Asbell v. United States

Quinton ASBELL, Appellant, R. STATES, Appellee.

UNITED Nos. 79-1275. Appeals. District of Columbia Court of Argued Oct. Sept. Decided O’Neill, Atty., Wash- F. Asst. U.S.

Robert Ruff, D.C., F. C. with whom Charles ington, W. Terry, A. Michael Atty., and John U.S. Holm, Farrell, Asst. U.S. and Genevieve brief, D.C., for were Attys., Washington, appellee. FERREN, KELLY, and HARRIS

Before Judges. Associate FERREN, Judge: Associate Quinton R. appellant, juryA convicted 22- Asbell, robbery, Code § D.C. burglary, id. second-degree noting appeal 1801(b).1 After § counsel, appellant appointed receiving new denied, a new trial requested, and assistance of ineffective based on a claim many issues have Although counsel. coverage in a basic appeal, most raised on counsel, appellant’s question: whether incom- grossly found whom the trial court to the extent petent, prejudiced a substantial denying him the essence of gross that counsel’s defense. We conclude We further this effect. incompetence had however, conclude, case does not trial; of a for lack warrant dismissal sup- reconsideration of it warrant nor does of fa- disposed raised —and pression issues connection vorably to the —in re- We thus claim. the effectiveness trial. for a new the case verse and remand

I. 17, 1975, approximately

On Randolph E. m., men entered p. 4:00 two head, trailer, gun to his put a Appenzeller’s beаt, him of his hog-tied, and robbed then other surveying and wallet, ring, and keys, arrested days police later equipment. Two property. the stolen possessing D.C., Gottfried, Barry Washington, H. 29, 1976, then appellant, April On 28 and and Bar- with whom Lawrence H. Schwartz receiving juvenile for as a Kammerman, D.C., age was tried Washington, were bara He 22-2205. brief, goods, § D.C.Code stolen appellant. -3202; armed, id., -2201, larceny addition, grand while contained indictment larceny, grand id., -2201. The robbery, following D.C.Code counts: armed larceny grand 22-2901, -3202; dismiss the a dan- moved to charges prior assault with §§ -502; second-degree to trial. gerous weapon, bur- id., § -3202; armed, 1801(b), glary id., §§ while acquitted. later, Less than a month ber been at home with his moth- police executed a warrant for er. He claimed that he remembered this arrest, charging this time participation in day nephew’s birthday. because it was his day, cross-examination, armed itself. same On the Also on de- the court appointed counsel activity scribed his 19. The for appellant. He custody remained in un- prosecutor impeached this latter 22, July 1976, til when he was released on appellant had statements made Appellant bond. on January indicted addition, prosecutor earlier trial. In 1977, 26, arraigned and two weeks later. impeаch appellant’s testimony able to Largely due congestion” to “court and “in- Appenzeller never that he had seen before factors,” appellant stitutional was not tried day Appenzeller second for 18, July until 17 and 1978.2 against appellant had testified at his first supra. trial. note 3 trial, Appenzeller

At appellant identified one the robbers and as the individual 19, 1978, jury July On found he had seen years in court two earlier at second-degree and guilty robbery lant receipt goods.3 for of stolen burglary, acquitting while him of the other addition, In Massey, Appenzeller’s Edward charges. November the court On co-worker, testified he had seen one of appellant committed under the Federal custody police robbers in when the had 5010(b) Youth Corrections 18 Act. U.S.C. § called him to identify the property. stolen (1976). appeal. He noted an This court Although Massey stated that he had been appointed counsel, who new filed a motion time, sure of identification at the after for a trial alleging new ineffective assist- years three he [appel- “couldn’t swear that counsel, ance of in violation of Sixth indicate, lant guy.” the same didHe was] rights. Amendment court heard the however, that appellant looked similar to 1979, 25, and motion on 24 the individual he had earlier identified. 9, denied it on November 1979. The court Sergeant then called that, although appellant’s trial concluded G. to testify appellant Thomas James incompetent, his grossly counsel had been had police custody been in Massey when incompetence caused the defend- “ha[d] had property identified the stolen prejudice by blotting ant actual out the recognized claimed to have one the rob- essence of a substantial defense.” Consoli- Finally, bers. called Detec- from appeals dated before us now are Leadmon, tive Lorren D. who testified that the trial the denial the new trial appellant, being arrested and advised motion. rights of his admit-

ted had gone he Sep- the robbers on II. 17 stayed tember but insisted had Appellant heavy burden in bears Appenzel- car while two had others robbed attempting to show violation of his Sixth ler. right to effective assistance Amendment States, Angarano v.

Appellant only was the witness for the counsel. United (1973), 298 participation D.C.App., ‍​‌‌​‌‌​​​​​​‌​​‌‌​​‌​‌‌​‌‌‌​​‌‌​​​​​​‌‌‌‌​​​​‌​‌‍defense. He denied 312 A.2d n.5 (en denied, (1974) robbery. having any rehearing He also made 329 A.2d 453 denied banc), adopted statement about the of Bruce v. Unit to Detective the test crоss-examination, States, F.2d U.S.App.D.C. Leadmon. On ed 126 379 that, (1967), of Septem- testified on the afternoon to establish an ineffective 2. The court weeks of this at that time attributed seven cause tried however, delay, receiving permit charge, defense court counsel’s failure to did not appear conflicting Appenzeller identify appellant because of illness and sched- as one ules. actually who individuals committed robbery, although Appenzeller told court he Appenzeller earli- had testified at an identification. be able to make such trial, identifying property. er the stolen Be- would be A ness. substantial claim, show assistance a defendant must if defense counsel gross incompe lost, example, “both that there has con prior perjury this in effect to use available tence of counsel and failed prosecution of a substantial impeach blotted out the essence the sole victions District or on defense either in the Court state prior inconsistent to use Id. at 116-17 appeal.” F.2d wit sharply undercut ments See, (footnotes omitted). g., Tillery e. could credibility. failures ness’ Such States, 970, 972 D.C.App., 419 A.2d even out” a substantial defense “blot (1980); D.C.App., Johnson v. United entirely appropriate it would bе where (1980); Wright v. United put no evidence for the defense (1978). D.C.App., may rely on its The defense all of own. show enough it is not and on of his innocence presumption grossly incompetent; trial counsel was each obligation prove to government’s also a relation appellant must show casual a every beyond an element of offense incompetence and the ship between that (cita at 504-05 reasonable doubt. [Id. failure of defense.4 omitted).] tions trial determining In III. performance blotted the es counsel’s out ap The trial court’s conclusion a apply sence of substantial defense we incompe grossly pellant’s counsel had been Till “totality the circumstances” test. findings of following was based on the tent ery, supra (quoting Oesby at 973 v. United fact: (1979)). A.2d D.C.App., 398 Thus, specific though any even one error to a full Trial counsel failed conduct 1. as may counsel not constitute ineffective de- to with the defendant interview sistance, “the totality of the omissions to relevant facts known termine all may errors” be sufficient. United States the defendant. Hammonds, U.S.App.D.C. the de- keep failed to 2. Trial counsel (1970). reviewing In this F.2d pre- or of his case fendant informed circumstances, moreover, totality of we are adequately for pare him trial. considering to only not limited the loss failed conduct Trial counsel to 3. defenses; affirmative ineffective attack case and investigation prompt may result case-in-chief any wit- failed to interview deprivation in of counsel. unconstitutional government. by nesses called recently As we in v. United stated Johnson any in engage counsel failed 4. Trial States, supra: meaningful discovery with A ... not limited “substantial defense” regard the facts with presenta- or the to an affirmative defense this case. may of an alibi defense. A defense tion any engage in 5. Trial counsel failed element predicated upon disproving an meaningful plea discussions charged simply

