Lead Opinion
Ajene Kigozi (formerly known as Walter E. Johnson Jr.), was tried by jury and convicted in the Superior Court for the murder of Parris Lynch.
Appellant also contends that admission of the decedent’s out-of-court accusations violated the Confrontation Clause and that the statements should not have been admitted under the exception to the hearsay rule for dying declarations without a particularized finding that the statements were reliable. In view of our disposition remanding the case for a new trial, we need not decide these challenges to the admissibility of the dying declarations, which are raised for the first time on appeal. However, as the government’s case was centered on the decedent’s statements, on remand the trial court will need to address appellant’s claims that the accusatory declarations of the decedent were erroneously admitted in violation of the Confrontation Clause and were too unreliable to come within the hearsay exception for dying declarations. These issues were not considered at the first trial, and further factual development of the circumstances surrounding Lynch’s accusations, considered in the light of relevant precedent, will be required in a renewed prosecution to determine 1) whether the statements were testimonial in nature and, if so, whether the Confrontation Clause excepts testimonial out-of-court statements that are made in the face of impending death;
I. Facts
A. The Trial
The government presented evidence in its case-in-chief that, at approximately 1:00 p.m. on November 23, 2001, Parris Lynch was shot seven times at close range while
Several witnesses who were in the area of the shooting testified at trial. Lawrence Brown, a heroin addict and dealer who knew Lynch, testified that at approximately 11:00 a.m., he was approached by appellant who asked Brown if he had seen Lynch. Brown told appellant that he had not and walked around the back side of a nearby McDonald’s restaurant. About three to five minutes later,
None of the witnesses who testified at trial identified appellant as the shooter. Benbow said that he could “[n]ot clearly” see the shooter, and saw only his back. On cross-examination, Benbow testified that appellant did not match the description of the shooter he had given the police at the time and was not the man who fired the shots.
Robert Williams testified that he was in a car three cars behind Lynch’s when he heard gunshots. He could see an arm holding a firearm into the front-passenger seat window of Lynch’s car, and subsequently watched as the gunman fled past Williams’s car as Lynch’s car cut through the nearby McDonald’s parking lot and then up Southern Avenue. Williams testified that he turned his head and did not look straight at the shooter’s face. Williams also did not identify appellant in court. He testified that he managed only to “g[e]t a glance” at the shooter, and on cross-examination admitted that appellant did not match the description of the shooter he had given the police.
Two other witnesses provided evidence of the shooting that also tended to exculpate appellant. A stipulation was entered that Látese Alexander, who saw the shooter immediately after the shots rang out, identified someone other than appellant from a photo array. At a nearby store, Cynthia Gaskins overheard a person speaking on the phone shortly after the shooting, claiming to have “just capped” someone “for Ray-Ray.” Gaskins described the caller as wearing his hair in plaits, which did not resemble appellant’s hair style at the time; appellant was not known as Ray-Ray.
While in the ambulance, Lynch “looked at [Wittington] square in the eyes,” and said, “I need to tell you something.” Wit-tington leaned forward and turned his head so “that [his] right ear was just a matter of several inches from [Lynch’s] mouth,” and Lynch stated, “Walter Johnson shot me.” (Walter Johnson is appellant’s former name). Wittington, who was dressed in a Prince George’s County Fire EMT uniform, responded that he was not a police officer, but that he would inform the detectives.
Once the medivac helicopter arrived, Officer Chris Perkins, a paramedic assigned as a rescue technician with the U.S. Park Police aviation unit, entered Lynch’s ambulance where he asked for the patient’s name. He heard Lynch say, “Walter Johnson” and asked, “Is that your name?” to which Lynch responded, “Walter Johnson shot me.” Officer Perkins repeated this statement back, to Lynch, asking “Walter Johnson shot you?” and Lynch responded, “Yeah.” Perkins testified that Lynch appeared “slightly agitated,” “in respiratory distress,” and that he appeared uncomfortable lying down because he was “shifting,” as if “trying to sit up.”
Lynch complained that he could not breathe and Officer Perkins assured him that “[he] would have [him] at the hospital in a couple of minutes.” Lynch responded, “I know I’m gonna die.” Officer Perkins assured Lynch he would not and that he would be at the hospital shortly. For the third time, Lynch repeated, “Walter Johnson shot me.” Lynch’s condition rapidly deteriorated during the flight to the hospital. According to Officer Perkins, Lynch became “[s]omewhat” disoriented in that he kept “making repetitive statements,” and was “very combative.” He made no further coherent statements and died later that night.
