Watson v. United States
Opinions
GALLAGHER, Senior Judge:
This case is before us en banc on a claim by appellant of ineffective assistance of counsel on his previous direct appeal from his conviction. It was heard previously before a division of this court, (Watson v. United States, 508 A.2d 75 (D.C.), reh’g granted, judgment vacated, 514 A.2d 800 (D.C.1986)), and when the court decided to hear the case en banc, the opinion of the hearing division was automatically vacated in accordance with our usual procedures.1 Also involved are appeals from trial court orders dealing with issues of ineffectiveness of trial counsel and denying collateral relief from prior judgments of conviction.
I
In this appeal, appellant preserves all the issues he previously raised before the hearing division of this court on the appeal based upon ineffective assistance of counsel.2 But appellant’s focus is now explicitly on the issue of misjoinder of offenses (the “consolidation issue”) as it relates to the claim of “ineffectiveness of counsel” on appeal. Consequently, the thrust of this opinion will be on the “misjoinder” question as it relates to the claim of ineffective assistance of appellate counsel in presenting the misjoinder issue on his direct appeal from his conviction. Procedurally, the ineffectiveness of appellate counsel issue is raised before us by a motion to recall our mandate in this case.
In a case involving a claim of ineffective assistance of counsel on appeal, there are two principal manifestations of appellate representation: (a) the brief and (b) oral argument. The brief and oral argument are illuminated by the record in the case, including the court’s opinion. Due to the passage of time, however, we have no access to the tape of oral argument on direct appeal, which took place some seven years ago, because the tape has been routinely erased.3 We therefore are confined primarily to appellant’s brief on the direct appeal, and the record (including our opinion) for our present review on the ineffective assistance of counsel issue.
It is important to realize at the outset exactly what the claim, as now refined, is in this case. Appellant contends that he was denied the effective assistance of counsel on his direct appeal from his conviction because his retained appellate counsel4 failed to present adequately on appeal a prejudicial consolidation of offenses at his trial (misjoinder of offenses). It should be recognized that appellant does not contend his first appellate counsel failed to raise [1058] the misjoinder issue. Rather, he claims he did not raise the misjoinder issue “adequately.” Relatively speaking, this is something of an intellectual refinement of the usual theme in “ineffectiveness” cases, as the charged blunder is usually much more flagrant. See, e.g., Hollis v. United States, 687 F.2d 257 (8th Cir.1982) (counsel’s failure to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982) (counsel’s failure to file brief with appeal); Passmore v. Estelle, 607 F.2d 662 (5th Cir.1979) (counsel’s submission of one-sentence appellate brief on behalf of one whose conviction had resulted in a life sentence); Meyer v. Florida, 415 So.2d 70 (Fla.Dist.Ct.App.1982) (counsel’s failure to file timely notice of appeal).
Appellant related to the court at the outset of oral argument in measured terms precisely what he contends is this court’s task in this case. He said:
Watson’s claim, in essence, is that he was denied his constitutionally guaranteed champion on appeal. To prevail, we must convince the court that it should lack confidence in its own opinion. An opinion that I fully recognize was authored by a division of two of the judges here today. That is an extraordinarily high standard. But in fact, we would submit that Watson has done more. With remarkably little opposition from the government, Watson has made what we think is a convincing claim that the opinion which came out in November of 1979 was wrong, through no fault of the court; something which will not happen very often, for I’m sure this court has confidence in the integrity in its own opinions, as we do. It was wrong we submit, and let me just be crystal clear, that unless we prevail on this claim, we are out of court on our claim of ineffective assistance of appellate counsel. But that opinion was wrong, we submit, because the court was misinformed. It believed, when it tried to determine whether Watson’s trial was fair, which was its sworn duty, that the argument for consolidation, as the court called it, was strong enough to find the trial fair.
(Emphasis added.)
In other words, appellant is putting it up to this court (a) to reexamine its previous opinion on the direct appeal, and (b) to decide that its prior decision was wrong “through no fault of the court” but, rather, due to appellate counsel’s inadequacy in the consolidation (misjoinder) contention, and hence, (c) counsel was constitutionally “ineffective.”
We, of course, intend to address our concept of the law on ineffective assistance of counsel on appeal, as that is the issue in this case. But, so there will be no mistake about it, we wish to make it quite plain at the outset that we do not intend to accept appellant’s invitation to focus primarily on our division’s opinion. If we were to wander into that precedential quicksand, we would be signalling that unsuccessful criminal appellants can obtain a second appeal on the merits, if they base it on the ground that the court’s opinion on the first appeal was wrong.5 The argument is that it would not have been wrong but for the ineffective assistance of counsel on the first appeal for inadequately raising an important issue. While we will not take this precarious approach to the issue, we will nevertheless keep the avenue always open for a claim of ineffective assistance of counsel by the use of proper standards.
We are going to examine the presentation to the court by appellant’s first counsel, as distinguished from placing the primary focus on our division’s prior opinion. We are not going to look at his performance in order to determine whether his presentation left something to be desired, or whether counsel put the court to an unnecessary degree of work in its review. We will determine whether counsel’s performance deprived appellant of his substantive due process right to counsel stemming from application of the Sixth Amendment. Our decision is not simply based on whether counsel can be faulted on some scores. Ours is a constitutional review, not a grading exercise. See Strickland v. Washing[1059] ton, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984).
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GALLAGHER, Senior Judge:
This case is before us en banc on a claim by appellant of ineffective assistance of counsel on his previous direct appeal from his conviction. It was heard previously before a division of this court, (Watson v. United States, 508 A.2d 75 (D.C.), reh’g granted, judgment vacated, 514 A.2d 800 (D.C.1986)), and when the court decided to hear the case en banc, the opinion of the hearing division was automatically vacated in accordance with our usual procedures.1 Also involved are appeals from trial court orders dealing with issues of ineffectiveness of trial counsel and denying collateral relief from prior judgments of conviction.