of the crime or discredit- prosecution prosecutor. wit- ing halfway corresponded time of example, Wright house su For robbery; would pra rejected appellant’s of the records and introduction claim jury appellant’s counsel, pointing criminal out alerted the ineffective have background. assistance Thus, if failure more even counsel’s that even trial counsel conducted incompe gross thorough leading potential investigation constituted locate the witnesses tence, him to reasons, counsel, witnesses, have not be said to this failure could new would not have used these witnesses. for tactical They appellant’s trial. the conduct affected also Williams v. United States, D.C.App., accuracy would have corroborated the (no halfway (1977) assist placed appellant ineffective 888-90 records which house near the time of the in a present robbery. of counsel to of counsel in failure Trial coun ance alibi’s testi substance of where sel had decided not to introduce these records for two reasons: mony probably have part done of the time for good). signed harm than to have out of the more shown verdict, these claim that Following trial counsel interviews was did not submit favorable information present robbery. he had not been purposes to the court for of sentenc- Appellant his testified that counsel never ing. possible asked him about a alibi. re- sponse, counsel that he could not testified apparently 7. Trial counsel re- recall whether he about regard tained records with had asked client an case. alibi.5 agree We supports the record these As result trial counsel’s failure in findings, as well as the conclusion depth, terview client in counsel learned was grossly incompetent —determi- of appellant’s alibi claim for the first time nations which does con- prosecutor cross-examining while test. In order to evaluate whether coun- appellant. Counsel never had interviewed gross incompetence prejudiced appel- sel’s the witness who claimed would lant, we examine the course of the trial appel him provided have alibi — greater detail. did not her to lant’s mother. call “Trial counsel failed to conduct full A. Nor mention an alibi the stand. did counsel the defendant to de- interview with closing opening in either his statement. termine all relevant facts known to hearing It is on the motion true that the defendant.” for new acknowledged longer mother she no could motion, At hearing new trial son was her on remember whether her acknowledged only trial counsel that he had September robbery, day of the hallways interviewed his client in re and intimated that she could not have required courtrooms when both were to be hearing at been purpose. the courthouse for some membered even if the had other May Counsel stated that he had from held time arrest in 1976.6 all learned at the of the counsel on this sel lant] at the time the committed? [Appellate [Trial exchange tell uncooperative ^[*] counsel you ^[*] counsel point that he was with between (TC):] robbery ^[*] illustrates that at the (AC):] No. ^[*] appellate hearing: Did alleged ^[*] anybody he trial coun- and trial ^[*] [appel- to be else to him about his defense? time that was long with, [TC:] [AC:] [TC:] [AC:] time for the fifth time? ****** Yes, certainly I Did Did I ago. don’t you you I preparing recall, take ever ask him whom notes because that was a would for trial. when have, today? you he was talked came at trial full evident when in view of Finally, suppress it. nor a motion to filed during jury, appellant’s testimony appointed more despite being than redirect, asked if he counsel the court could trial, counsel years before consult request with his client. The was morning that his only on learned denied. acquitted as client had been tried Unprepared, appellant became confused prop- juvenile receiving for the same stolen under cross-examination dates charged he was erty presently for which alleged incident and his arrest. More- ignorant robbery. with Counsel remained over, he testified that he had never seen in the Affidavit spite in of the fact that Appenzeller trial, only before to be Arrest Warrant contained Support of an impeached by Appenzeller the fact had information. relevant juvenile against testified him at his earlier inves- lack of As result trial counsel’s earlier, hearing. appel- As indicated when at time tigation, learned for the first he lant testified that he had been at home with witness had iden- complaining trial that the robbery, day his mother on the he did hearing. juvenile tified his client at for so the first time the adverse under advantage of never took counsel cross-examination, conditions rather than impeach- witness for prior testimony of this during Even opening testimony. he fact course, appellant despite the adequate purposes, ment preparation, of trial, though prosecutor During expressed could not remember when the con- court counsel, he engaged discovery, he stated that to trial cern that counsel had in no exact words juvenile proceed- prosecutor transcript had informed the court that counsel had ings advantage time his office. for some had failed take of his invitation to come to his Al- office discuss case. prejudice by could have ant question used this actual blotting out the certainty of his identification.8 essence of substantial defense.” See An n.5; garano, Bruce, supra supra at 298 at apprise Counsel’s failure to himself of the record, 379 F.2d at 116-17. On this facts juvenile hearing became inherently that statement contradictory. evident at jury least the second As a result of counsel’s failure to conduct a day of trial. After the had investigate full client interview to completed its cross-examination of engage meaningful discovery, or to lant, having seriously impeached him with prepare adequately appellant ap the use of his statements earlier pellant received no defense whatsoever.9 proceeding, defense counsel asked for a five begin by noting We minute recess to review the documents on strong minimally evidence was not so which the Despite had relied. counsel, competent performing elementary supplied fact that had counsel responsibilities, pre- could defense not have before, these day documents the he told the cipitated acquittal. Appenzeller identi- court, “I haven’t Responding seen them.” appellant fied as one court rob- question the court’s he denied bers, Massey not certain and but was Ser- having received previous the documents the geant sure James could not confirm for day, counsel stated: Massey had earlier. identified I I said recently. haven’t seen it I didn’t Detective Leadman testified that my finish statеment. I I said haven’t scene, being present had admitted seen it. I am not aware of the contents appellant, but his own taking stand in of it at the I moment. don’t know what defense, he ever so. denied had said On talking problem. about. That’s the cross-examination, moreover, appellant of- sorry. I’m therefore, jury, fered an alibi. The Counsel received a few minutes to read the typical strong case confronted but recess, transcript, without a in front of the against appellant. not conclusive evidence jury. successful, effort, Any to be D. performance, Trial Counsel’s “blotted Appenzeller’s discredit identification and out the essence a substantial de- appellant’s alleged to refute admission to fense.” Significantly, Detective Leadman. both av- “totality Given the of the circum promise. enues at least had some stances,” 973; Tillery, supra Oesby, su Appenzeller’s previous identifi- weakness of pra at the trial concluding court erred in juvenile hearing cation that, although “grossly impeachment classic material dis- (which incompetent” government does over crediting the in-court identification contest), not he not years supra. “has caused the defend- later. Coun- See note juvenile hearing, sentencing,” “apparently Appenzeller 8. At not describ- has re- question ability any regard ed the in that terms tained to this case.” records with identify appellant. to He stated: plea bargaining, agree As to we with the telephone finding by my- implication And I was on the inside that the trial court’s gentlemen acquaint responsibility self. And two fellows counsel a at least to has —two they questions bargaining in possibility plea walked asked ame few the client with the phone, client, I pay- while was given strength on the and I wasn’t so that ing that much attention to them. And them I in her best can choose the course his or hung up phone. that, my finding And as I did interest. The court’s that counsel failed plea bargaining, back engage meaningful was to them and one of them stuck a to fore, in there- gun my holdup. simply in back and said it was a a default is comment counsel’s performing lawyer’s in traditional role. It analysis In our counsel, ineffectiveness do not respect finding is in record, that on this findings factor in the trial court’s and 7 encouraged of a should have an offer engage that trial counsel “failed to in Alford, plea 25, 400 U.S. under North Carolina meaningful plea discussions,” not “did submit (1970), let 91 S.Ct. 27 L.Ed.2d purposes favorable to information the court for guilty plea. alone a When, gross here—counsel’s sel, however, however—as altogether attempt failed to fact, in Counsel, virtually a fun- failed is default impeachment. incompetence such functions, juvenile court can be Appenzeller’s even discuss hear- damental defense ing lapse obvi- appellant, lapse not materi- less that counsel’s sure ously contributing appellant’s own testi- acquittal, for ally opportunity lessen mony which impeached he was gross evaluating impact court —for —that had Appenzeller never seen before the any objective reason without incompetence present trial. judg- assuming tactical that sensible approach. underlay counsel’s basic ments Despite ali- appellant’s the weakness of 585-87; 4 supra. note ‍​‌‌​‌‌​​​​​​‌​​‌‌​​‌​‌‌​‌‌‌​​‌‌​​​​​​‌‌‌‌​​​​‌​‌‍Wright, supra at See against his admis- principal bi—his defense situation, therefore, a court con- In alleged sion Detective Leadman — gross incompetence must be fronted with lant still did have alibi defense an permitting itself much more cautious could corrobo- some extent mother have substantial defense conclude that no Counsel, supra. rated. Part A. III. See case, the fail- out. As in this however, been blotted learned the alibi for the about kеy impeachment of a during first ure use available time his client’s cross-examina- present as to tion and even then did not call the mother as well (whom interviewed) defense, he never had at least to affirmative defendant’s testify grandson birthday that her had a our enough to warrant conclusion 1975—a fact as- incompetence out the gross blotted counsel’s lapse by serted part his alibi. This Were we of a substantial defense. essence counsel appellant’s not weakened otherwise, we would be substi- to conclude gave but also jury deprived of ma- tuting for a ourselves opportunity, closing argument, to remind was available terial defense evidence that called his jury not We of trial. to defense counsel time testify, mother despite claiming she could properly cannot do so. provide significant corroboration. counsel’s trial court did evaluate together, lapses Taken these two —fail- perspective. gross incompetence from this ures to contest case fact, primarily, focused the court Johnson, impeachment, supra available see supporting solely, on the facts present alibi de- defense, regard due without affirmative fense—“blotted of а out the essence sub- govern- potential on the defense attack supra Angarano, stantial defense.” (e. g., Appenzeller’s ment’s case-in-chief n.5; Bruce, supra at 379 F.2d at identification). ac- Accordingly, we cannot 116-17. analysis. Appellant’s cept court’s recognize We that when record shows for violation of must be reversed conviction has performed fundamental as- to effective his Sixth Amendment functions, though criminal defense with a sistance of counsel. grossly incompetent lapse, the defense bears a substantial burden to show IV. issue, lapse, particular ma- on the record reversal Three issues remain: acquit- terially opportunity for lessened the for indictment of the 585-87; mandates dismissal Wright, 4 supra tal. See note Amendment for Fifth violation supra. justified by heavy This burden is (based preindict- on process right to due performs the when counsel these fact that Amendment delay), or of his Sixth ment comprehensive functions—a client inter- trial; not, and, if view, right speedy to a investigation, discovery from the should for new the on remand a government, preparation and client suppress his permitted to a motion to perceive be file ordinarily for trial —the court can his identifica- police and cogent strategy against a which the statement alleged by complaining tion witness. lapse can measured. be