In addition to challenging the identity of appellant as the gunman through the cross-examination of Benbow and Williams, appellant presented the testimony of Curtis Freeman, who had known appellant for two months before Lynch’s death. Freeman testified that shortly before the shooting, he had been conversing with Lynch for about ten minutes while Lynch sat in his car on Chesapeake Street. According to Freeman, Lynch was “high” and appeared to be under the influence of “PCP water”
As proof of appellant’s motive to kill Lynch, the government presented testimony explaining that Lynch and appellant, who were friends and sold drugs together, had purchased “some bad stuff,” or bad drugs. Though Lynch had been able to get rid of his share of the drugs, appellant had not and remained bitter about the transaction. According to Catrina Stephenson (the mother of Lynch’s children), Dorothy Murrell (Stephenson’s mother), and Latoya Morton (Lynch’s girlfriend), appellant had called several times looking for Lynch, demanding his money and even threatening to kill him. These repeated threats, the prosecutor argued in closing, evidenced appellant’s vengeful motive for killing Lynch.
Appellant presented an alibi defense. Several witnesses, members of his family and friends, testified that he was at home all day on the day Lynch was shot, and that Lynch had visited appellant at his home for a short time around noon, the day before, Thanksgiving Day. To explain the presence of appellant’s fingerprint on Lynch’s car, the defense asked Freeman about Lynch’s visit to appellant’s house on Thanksgiving. Freeman testified that Lynch had proposed that they visit “[his] man’s house” and that he had gone in the car with Lynch to appellant’s home. At one point, according to Freeman, appellant had leaned against the passenger side of the car to talk to Lynch before he drove off.
Appellant could not, however, effectively challenge Lynch’s repeated accusations to the emergency personnel that “Walter Johnson shot me.” In opening statement defense counsel emphasized that appellant and Lynch were long-time friends, and that Lynch knew appellant by his “street name” “Butch,” and not as “Walter Johnson.” Thus, he argued, Lynch’s accusations that “Walter Johnson” shot him were not directed at appellant. Counsel also stated that Freeman would testify that Lynch had been smoking PCP right before he was shot, and that the medical records showed Lynch had tested positive for PCP shortly after he was shot. Lynch’s impairment as a result of PCP intoxication was not counsel’s primary argument, and he concluded his opening statement by going back to his “Butch” argument, saying that Lynch had not clarified that “Walter Johnson” and “Butch” were the same person, although he could have because he had been “conscious” and “alert” when he arrived at the hospital. By closing argument, however, counsel was struggling to undermine the credibility of Lynch’s accusations by saying he had been high on PCP, “a hallucinfogenic] drug, [where] you say things you don’t really know what you are saying.” This assertion had some support in the evidence: hospital records revealed the presence of PCP in Lynch’s urine and Freeman testified that when he spoke to Lynch shortly before the shooting, he appeared to be high on PCP, although he did not say (as counsel had proffered in opening statement) that he had seen Lynch smoking PCP. Additionally, on cross-examination, Officer Perkins testified that Lynch was acting like a per
The jury found appellant guilty of all charges; the trial court sentenced him to thirty-five years of imprisonment.
B. The § 23-110 Hearing
Represented by new counsel, appellant filed a motion for a new trial, pursuant to D.C.Code § 23-110, in which he argued that his trial counsel was ineffective because he failed to consult and present an expert to fully develop the relevance of Lynch’s positive PCP urine test, which indicated that he was high on PCP at the time of the shooting, and thereby cast doubt on the reliability of his statements accusing appellant.
