Fоllowing a jury trial, appellant, Daniel W. Kinard, was found guilty of first-degree felony murder while armed (D.C.Code §§ 22-2401, -3202 (1993 Supp.)), second-degree murder while armed (D.C.Code §§ 22-2401, -3202 (1993 Supp.)),
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robbery while armed (D.C.Code §§ 22-1901, -3202 (1989 & 1993 Supp.)), attempted robbery while armed (D.C.Code §§ 22-2903, -3202 (1989
& 1993
Supp.)), carrying a pistol without a license (CPWL) (D.C.Code § 22-3204(a) (1993 Supp.)), and possession of a firearm during a crime of violence (PFCV) (D.C.Code § 22-3204(b) (1993 Supp.)). Prior to sentencing, Kinard filed a motion for new trial pursuant to Super.Ct.Crim.R. 33 based on a claim of ineffective assistance of counsel. As the principal basis for the claim, Kinard asserted that his attorney elicited testimony from him at trial which resulted in the introduction of otherwise inadmissible other crimes evidence. He also argued that the court’s refusal to grant a mistrial after his lead counsel was hоspitalized deprived him of his Sixth Amendment right to counsel by forcing him to proceed with one attorney who was allegedly “constructively” absent at times, and two others who were physically absent during a part of the trial. After an evidentiary hearing, the trial court denied the motion, concluding that Kinard had failed to show prejudice under the standard set out in
Strickland v. Washington,
I.
A. The Trials
Kinard and a co-defendant, Shawn Blair, were indicted for armed first-degree felony murder, one count of first-degree murder while armed, four counts of armed robbery, three counts of possession of a firearm during a crime of violence, and one count each of armed assault with intent to rob, attempted robbery while armed, and carrying a pistol without a license. These charges arose out of three separate criminal incidents, all of which occurred on July 21,1989 between 7:00 p.m. and 10:00 p.m. One of the victims, Daniel Hotz, was fatally shot during the final robbery that night. The trial court granted Kinard’s unopposed motion to sever for trial the crimes arising out of the Hotz robbery and murder. The first trial for the crimes against Hotz resulted in a mistrial after Blair testified that he and Kinard decided to rob Hotz and another victim, Paula Zimmerman, “because that’s all we was doing during that night.”
At the second trial, the evidence disclosed that Kinard and Blair were friends and neighbors. They lived less than a block from Daniel Hotz’ home at 209 Eleventh Street, N.E. Just prior to the robbery and murder, Kinard and Blair were sitting on a stoop across the street from Hotz’ house. When Hotz drove up with Zimmerman and got out of the car, Kinard said, “Let’s go rob the two people in the car.” Kinard approached Hotz, and Blair approached Zimmerman. Each man was brandishing a weapon as they demanded the victims’ wallets. Hotz resisted, and Kinard shot him twice. Zimmerman threw her wallet to the ground. Kinard announced that it was over and ran behind Hotz’ ear. Zimmerman saw Hotz grab his sidе, moan, and fall to the ground as she ran toward his house. Blair picked up Zimmerman’s wallet and ran through an alley toward
About four minutes after the incident, the two men met in the alley behind Blair’s house and split the proceeds of the robbery. Kinard bragged to his accomplice about the killing. Kinard threw Zimmerman’s wallet, which contained her credit cards and identification, onto the roof of the house next to Blair’s. The wallet was found there two months later and turned over to the police. Blair’s fifteen-year-old neighbor, Charles Kelly, testified that he saw Blair and Kinard in the alley about fifteen minutes before hearing emergency vehicles responding to the crime scene. Kelly said that he was making noises like a police siren and that Kinard warned him to be quiet. Blair testified that the encounter with Kelly occurred after the murder.
Although Zimmerman identified Blair and another person as her possible assailant, she failed to identify Kinard as the shooter when she viewed a line-up in which both Kinard and Blair stood less than a month after the crimes occurred. 3 During her trial testimony, Zimmerman explained that Kinard and another person in the line-up looked like the shooter, but she did not identify them because of her uncertainty and the fear of damaging her credibility with the police. 4 In March 1991, Zimmerman saw a photograph and videotape of the line-up during trial preparation, and she told the prosecutor she thought she could identify the shooter. She identified Kinard at that time, saying that she recognized him by his ears, his height, and thin build.