812

A. Due delay, Process provided he could have a credible supra, or see note 6 other Appellant robbery was arrested for and defense. Nor there a basis is to believe burglary 1976, May eight months after competent, new counsel for the de- giving (and incident charge rise by be prejudiced particular fense will this one month acquittal possession after his for record, lapse therefore, of time. this On property stolen based on the same inci- perceive process no due violation. dent). The appointed court counsel on the day Appellant eight arrest. was indicted B. Speedy Trial

months later January appeal, 1977. On he alleges preindictment that this 16-month speedy-trial issue is more com delay analogous deprivation — plex. Appellant brought was not to trial right to a speedy proc- trial —violated due until 18 after months indictment and 26 ess. robbery burglar months after for arrest and y.10 delay Because this between arrest

The Supreme Court has acknowl year, appellant and trial was more than edged validity of a number reasons has prima established a facie Sixth Amend why government may proceed wish to ment violation. Branch v. United cautiously indictment, with arrest and/or 998, (1977). D.C.App., 372 1000 Ac notably most person the concern that cordingly, the burden has shifted to the charged be scrutiny without conscientious government no prove constitutional Lovasco, the facts. United States v. 431 occurred, using violation has the criteria 783, 791-95, 2049-2051, 2044, U.S. 97 S.Ct. 514, Wingo, prescribed in v. Barker U.S. (1977). L.Ed.2d 752 preindictment 2182, 2191-2193, 92 S.Ct. 33 L.Ed.2d delay is not inherently prevail unfair. To (1972): delay, length reasons for on argument, this show a must delay, (or nonassertion) assertion minimum he actually prejudiced prejudice. right, and by delay government’s and that unjustified. Lovasco, reasons were supra at 2048; Right 1. Assertion of the 97 S.Ct. at Smith States, D.C.App., 414 A.2d Although impor- each of these factors is