I
In this appeal, appellant preserves all the issues he previously raised before the hearing division of this court on the appeal based upon ineffective assistance of counsel.2 But appellant’s focus is now explicitly on the issue of misjoinder of offenses (the “consolidation issue”) as it relates to the claim of “ineffectiveness of counsel” on appeal. Consequently, the thrust of this opinion will be on the “misjoinder” question as it relates to the claim of ineffective assistance of appellate counsel in presenting the misjoinder issue on his direct appeal from his conviction. Procedurally, the ineffectiveness of appellate counsel issue is raised before us by a motion to recall our mandate in this case.
In a case involving a claim of ineffective assistance of counsel on appeal, there are two principal manifestations of appellate representation: (a) the brief and (b) oral argument. The brief and oral argument are illuminated by the record in the case, including the court’s opinion. Due to the passage of time, however, we have no access to the tape of oral argument on direct appeal, which took place some seven years ago, because the tape has been routinely erased.3 We therefore are confined primarily to appellant’s brief on the direct appeal, and the record (including our opinion) for our present review on the ineffective assistance of counsel issue.
It is important to realize at the outset exactly what the claim, as now refined, is in this case. Appellant contends that he was denied the effective assistance of counsel on his direct appeal from his conviction because his retained appellate counsel4 failed to present adequately on appeal a prejudicial consolidation of offenses at his trial (misjoinder of offenses). It should be recognized that appellant does not contend his first appellate counsel failed to raise [1058] the misjoinder issue. Rather, he claims he did not raise the misjoinder issue “adequately.” Relatively speaking, this is something of an intellectual refinement of the usual theme in “ineffectiveness” cases, as the charged blunder is usually much more flagrant. See, e.g., Hollis v. United States, 687 F.2d 257 (8th Cir.1982) (counsel’s failure to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982) (counsel’s failure to file brief with appeal); Passmore v. Estelle, 607 F.2d 662 (5th Cir.1979) (counsel’s submission of one-sentence appellate brief on behalf of one whose conviction had resulted in a life sentence); Meyer v. Florida, 415 So.2d 70 (Fla.Dist.Ct.App.1982) (counsel’s failure to file timely notice of appeal).
Appellant related to the court at the outset of oral argument in measured terms precisely what he contends is this court’s task in this case. He said:
Watson’s claim, in essence, is that he was denied his constitutionally guaranteed champion on appeal. To prevail, we must convince the court that it should lack confidence in its own opinion. An opinion that I fully recognize was authored by a division of two of the judges here today. That is an extraordinarily high standard. But in fact, we would submit that Watson has done more. With remarkably little opposition from the government, Watson has made what we think is a convincing claim that the opinion which came out in November of 1979 was wrong, through no fault of the court; something which will not happen very often, for I’m sure this court has confidence in the integrity in its own opinions, as we do. It was wrong we submit, and let me just be crystal clear, that unless we prevail on this claim, we are out of court on our claim of ineffective assistance of appellate counsel. But that opinion was wrong, we submit, because the court was misinformed. It believed, when it tried to determine whether Watson’s trial was fair, which was its sworn duty, that the argument for consolidation, as the court called it, was strong enough to find the trial fair.
(Emphasis added.)
In other words, appellant is putting it up to this court (a) to reexamine its previous opinion on the direct appeal, and (b) to decide that its prior decision was wrong “through no fault of the court” but, rather, due to appellate counsel’s inadequacy in the consolidation (misjoinder) contention, and hence, (c) counsel was constitutionally “ineffective.”
We, of course, intend to address our concept of the law on ineffective assistance of counsel on appeal, as that is the issue in this case. But, so there will be no mistake about it, we wish to make it quite plain at the outset that we do not intend to accept appellant’s invitation to focus primarily on our division’s opinion. If we were to wander into that precedential quicksand, we would be signalling that unsuccessful criminal appellants can obtain a second appeal on the merits, if they base it on the ground that the court’s opinion on the first appeal was wrong.5 The argument is that it would not have been wrong but for the ineffective assistance of counsel on the first appeal for inadequately raising an important issue. While we will not take this precarious approach to the issue, we will nevertheless keep the avenue always open for a claim of ineffective assistance of counsel by the use of proper standards.
We are going to examine the presentation to the court by appellant’s first counsel, as distinguished from placing the primary focus on our division’s prior opinion. We are not going to look at his performance in order to determine whether his presentation left something to be desired, or whether counsel put the court to an unnecessary degree of work in its review. We will determine whether counsel’s performance deprived appellant of his substantive due process right to counsel stemming from application of the Sixth Amendment. Our decision is not simply based on whether counsel can be faulted on some scores. Ours is a constitutional review, not a grading exercise. See Strickland v. Washing[1059] ton, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984).
One final thought while laying the groundwork for our discussion: appellant must realize that when a claim of ineffectiveness of appellate counsel is raised in this court, an appellant is arguing in territory at the outermost limits of the constitutional guarantee to the right to counsel.6 There is no doubt about the well-known and oft repeated historical truism on the crucial importance of counsel to a criminal defendant (or any litigant) every step of the way. Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 68-71, 53 S.Ct. 55, 63-65, 77 L.Ed. 158 (1932); see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Grosjean v. American Press Co., 297 U.S. 233, 243-44, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936). Of this there can be no doubt; and incidentally, the abler counsel’s performance, the lighter the burden for the decision-maker.7 These are realities which are indisputable and have long been widely accepted by bench and bar, so we need not elaborate on them further. Well-litigated cases by able and prepared counsel are something the bar should continually strive toward, with judicial encouragement and assistance.