Carroll Bradshaw, one of Blair’s neighbors, who had known Kinard for at least ten years, was sitting on his porch about a half block away from the crime scene when he heard what sounded like firecrackers and a woman’s scream. Right after that, he saw Ki-nard, who was wearing “a dark outfit, like a sweatshirt with a hood on it,” running up 11th Street toward C Street. 5 Anthony Brooks, another neighbor, heard an argument outside and shots fired, but he reached his front porch in time to see only Hotz lying in the street, one man running up 11th Street, and the leg of another individual disappearing into the alley.
According to Kinard’s testimony, he was at home after 6:00 p.m. on the night of the offenses, and he went to meet his cousin after 9:00 p.m. at a school located at 13th Street and Constitution Avenue, N.E. During the ten-minute walk to the school, Kinard initially said he saw Blair and Kelly at the mouth of the alley behind Blair’s house. He said he waited at the school for a while, and then walked back toward home after his cousin did not show up. According to Ki-nard, he then saw Blair and Blair’s cousin, Henry James, robbing one of two strangers. Kinard testified that he saw a struggle and that he ran up 11th Street after hearing two shots fired. Thereafter, he said he went to Southeast with another cousin and remained there until 3:30 or 4:00 a.m.
On cross-examination, Kinard denied being with Blair at certain specified locations during the hours preceding the Hotz murder. Therefore, the prosecutor requested permission to introduce the testimony of the victims of the other robberies that night in order to impeаch Kinard’s testimony about his activities between 6:00 p.m. and 9:40 p.m., the nature of his relationship with Blair, and his testimony that he did not possess a gun that
When cross-examination resumed, contrary to his earlier testimony, Kinard admitted that he and Blair were more than casual acquaintances. After initially denying it, Ki-nard also admitted that he was with Blair at 9:30 p.m. in the 1000 block of Massachusetts Avenue, N.E. and then in the 300 block of 8th Street, N.E. at 8:30 p.m. and that Henry James was not with them. However, Kinard testified that he was with James rather than Blair on 10th Street, S.E. at 7:05 p.m. Ki-nard also admitted that at each location he apprоached one or two people he did not know and left the area rapidly after a brief conversation with them. However, Kinard denied having a gun while with Blair on 11th Street where Hotz was murdered,
Kmard’s lead counsel, Milton Lee, was hospitalized after the government had presented two rebuttal witnesses. The Director of the Public Defender Service (PDS), the agency which employed Lee at the time, entered an appearance on Kinard’s behalf and twice requested a mistrial. Following a hearing on the competence of Kmard’s second defense counsel, Deborah Harris, to proceed in Lee’s absence, the court denied the motion. The court reasoned that although Harris represented that she was not focused on the testimony of some of the witnesses because of her other responsibilities during the trial, she was sufficiently absorbed in the proceeding to represent appellant competently. 8 The court observed that there is never a perfect situation where the lawyer can fully concentrate on every point. Since the Director of PDS was reluctant to proceed under the circumstances, the court appointed John Copacino to act as co-counsel for Ki-nard. The court recessed the trial for a week to allow Harris and Copacino time to obtain and review the transcripts of the testimony, and the trial resumed thereafter.
B. Appellant’s Post Trial Motion
Following the jury’s verdict of guilty, but prior to sentencing, appellant filed a motion for new trial pursuant to Super.Ct.Crim.R. 33 based on a claim of ineffective assistance of counsel.
9
At the hearing on the motion,
Lee represented Kinard in all of the pending cases. As to the counts involved in this case, Lee said Kinard was focusing on an alibi defense, consistent with what he told the police after his arrest. 10 Some time between the first and second trial, Kinard provided his attorney with a basis for a dеfense of innocent presence. Contrary to Kinard’s statement to the police, it was his contention in this account that he had been at home that night until 9:00 p.m. when he walked to the school and back. Based upon the government’s ease, Lee said he thought it necessary to have Kinard take the stand. While Lee intended to start his examination of Kinard with what occurred when it became dark that evening, he said that he mistakenly started with what occurred at 6:00 p.m. Kinard’s testimony, which Lee considered to be helpful in contradicting Blair’s testimony about spending the day with Kinard, seemed to place Kinard at home after 6:00 p.m. Lee said that he did not think that Kinard’s account of his walk to and from the school between 9:00 and 9:40 p.m. constituted a denial of his involvement in the robbery on Massachusetts Avenue at 9:30 p.m. Lee said if he had known that the testimony would open the door to impeachment evidence involving any other robbery, he would have handled the examination differently, or possibly not called Kinard to testify. The trial prosecutor testified at the hearing that her cross-examination would have been no different even if Lee had commenced the examination with events beginning at 9:00 p.m.
