ROBERT F. GAULDEN, APPELLANT, v. UNITED STATES, APPELLEE.
Nos. 17-CO-243, 17-CO-244, & 17-CO-245
DISTRICT OF COLUMBIA COURT OF APPEALS
October 8, 2020
Argued May 7, 2019
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeals from the Superior Court of the District of Columbia (CF2-19416-06, CF2-3217-08, CF2-20509-08)
(Hon. Robert E. Morin, Trial Judge)
Jenifer Wicks for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Nicole Raspa, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and GREENE,* Senior Judge, Superior Court of the District of Columbia.
I.
On June 22, 2006, police saw a man carrying a semiautomatic pistol with a long, extended high capacity magazine,
Alesha Knott‘s friend Cleveland Bryan accompanied her when she came to court for appellant‘s February trial. The following month, according to Bryan, appellant spotted him when they were being transported together by bus from the D.C. Jail to Superior Court on March 25, 2008, for hearings in their unrelated criminal cases. Bryan reported (and later testified) that appellant threatened to kill Alesha and Felicia Knott for testifying against him, and to kill Bryan for supporting Alesha Knott‘s decision to testify. On the bus ride back from the courthouse, Bryan said, appellant “tr[ied] to persuade [him] . . . to get [Alesha Knott] to . . . take her statement back” and say that the government had “paid her to lie.” Appellant allegedly added that if Bryan did not succeed, appellant would make sure he encountered “problems” at the Jail. After returning to the Jail, Bryan placed a recorded call that evening to Alesha Knott and told her about appellant‘s threats. Bryan also reported appellant‘s threats to the government; they were the basis for the obstruction and threats charges at issue in this appeal.
The weapons and obstruction charges were joined for trial in May 2009. Alesha and Felisha Knott again testified that they saw appellant running from the police on June 22, 2006, as did one of the police officers who chased him and saw him holding a gun.1 Appellant‘s defense to the weapons charges was that the eyewitnesses had wrongly identified him.
Bryan testified to his March 25, 2008 encounter with appellant, and his recorded phone call to Alesha Knott of that evening was introduced in evidence. Appellant contended that Bryan was blowing their jail bus conversation out of proportion and that, while he and Bryan had spoken on the bus, appellant had not made any threats. Defense counsel opened on this theory, telling the jury that appellant “never tried to get anyone to say anything other than the truth.” In support of that theory, counsel cross-examined Bryan on whether he had exaggerated and embellished appellant‘s words to lessen his own jail time.2 In the defense case, appellant did not testify, but called a witness named James Brandon to support his version of the jail bus incident. The defense expected Brandon to testify, as he had before the grand jury, that he was on the bus and heard appellant and Bryan get into an argument, but did not hear appellant make any threats. Brandon surprised the defense, however, by testifying that he did not remember seeing Bryan on the jail bus. To salvage the situation, the defense entered into a stipulation with the government that Bryan had been on the bus along with Brandon and appellant.
The jury found appellant guilty of most of the charges emanating from the June
II.
In his
In order to succeed under the two-part test for evaluating ineffective assistance of counsel claims set forth in Strickland v. Washington, 466 U.S. 668 (1984),3 an appellant must show both “that his or her trial counsel‘s performance was deficient under prevailing professional norms, and that the deficient performance prejudiced his or her defense.”4 Because “[f]ailure to satisfy either prong” of the Strickland test “defeats the [ineffective assistance of counsel] claim,” the court may address the prejudice prong first and is not required to address deficiency if the appellant fails to show prejudice.5
The inquiries for each prong of Strickland involve mixed questions of law and fact.6 “[W]e accept the trial court‘s findings of fact unless they lack evidentiary support in the record,” and “[w]e review the trial court‘s legal determinations de novo.”7 We defer to a judge‘s reasonable “credibility determinations” because such determinations are “the appropriate function of the fact finder.”8
“A criminal defendant . . . can also establish ineffective assistance of counsel by showing that defense counsel had an actual conflict of interest.”9 Where an appellant failed to object to the alleged conflict at trial, he “must demonstrate that an actual conflict of interest adversely affected his lawyer‘s performance.”10 Conflicts that “are merely speculative or hypothetical” are not actual conflicts.11 To prevail on an ineffectiveness claim based on a conflict of interest, appellant must demonstrate “(1) that ‘some plausible alternative defense strategy or tactic might
particular strategy or defense is not significant unless the defense is plausible,’ meaning it was available and realistically ‘might have influenced twelve reasonable jurors.‘”13
A. Failure to Interview Robert Pettus and Call Him as a Witness
Appellant‘s trial counsel, Public Defender Service attorney Eric Klein, had represented Pettus briefly in connection with an unrelated criminal proceeding. Klein withdrew from that representation in December 2007, over a year before appellant‘s trial. Other PDS attorneys continued to represent Pettus until July 2008, some ten months before appellant‘s trial.