Dr. Kenneth Dretchen, a nationally recognized pharmacology expert and Chair of the Department of Pharmacology at the Georgetown University Medical Center, also testified at the evidentiary hearing. He explained how PCP is metabolized in the body and its effects. Dr. Dretchen stated that the presence of PCP in the urine reflects the drug’s simultaneous presence in the blood stream — testimony that contradicted the trial testimony of the medical examiner presented by the government and the prosecutor’s rebuttal argument. He testified that the PCP would be expected to have entered the brain, and that PCP “avidly binds to the brain and so blood levels of PCP usually are relatively low to begin with.” Despite being unable to tell exactly how much PCP was in Lynch’s system because a qualitative not a quantitative test had been done at the hospital when Lynch was admitted, nor how long the PCP had been there, Dr. Dretchen opined that the test performed on Lynch’s urine had a “pretty high cutoff level” for detection of PCP. He said that only a small amount (3-5 milligrams) of PCP can have an effect and that the effects of PCP can last two to three days. He explained that the likely reason PCP was not detected in Lynch’s blood stream was the dilution effected by the extremely large volume of fluids with which Lynch was transfused during the emergency treatment after he was shot, and at the hospital, which was “more than double normal blood volume.” Dr. Dretchen testified that the effects of PCP can include sedation, confusion, delirium, disorientation, aggressive and combative behavior, hallucinations and visual disturbances. Finally, Dr. Dretchen opined that the combativeness, confusion and disorientation the EMT personnel observed when they treated Lynch could be symptoms of PCP intoxication.
The trial court denied appellant’s motion for a new trial, concluding that “[Dr. Dret-chen]’s proposed testimony, even if permitted, would not have significantly affected the outcome [of trial].” This appeal followed.
II. Ineffective Assistance of Counsel
We review a trial court’s denial of a § 23-110 motion for new trial for abuse of discretion. Minor v. United States,
A. Counsel’s Performance
“In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland,
To show that his trial counsel’s performance was deficient, appellant must “show[ ] that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
We extensively addressed this aspect of counsel’s obligation in Cosio. There, the defendant had been charged with sexually abusing his younger half-sister,
The facts of this case compel the same conclusion. Both parties agree that “[t]he crucial issue at trial was whether Lynch was actively under the influence of PCP at the time of the shooting so as to undermine the reliability of his dying declaration.” We find it unreasonable that counsel, upon learning pretrial that the key witness for the prosecution may have been under the influence of a mind-altering drug, did not further investigate its poten
The government argues that counsel’s decision not to call an expert was “a reasoned tactical decision,” made after a “cost-benefit analysis,” because the average juror would “know about PCP and its general effects.” It is true that we will not second-guess true tactical decisions. See Carter v. United States,
The importance of the accusations made by Lynch, “the key witness for the prosecution,” Cosio,
Moreover, it is not enough to suggest that even had counsel conducted a thorough investigation and consulted an expert, he could have decided not to introduce the expert evidence at trial. Cosio,
B. Prejudice
Having found that trial counsel’s performance was deficient, we must now consider whether that deficiency substantially prejudiced appellant’s defense. Appellant must “show[ ] that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland,
In Cosio we explained the “dual aspect of the prejudice inquiry required when the error in question is an investigative omission resulting in counsel’s failure to discover evidence favorable to the defense.”
In this case, expert testimony went directly to the central issue in appellant’s trial — the reliability of Lynch’s dying dec
We recognize that trial counsel gave another reason to discredit the dying declarations — that Lynch did not use appellant’s street name “Butch” — and also presented an alibi defense. However, Lynch’s accusations cast doubt on the alibi witnesses, who were impeached for bias because they were appellant’s friends and members of his family. Even assuming that the “Butch” argument seemed persuasive to counsel at the time, it was highly subjective and difficult to prove, as it required persuading the jury that the deceased Lynch meant something other than what appeared to be a straightforward statement: “Walter Johnson [i.e., his long-time friend, appellant] shot me.”
Whether there is a reasonable probability that the jury would have returned a different verdict had the expert evidence been presented, is a more difficult question. Nevertheless, appellant “need not show that counsel’s deficient conduct more likely than not altered the outcome of the case,” Strickland,
An expert, of course, could not have testified as to the actual effect any PCP in Lynch’s body would have had at the time he made the accusatory statements based on the forensic testing that was available. But, as appellant argues, an expert would have been able to testify that Lynch did have PCP in his blood and his brain, and that it likely was not an insignificant amount, such that Lynch could have been suffering from the effects of PCP, making him confused, or even causing him to hallucinate, at the time he accused appellant of having shot him. Moreover, the expert’s testimony would have been corroborated by (and would have corroborated) the testimony of witnesses who saw and talked to Lynch, and thought that he was acting as if he were under the influence of PCP. Freeman testified that “[Lynch] was high” and described Lynch’s eyes as being “real glassy” and explained that “[Lynch] was just shaking,” like someone on PCP. Officer Perkins testified that persons who suffer head trauma, like Lynch, “act just like people on PCP,” explaining that patients high on PCP tend to act violently and are hard to restrain, as was Lynch.