(1980); Alston, cf. United States D.C. tant, the Court stated in Barker that “bar- App., (1980) (en banc) ring circumstances,” it extraordinary (applying a analysis appellate similar de extremely reluctant to find a lay). been no violation when there has time- ly right. Id. assertion present case, only S.Ct. at 2194. assertion not is Such deferring reasons for arrest and indictment important significant is itself but also for for robbery burglary until after relationship its other three factors. acquittal possession-of-stolen lant’s on the self-evident; proрerty charge are no Whether how defendant asserts his appears reason why as to closely related other fac- may have needed time to develop strength additional tors we have mentioned. hand, evidence. On the other unseemly length his efforts will by be affected motives can be delay, ascribed to some extent the reason this record. Nor delay, particularly shown for the and most prejudice from pre-arrest pre-indictment personal prejudice, which not al- identifiable, delay. He ways readily experi- was incarcerated for two that he during period, months and he deprivation, has not ences. The more serious that, able demonstrate likely but such more is to com- 10. As indicated above, appellant burglary, ar- had been was then arrested days incident, rested based on the same incident, 26, 1977, January brought receiving property. for He stolen indicted on acquitted 29, 17, April July Appellant 1976. trial on 1978.

813 Length Delay 2. plain. assertion of his The defendant’s then, speedy right, is entitled to trial length delay be- Computation strong evidentiary determining weight in Dillingham v. gins date of arrest. with the deprived being whether the defendant is 65, 303, States, 64, 423 96 U.S. S.Ct. United of the right. emphasize We that failure Here, curiam). (1975) (per 46 L.Ed.2d 205 right to assert the will make it difficult was arrested for armed for a prove that he was 1976, in 26 before trial. He May months denied trial. speedy a 92 [Id. months for eight had been arrested earlier S.Ct. at 2192.] trans- receiving property stolen in the same court, accordingly, placed great This that, action, ab- suggesting fact a emphasis right. on assertion of the For why govern- sence manifest reasons States, example, v. in Jefferson United D.C. sequentially instead brought charges ment 1030, App., (1978), 382 we A.2d 1032 noted: concurrently, significant for cal- date may “To the that prejudice pre extent be delay was 34 culating September sumed from existence unresolved We do resolve before trial.12 months charges anxiety attendant begin should from whether calculation concern, substantially this inference 1975; solely for the sake 1976or by appellant's weakened failure assert ” peri- a argument we assume 34-month Accord, right timely his to a trial . . .. od.13 States, v. D.C.App., Smith United 379 A.2d (1977). Similarly, Day v. States, D.C.App., United Delay for Reasons (1978),the failure of the accused demand eight- for reasons speedy significant trial was a factor in delay between and indictment month arrest our that a delay conclusion which had ex robbery and are no more clear burglary tended beyond 32 not deрrived months had eight- previous than reasons for the accused of constitutional to a IV. delay between arrests. See Part month speedy contrast, trial. In in Bethea v. Unit Although supra; supra. A. note 10 there ed D.C.App., A.2d 792-93 government no ‍​‌‌​‌‌​​​​​​‌​​‌‌​​‌​‌‌​‌‌‌​​‌‌​​​​​​‌‌‌‌​​​​‌​‌‍acted evidence that the (1978), Ellis, and in United D.C. States motives, improper is also there basis App., 408 (1979), empha we needed evidence reversing sized of the right assertions develop time its case. Ac- this additional speedy convictions for trial violations. delay are cordingly, periods these initial case, In this demand chargeable government. Even after to the speedy yet penalized he be cannot indictment, delay trial the 18-month before for the of incompetent failure counsel to do and, seven aside from substantial Barker, supra so. 407 U.S. due “court weeks, supra, note 2 see Accordingly, apply S.Ct. 2194.11 as at- factors, congestion” and “institutional factors” the other three we must be alert to (though competent tributable counsel could have been expected weighed heavily purposeful delay). request trial. less than earlier significant Appellant’s is the date 13. If former testified that purposes, speedy had Fifth made a tactical decision not to dеmand a Amendment speedy concluding analy drop process trial after due claim out by delay. helped a weak case that could sis favor of the Sixth Amendment decision, supra; Even counsel did make such A. cf. Branch See Part IV. claim. investigate failure supra (delay see Part III. at 1000 measured supra, made the one. period decision an uninformed point despite 4‘/2 of arrest month from bring indictment and between dismissal of first trial, ap- beginning 12. Until second indictment). ing of second pellant apparently was not aware he had charged been with a crime different from the juve- acquitted one for which he had nile. 814 Barker, supra 531, 407 U.S. at no prejudice S.Ct. at counter-inferences of when

