United States v. Frost

502 A.2d 462, 1985 D.C. App. LEXIS 540

• Court: District of Columbia Court of Appeals
• Decided: December 20, 1985
• Docket: 84-945
• Status: Published

Opinions

NEBEKER, Associate Judge:

The United States appeals the trial court’s grant of a motion to vacate judgment in a criminal case pursuant to D.C. Code § 23-110(c) (1981),¹ following a decision that Frost had been denied the effective assistance of counsel at trial. Frost was convicted of armed robbery, D.C.Code §§ 22-2901, -3202 (1981), in a jury trial on January 5, 1984. Three codefendants named in the indictment all pled guilty and were sentenced prior to appellee’s trial. Frost subsequently filed a motion for a new trial based on newly discovered evidence, which was that two of his former codefendants were prepared to testify that he had nothing to do with the robbery. He then supplemented his motion for a new trial, this time raising the claim of ineffective assistance of counsel under § 23-110. This claim was based on his trial counsel’s failure to interview the three codefendants prior to his trial. The trial judge held hearings on the motions and, on June 25, 1984, vacated the judgment of conviction.

I

The facts underlying the armed robbery are that on October 6, 1982, at approximately 4:00 a.m., Mr. Walter Dudley was present in an after-hours establishment. He became aware of some commotion and saw a man pull out a pistol, order everyone to lie on the floor, and take a wooden cash box from behind the bar. Mr. Dudley saw one other man carrying a gun and testified that “at least two or three” individuals were involved in the robbery.

Following the robbery, the perpetrators ran out of the building and were seen immediately by police officers who had been summoned to the scene. The officers gave chase and observed the individuals jump over fences into the back yards of several nearby houses. One officer watched Frost throughout and saw him attempting to hide in a “cubby space” behind a house. The officer ordered Frost to come out and saw him drop something before he did so. Later recovered from the “cubby space” were a wood box containing cash, a pack of Winston cigarettes, and several ladies’ handbags. The cigarette pack was analyzed for fingerprints and found to contain the print of Frost’s left thumb.

At the post-trial hearing, Frost’s trial counsel and the three former codefendants, Walter Bowie, Cornell Thomas, and Nathaniel Jackson, all testified. Trial counsel testified that he had had numerous meetings with the prosecutor, who had indicated that Thomas might agree to testify against Frost and the other two defendants. He had also consulted with Bowie’s lawyer, who stated that her client would not be able to exculpate Frost. Finally, he had interviewed a potential witness whose name Frost had provided. She admitted to knowing Frost but denied having been with him at the after-hours club, as he had said. Based upon all of these conversations, counsel stated that, at the time of trial, he felt it would be pointless to interview the three codefendants. At trial, rather than putting on a defense, his strategy was to attack the government’s case.

At the hearing, codefendants Thomas, Bowie, and Jackson all admitted to having known one another previously, but each testified that the robbery had happened spontaneously and had not been preplanned. They claimed that the dice at the crap table had been “loaded” and they wished to get back the money that they had lost. With respect to Frost, both Thomas and Jackson claimed not to have known him and could not recall whether they had seen Frost in the club. Bowie had known Frost previously but, like the other two, could not remember whether he had seen Frost inside. All three testified that the club had been very crowded on the night of the robbery. That none of the three could recall having seen Frost inside was the exculpatory material proffered in support of the motion. Judge Graae credited the testimony of these witnesses and accordingly granted appellee’s motion.

II

We begin with the proposition that our scope of review in this case is limited to a question of law. D.C.Code § 17-305(a) (1981). Accordingly, it is not up to this court to pass on the credibility of the three potential defense witnesses at the post-trial hearing. Indeed, crediting the testimony of the witnesses as the trial judge did still leaves the constitutional question of adequacy of counsel — the point on which the trial court erred. We look only to the appropriate constitutional standard, set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and apply it to the facts at hand.

In Strickland, the Supreme Court articulated a two-part test for evaluating claims of ineffective assistance of counsel; First, the defendant must show that counsel’s performance was deficient, in that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id., 104 S.Ct. at 2064. Second, the defendant must prove affirmatively that the deficient performance was prejudicial to him. Id. In other words, it is incumbent upon him to demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 2068. It is not enough for the defendant to show that the errors had some possible effect on the outcome of the trial. Id. at 2067.

In applying the Strickland holding to the facts of this case, we need not first address the performance component of the test. Id. at 2069-70. Instead, we find that we are able to dispose of Frost’s claim on the ground that any assumed deficiencies were not sufficiently prejudicial to warrant vacating the conviction. In reaching this conclusion, we have considered the totality of the evidence that was before the jury. Id. at 2069. The evidence against appellee was strong, if not outright compelling. There were several robbers and one of the gunmen reached behind the bar and grabbed a wooden box, later recovered from where Frost was hiding behind a house. As the robbery ended, at least four individuals ran out of the premises, and the police gave chase immediately. One officer watched Frost throughout, saw him attempt to hide in a “cubby space” behind a house, and arrested him. Next to the wooden box found in the “cubby space” was a pack of cigarettes with Frost’s thumbprint on it. Thus the government established flight, concealment, and virtual, if not actual, possession of stolen property. That there was no evidence of a prior plan to rob is of no moment. It is sufficient that Frost joined in by taking the wooden box, fled with it, and hid when chased.

On the other hand, the testimony of Thomas, Bowie, and Jackson was vague and often contradictory. Thomas, for example, denied any recollection of the events in question. Jackson admitted to participating in the robbery but denied that it was pre-planned. And Bowie initially testified that he had worked alone but later changed his story, claiming that the three planned to rob the club because they thought the craps dice were “loaded.” Finally, each of the three was careful to testify that he did not remember having seen Frost at the club; none said that Frost had definitely not been on the premises.

In view of the strength of the government’s case, we find it highly unlikely that the testimony of Thomas, Bowie, and Jackson, none of whom could affirmatively exculpate Frost, would have probably changed the outcome of the trial. Assuming, arguendo, that counsel was deficient in failing to interview these three, we hold that any such failure had “an isolated, trivial effect” on the inferences to be drawn from the evidence. Id. at 2069.

Accordingly, we reverse.

1 . D.C.Code § 23 — 110(c) (1981) provides in pertinent part:

“If the court finds that ... there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner, resentence him, grant a new trial, or correct the sentence, as may appear appropriate.”