The government emphasized the importance of Lynch’s last words throughout the trial. Lynch’s statements were the “vital clue”; “his words from the grave” were the first piece of evidence previewed in opening statement. Lynch’s accusations that “Walter Johnson shot me” were repeated throughout the prosecutor’s closing, and the last point made in rebuttal, reinforcing the government’s theme that “[Lynch] left a message for the people who are going to seek justice in the case involving his death.” And, with respect to defense counsel’s argument in closing that Lynch’s accusations should not be relied upon because Lynch was high on PCP, the government easily reminded the jury in rebuttal of the testimony of the medical examiner, as “proof positive that [Lynch] was not on PCP at the time of the shooting.” The medical examiner’s testimony and the prosecutor’s forceful argument stood unrebutted; they could not be effectively countered by the defense except through expert testimony presented on behalf of appellant. As in opening state
In light of the government’s otherwise circumstantial case and the emphasis the prosecutor placed on Lynch’s repeated identification of appellant as the shooter, we conclude that there is a reasonable probability the outcome of this case would have been different. Pretrial consultation with an expert would have prepared counsel to assess the options available to present the most effective defense to Lynch’s accusatory dying declarations. Had defense counsel successfully caused the jury to question, based on expert testimony, whether Lynch was high on PCP, “[t]he probability is high enough [that the jury might discredit or doubt Lynch’s statements] that it undermines our confidence in the outcome of a trial in which appellant’s sole accuser was not significantly impeached at all [and therefore] the proceeding was ‘unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.’ ” Cosio,
Reversed and remanded.
Notes
. Appellant was convicted of first-degree premeditated murder while armed, in violation of D.C.Code §§ 22-2101, -4502 (2001); possession of a firearm during a crime of violence (PFCV), in violation of D.C.Code § 22-4504(b) (2001); and carrying a pistol without a license (CPWL), in violation of D.C.Code § 22-4504(a) (2001).
. The medical condition of the victim is important to the primary purpose inquiry to the extent it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.
Michigan v. Bryant, - U.S. -,
. That it was undisputed Lynch actually was shot around 1:00 p.m. and not at 11:00 a.m., as Brown recalled, was a fact evidently not raised either in cross-examining Brown or during defense counsel’s closing argument.
. Metropolitan Police Department Officer Leslie Geisz, who was on patrol in the area at the time, testified that she "heard approximately eight gunshots ring out” from the intersection of Chesapeake Street and Southern Avenue and then the sound of "a car speeding
. "PCP water” is the PCP-laced liquid in which cigarettes are dipped to smoke PCP.
. Freeman -was impeached with having provided inconsistent descriptions of "the dude” who fired into Lynch’s car.
. Defense counsel sought to inquire as to whether Officer Perkins knew of the effects of PCP on its user, but the trial court precluded such questioning, because "[Officer Perkins] is not an expert.”
. The one-paragraph "Opinion” of the autopsy report concludes as follows: "The deceased had not been consuming alcoholic beverages prior to death. Postmortem toxicology testing for drugs was positive for keta-mine.”
. Appellant’s § 23-110 motion cited a number of other alleged deficiencies in counsel’s performance. On appeal, counsel for appellant narrow their challenge to the failure to call a drag expert, discussed in the text, and three other deficiencies in counsel’s performance: (1) that counsel should have called an expert on gunshot residue to explain that its absence in the car or on Lynch's person undermined the government’s account that the shooter leaned into the car and shot Lynch at close range, diminishing the inculpatory force of the presence of appellant's fingerprint on the passenger-side rear window frame, (2) that counsel was ineffective in cross-examining Brown, see note 3, supra; and (3) that counsel failed to request an alibi instruction. We note that the jury was given an instruction on alibi.
. Appellant was given high doses of keta-mine at the hospital to facilitate insertion of a breathing tube. According to Dr. Dretchen, this explained why some of the ketamine would have been present in Lynch’s blood, but not the PCP.
. The parties dispute whether appellant would have been able to obtain an expert at court expense had counsel made the request. D.C.Code § 11-2605 (2001) provides:
Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court shall authorize counsel to obtain the services.