2192; Day, supra alleged, practical at 965. none is because of the difficulty proving disproving prejudice or Prejudice key in most cases. When a witness dies or lost, obvious; prejudice may evidence is Barker, In supra, Supreme Court “ex but memory when a witness’s allegedly pressly rejected the notion that affirma fades, appellant allegedly or an would have tive prejudice demonstration of was neces prepare able to better the defense if sary prove to a denial constitutional incarcerated, he or she had not been right speedy Arizona, to a trial.” Moore v. necessarily specula- court is in realm of 25, 26, 188, 189, 414 U.S. 94 S.Ct. 38 L.Ed.2d Barker, 532, supra 407 tion. U.S. at See (1973) (per curiam). Moreover, in hold 2192; Branch, supra S.Ct. at 1002.14 ing delay that year of more than a estab problem we have the prima lished a facie Sixth Amendment vio memory. example faded concrete lation, Branch, 1000, supra at we estab prejudice delay from is the asserted ina lished delay that such presumed must be bility of appellant’s mother to remember prejudicial, and that longer delay, nephew’s birthday whether he was at his government’s heavier the burden will be party September day prove Nonetheless, the contrary. Id. we Although robbery occurred. she could con also government have held that can birthday firm that the it meet introducing this burden without inde whether, if is best unclear pendent Day, supra evidence. at 971. speedier received a his mother could government “The argue is entitled to both have remembered whether he had been at objective facts of record and inferences party. she There is reason doubt to be drawn from a defendant’s failure to as early could have remembered even as particular аssert prejudice.” Id. al April appellant was when though government has the burden of charge. tried property on the stolen proof here, acknowledge we must that Furthermore, supra.15 note one point defendant can prejudice— no witnesses, Massey, was not and can show no other why compe reason altogether ap sure of his identification of tent counsel would right have asserted the pellant at If held trial. trial had been government an earlier trial —the will earlier, just Massey it likely as burden; have met its “significant such de more, less, positive have been in .his alone, lay chargeable to but identification.16 Because made not the result of a deliberate effort ob specific allegations prejudice, other tain a advantage,” tactical does not violate conclude its met Sixth Amendment to a speedy burden to possibility show no reasonable trial. Id. at 973. prejudiced A rely presumptions court forced to Day, su lengthy delay before trial. See prejudice such, delay from pra as discounted at 973. Barker, Supreme government’s case) present 14. As the Court stated in su attacks on the pra following 407 U.S. at at 2193: S.Ct. the loss substantial defense. See text supra. note 6 memory аlways “is not reflected in the rec forgotten rarely ord because what has been can be shown.” defendant, rights 16.In contrast to other may delay bringing to trial work a defendant specu- 15. This conclusion—that it would be too defense, fact, may advantage. to his prejudice, pur- lative to find delay make a tactical decision to long the trial as poses, possibility from the mere hope possible that memories will lant’s mother could have verified he was home Barker, supra fade. See 407 U.S. if trial had been held 2187; Smith, supra, at 1195 S.Ct. at earlier —does not detract from our conclusion (“14-month delay easily have could worked competent place, that whenever the trial took appellant’s advantage by causing the child’s counsel could have made favorable use memory fade”). testimony (coupled mother’s other with other here, it not the does follow motions on facts Speedy Conclusion to Trial es helped “blot out the failure that this Although incompetence of trial the the defense” —unless sence a substantial of atypical, we are left counsel makes case motions and granted the court have would weigh. a typical fact situation to jury. If from the thus the evidence kеpt delay bringing ap There substantial motions, pressed in the most effective pellant to trial —26 to 34 months —almost denied, been way possible, would still have weighed against all of which must be institutional, purpose failing pursue not them any incompetence in to ful, ap penalize irrelevant, reasons. While we cannot not for it could would been have pellant for counsel’s failure to assert Accord have the fact-finder. influenced right, perceive reason this rec no seeks new trial on ingly, if a defendant a including argument evidence ord — failure ground incompetent of counsel’s post-trial hearing indicating that com — motion, suppression file a petent counsel would have done so. The at the time of the motion prepared must be pure only prejudice alleged amounted to will whatever evidence hearing to introduce speculation about the loss of a favorable necessary suppression; succeed with hold, memory mother. We fail, ruling otherwise, point will and the accordingly, that Dud will the law of case. See become demonstrating carried its burden of States, D.C.App., dles v. United warranting trial violation dismissal. v. D.C. (1979); Wheeler United Day, supra at (1973); Jenkins App., 300 A.2d 463- D.C.App., 284 A.2d United V. States, D.C. (1971); cf. v. United Smith turn, finally, question We (unsuc (1979) App., 1263-64 suppress may now file motions to original suppression motion before cessful eyewitness Appenzeller’s identification and preju without prosecution dismissed police. statement prosecut of case for second dice is law support In motion new ion).17 appellant sought that to show counsel’s fail- itself, where In trial suppression ure to contrast file motions was another incompetent grossly appellant, indication of ineffective assistance of coun- because so, doing obliged counsel, develop sel. his case appellant felt able to demonstrate there was a “likeli- opportuni- that jury, appellant had an before success, such “possibility” motion, hood” or on the new trial ty hearing at the them; effective counsel have filed would counsel, develop complete with new obligation, did not and thus did perceive an rule as to court could on which the record evidence, prove introduce motion. It suppression validity made, motions, timely have would for a judicial resources be a waste of successful. partially solely trial grant new court to incompetent ground on the hearing, appellant un At the motion even file a nonfrivolous —or failed to if we prove little. Even dertook to too motion, and highly persuasive suppression responsible assume that no criminal — out, still another it to turn suppression then for lawyer would have failed file however, is, exception. court, a new-evidence proper There possible 17. It is that the exercise, discretion, in ex reconsider motions court can its decline en- could grounds, defer, ceptional tertain, “new suppression circumstances where issue if and thus including justify ... which the defendant new facts a new other sufficient to evidence were reasonably are ground have been aware of’ incompetent counsel. could not trial on the Wheeler, (quoting issue, supra Jen at 716 it But here, as did offered. kins, once the court takes the 464.) supra finally ap- that issue will be resolved denial, peal thus become law its and will of the case. question sion on hearing, ultimately the motion is de- ineffective assist- nied.18 recognizes majority ance of counsel.1 The (as must) it controlling the existence and hearing In this on the precedents Angarano nature such as motion, appellant new trial did not intro States, D.C.App., 312 A.2d 295 duce evidence suppression on the issues— denied, (1973), rehearing 329 A.2d 453 eyewitness appellant’s identification and (1974) (en bаnc), and Bruce v. United police statement the would have —that F.2d U.S.App.D.C. amplified changed the record created on (1967). Those decisions make it clear that appellant repre these matters when was by grossly incompetent appropriate, only sented reversal must counsel. For make example, appellant because not call incompe- for grossly defense counsel have been testimony by any police officers who be recognized by tent —which is all to true had been in taking appellant’s involved in this that that incom- case—but moreover identification, statement or the court was petence have out essence must blotted forced to rule on the basis of the officers’ of a substantial defense. testimony presume, at trial. We must majority opinion many The contains therefore, testimony that additional words, but those words obfuscate rather have nothing. added majority than elucidate. If one reads the record, perceive On this we no trial court opinion carefully, apparent not a it is finding error in merit no to a motion to hint of a substantial defense was blotted identification, suppress for there was suffi- by inept performance. out defensе counsel’s cient reliability outweigh evidence of any emphasis Illustrative of this fact suggestiveness. Brathwaite, See Manson v. placed opinion upon majority idea U.S. S.Ct. 53 L.Ed.2d 140 appellant’s corrobo- “partially mother (1977). Nor finding was there error in no 808-809) rated” (slip op. at alibi evidentiary suppress appellant’s basis to defense. police. statement are, course, obliged

