.” The majority contends that insufficient preparation for

his testimony caused Mr. Truesdale to make basic errors during his testimony that

affected the jury’s perception of him, including yelling at the prosecutor in front of

the jury, incorrectly describing his past convictions, asking a prosecutor questions

during cross-examination, and refusing to answer the prosecutor’s question about

the identity of the driver. But Mr. Truesdale’s combative demeanor on the witness

4 The passage of six intervening years between the trial and the Section 23- 110 hearing may well have led to some inconsistencies in Mr. Rudasill’s testimony, as well as Mr. Rudasill’s brain injury and other health issues subsequent to Mr. Truesdale’s trial, his retirement from practice, and the criminal cases that he oversaw in the intervening years. 52

stand cannot reasonably be attributed to Mr. Rudasill. Even if one were to assume

that Mr. Rudasill’s preparation bore on Mr. Truesdale’s comportment during cross-

examination, the record indicates that Mr. Truesdale had strong views about how he

wanted his case presented and was not always persuaded to follow Mr. Rudasill’s

recommendations. Further, any potential effect of Mr. Truesdale’s conduct on the

outcome of the trial is minimized by the strength of the testimony of Mr. Hilton,

Mr. Cook, and Mr. Colbert and the other corroborating evidence.

The record supports the trial court’s finding that it was likely that Mr.

Truesdale desired to testify all along and that despite preparing his client to testify,

Mr. Rudasill could not anticipate or control Mr. Truesdale’s combative demeanor on

the witness stand. As the trial judge noted, Mr. Truesdale was being “Mr.

Truesdale.” The testimonial evidence of the government’s three witnesses was

strong and was a testament to the strength of the government’s case. There was no

reasonable probability that but for counsel’s errors, the result of the trial would have

been different. 5 Accordingly, I would hold that Mr. Rudasill’s efforts to prepare

5 Cf. Dugger, 295 A.3d at 1119-20 (concluding that, in a case where the government had “a fairly strong case . . . [but] no slam dunk,” the trial counsel’s deficient performance “tilted the balance in the government’s favor,” resulting in prejudice). In Dugger, the court held that the “cornerstone of [the government’s] case” was the testimony of the victim, such that the absence of that testimony “would 53

Mr. Truesdale to testify were not prejudicial in light of the strength of the

government’s case.

B. Direct Examination Questioning

The majority holds that Mr. Rudasill’s performance on direct examination

was deficient because Mr. Rudasill asked broad questions that led Mr. Truesdale to

inaccurately describe his prior convictions; asked Mr. Truesdale how much money

he made as a drug dealer; improperly referenced a pending case against

Mr. Truesdale; and failed to seek a limiting instruction on Mr. Truesdale’s prior-

conviction, incarceration, and pending case testimony.

translate into a reasonable probability that [the jury] would not have convicted Dugger.” Id. And, as the court pointed out, “[t]here were reasons to doubt [the victim’s] testimony,” irrespective of any impeachment evidence. Id. The Dugger court concluded that, given these foundational issues with the victim’s testimony, had his previous convictions for violent assault and a drug offense been offered to the jury and had the implication that there was evidence that he had a peaceful character been removed, the victim’s “version of events becomes significantly more suspect.” Id. at 1119. In contrast, here the government’s case was much stronger than its case in Dugger because the government’s case did not fundamentally hang on the testimony of a single witness in a make-or-break capacity. Rather, the government’s case was based on the testimony of three witnesses: two of whom were corroborated in key, critically important ways by an independent third witness and by physical evidence. Unlike in Dugger, where Mr. Dugger’s trial counsel failed to impeach the government’s chief witness and failed to object to the jury’s consideration of non-existent evidence of that witness’s peaceful character, here, there is no evidence that Mr. Rudasill failed to utilize favorable impeachment evidence concerning the testimony of Mr. Hilton, Mr. Cook, or Mr. Colbert. 54

I am not persuaded that Mr. Truesdale’s responses to Mr. Rudasill’s direct

examination damaged his case to an extent sufficient to undermine confidence in the

outcome of the trial. Mr. Truesdale’s combative conduct during cross-examination

and unanticipated testimony on direct were beyond Mr. Rudasill’s control. The

majority references both specific questions that Mr. Rudasill asked Mr. Truesdale

concerning his drug-dealing and phrases used by Mr. Rudasill in his opening

argument “foreshadow[ing] that testimony.” Starting with the latter, Mr. Rudasill’s

brief characterization of his client in his opening statement was no indication that

the “big-time drug dealer” narrative was planned. The questions asked of Mr.

Truesdale during direct examination—the types of drugs he sold, how much money

he was making at the time, and how much money he had intended to make on that

day if the originally planned drug purchase in Baltimore had been successful—fit

within the overall defense strategy of demonstrating that Mr. Truesdale had a

longstanding practice of making money from the sale of drugs and not from the

robbery of his fellow drug dealers.

Mr. Rudasill’s mention of a pending case against Mr. Truesdale that also

involved Mr. Hilton’s brother was confined to a brief reference before the trial court

stopped him from going further. The government then re-crossed Mr. Truesdale on

the pending case, asking only if the case Mr. Rudasill mentioned was still pending, 55

which Mr. Truesdale confirmed. However, the government made little use of this

passing reference against Mr. Truesdale. Accordingly, Mr. Truesdale has not

established that this fleeting reference was prejudicial to him.

After the prior-conviction testimony was elicited from Mr. Truesdale during

his testimony, Mr. Rudasill did not request that the trial court provide a limiting

instruction to the jury. However, before the jury deliberations began, the trial court

provided a Goodall instruction directing the jury not to consider the stipulation of

Mr. Truesdale’s prior felony charge as anything other than an element of the felon

in possession of a firearm (FIP) charge. See Goodall v. United States, 686 A.2d 178,

183 (D.C. 1996) (providing a cautionary jury instruction informing the jury that it

should not consider a defendant’s past felony convictions for any purpose other than

its relevance to a specific count in the indictment represented the trial court’s

assurance that the defendant would still receive a fair trial.); see also Williams v.

United States, 75 A.3d 217, 221 (D.C. 2013). The trial judge’s Goodall instruction

served to minimize the effect of this testimony, and any prejudice caused by Mr.

Rudasill’s failure to seek limiting instructions on the jury’s determination of

Mr. Truesdale’s credibility was outweighed by the strength government’s case.

*** 56

The majority reaches its conclusion largely by inserting its own credibility

determinations in the place of those made by the jury and the trial judge. Despite

both the judge and the jury sitting for a two-week-long trial, and the trial judge

presiding over a two-day-long Section 23-110 hearing, the majority insists that it is

in a better position to assess the credibility of Mr. Hilton, Mr. Cook, Mr. Colbert,

Mr. Rudasill, and Mr. Truesdale based on the pleadings and a cold record, over a

decade after the trial. The majority’s contention that “[n]either Cook nor Hilton was

an ideal government witness” leads it to conclude that there is a reasonable

probability that Mr. Truesdale would not have been convicted but for counsel’s

errors. The majority, however, minimizes or ignores incriminating consistencies in

the testimonies of the government’s witnesses and other important, corroborating

evidence. Any inconsistencies in the testimony or evidence were insufficient to

overcome the strength of the evidence or to justify setting aside the findings of the

fact-finders who sat in the presence of the witnesses, assessed their demeanor, and

heard their testimony in real time. Moreover, any inconsistencies in the testimony

were insufficient to undermine the strength of the government’s case or to

demonstrate that there was a reasonable probability that the outcome of the case

would have been different absent counsel’s errors. Therefore, I respectfully dissent.