Melvin DOE, Appellant, v. UNITED STATES, Appellee.
Nos. 84-702, 88-670 and 89-78
District of Columbia Court of Appeals
Decided Dec. 7, 1990
Argued March 5, 1990.
583 A.2d 670
So ordered.
Lawrence M. Baskir, appointed by the court, for appellant.
Kirby D. Behre, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.
Before ROGERS, Chief Judge, and FERREN, and BELSON, Associate Judges.
Appellant Melvin Doe appeals his conviction for voluntary manslaughter while armed (
I.
On September 18, 1982, appellant Melvin Doe stabbed Leroy McCray with a knife at 208 Morgan Street, N.W., where appellant had rented a room from McCray. The stabbing followed an earlier altercation between the two men that stemmed from McCray‘s having locked appellant out of the house and blocked appellant‘s girlfriend‘s exit from appellant‘s bedroom. After the girlfriend, Ms. Betty Jean Poteat, had shaken the bedroom door open, she let appellant in the front door of the house. After appellant entered the house, he confronted McCray in McCray‘s bedrоom. McCray then became angry and hit appellant with a spear-like object that made a small cut on appellant‘s left side. As McCray continued to pursue appellant with the “spear,” appellant stabbed McCray four times with a butcher knife he had been carrying in his pocket. McCray required emergency surgery. Two days later, McCray, an alcoholic who was experiencing delirium tremens, suffered a cardiac аrrest, experienced severe brain damage, and then lapsed into a coma. McCray never regained consciousness and died on May 2, 1983.
II.
Doe argues that the trial court improperly denied his ex parte motion for the appointment of counsel and for expert and investigative services.1 Doe contends that these appointments were necessary in or-
der to prepare adequately for a motion to vacate judgment and order a new trial under
The Constitution does not require the appointment of counsel to pursue post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Similarly, there is no statutory basis for an unqualified right to such appointment. Jenkins v. United States, 548 A.2d 102, 104 (D.C.1988). See
In order to demonstrate a need for the appointment of counsel, a petitioner usually must satisfy the same criteria that would entitle the petitioner to a hearing on the
It is implicit that the trial court rejected Doe‘s motion because the “assertions, even if true, would not entitle the prisoner to relief under
Doe‘s ex parte motion for the appointment of counsel and other services failed to state any specific grounds why expert or other investigative services would be necessary to delve further into the causation issue. As the trial court indicated, the cause of McCray‘s death was explored during trial. Doe‘s trial counsel fully cross-examined the government‘s witnesses who testified on that issue.
Clyde Callender, M.D., testified at trial as an expert witness as follows:
The cause of [McCray‘s] death was related to—well, the cause of death [was] his heart stopped beating but basically all of this was related to the traumatic event that occurred in September of the stab wound of the chest and abdomen which caused him to require surgical intervention and then made him susceptible to delirium tremens which then caused him to have the cardio-respiratory arrest and which eventually resulted in his demise some eight months later.
Q. But for the stab wounds would any of these things happened?
A. No.
Doe‘s trial counsel cross-examined Dr. Callender about his testimony and the treatment McCray received while he was in the hospital, including the delirium tremens McCray suffered as a result of his surgery. Specifically, trial counsel asked whether the valium administered to McCray could have caused him to become unconscious. Appellant‘s trial counsel asked Dr. Callender to assign percentages to the effect of the valium and the delirium tremens on the cardiac arrest. The doctor responded, “it was my opinion that the delirium tremens was in my opinion was 70 percent likely to have caused the arrest, but there‘s a thirty percent likelihood that the val[i]um at least was contributor to it.”
The doctor who performed the autopsy, Rak W. Kim, M.D., testified that the cause of death was “[b]ronchial pneumonia associated with bad bed sores. That is secondary to stab wounds.” He also testified that the pneumonia and infection from the bed sores were complications of the stab wounds. Defense counsel also cross-examined Dr. Kim as to the cause of McCray‘s death and exposed a limitation of Dr. Kim‘s
In sum, the record refutes appellant‘s argument that Doe‘s trial counsel was ineffective in that he failed to press the defense that cause of death was not established. To the contrary, the record demonstrates that trial counsel cross-examined fully, but that despite his efforts the jury had ample evidence on cause of death to find that McCray died as a result of the stab wounds and secondary complications due to those wounds. Doe does not now assert the existence of any contrary evidence.
Under the standards enunciated in Strickland, supra, 466 U.S. at 687, and Ellerbe v. United States, 545 A.2d 1197, 1198–99 (D.C.), cert. denied, 488 U.S. 868 (1988), Doe‘s ineffective assistance of counsel claim fails. Doe cannot meet the “but for” test of Strickland because Doe has failed to demonstrate that the results of his trial would have been different had his trial counsel pursued the causation defense. So even though Doe‘s assertion that his trial counsel did not press a causation defense was true, Doe was not entitled to a hearing. It follows that the order denying the motion for the appointment of counsel and expert and investigative services should likewise be affirmed.
III.
Appellant‘s counsel has raised the question whether our opinion in Shepard has placеd upon counsel first appointed on direct criminal appeal additional duties with respect to the possible ineffectiveness of trial counsel. We take this opportunity to explain the duties of appellate counsel in that regard. In Shepard we held:
[I]f an appellant does not raise a claim of ineffective assistance of counsel during the pendency of the direct appeal, when at that time appellant demonstrably knew or should have known of the grounds for alleging counsel‘s ineffectiveness, that procedural default will be a barrier to this court‘s consideration of appellant‘s claim.