We have observed that the issue here is at the outermost constitutional limits because the reality is that (a) appellant has previously received a judgment of conviction, and (b) has already received an appellate review which affirmed the conviction. Consequently, an appellant has “no easy row to hoe” in the constitutional attack. The court must be particularly circumspect in our review or else we will inadvertently encourage a routine of unwarranted second appeals by unsuccessful appellants in criminal cases. At the same time, we certainly do not intend to discourage a genuine claim on ineffective assistance of appellate counsel.
II
Recognizing that Evitts v. Lucey, supra note 4, establishes a due process right to effective assistance of counsel, whether retained or appointed, on a “first appeal” as of right, appellant contends that we should either remand for resentencing or reopen his appeal.8 This would necessarily require that we first recall the mandate affirming his convictions.
Before reaching the merits of appellant’s due process claim, we must dispose of the procedural matter of how one may challenge previous counsel’s effectiveness on appeal. The approach taken by appellant, filing with this court a motion to recall the mandate, is a proper one. D.C.App.R. 41(c), which became effective on January 1, 1985, provides:
RECALL OF MANDATE: In any appeal from a judgment of conviction in a criminal case, no motion to recall a mandate based on the asserted failure of counsel to represent the appellant effectively on appeal shall be considered by the court unless the motion is filed within 180 days from the issuance of the mandate.
Appellant’s motion to recall the mandate was filed before Rule 41(c) became effective. He was not required, therefore, to comply with the 180-day provision of our rule.9
Rule 41(c) does not by its terms affirmatively require the filing of a motion to recall the mandate as the means of presenting a Lucey-type challenge of ineffectiveness on a direct appeal. However, no more suitable method of raising such a claim is available procedurally.
[1060] To be sure, there are procedures which are not available. In Streater v. United States, 429 A.2d 173 (D.C.1980) (per curiam), appeal dismissed and cert. denied, 451 U.S. 902, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981), we stated that D.C.Code § 23-110 (1981), a popular means of collaterally attacking a conviction, “provides no basis upon which the trial court may review appellate proceedings.” Id. at 174. This construction is supported by decisions on the analogous federal statute, 28 U.S.C. § 2255 (1982) (cited in Streater, supra, 429 A.2d at 174), as well as by reason: the Superior Court should not have authority to rule.on the constitutionality of an appellate proceeding.10 Streater is particularly instructive in this case because of the identity of issues: ineffectiveness of appellate counsel.
For much the same reason, D.C.Code § 16-1901 (1981), which provides for habeas corpus relief, does not vest in Superior Court the power to entertain complaints about the adequacy of appellate counsel. Upon application, the court may grant a habeas corpus writ “if the facts set forth in the petition make a prima facie case” that a person is unlawfully confined. Id. § 16-1901 (a). In the context of this case, where a denial of due process would form the basis of a petition, such a determination would necessarily require the lower court to pass judgment on the efficacy of the appellate review. See Streater v. Jackson, 223 U.S.App.D.C. 393, 395, 691 F.2d 1026, 1028 (1982) (per curiam).11
A motion in this court to recall the mandate is the appropriate avenue to take in presenting a Lucey challenge. See United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir.1983). This is not to say that this court will entertain on the merits a claim of ineffective appellate counsel by first recalling the mandate. This would be a precipitous practice and run contrary to the accepted rule that mandates may be recalled only in the presence of exceptional circumstances. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 332, 463 F.2d 268, 278 (1971) (rule is based on “the strong policy of repose, that there be an end to litigation,” citing Hines v. Royal Indemnity Co., 253 F.2d 111, 114 (6th Cir.1958)). Rather, this court will examine motions of this nature and, if they have on their face sufficient merit in accordance with this decision, will recall the mandate and reopen the appeal.12 That way judgments will not be disturbed unless the mov-ants carry their heavy initial burden. See generally Streater v. United States, 478 A.2d 1055, 1057 n. 3 (D.C.1984); Dilley v. Alexander, 200 U.S.App.D.C. 354, 357, 627 F.2d 407, 410 (1980). By this we mean the initial burden the movant must satisfy is to set forth in detail a persuasive case for recall of the mandate. To put it another way, conclusory assertions are not sufficient. The movant must give “chapter and verse.” As a matter of degree, this court will be looking' more for factual support than argument. The constitutional argument on “ineffectiveness” is likely to be quite familiar to the court.
Our decision in Streater v. United States, supra, 478 A.2d 1055, suggests that this is an acceptable procedure. That [1061] case derived from our decision in the earlier Streater v. United States, supra, 429 A.2d 173, in which we held that Streater’s claim that he had been denied the effective assistance of appellate counsel was not cognizable in Superior Court under § 23-110.13 429 A.2d at 174. Following this rule, Streater petitioned for a writ of habeas corpus in the federal district court for this jurisdiction. The federal district court dismissed the petition, however, on the ground that Streater could seek relief in Superior Court under D.C.Code § 16-1901 and therefore had not exhausted his non-federal remedies. On appeal, the federal circuit court, in Streater v. Jackson, supra, vacated the judgment of the district court. It agreed with Streater’s argument that our earlier decision foreclosed any remedy in Superior Court “on the ground that a trial court is not positioned to review proceedings in a court of appeals.” 223 U.S.App.D.C. at 395, 691 F.2d at 1028.
Persuaded that this court would be best suited to resolve Streater’s ineffective assistance of appellate counsel claim, the federal circuit court remanded the case to the district court with instructions that it hold Streater’s habeas corpus petition in abeyance pending his application to this court to recall the mandate and reopen the direct appeal. Id. at 395, 691 F.2d at 1028. Accordingly, Streater then filed a motion in this court to recall the mandate. Streater v. United States, supra, 478 A.2d at 1057 n. 3. A motions panel granted the request, vacated our original judgment, and thereby revitalized Streater’s direct appeal. Id. at 1057.