Appellant argues that a conflict of interest arising from Klein‘s prior representation of Pettus caused him to refrain from interviewing Pettus and calling him as a witness at appellant‘s trial. Appellant reasons that Klein had an actual conflict because he “must have known that if Mr. Pettus were to testify at trial in a manner that did not advance [appellant‘s] case, it would have been incumbent on Mr. Klein to cross-examine Mr. Pettus and to potentially attack his veracity[,] . . . [which] undoubtedly would have involved using confidential and/or privileged information that Mr. Klein learned about Mr. Pettus during PDS‘[s] representation of Mr. Pettus.”14
This scenario is purely hypothetical and conclusory; there is no evidence that it actually motivated Klein,15 or that Klein acquired any confidential or privileged information that could have been used to impeach Pettus. Absent such evidence, the imagined scenario does not satisfy the standard for an actual conflict. Normally, as we held in Freeman v. United States, 971 A.2d 188 (D.C. 2009),16 when an alleged conflict stems merely from the fact that a defendant‘s attorney previously represented a favorable defense witness in an entirely unrelated case, “there [i]s no risk that [the attorney] w[ould] [be] in a position to act detrimentally to either of his clients’ interests” because “the interests of [the defendant and the witness] [a]re not in conflict nor d[o] they risk dividing their shared attorney‘s loyalties.”17
In fact, the trial court found, based on the testimony at the
The trial court further found that appellant had neither identified “a plausible defense strategy” Klein failed to pursue because of his putative conflict of interest, nor demonstrated that Pettus “actually possessed relevant, exculpatory testimony” that could have made any difference at appellant‘s trial so as to establish Strickland prejudice. The evidence adduced at the
Bryan‘s March 25, 2008 phone conversation with Alesha Knott strongly corroborated Bryan‘s claimed presence on the jail bus with appellant that day, we agree that Pettus would not have supported a plausible alternative defense strategy for appellant, and that appellant has not shown a reasonable probability that Pettus‘s testimony would have altered the outcome of the trial.
B. Stipulation that Bryan was on the Bus with Appellant
At trial, after Brandon unexpectedly testified that he did not recall seeing Bryan on the bus on March 25, 2008, Klein sought to salvage the situation by stipulating as follows:
On March 25th, 2008, a witness James Brandon appeared for a Court hearing at the DC Superior Court. . . . [H]e was transported on the bus from DC Jail with the Defendant Robert Gaulden and the witness Cleveland Br[y]an.
Appellant contends that his counsel performed deficiently in making this stipulation because it prevented the defense from using Brandon‘s testimony to contest Bryan‘s presence on the jail bus. The trial court rejected this contention, concluding
As the trial court found, crediting Klein‘s testimony, the defense pursued a reasonable strategy at trial of trying “to discredit Mr. Bryan‘s testimony about what actually occurred on the bus rather than deny that [appellant and Mr. Bryan] were on the bus together.”21 Defense counsel opened on that theory and cross-examined Bryan in accordance with it. This may well have been the only reasonable strategy to pursue, given the strong corroboration of Bryan‘s presence on the bus. Brandon‘s expected testimony would have supported that strategy. His unexpected testimony at trial undercut it and diminished the credibility and exculpatory value of Brandon‘s own testimony. Thus, as the trial court concluded, “counsel‘s reasonable decision was that the stipulation could (1) help rehabilitate Mr. Brandon‘s testimony and (2) establish that he was on the bus with Mr. Bryan and Mr. Gaulden and thus would have seen any interaction between the two.” In
addition to reconciling Brandon‘s testimony with the defense theory that appellant and Bryan had a conversation, but that appellant did not make any threats, the stipulation made room for the jury to draw the positive inference (if it found Brandon credible) that because Brandon did not remember Bryan‘s presence, any conversation between appellant and Bryan must have been mild and unremarkable. Without the stipulation, the jury would likely have discounted Brandon‘s testimony as wrong, because it deviated from both the government‘s evidence and the defense‘s theory of the case.
“An appellate court will not second-guess trial counsel‘s strategic choices,”22 particularly where, “in the circumstances presented, and considering the alternatives, it was a reasonable strategy, and it was selected . . . on the basis of sufficient pretrial investigation.”23 Here, trial counsel‘s stipulation was a reasonable strategic choice, albeit forced by less than ideal circumstances. It was therefore not deficient performance.24
C. Failure to Obtain Surveillance Camera Footage or Request Sanctions for Premature Destruction of Evidence
Appellant argues that defense counsel was ineffective in failing to obtain surveillance footage recorded by a camera on the jail bus on March 25, 2008; and that, if this failure was due to the government‘s premature destruction of the surveillance
D. Counseling Regarding Plea Offer
Appellant‘s next claim of ineffectiveness is that his trial counsel‘s deficient performance caused him to reject the government‘s day-of-trial plea offer that could have resulted in a lighter sentence. The offer would have required appellant to plead guilty to one felony firearms possession offense, one count of obstruction as to Alesha Knott, one count of obstruction as to Felisha Knott, and one count of threats against Cleveland Bryan, in exchange for dismissal of the remaining charges. At the motion hearing, appellant asserted (with some inconsistency, as the trial court noted in its decision) that Klein (1) failed to explain the details of the plea offer to him, and (2) convinced him not to accept it by falsely promising to introduce evidence supporting his physical impairment and his jail bus surveillance footage claims. Appellant also continued at the hearing to assert his innocence of some of the charges the plea offer would have required him to admit.