We view the VI. light evidence in the most favorable government. In summary, That includes a de- reverse con- evidence deprivation victions for by Amend- tective’s the trial Sixth —credited ment to effective assistance of coun- appellant court —that admitted that was sel. process Dismissal for denial trial, of due scene crime. At preindictment from delay, or for lack of a lant to have at when the claimed been home Accordingly, is unwarranted. committed, alleged offenses fact were we remand the case a new trial. How- supposedly which he it remembered because ever, the trial court properly ruled that nephew’s birthday. Appellant’s was his there were no suppress bases for motions to mother idea whether the identification of or his state- time, quite at home at but understand- police. rulings ment to Those are the ably hap- knew that the date of the crime law of the case. pened birthday grandson. to be the of her Reversed and major- remanded. I am at a loss understand how the sup- ity meaningful finds corroboration HARRIS, Judge, dissenting: Associate posed in the were fact that the crimes appellant’s neph- opin- I committed the date respectfully majority dissent. The ion birthday. is but a deci- ew’s parody of well-reasoned by Oesby, supra, 18. In 1. I we treated trial counsel’s concur conclusions reached among majority suppression failure to make motion other issues. totality mandating of circumstances a new trial for ineffective assistance of counsel. We did not address issue. the law-of-the-case S.E., Roads, Parkway Staunton dismayed that land majority also seems gunpoint at Washington, D. C. and robbed obviously the substance appellant, without trailer, Randolph all, easy Mr. “particularly occupant at ring survey- 809) money, the cross-exami- (slip op. Appenzeller, of prey” holdup, Ap- hint Mr. During There is no prosecutor. ing equipment. nation co-worker, Massey, cross-examination entered by majority Mr. penzeller’s simply majority seems improper; outside was ordered trailer but profi- more to wish had been was arrested robbers. The opin- majority coping cient at it. receiving property stolen days later for who persuade ion could someone police had site after another construction strongly persuaded. wishes to were that several individuals notified equipment. surveying attempting to sell my purpose Little would be served Massey were Appenzeller and Mr. Mr. judge who writing length. The able trial identified the brought scene and to the hearing conducted the on the motion for Sep- on from them equipment as that taken carefully new trial wrote considered 17,1975. Massey Mr. also identified tember that this case Memorandum and Order. So individuals as one of the defendant may proper perspective, be considered in its the ad- trial The defendant simply quote approval I the the trailer. saw inside the opinion, of he had been at deleting only portion police court's mitted the Appenzeller it which issue. dealt the trial site where Mr. construction having gone inside robbed,

was but denied the trailer. THE SUPERIOR COURT OF OF DISTRICT COLUMBIA 1976, tried April, the defendant juvenile of this branch acquitted in Criminal Division Mr. receiving property. of stolen Court Criminal No. 42964-76 proceedings testified at these Appenzeller point At some as a witness. UNITED STATES told during Appenzeller Mr. attending that the defendant police officers persons one involved QUINTON of ASBELL 1975, 17, robbery. The defend- September AND MEMORANDUM ORDER 18, 1976, and on ant was arrested This matter is before the Court on 1977, 26, January for armed indicted on defendant, Asbell, Quinton motion R. of dangerous with a robbery, robbery, assault a new trial based on ineffective assistance burglary while arm- degree weapon, second robbery of counsel. He convicted of burglary. ‍​‌‌​‌‌​​​​​​‌​​‌‌​​‌​‌‌​‌‌‌​​‌‌​​​​​​‌‌‌‌​​​​‌​‌‍degree ed and second 18, degree burglary July second 1978, custody of 1978, and later committed 17, robbery July the armed On 5010(b) the Attorney General under Section Ap- with Mr. began related offenses Act. of the Federal Youth Corrections identifying Massey Mr. penzeller and motion, Upon of defendant’s consideration of robbers. These as one defendant thereto, reply opposition memoran- prop- that the same testified witnesses also dum, transcript, and the Sep- defendant on erty recovered from the during two-day hear- adduced motions 1975, stolen from tember ing, the defend- Court concludes September 1975. trailer on construction assist- ant’s constitutional to effective the de- Detective Leadman testified ance of not been violated. made statement after fendant had placed him at the scene