This court will pursue a claim of ineffective assistance of appellate counsel which initially has been found by the court to have sufficient merit by recalling the mandate and reopening the movant’s appeal in order to fully explore and then decide whether there was ineffective assistance of counsel on the first appeal.
One final procedural matter should be addressed. It is conceivable that a Lucey claim will be premised on an argument which requires the resolution of some material factual issue. Suppose a defendant filed a motion to recall the mandate affirming his conviction which challenged the adequacy of his appellate counsel on a newly discovered ground where a factual issue was crucial to the appellate issue. The government responds in opposition to the motion that no such occurrence took place, as a matter of fact. Plainly, before this court could rule on the motion to recall the mandate, and assuming the issue presented appears to be of sufficient gravity to warrant exploration, factual findings would be necessary to determine whether the circumstance actually existed and, if so, what exactly took place. Thus, in some cases, the record may be remanded to the trial court under appropriate instructions and time constraints for a hearing and factual findings, with this court retaining jurisdiction pending the trial court’s findings and a return of the record.
Ill
We proceed now to determine whether retained counsel for appellant on his first appeal from his conviction was ineffective, as a matter of constitutional law. The way we proceed to a conclusion on this issue is, essentially, to examine counsel’s performance on the appeal. The focal point is counsel, not this court.
It is immediately apparent that counsel reviewed the trial record in this case. Of that there can be no genuine question. Looking at the comprehensive statement of facts in the brief, it is evident that the testimony of all the witnesses was examined and summarized. We note there are no fewer than 101 transcript references in the course of the factual review of the record. Clearly, there is not a question of unfamiliarity with the trial record on the [1062] part of the first appellate counsel.14 So we can set that potential pitfall aside.
He filed a twenty-four page brief. He raised three issues: (a) appellant was prejudiced by the conduct of the trial judge toward his counsel throughout the trial; (b) the trial court erred in failing to deny the government’s pretrial motion to consolidate the three offenses; and (c) the trial court erred in failing to grant appellant’s motion for judgment of acquittal on the charge of first degree murder.15
Counsel made a nine-page Statement of the Case (with the aforementioned 101 transcript references). This contained a statement of the procedural history and a comprehensive statement of the evidence at the trial. These were properly referenced to the record.
He provided a Table of Cases containing thirteen case citations. In doing so, he drew the court’s attention to four of those cases as being “chiefly relied on.” Three of the four are leading cases in this jurisdiction on what has now become the issue principally relied upon, i.e., the “consolidation” (severance) issue. He then provided other references, e.g., the trial court rules on joinder (Rules 8 and 14), and a legal text reference relating to “joinder.”
The brief then outlines the three issues being raised. The remainder of the brief (some sixteen pages) is devoted to argument on the three issues raised on the appeal. While we need not concern ourselves extensively with two of these three contentions,16 it is apparent that the first issue raised relating to the trial judge’s conduct in the trial was not frivolous and was extensively briefed, with appropriate application of leading cases in this jurisdiction on the point. Skipping the second issue (on joinder) for a moment, the third issue raised related to the sufficiency of the evidence. This was a substantial appellate issue in this case, though counsel’s method of presenting only one facet of it was not the most effective way of presenting the issue. To summarize, appellant briefed three issues of substance on the appeal, including the one which at this late date has finally been selected by appellant for attack on this particular appeal.
We turn now to the portion of the brief devoted to the “consolidation” question, the crucial issue.17 We note there are three pages in the brief devoted to this misjoin-der issue, during which there are cited in various segments of the discussion, four leading opinions of this court on “severance” and one landmark opinion on this question by the United States Court of Appeals for this jurisdiction, as well as a leading textwriter; and the brief draws into discussion the pertinent rules of criminal procedure of the Superior Court on “joinder” (Rules 8 and 14).
After pointing out, initially, that the join-der of counts in an indictment against a single defendant is “a particularly thorny” issue, which is covered by the trial court’s Rules 8 and 14, and outlining the three crimes which were here consolidated for trial, the brief proceeds to a discussion of the law on “joinder” in this jurisdiction.
[1063] The thrust of counsel’s argument was that the indictments were not joinable under Rule 8(a) of the trial court's rules and, alternatively, even if joinder was proper, the consolidation was so prejudicial that severance under Rule 14 should later have been granted. His initial paragraph correctly sets up Rules 8 and 14 as the controlling authority. Though the paragraph is rather succinct and not an exhaustive discussion, the brief clearly and accurately states what the applicable law is:
Rule 8 permits the joining of different offenses in the same indictment if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. And Rule 14 provides for severance if substantial prejudice would otherwise result.
The next paragraph correctly summarizes the three incidents involving Watson which were consolidated for trial: (1) the May 30, 1976, assault that took place within the house at 1926 Quincy Street; (2) the June 5,1976, breaking into the same house and assault with intent to kill there; and (3) the June 28, 1977, murder at the same house.
Counsel then submits that the only theory which would allow a joinder of these offenses under Rule 8 is that the three were of the same or similar character. He sets forth the focus of the remainder of the argument — -the prejudice that resulted from joinder. Counsel then refers this court to its own leading decision on joinder in Bridges v. United States, 381 A.2d 1073 (D.C.1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978). Bridges is quoted to illustrate the risk of prejudice to be guarded against when joining offenses for trial: (1) that the jury might cumulate the evidence; and (2) that proof of one offense may be used by the jury to convict defendant of another offense where the evidence is otherwise insufficient.