Id. § 1 l-2605(a). The government argues that section 11-2605 is intended for indigent defendants only, and does not apply to defendants who have retained their own counsel. Appellant focuses on the language of the statute, which refers to a defendant who is "financially unable to obtain ... services necessary for an adequate defensef.]” We need not come to a definitive interpretation of the statute because, assuming (as counsel believed) that appellant was "financially unable” to pay for the expert he requested, counsel should have at least inquired whether the court would "authorize counsel to obtain the services” because they were "necessary for an adequate defense.”
Although questions about appellant's ability to afford an expert may be relevant to the reasonableness of counsel’s decision not to consult an expert, the government, does not argue that, to prevail on his claim of ineffective assistance of counsel, appellant must show that resources would, in fact, have been available (from appellant, the court, or any other source) to pay for the expert’s fees.
. The government’s brief on appeal does not defend the “Butch” argument as a reasonable, alternative means to challenge the credibility of Lynch’s dying declarations.
. Cf. Williams v. United States,
. Upon further inquiry, Officer Perkins said, "it [was] [n]ever in my mind that this patient was on PCP.” We do not understand Perkins as unequivocally saying, as the government asserts, that he believed Lynch was not high on PCP; he might have meant that while treating Lynch, he had not considered that his patient might have been high on PCP. On the other hand, Christopher Wittington, the EMT who first treated Lynch, was explicitly asked whether Lynch appeared to be- high on any drugs, to which he responded that he did not.
. In closing, defense counsel argued that Lynch was "a man who had PCP, a hallucinogenic drug, who has gone into shock, who is non-responsive when the officers get there, and then when the medivac team gets there he is able to answer some questions.” A few sentences later, however, counsel argued that Lynch had the "capability” to say "Butch shot me” because the "hospital records show when [Lynch] came in he was still alert. He was still conscious. He still had spontaneous eye movement.”
. The dissent comments that because Dr. Dretchen could testify only as to the possibility, but not the probability, that Lynch was suffering from the effects of PCP, his testimony would have been insufficient to create a reasonable probability of a different outcome. But that analysis imposes a higher burden on appellant than the law requires. The purpose of the defense is to raise a reasonable doubt in the mind of the jurors. In this case, doubt about the reliability of Lynch’s statement, if based on the evidence, would be reasonable; the evidence need not itself establish a probability that Lynch was high on PCP. If the jury had a reasonable doubt, there could be no conviction.
Expert medical testimony could have sowed such a doubt. From Dr. Dretchen's testimony about the "high cutoff level” of the test used to detect PCP in Lynch’s body and the relatively small amounts required to cause mental confusion, disorientation and hallucinations, a juror could infer that there was more than a mere possibility that Lynch might have been under the effects of PCP when he made his accusatory statements, even if it could not be established as an actual fact. But even if the medical testimony could speak only to the possibility of PCP intoxication based on the test results, that testimony cannot be viewed in isolation. It would have corroborated the testimony of Freeman (himself a past PCP smoker), who said that Lynch was high on PCP and had "glassy eyes” and was “shaking” just before he was shot. And Lynch's combativeness, confusion and disorientation while he was being treated by the emergency personnel just after he was shot also would have taken a different cast if seen through the perspective of Dr. Dretchen’s testimony that those are symptoms of PCP intoxication.
Dissenting Opinion
dissenting:
Trial counsel for appellant, Kenneth Robinson, did essentially these things at trial: he extracted admissions from the government’s two eyewitnesses that they could not identify the shooter of Parris Lynch and that appellant did not match the description of the shooter each had given; he called six witnesses to support appellant’s defense of alibi; he called Curtis Freeman to explain the presence of appellant’s fingerprint near a place on Lynch’s rental car where the eyewitnesses had seen the shooter position himself, and also to testify that when Freeman saw Lynch shortly before the shooting Lynch appeared high on PCP; and he forcefully cross-examined all of the government witnesses, including those who had described appellant’s threats toward Lynch. Thus, in most ways available to him, Robinson conducted the defense diligently and ably.