For multiple reasons, the trial court found appellant‘s “testimony on the issue about the plea offer to be largely incredible and self-serving.” Crediting Klein‘s “testimony and experience,” and the inconsistencies in appellant‘s testimony, the court disbelieved appellant‘s allegations that Klein had failed to inform him of the details of the plea offer, and that Klein had falsely promised to introduce favorable evidence he did not have or expect to have. Moreover, the court found, “in light of Mr. Gaulden‘s continued denial [of] some of the offenses encompassed in the plea offer, he has failed to show that he would have successfully completed the plea colloquy and that the Court would have accepted the plea.” The court concluded that appellant had not demonstrated either that his counsel performed deficiently in connection with the plea offer or that he suffered prejudice from counsel‘s allegedly ineffective advice.
“We see nothing in the record that required the trial court to reject the ‘strong presumption’ that trial counsel‘s strategic analysis and advice [about the plea offer] were reasonable.”25 We defer to the credibility assessments of the trier of fact. It is indeed incredible (and contrary to Klein‘s testimony) that defense counsel promised appellant on the day of trial to present exculpatory evidence he did not have at that point and could not obtain. As for whether appellant understood the details of the plea offer, we can look to appellant‘s answers in court at the time the plea offer was put on the record. The trial court asked appellant if he “underst[oo]d the nature of the plea offer” and if he had “had enough time to discuss it with [his] attorneys.” Appellant replied “[y]es, sir” to both questions.
When the court asked appellant if he “want[ed] any additional time,” he declined it. And in any event, to show the requisite prejudice to
E. Failure to Present Evidence of Permanent Physical Injury
Appellant claims Klein was ineffective in failing to present evidence of his physical inability to run, which appellant attributed to a shooting he suffered around 1990 as a teenager. He argues this evidence would have negated the testimony of the three eyewitnesses who identified him as the man they saw running with a firearm into an apartment building on June 22, 2006, to escape the police—the testimony that supported the firearm charges against appellant.27 The
trial court ruled that appellant failed at the
At the
Appellant had the opportunity to demonstrate prejudice at the evidentiary hearing by presenting the evidence his counsel could have presented at trial. He offered the following evidence. He introduced two x-rays of his pelvic bone that were taken in 2010, four years after witnesses say they saw him running from the police. He testified that the x-rays showed buckshots that remained lodged in his pelvic bone from when he was shot in the spine and hip with a 12-gauge shotgun at age fourteen. This shooting, he claimed, left him unable to run.29 Appellant acknowledged, however, being able to engage in other strenuous physical activity—doing pushups and squats, playing basketball, lifting weights, engaging in manual labor as a bricklayer—and that in 2002 he had fled from police by jumping off a balcony. Appellant did not present any medical testimony or other medical evidence supporting his assertion that he was unable to run.
When asked whether appellant had ever told her that he could not run, Ms. Bell replied:
Yeah. Because I asked him if he wanted to go work out, if he was able to do anything. He‘d just like walk or just limit himself, but not run. “I couldn‘t work out with you back at the gym.”
On cross-examination, Ms. Bell admitted that appellant had jumped from a balcony at some point after the shooting incident as a teen.
The evidence on which appellant relied—his and his sister‘s testimony, uncorroborated by any expert medical testimony or other independent witnesses—was hardly sufficient, in our view, to support a finding of a “reasonable probability that [the jury] would have returned with a different [verdict]”30 if it had heard that testimony. Appellant‘s reluctance to exert himself in the same manner as his sister during workouts and the fact that his sister had never seen him run since the accident in no way prove that appellant was medically incapable of running when startled by the police while illegally in the possession of a gun. As the trial court stated,
Mr. Gaulden‘s own testimony presents conflicting stories as to his physical abilities, which undercuts the strength of his claim. The testimony of Ms. Bell is similarly unpersuasive in that it merely repeats what she heard from Mr. Gaulden without offering anything more. Mr. Gaulden also chose not to produce testimony or affidavit of a qualified medical professional regarding his limited physical abilities.
And as the trial court also pointed out, appellant‘s prison medical records (part of the government‘s evidence at the hearing) “substantially weaken[ed]” appellant‘s claim of physical inability to run. The medical records report, for example, that in January 2002, appellant stated he had no permanent injury resulting from the gunshot wound to his lower back; that while appellant was incarcerated he was injured at least twice (in 2007 and again in 2011) playing basketball; and that appellant “does not experience prob[lems]s with activity.” The records contain no report of an impaired ability to run or similar physical limitations.
The evidence in its totality supports the trial court‘s conclusion that appellant was not prejudiced within the meaning of Strickland by his counsel‘s failure to raise the physical impairment issue at trial.
III.
For the foregoing reasons, we affirm the judgment of the Superior Court denying appellant‘s motion for relief pursuant to