Counsel did not specifically relate to the division what this court said in Bridges. But he did refer this court to its own decision in that rape case. There we held that when joinder of offenses is based on the fact that the crimes are of a “similar character,” a motion to sever should be granted unless, “(1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury’s mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others.” 381 A.2d at 1075 (emphasis added).
The prejudice discussion in counsel’s brief then continues with references to a significant footnote in this court’s opinion in Bell v. United States, 332 A.2d 351, 353 n. 3 (D.C.1975), distinguishing criminal propensity prejudice, which was analyzed in terms of mutual admissibility of evidence in separate trials, from prejudice arising from the accumulation of evidence, which is analyzed from the standpoint of whether the evidence of each offense is kept “simple and distinct.”18
The brief then states that the primary thrust of the prejudice argument concerns criminal propensity prejudice. Our decision in Bridges, supra, and our decision in Tinsley v. United States, 368 A.2d 531 (D.C.1976), are cited here by appellant, and he relates the proposition that the prosecution may not introduce evidence of other criminal acts to show general bad character or the tendency to commit the offense charged. Bridges and McCormick on Evidence are utilized by counsel for the rule that, in order to admit evidence of other crimes, it must be introduced for some purpose other than to show the probability that the accused committed the crime charged because he possesses a criminal character.19
[1064] Counsel did not, as hindsight might suggest he should have, repeat to this court what we had stated in Tinsley — that a reviewing court must look to the record to evaluate the manner in which the prosecutor presented evidence of separate crimes in order to assess the validity of appellant’s claim that the government failed to keep the offenses “separate and distinct.” We said, further, that unless the two crimes are found to be mutually admissible, “the points of potential similarity cut the other way. Every suggestion at trial that the two crimes [are] in some way similar increase^] the likelihood that the jury [will become] confused or misuse[ ] the evidence.” Tinsley, supra, 368 A.2d at 536-37. This familiar factor, as related by this court in its own opinion in Tinsley, should have been elaborated upon in appellant’s brief.
We might point out also that in the leading ease in this jurisdiction on “joinder,” Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), which counsel cites, the United States Court of Appeals for the District of Columbia Circuit put forth a series of rules and considerations for assessing whether the joinder of offenses or defendants in a single trial was so highly prejudicial to the appellant as to outweigh any administratively economic or expeditious value, and therefore require reversal on appeal.
The brief then poses the question: What purpose was there to allow evidence of the 1976 assaults into a trial for the 1977 murder? The remainder of the brief is devoted to the contention that there was no allowable purpose, as none of the five Drew exceptions were met. See Drew, supra, 118 U.S.App.D.C. at 16, 331 F.2d at 90. Counsel appropriately listed the five Drew exceptions where evidence of other crimes is admissible when relevant to motive, intent, absence of mistake, common plan or scheme, and identity, and asserted that only motive or identity could reasonably be argued as applicable to this case.
The brief disposes of the potential for the “prior incidents” to fall into the identity category, contending they are not “signature crimes.” Our opinion in Arnold v. United States, 358 A.2d 335 (D.C.1976) (en banc) is cited for the rule that to be considered “signature crimes,” the incidents must be so strikingly similar that proof that a person who committed one offense would be admissible at a separate trial of the other offense to show the person’s trademark.
He argues that the facts of Watson’s case do not fit the “identity” category because, although the three offenses occurred in the same house, they differed dramatically in severity. The brief continues: “To threaten a person with a gun does not identify the perpetrator as the same man who shot two other people and, a year later, killed a third person even if all incidents did occur in the same premises, especially in light of the fact the decedent was repeatedly stabbed as well as shot. The ‘striking’ similarity needed to overcome the inevitable and substantial prejudice is absent.”
His brief attempts to dispose of the possibility of the incidents falling into the “motive” category. Specifically, counsel wrote: “The incidents of May and June 1976, were in no way connected with appellant’s desire to have Timothy Reeves, the decedent, vacate the house. They occurred a little over [1065] one year apart. They tend to establish neither why appellant would kill him nor why appellant would want him out of the house. Timothy Reeves was not even in the picture when those incidents took place.” The brief continues that evidence of the assaults “suggests very strongly that, when appellant wants someone out of the house, he is not afraid to use force or the threat of force to get him out.” This, he asserts is “precisely the type of prejudice discussed in Bridges,” — criminal propensity prejudice. The government, says counsel’s brief, “used the two assaults to show [Watson’s] general bad character and tendency to commit the particular offense charged.” (Emphasis added.)
The final paragraph summarizes appellant’s position: the offenses were not properly joined because evidence of the assaults would not have been admissible in a separate murder trial. He continues that the assaults would not have been admissible because they do not meet any of the five Drew exceptions. Rather, he says, what they do show is “precisely the inevitable prejudice to be guarded against, that is, evidence of bad character and to commit a crime.”20
The main argument of appellant’s brief— that the trial court erred in granting the government’s Rule 13 motion as the assaults do not go to identity, motive, common plan or scheme, accident or mistake, or intent in the murder charge — was successful. Appellant convinced the hearing division that the evidence was not mutually admissible.
In his brief, counsel for appellant distinctly made the argument that (a) there was an important Drew (joinder) problem in the case; (b) he invoked this court’s leading decisions on the issue; and (c) he made a successful frontal attack on the trial court’s crucial ruling that evidence on the three crimes was mutually admissible. The division concluded, however, that the conviction survived because it was supported by the “simple and distinct” exception.