arrest FACTS jury 1975. The robbery and guilty found two individuals On degree burglary. trailer at Suit- second entered a construction site 5. engage any Trial counsel failed DISCUSSION meaningful plea discussions with Ap District Columbia Court prosecutor. peals recently adoption has reaffirmed its States, the test in Bruce v. United verdict, Following trial counsel U.S.App.D.C. (1967), 379 F.2d 113 did not submit favorable information to which holds prevail that to on an ineffective purposes sentencing. the court claim, assistance of counsel a defendant apparently Trial counsel has not re- must show gross “that there has been in regard tained records with to this competence of counsel and that this has in case. effect blotted out the essence of a substan The sum total of the recited above facts tial defense 126 U.S.App.D.C. ...” at 339- gross incompetence part amounts to 379 F.2d at Oesby 116-17. v. Unit See Oesby defendant’s trial counsel. ed (D.C.App.1979). 3-A 7; Incompetence supra, 398 A.2d at United alone is insufficient to war granting Sweet, rant newa trial. Such States v. Criminal No. incompetence must 1677, 1684, Stewart, be such as to blot out (Septem D.W.L.R. J. the essence aof substantial defense. The 15, 1978). ber Court is satisfied that trial counsel was (B) Blotting of a Out Substantial Defense grossly incompetent representation in his defendant, incompe but finds that such part The second re the Bruce test tence, under totality of the circumstanc quires prove the defendant to that es, has not caused the defendant actual incompetence counsel’s caused him actual prejudice by blotting out essence of a prejudice by blotting out the essence substantial defense. proving substantial defense. The burden of prejudice actual in a claim of ineffective (A) Incompetence Gross of Trial Counsel assistance of counsel is considerable. See The to effective assistance of coun States, 429, Thornton v. 357 United A.2d sel attaches before McMann v. Rich denied, 1024, (D.C.App.), 435 cert. 429 U.S. ardson, 771, 759, 1441, 397 U.S. 90 S.Ct. (1976). 97 626 S.Ct. 50 L.Ed.2d A 1449, 25 (1970), L.Ed.2d 763 n.14 and ex incompe substantial defense lost to due through tends the post-trial proceedings. tence must be shown to a defense as a States, Oesby supra, 398 A.2d at law, matter and one that is available 4.The record before the Court indicates from the facts and circumstances of the throughout his representation of the particular Angarano case. See v. United defendant, trial counsel failed to take a (D.C.App.1973). 300 of important number actions. The Court determining of a the essence finds aas fact that: out, substantial defense has been blotted 1. Trial counsel to conduct a full failed con Court must examine trial counsel’s interview with defendant to deter- light duct and nature of the defense in all mine relevant known facts to de- “totality of the Oes circumstances.” fendant. by supra, at v. United 2. Trial counsel to keep failed the de- n.15. fendant prepare informed of his case or adequately him that several of trial. defendant contends by his out substantial defenses were blotted 3. Trial counsel to failed conduct a First, incompetence. trial counsel’s defend- prompt investigation of the case and ant to suggests to trial counsel’s failure failed interview any witnesses by government. pretrial suppress called file to the in-court motions the complaining identification of witness 4. Trial to engage counsel failed suppress inculpatory statement an meaningful govern- discovery police regard by made ment to the facts of this case. his defenses of misidenti- arrest blotted out zeller, first testified at trial identi- fication and alibi. The defendant also con- tends should have mo- months after trial counsel filed fied defendant seven pre-indictment tions to dismiss based on who one of the individuals incidеnt as provide speedy trial. delay and failure to him. identifica- robbed and assaulted This Finally, trial coun- defendant claims that juve- during the defendant’s place tion took investigate prepare an sel’s failure allegedly police officers nile trial. The being resulted in that defense asked Mr. defendant and pointed to the by memory blotted witness loss. out one the defendant was Appenzeller whether of his assailants. Suppress 1. Failure File Motion Denno, Court, in Supreme Stovall Defendant’s Statement L.Ed.2d 1199 87 S.Ct. 388 U.S. sup- Defendant claims a motion (1967), an said that in-court identification alleged procured press involuntarily a denial of might constitute a defendant by defendant have been statement should process pretrial if the identification due statement, made trial counsel. This suggestive “unnecessarily procedures were police made time irreparable mistaken iden- and conducive arrest, original placed de- defendant’s Id. 388 U.S. S.Ct. tification.” robbery. fendant at the scene of the Al- recently, reaffirming 1972. More filed, though pretrial motion had been held that principle, Court has Stovall the trial Court entertained defendant’s oral pretrial identification improper the taint of suppress motion to the stаtement. The ba- showing procedures could be obviated sis of defendant’s oral was that the motion original that the witness’ observation signature appear on the defendant’s v. Brath Manson defendant was reliable. rights waiver form. After a bench [of] waite, 116, 97 S.Ct. U.S. conference, abey- this motion was held in (1977). Holding that relia 53 L.Ed.2d 140 appeared ance a detective and testi- until improper police bility, deterrence fied that he had read the defendant “linchpin in determin procedures, was the rights prior the defendant’s statement. testi ing admissibility of identification the Trial did not his renew motion id., that the indicia mony,” the Court stated suppress testimony. after this The Court opportunity to reliability included the fact examined the record and finds as a crime, the the time of the view criminal at defendant was informed of Miran- description of the accuracy prior of his the rights, rights da that he understood his and criminal, certainty demonstrat the level of that he vol- thereafter made the statement confrontation, time be ed at the and the required untarily. attorney An not crime and confrontation. tween the appears what be fruitless undertake weighed the is to be “Against these factors tasks, including filing of meritless mo- suggestive identifi corrupting еffect of the Oesby supra, tions. See Id. cation itself.” A.2d at trial counsel’s failure pretrial to file a motion or renew motion concerning Ap- Mr. testimony The trial did suppress after the detective testified of the defend- first identification penzeller’s out, prejudice, much less blot defend- it was made indicate whether ant does not or alibi. ant’s defense misidentification suggestive circum- impermissibly under provided the has not stances. Defendant Suppress to File Motion Failure sug- evidence additional Court Identification Nevertheless, Court finds gestiveness. produced, if such evidence were that even Defendant trial counsel contends original Appenzeller’s observation Mr. suppress moved to the identifi- should have sufficiently reliable to the defendant was witness complaining cation by suggestiveness any taint caused remove pretrial a identifica- suggestive because of procedures. Appen- original identification complaining tion. Mr. Blevins, Appenzeller Mr. (5th testified at States F.2d 646 Cir. males, addition, thin, 1979). black one tall and the other defendant’s mother pudgy, evidentiary hearing shorter and came testified that she first into well- did lit not remember 1976 whether Sep- construction trailer at midday during defendant was her the time tembеr and asked him whether he robbery September 1975. This in buying Appenzel- interested radios. testimony suggests that even if the indict- ler was not Approximately interested. four promptly ment had been filed Mr. later, Appenzeller hours saw these same Appenzeller’s April identification in two individuals come back inside the trailer the defendant’s alibi defense would not he talking while was telephone. on the Af- have, prejudiced. been Trial counsel's fail- Appenzeller ter put down, the receiver ure to file such motion to dismiss caused gun head, placed had a to his and tied prejudice. actual defendant no up, beaten Appenzeller and robbed. Mr. testified that the defendant was the short ^{[*****] [*]} pudgy man participated who robbery Investigate Prepare 5. Failure to Appenzeller’s assault. While posi- first Alibi Defense tive identification of the defendant took adequately Trial counsel investi- place seven robbery, months after the gate of, possibility prepare, alibi record indicates that he was certain defense for the defendant. This clear- later date that the defendant was one of his ly duty con- breach trial counsel’s circumstances, assailants. Under these independent investigation of the duct an finds Appenzeller’s Court that Mr. in-court given facts and circumstances of case. identification of the proper. defendant was Hampton v. United Trial counsel’s failure to make the meritless (D.C.App.1975). The issue remains motion to suppress identification caused the purported de- defendant’s defendant prejudice. no actual fense was “substantial.” testified at evidentia- 3. Failure to File Motion to Dismiss for ry hearing during the trial that he had Delay Pre-indictment with his mother at the time Defendant contends that trial counsel robbery. Detective Leadman testified at should have moved to dismiss the indict- trial that the defendant made statement ment because of pre-indictment excessive placed to him on delay. period There was a sixteen month robbery defendant at the scene of time between filing and the m., p. 4:30 1975. The charging the indictment the defendant with defendant’s mother testified eviden- robbery armed and lesser crimes. hearing tiary that she does not remember her son was with her the time of A Fifth Amendment Due Process claim The 1975. pre-indictment based on delay is made “con produced has of no defendant the names ripe adjudication” by crete and not potential other alibi witnesses. Trial coun- time, lapse by “proof mere but of actual sel testified that the defendant never told Lovasco, prejudice.” United v. 431 States him before trial about the alibi witness. 783, 789, 2044, 2048, U.S. 97 S.Ct. 52 L.Ed.2d circumstances, totality view (1977);1 752 Jefferson v. United the Court finds that the defendant not did 1030, 1033 (D.C.App.1978). Defendant have a substantial alibi defense.3 prejudice poten claims actual because the mother, tial alibi longer his can no assuming that Even a substantial remember whether she was existed, with de did trial counsel’s conduct day fendant on the the offense was commit not blot it out. mother testi- Defendant’s alone, Standing speculative by ted. alle such fied the time the defendant was that gations of faded do she did re- memory witness arrested prejudice. constitute actual United member whether the defendant was with a Michael that he was Mr. conviction Haywood robbery. on the even her date of the robbery, during but Mr. investigation an immediate trial counsel defendant, Haywood, had control and not the appointment eight later on upon months testimony impact gun. had no This of the February would not have revived view alibi defense. the Court’s placed considerable reliance has memory Defendant of defendant’s alibi wit- Superi- Judge decision of Stewart on the or Court No. jury Additionally, ness. in defendant’s Sweet, in United States Criminal trial did hear the defendant’s version of p. W.D.L.R. Vol. No. alibi defense. While this analogous factually primarily is Sweet cross-examination, brought first out on as same trial counsel because it involves the Sweet, the court held that the instant case. In finds this did adversary Court context a substantial defense trial counsel blotted out by failing not blot out the essence of the defendant’s call as witness to interview and alibi defense. post-trial hear who individual ing testified rape complainant in the case deplores This the evidence of Court day him defendant talked allegedly raped as incompetence counsel’s demonstrated complainant told her. The ruling the record before it. herein rape story up so that she made witness had acquies- interpreted should not be as an embarrassing No avoid an situation. as to defense was blotted out such substantial instant oped or approval incompetence.4 cence in of such Rather, government devel case. However, the law is clear that trial coun- as substantial circumstantial evidence blot out sel’s conduct essence of a must testimony implicat direct well as ing identification substantial defense before will new trial Sweet, trial coun the defendant. Unlike granted. incompetence This is a difficult burden to a not reduce the trial sel’s “swearing little, but, instead, contest” one which not been met by the defend- any, impact on of the trial. the outcome ant. majority by the displeased I am as as the is, foregoing, In view of this 9th it representation quality of November, 1979, day of So, judge. obviously, was the trial received. ORDERED, motion defendant’s Nonetheless, ap- judge correctly the trial for a new based on assist- ineffective majority the law the facts. plied denied, be, is, hereby ance of counsel unwilling to do so.2 /s/ John R. Hess John R. Hess

