Appellant was convicted of armed robbery (D.C. Code 1973, §§ 22-2901, -3201) and carrying a pistol without a license (D.C. Code 1973, § 22-3204) and was sentenced to concurrent terms of imprisonment. On appeal he seeks revеrsal on the ground that (1) he was denied effective assistance of counsel, and (2) the trial court erred in refusing to order the recusal of the prosecutor. We affirm the conviction.
The genesis of appellant’s ineffective assistance of counsel аrgument is found in an earlier felony murder prosecution of appellant which stemmed from a February 1, 1975 shooting. At that trial, the government introduced evidence through the testimony of several witnesses which rеvealed that the murder weapon, a handgun, was discovered in appellant’s possession on February 10, 1975, when he allegedly committed and was subsequently arrested for the armed robbery which is the subject of this appeal. Specifically, at the murder proseсution the government adduced testimony from the victim of the armed robbery and the two arresting officers explaining the circumstances surrounding the armed robbery which in turn linked appellant to the murder weаpon. Appellant was ultimately acquitted of the felony murder charge and was thereafter tried and convicted for the armеd robbery.
Appellant now contends that he was denied effective assistance of counsel because of the failure оf appellant’s trial counsel to timely move for a joinder оf the instant armed robbery with the felony murder.
1
This argument suggests that appellant would have been acquitted of the armed robbery had he been tried by the same jury which acquitted him of murder. This reasoning is of coursе speculative and it is just as easy to suggest that, had joinder been timely sought and permitted at the first trial, conviction may have resulted аs to both offenses. Moreover, the argument is based upon an erroneous premise that success is the litmus test of effective assistance of counsel.
See Mitchell v. United States,
We have examined the record before us and we conclude that appellant has not beеn denied effective assistance of counsel.
See Angarano
v.
United States,
D.C.App.,
Likewise, we find no merit in appellant’s remaining argument.
One additional factor shоuld be addressed. In 1974 this court instructed, “In the future, where an attorney has represented a convicted defendant at trial and, as the dеfendant’s attorney on appeal, concludes in good faith that a legitimate issue exists as to the constitutional adequaсy of his representation of the defendant at trial, it is the duty of the аttorney to move to withdraw as counsel on appeal.”
Shelton v. United States,
D.C.App.,
At оral argument had on this appeal on February 9, 1977 appellant’s counsel, having acted as trial counsel, expressed directly for the first time his concern as to the propriety 2 of his apрearance before the court to argue the issue of ineffective assistance of trial counsel. Because he was permitted to address the merits, and the issues were fully explored by both sides, we have likewise carefully examined the merits. This is not to countenance the breach of duty by counsel in not moving to withdraw.
The judgment appealed from is
Affirmed.
Notes
. The record indicates that an untimely motion for joinder was made but was denied by the trial judge.
. Counsel did suggest in his brief that he would have preferred not to argue his own incompetence and suggested that the Public Defender’s Office might be invited to submit a brief.