IV
The cornerstone case on ineffective assistance of counsel is Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There, the Supreme Court established a two-prong test for evaluating the claim. Appellant (or defendant) must establish that the attorney’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Secondly, the required showing of prejudice must be made, i.e., it must be established that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. The appropriate standard is regarded as reasonably effective assistance under prevailing professional norms. To put it another way, “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688, 104 S.Ct. at 2065. Perhaps a more meaningful way of stating the test is: “[T]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied upon as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. Unless it is apparent initially, however, that the required showing of prejudice can be made there is no point in proceeding to review the record for the purpose of assessing, constitutionally, the performance of counsel. Id. at 697, 104 S.Ct. at 2069.
In Strickland v. Washington, supra, the Court commented that although it had discussed counsel’s performance prior to consideration of the prejudice prong, there is no compelling reason to approach the inquiry in the same order or address both components if an insufficient showing is made on one component. 466 U.S. at 697, 104 S.Ct. at 2069. Where, said the Court, “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient [1066] prejudice, which we expect will often be so, that course should be followed.” Id. We believe it worthwhile in this particular case, however, to discuss both components of the issue, this being an en banc decision at an early stage of decision-making in this court on an “ineffectiveness of appellate counsel” issue.
We might observe that there have been some Supreme Court decisions subsequent to Strickland; see, e.g., Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); but none of those cases sheds much more light on the basic equations of this particular issue. None of those cases resembles the factual situation creating the “ineffective assistance” issue in this case. Those decisions involved federal habeas corpus proceedings where ineffectiveness of counsel is claimed, but the issue had not been raised previously in the state forum. But here, the claim of ineffective assistance of counsel is markedly different. In Smith v. Murray, supra, the Court held that “appellate default” in a federal habeas corpus proceeding may not be based on appellate counsel’s “deliberate, tactical decision not to pursue a particular claim,” because such tactics are “the very antithesis of the kind of circumstances that would warrant excusing a defendant’s failure to adhere to a state’s legitimate rules for the fair and orderly disposition of its criminal cases.” Smith v. Murray, supra, 477 U.S. at -, 106 S.Ct. at 2666. The Court stated that the decision not to press a certain claim on appeal was not an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland. Id. at -, 106 S.Ct. at 2666.
In Murray v. Carrier, supra, the Court again dealt with a federal habeas petitioner’s burden of showing “cause and prejudice” in a case of procedural default based on Virginia Supreme Court rules. The Court held that “[S]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” 477 U.S. at -, 106 S.Ct. at 2645-46. These cases, therefore, do not offer much help on the ineffectiveness claim we face here.
A. Ineffectiveness
We turn now to a discussion on the merits of the ineffectiveness issue. In his brief, counsel for appellant on the first appeal distinctly made these arguments: (a) there was an important Drew (joinder) problem in the case; (b) he invoked this court’s leading decisions on the issue; and (c) he made a successful frontal attack on the trial court’s crucial ruling that evidence on the three crimes was mutually admissible. This was sound appellate advocacy. The evidence was strong to establish “signature crimes.” The trial court had permitted joinder on the concommitant “mutually admissible” basis. Consequently, this is precisely where counsel should have attacked in his brief, and he did so successfully. While present appellate counsel is now charging a constitutional failure on prior counsel’s part to argue further and demonstrate the non-applicability of the “separate and distinct” doctrine, this may well be attributed to present appellate counsel’s hindsight after being able to read this court’s Memorandum Opinion and Judgment, rather than a deficiency on the part of the first appellate counsel rising to the level of constitutional inadequacy. As the Supreme Court has cautioned:
It is all too tempting for a defendant to second guess counsel’s assistance after conviction or [an] adverse [decision] and it is all too easy for a court, examining counsel’s [performance] after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. at 2065.
The government in its first appellate brief had argued, alternatively, that consolidation was proper because the charges were presented to the jury in a “separate and distinct” manner, thereby foreclosing any undue prejudice during the trial. Ap[1067] pellant did not address this Drew exception (“separate and distinct”) in his main brief, and did not file a reply brief. Thus, appellant argues now that his prior counsel “never rebutted the government’s argument” on this point and never drew this court’s attention to the portions of the record which would rebut the “separate and distinct theory” (this was the government’s alternative position in its brief).
This is the way appellant, in a crucial statement made during oral argument defining his position, puts it now to this court:
We recognize that the court is not passive ... but we don’t view the court as a passive institution, we don’t think that the court doesn’t ever go beyond what the parties submit, but the court does expect and it has to expect as a practical matter and as a constitutional matter to be the recipient of the fruits of the adversary system. It cannot assume otherwise in any given case. And I submit to the court that it decides case after case on the assumption well founded that it has competent counsel, that have sharpened the issues, that recognizes that the adversary process is both punching and counter-punching and there is “catch 22” here. We go back and try to step into the shoes a little bit presumptuously, two members of the division here, we step into the shoes of the original division. The more that division or any division assumes that counsel on direct appeal was competent because he filed a brief and wrote english and raised some issues, then the less it would have reason to believe that counsel was not giving the court information. The government makes much of the point that this was a respected trial attorney. I well agree. But any attorney, certainly a respected trial attorney knows about Drew — there is hardly a more basic jurisprudential point in the District of Columbia criminal case law — and knows that it has two prongs; and where the government says in its brief, "regardless of what you decide about the mutual admissibility, you should conclude that the trial was fair because the prosecutor separated the offenses ... the appellate attorney does not respond.” This court — any court— that assumes counsel to be competent has every reason to believe — to rely on the belief — that it knows what happened and that the trial in fact could have been conducted on the separate and distinct theory.