Judge pre-indict Lovasco held that in cases of delay, prejudice generally “proof ment necessary but not sufficient of a due element process inquiry ‍​‌‌​‌‌​​​​​​‌​​‌‌​​‌​‌‌​‌‌‌​​‌‌​​​​​​‌‌‌‌​​​​‌​‌‍process claim and that the due WARREN, Appellant, delay Morris J. must as the well consider the reasons for the prejudice U.S. at the accused.” 431 790, 97 S.Ct. at 2048. Later federal court deci sions have held that the defendant has STATES, Appellee. UNITED analy proving prejudice burden of even before delay sis of the reasons for the is conducted. 79-162. No. See, g., West, e. United States v. F.2d Appeals. (5th Court 1978). District Columbia 367 has not demonstrated In this Cir. any prejudice, so the Arguеd Oct. delay apparently lack reasons of Attorney’s due to — States communication between the United 9, 1981. Decided Oct. assigned Office and detective analysis. the case—do not enter into Aiken, Dr. O. V. a social worker Center, motions Lorton Youth testified at the hearing that the defendant told her precedents, affirmed comparable the relevant of this lowed In a another division unpublished per- equally incompetent Memorandum convictions court considered an formance Gillespie Opinion Judgment. That the same defense counsel. 80-819, July readily of a No. essence concluded division out, fol- substantial defense had blotted Asbell sponse was what? you can’t occurred? You else whom he was that at the time. [AC:] [TC:] [AC:] [TC:] [AC:] [AC:] [TC:] [TC:] ask question question alleged you? * * * Yes. I don’t recall I don’t know whether I asked him I him You Did Did may time the to have occurred? * names * * you as in substance? you whether he was with question asked have asked him where he was you can answer ask him? Yes * ask * * robbery alleged have him him the time the is any my * * * phrased that, did words to him. alibi witnesses yes sfc * * you and his re- question or or it. ask robbery to have no, sir, * * * no, anyone Mr. did 6. The member them arrest for between the witness than Even before this the trial be ing lant’s mother could not remember September hearing at the motion you called arrested clear[:] to avoid [A.] [Q.] [AC:] [TC:] that time record if on the judge in you INo don’t. Mrs. robbery May I don’t know. Where are I September answering prosecutor have 17th, you and told earlier, stated, ambiguous hearing Bookurn, 1975 at the time of the motion any particular exchange are. You in day never 1975? of the 1976, you at the time of “for the those that you these took seen a more reluctant I think I was 1976. The as to whether that he had specific are notes Ricky [appellant] place questions.” or record, purposely could the events of remembered as appellant’s events exchange occurred, so it will follows: not re- mother asking appel- try- might impeached and the consist- however, have been grandson testify, that her She here, But his birthday party ency story had had a attacked. of his 1975; thus, partially ap- she corroborated made preparation total lack of testimony that he pellant’s he remembered withholding his alibi weak in especially look robbery was at day home on cross-examination; partic- he and was until birthday. nephew’s because it was his sharp ularly prey government’s for the easy questions on cross-exаmination. closing argument, prosecutor re- objection, jury, minded the without defense had not called mother failed to conduct C. “Trial counsel provid- despite claim that she investigation of case prompt ed him by with an alibi. This statement any wit- failed to interview prosecutor highlighted the harm to by the nesses called lant his own counsel's failure discover engage failed to and “[t]rial the alibi defense and call mother discovery any meaningful with the stand, even for the limited corrobora- regard to the facts government with provided. tion she could have case.” of this keep admission, B. “Trial counsel read By failed to de- trial counsel his own informed or pre- fendant of his case police report for the first pare adequately him for trial.” progress. trial was in More- time while the over, admitted that he never interviewed he pre- Trial counsel admitted he never witnesses, even pared his sample client with cross-examina- offered him the though prosecutor tion and recall him di- had preparing could Furthermore, asking rect examination “what he discovery.7 opportunity say matter,” reply about the although counsel knew said he wasn’t there.” Coun- “[h]e allegedly by his statement made a written glaring preparation sel’s own lack be- client, neither obtained statement

Case Details

Case Name: Asbell v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Sep 9, 1981

Citation: 436 A.2d 804

Docket Number: 14163, 79-1275

Court Abbreviation: D.C.