What he did not do was consult or call as a witness a medical expert (a) to establish that Lynch had PCP in his blood at the time he was shot and, shortly thereafter, made a dying declaration pivotal to the prosecution’s case, and (b) to confirm the possible hallucinating effects of PCP consumption. For me, a close question thus exists of whether, without the distortions of hindsight, Robinson must be held to have constitutionally erred in his judgment — likely born of over-confidence in his ability otherwise to sow reasonable doubt — not to press his client or petition the court for funds to consult and engage a medical expert. The Supreme Court reminded us recently that, while “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, ... [t]here are ... ‘countless ways to provide effective assistance in any given case,’ ” so that “[r]are are the situations in which the ‘wide latitude counsel must have in making tactical decisions’ will be limited to any one technique or approach.” Harrington v. Richter, — U.S. -, -,
Underscoring the relative weakness of the inference Dr. Dretchen would have supported of an active, hallucinatory effect of the PCP on Lynch is the testimony the jury heard from the paramedics who were tending to Lynch when he made the dying statements. Christopher Whittington, who had treated patients high on PCP in the past, remembered that Lynch did not appear high on any kind of drug, although he was “somewhat combative” in the manner of dying patients Whittington had observed who exhibited a “feeling of impending doom.” While “trying to judge [Lynch’s] mental status” for signs of a possible head injury, Whittington asked Lynch simple questions, and the answers suggested that he was “mentally stable.” Lynch looked Whittington “square in the eyes,” said he “need[ed] to tell [him] something,” and stated, “Walter Johnson shot me.” Chris Perkins, also medically trained, confirmed that Lynch had “appealed] coherent” though in respiratory distress and “fighting for life,” and seemed intent on “wanting] to make sure [Perkins] understood what he was telling [him]” when he declared that appellant shot him. Asked if it was ever in his mind
Beyond the limitations of what Dr. Dret-chen would have told the jury, moreover, is a singular fact: The putatively hallucinating Lynch named as the shooter the one person who, according to multiple witnesses, had threatened to kill Lynch and showed a continual, indeed obsessive, interest in confronting him over a debt in the weeks and days before the killing. Catrina Stephenson, the mother of Lynch’s children, testified that the formerly friendly relations between Lynch and appellant had turned sour over a drug deal gone bad and appellant’s insistence that Lynch owed him money. Appellant began calling Stephenson about “every other day” stating that “[t]hat motherfucker gonna make me kill him” and “[h]e better get my money.” Latoya Morton, Lynch’s girlfriend, and Dorothy Murrell, Stephenson’s mother, also received harassing and threatening phone calls from appellant. Almost daily in the month before Lynch’s death, appellant would come to Morton’s house looking for Lynch and threatening to start “snatching up kids,” “blowing things up,” and “doin’ things.” Lynch told Morton that the “beef’ was over drugs that were “no good” and appellant’s demand for his money back (some $6,000, according to Morton). Appellant likewise called Mur-rell’s house “constantly,” meaning every day “around the clock,” looking for Lynch “very aggressively].” On the day of the murder, he again phoned her asking for Lynch. After Lynch was killed, the phone calls “stopped.”
The majority finds inconsistencies in this testimony — much as a court might do in rejecting the government’s reliance on motive testimony as adequate to show harmless error. But the burden in these post-conviction proceedings was on appellant, and the combined, mutually reinforcing testimony of these three witnesses could readily have caused the jury to ask, despite Dr. Dretchen’s opinions, how a supposedly hallucinating Lynch just happened to name as his assailant the same person— the only one on this record — with a demonstrated motive to do him serious harm. Of course, we might speculate that Lynch’s preoccupation itself with appellant’s threats to his safety made appellant a “natural” choice for a hallucinating Lynch to name as his shooter. But imputing that kind of psychologizing to the jury is not something for which even Dr. Dretchen offered support.
. It is not important that Robinson at the § 23-110 hearing bemoaned his own failure to pursue the expert testimony issue, because
[ajfter an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness ofcounsel's performance, not counsel's subjective state of mind.
Harrington,
. The majority is right, of course, that the defense's job at trial was only to "raise a reasonable doubt in the mind of the jurors," not "establish a probability that Lynch was high on PCP.” Ante at [658], n. 16. But on a post-conviction claim of ineffective assistance, the majority must agree that the defendant's task is the different and more demanding one of establishing "a reasonable probability that [the jury] would have returned with a different [verdict]” but for counsel’s errors. Wiggins v. Smith,
. One might as readily expect few if any limits on a hallucinator’s reveries. Henry James on his deathbed thought he was the late emperor Napoleon.
. Appellant’s other claims of ineffectiveness, as well as the sundry other assignments of error in his pro se submissions, likewise, do not warrant relief.
. Specifically, it is not "clear” or "obvious,” United States v. Olano,