We observe first that Shepard does not address the question of whether the express or implied duties of counsel appointed for a direct appeal include giving advice or taking actions with respect to the filing of
In Shepard we identified a procedural bar to subsequent claims of ineffectiveness based on matters of which an appellant demonstrably knew or should have known. Shepard, supra, 533 A.2d at 1280. This does not translate, however, into a requirement that new counsel appointed on appeal investigate de novo everything that the trial counsel did, or could have done, as appellant‘s counsel posits. Instead, the duty of аppellate counsel to investigate possible ineffective assistance of counsel claims is triggered by what the appellant (and trial counsel) tell appellate counsel in response to a reasonably thorough inquiry,
If, after completing such an inquiry and any indicated research, appellate counsel concludes that there exists an adequate basis for advancing a claim of ineffective assistance of trial counsel, appellate counsel should advise appellant of the results of the inquiry. The next step would be the filing of a
IV.
Turning to the merits of Doe‘s direct appeal, Doe argues that the trial court should have given a causation instruction, sua sponte, to the jury because causation was raised in the government‘s case. Doe seems to contend that because the issue of causatiоn was central to the government‘s case and the government‘s evidence put causation in issue, the cause of McCray‘s death was an issue that the jury should have been directed to consider on the basis of a particularized instruction. The government argues that the instructions on the elements of second-degree murder and voluntary manslaughter included causation as an element, and notes that trial counsel posed no objection to the jury instructions as given, and asked for no additional instructions.
The government argues further that even had the trial court given the unrequested jury instruction (Criminal Jury Instructions for the District of Columbia, No. 4.27 (3d ed. 1978)) sua sponte, it would not have helped Doe because a preexisting weakness (McCray‘s alcoholism) of a victim or negligent medical care while being treated for injuries, will not absolve one who inflicts an injury that contributes to a person‘s death. Mоreover, the government argues, the fact that McCray‘s delirium tremens caused him to lapse into a coma after having been given valium was a reasonably foreseeable consequence of the stabbing injuries.
When discussing the proposed jury instructions of the appellant Doe, the trial court noted the requested instructions included “the 500 series. He‘s asking for 5.13 which of course is a general self-defense and that‘s his theory here.” Dеfense counsel did not disagree. Upon review of the trial transcript, it is clear that the defense neither requested any specific causation instruction nor raised causation as a defense in closing argument.6
The trial court instructed the jury on the elements of the charged offense of second-degree murder while armed (
Doe cites two cases to support his argument that a special jury instruction should have been given to support a defense theory of causation. We consider them inapposite. Appellant cites Fersner v. United States, 482 A.2d 387 (D.C.1984), for the proposition that a defendant “is entitled to a requested instruction on the defense theory of the case if there is ‘any evidence fairly tending to bear upon the issue...,’ however weak.” Id. at 392 (quoting Rhodes v. United States, 354 A.2d 863, 864 (D.C.1976)). Accord Stack v. United States, 519 A.2d 147, 154 (D.C.1986). We observe first that Fersner did not address a situation like that before us where a defendant did not request certain jury instructions. In Fersner, moreover, where trial counsel had requested the desired instruction, this court rejected his argument on appeal because there was no evidence to support it. In Stack, the other case cited by appellant, this court reversed for failure to give, as requested, an instruction setting forth the defendant‘s theory of the case (independent cause of death in murder case).
In sum, we are confident that any additional and more specific instruction on causation would not have altered the jury‘s verdict, see McKinnon v. United States, 550 A.2d 915, 917-18 (D.C.1988). Accordingly, the failure of the trial court to give a special instruction on causation, sua sponte, was not plain error requiring revеrsal of Doe‘s conviction. See Allen v. United States, 495 A.2d 1145, 1154 (D.C.1985) (en banc).
V.
Doe‘s final contention is that the prosecutor‘s reference to him as a “bad person” and other remarks in a similar vein during rebuttal argument denigrated Doe‘s credibility before the jury and substantially prejudiced his claim of self-defense. The government argues that, when viewed in context, the government‘s rebuttal argument essentially disputed the basis for Doe‘s self-defense theory and thus did not constitute prosecutorial misconduct requiring the reversal of Doe‘s conviction. Because Doe‘s trial counsel failed to object to these statements by the prosecutor, this court will review for plain error. Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc). We have recently noted: “The Supreme Court has cautioned that reversal for plain error in cases of alleged prosecutorial misconduct should be confined to ‘particularly egregious’ situations.” Dixon v. United States, 565 A.2d 72, 75 (D.C.1989) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). Although thе prosecutor‘s comments may have been in the “better left unsaid” category, we are persuaded that they did not inject plain error into the trial.
Accordingly, Doe‘s conviction for voluntary manslaughter while armed is affirmed. The trial court‘s rulings on Doe‘s post-conviction motions are also affirmed.
So ordered.
I concur in the opinion for the court except for footnote 5, which declines to address a question squarely presented on appeal, as I see it. All members of this division agree that an attorney who conducts the inquiry under Shepard v. United States, 533 A.2d 1278 (D.C.1987), is entitled to compensation for that inquiry, as well as for preparing and filing a motion under