What appellant is arguing to the court is that (a) “we don’t think the court doesn’t ever go beyond what the parties submit,” but on the other hand, (b) “the court does expect, and it has to expect as a practical matter and as a constitutional matter, to be the recipient of the fruits of the adversary system,” and (c) “I submit to the court that it decides case after case on the assumption well founded that it was competent counsel, that have sharpened the issues, that recognizes that the adversary process is both punching and counter-punching....” Furthermore, says appellant, “[t]he more ... any division assumes that counsel on direct appeal was competent because he filed a brief and wrote english and raised some issues, then the less it would have reason to believe that counsel was not giving the court information.”
So that there may be no mistake about it: the court does not subscribe to appellant’s position that the court decides “case after case on the assumption well founded that it has competent counsel....” In reality, says appellant, “[t]he more ... any division assumes that counsel was competent ... then the less it would have reason to believe that counsel was not giving the court information.” If an appellate court were to fall into that dereliction then we agree that unfortunate consequences would follow.
Though we recognize that appellant’s argument is adversarial and perhaps adapted to support its position in this particular case, we believe we should set this matter to rest so there will not be any future misunderstanding about it. Contrary to appellant’s argument, the court does not rest its decision-making on any assumptions — one way or the other — regarding the competency of counsel.
[1068] In its review, the court considers the briefs and the oral argument, and tests them against the record and the law. It does not decide cases “on the assumption well founded that it has competent counsel....” As we have indicated, able and industrious counsel are most certainly a valuable aid to the court in the decision-making process. On the other hand, less able and non-industrious counsel put an added burden on the court in reaching a decision. But in the final analysis the court must satisfy itself — without regard to the gradations of competency of counsel —on the decision to reach, with the reasons supporting it.
It is quite apparent that appellant’s claim is not a realistic standard to apply to the test of due process of law in the matter of effective assistance of counsel in a criminal case.21 Actually, it is not an uncommon experience for an appellate counsel to (a) neither anticipate nor respond to one of the points of the adversary’s argument in its brief, and (b) fail to direct the appellate court to those portions of the record where rebuttal of the adversary’s point is demonstrated. This is not to say we intend to encourage, by excessive tolerance, the proposition that counsel need not explore all material facets of its position as a matter of sound appellate advocacy. Rather, we are pointing to the realities of the appellate world in the process of evaluating the facts in order to determine, as a matter of constitutional law — with all that this implies — whether an appellant had been denied due process by being deprived of his right to the effective assistance of counsel.
Bringing this issue into the actuality of appellate decision-making, we have here a case where the appellate counsel under attack for rendering “ineffective assistance” has correctly raised in his brief the focal issue of this appeal (consolidation of offenses). He explained the issue, drew attention to the appropriate rules of procedure, and related two principal, prejudicial danger points in permitting consolidation of offenses. Having laid this foundation and then having explained quite briefly the various facets of the landmark Drew opinion, counsel then proceeded to argue that the “mutual admissibility” doctrine was not applicable.22
He then concentrated on the ground relied upon by the trial judge for permitting consolidation of the offenses, i.e., the “mutual admissibility” doctrine. It is quite understandable that counsel would level his main attack against the particular basis the trial judge invoked for permitting the consolidation.
We come to the issue which we have sought to sharpen. Was appellant afflicted with ineffective assistance of counsel when (a) counsel did not carry the joinder issue one step further, nor (b) did he anticipate or counter in a reply brief the government’s argument that, alternatively, the offenses were tried “separately and distinctly” thereby removing any prejudice, nor (c) did he refer the court to the record where it would be demonstrated they were not tried “separately and distinctly”? We conclude this omission does not pose a serious constitutional issue.
While counsel should have exhausted this subject with appropriate record references, we conclude this does not ascend to constitutional significance. Appellant contends it does because “[h]ad appellate counsel not failed completely to demonstrate that ‘separate and distinct’ had no basis for application to Watson’s trial, the panel’s decision that the trial court's mutual admissibility ruling was error would have required that the convictions be reversed and Mr. Watson given a new trial.” It would be an unhealthy precedent to tie constitutional ineffectiveness of counsel to the test of whether an appellate court (or a division [1069] thereof) decided a case “correctly” when, due to counsel’s efforts, it well knew what the crucial issue was, as well as the applicable law and its various ramifications. In relation to the “separate and distinct” omission, the court had previously spoken on “separate and distinct” in one of the cases specifically cited to it by counsel, Bell v. United States, supra, 332 A.2d at 353-54.
We know of no case involving “ineffective assistance” which even approaches the relatively moderate omissions of counsel in this case, constitutionally speaking. No Supreme Court decision remotely implies that the factual situation in this case is reached by its pronouncements on ineffective assistance of counsel. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, -, 106 S.Ct. 2574, 2588-89, 91 L.Ed.2d 305 (1986) (where the Court held that counsel rendered ineffective assistance in his total failure to conduct pretrial discovery and to raise fundamental objections to illegally seized and incriminating evidence).
The charge here by appellant is that counsel did not “adequately” present the “joinder” issue as an advocate. Significantly, it is not that he did not raise the “joinder” issue but, rather, that he did not raise it “adequately.” Stating the proposition almost answers it, if one bears in mind that a constitutional “due process” test must be applied to counsel’s performance. The Supreme Court in Strickland said “[t]he benchmark for judging [this] claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the [appeal] cannot be relied on as having produced a just result.” 466 U.S. at 686, 104 S.Ct. at 2064.
The Supreme Court has enjoined us to “eliminate the distorting effects of hindsight,” Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. at 2065, and to avoid treating the claim as an opportunity “to grade counsel’s performance.” Id. at 697, 104 S.Ct. at 2069. Here, counsel addressed the principal problem in relation to the Drew question, i.e., whether the trial court was correct in ruling the evidence relating to the three offenses was “mutually admissible.” Counsel convinced the court on appeal that the trial judge was wrong on this crucial ruling. Counsel neglected to then dispose of a remaining issue raised by the government, in its brief, the “separate and distinct” exception, which this court proceeded to recognize.23 Though counsel would have been well advised to treat this in a reply brief, or on oral argument (concerning which we have a blank, as we have explained) this is not a failure of constitutional dimensions. If we were to so regard it, we would be faced wholesale with reversals on this constitutional basis and repeated analysis of the kind taken here of an earlier appellate brief.
Any shortcomings do not approach the gravity of “[professional] errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair [hearing].” Id. at 689, 104 S.Ct. at 2065.
On this record, we conclude the deficiency claimed does not rise to the level of a constitutional deprivation of the right to counsel.
B. Prejudice
We turn now to consideration of the prejudice component.24 In this case there is a variation of the prejudice consideration. In [1070] Strickland, the Court said the test on prejudice is whether “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Here, the prejudice test is whether, even assuming appellant is correct, if the appellate proceeding were recommenced, the result (affirmance) would be different.
The sensible question to resolve here in relation to the prejudice prong is whether, if it were assumed counsel might have been constitutionally ineffective in not arguing the “separate and distinct” point, the result would be different if the mandate were recalled and a division of the court (or the court en banc) should then decide to rehear the appeal once again on the merits. The answer is that this would be a wasted procedure as it is plain that there would be another affirmance. The reason we so conclude is because it is evident that evidence on the three charges clearly was “mutually admissible,” for reasons we will explain.
The essence of the prejudice prong of the Strickland test is that unless the appellate court concludes “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. at 2068, no worthwhile purpose would be served in conducting an analytical examination of prior appellate counsel’s performance. More precisely, even if we were willing to assume that counsel was constitutionally deficient by not entirely exhausting all the facts of the joinder issue on the direct appeal,25 is there a “reasonable probability” that this court would then reverse and remand for a new trial?
The trial judge permitted joinder of the offenses on the theory of “mutual admissibility.” That is to say, joinder was permitted because the offenses charged fit under one or more of what are popularly referred to as the Drew exceptions, i.e., the exceptions stemming from modus operandi (“signature crimes”), “motive” and “identity.” We are not aware of a reported decision in this jurisdiction dealing with a “joinder of offenses” issue where there were involved offenses more clearly qualifying for the “signature crimes” exception. There was a compelling manifestation of the required “distinctive facts and circumstances” in the three offenses charged. We will demonstrate this now.
Appellant had a weird view regarding the house belonging to his girlfriend, which had been the subject of settlement negotiations with her estranged husband. He openly harbored a mindless attitude toward possession of the house for more than a year, until his arrest in this case. Concerning the first assault charge, the assault occurring in the house in question, appellant pointed a handgun at a guest of the estranged husband, who was alone as the husband had left temporarily, and he ordered him out of the house — for no rational reason. Later on, during divorce negotiations between his girlfriend and her estranged husband, and while the latter was still in possession of the same house, appellant broke in the door at 4:30 a.m. and went upstairs and was seen to fire three shots at the estranged husband and the husband’s girlfriend as they lay in bed. This founded the assault with intent to kill charge. Next, about a year later, and after his girlfriend obtained possession of the same house, the tenant announced an intention to leave soon, at the end of the lease. Her son said he would stay there until the lease actually expired. Appellant wanted the house vacated immediately and announced he was going to the house at night to accomplish his strange purpose. The threatened son of the tenant was found dead the next day in the same house, for the same weird reason, from a gunshot wound and stab wounds.
All these inexplicable crimes came from the same idiosyncratic, individualized motivation, i.e., using a gun to mindlessly drive residents or tenants out of this particular house, or to attempt to kill them if they did [1071] not leave, without regard to their right to be there. All these were committed in the same house concerning which he had the mysterious fixation.26 All three involved a gun; one time murder nearly resulted; the third time a murder actually resulted.
This is a classic demonstration of crimes with the same modus operandi (signature crimes). A striking similarity of circumstances has also been recognized by this court as coming within the “identity” exception under the Drew doctrine.27
As the trial court understandably ruled, evidence of the three crimes was “mutually admissible” and joinder was proper for this reason.28 The probativeness of these distinctive circumstances is unmistakeable. They were sufficient to “earmark [the crimes] as the handiwork of the accused.” 29
This being so, the “separate and distinct” question vanishes as a material issue in this case.30 Where offenses are [1072] correctly joined on a “mutually admissible” basis it is not comprehensible that they must be, or could be as a matter of reality, kept “separate and distinct.” See, e.g., Bell v. United States, supra; Cox v. United States, supra. Some overlapping of proof is expected under this particular theory, by its nature, because evidence on one of the charged offenses is considered probative in establishing another of the charged offenses.
CONCLUSION
Our review discloses that the performance of counsel for appellant on the first appeal was not ineffective as a matter of constitutional law. Furthermore, even if we were to assume it was, there would be no point in granting the motion to recall the mandate and remand the proceeding for a new trial, because our review leads us to conclude the element of prejudice is lacking as the result reached (affirmance of the conviction) by the hearing division on the first appeal was clearly correct.
Accordingly, the motion to recall the mandate is denied. The judgments of the trial court in the § 23-110 and habeas corpus proceedings are affirmed.31
So ordered.
NEWMAN, Associate Judge,
with whom MACK, Associate Judge, joins, concurring:
I am not as sanguine as is Judge Gallagher’s opinion of the efficacy of this court’s review of cases where the performance of counsel is less than that to be desired. However, I am satisfied on the record in this case that the performance of counsel in this case did not fall below the minimum of what is reasonable. Whether or not the original affirmance of Watson’s conviction was the result of a flawed appellate process, it was not the result of constitutionally ineffective counsel.1
Footnotes
536 A.2d 1056 (Watson v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.