Although the trial court found that Lee’s overall performance was effective, it concluded that Lee had not thought through either the implications of having Kinard testify or of asking the questions which resulted in the court’s ruling that evidence of Kinard’s activities with Blair earlier that evening was admissible.
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However, the court disposed of the motion on the basis of the prejudice prong of
Strickland,
concluding that the requisite showing of prejudice had not been made.
See
II.
Kinard argues that his trial counsel committed an error on a clear point of law, so egregious that it deprived him of a fair trial, the result of which is not rehable. He contends that by inquiring into the character of his relationship with Blair, his whereabouts earlier on the evening of the murder, and whether he possessed a gun that day, his trial counsel opened the door to otherwise inadmissible other crimes evidence which was devastating to the defense. The government takes the position that any failure of defense counsel to appreciate the risks posed by Kinard’s innocent presence defense does
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance was deficient, which requires a showing that “сounsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed that defendant by the Sixth Amendment.”
Strickland, supra,
Kinard first argues that the admission of otherwise inadmissible other crimes evidence must be presumed to be prejudicial unless its admission is justified by some substantial, lеgitimate purpose. In support of this contention, Kinard relies upon the principles extracted from
Drew v. United States,
The government also contends that the remaining evidence admitted as a result of defense counsеl’s questioning was not other crimes evidence either. This evidence was adduced on cross-examination of Kinard and by stipulation. It showed that during the approximately two hours preceding Hotz’ murder, Kinard was seen with a gun and that Kinard and Blair approached three different groups of strangers on the street, spoke to them briefly, and left at a quick pace. Ki-nard contends that the only import of this evidence during an armed robbery trial would be that he and Blair were engaged in some criminal activity. Therefore, Kinard argues, that prejudice must be presumed from the admission of the evidence. The government responds that this evidence is not other crimes evidence because it is not “minimally in the nature of a criminal offense.”
Wheeler, supra
note 12,
Although Kinard’s conduct during these street encounters might be viewed as suspect, the government’s position finds support in prior decisions of this court.
See, e.g., Martin, supra,
Wheeler
is particularly instructive. In
Wheeler,
the defendant was tried and convicted of sodomy, rape, first-degree burglary while armed, armed robbery, and assault while armed arising out оf five separate incidents which all occurred in upper Northwest Washington.
Similarly, in this ease the evidence of appellant’s activities cannot be characterized as Drew-type evidence. Just as in
Wheeler
and
Catlett,
the challenged evidence here does not portray appellant committing any crime or engaging in any activities of a criminal nature.
See Wheeler, supra
note 12,
III.
To demonstrate prejudice under
Strickland,
a defendant must show “there is a reasonable prоbability that, but
for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
First, Kinard contends that by restricting his direct testimony to only the events beginning at the time of the shooting, he could have denied his own involvement and testified that he was at the crime scene where he observed Henry James commit the offenses with Blair’s assistance without opening the door to other crimes evidence. Ki-nard’s legal position is that a defendant is free to deny the elements of the crimes charged without being subject to impeachment with evidence otherwise inadmissible in the government’s case-in-chief.
See Walder v. United States,
Indeed, although in a different context, the Supreme Court held in Walder that
the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the еlements of the case against him without thereby giving leave to the government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.
[b]eyond that, however, there is hardly justification for letting a defendant affirmatively resort to perjurious testimony in reliance on the government’s disability to challenge his credibility.
Id.
Thus, the exception to the rule allows the government to expose any perjury by using the otherwise inadmissible evidence for impeachment purposes.
Id.
Recently, the Supreme Court explained thаt the exception leaves defendants free to offer probative and exculpatory evidence through their own
truthful
testimony.
James v. Illinois,
Here, the effectiveness of Kinard’s innocent presence defense depended upon his denial of possession of a gun while at the scene of the crimes and his disassociation from Blair, the other assailant, or at the very least his creation of that impression. As the trial court concluded, such testimony would have led inevitably to a ruling permitting the government to introduce evidence that Ki-nard possessed a gun and had been with Blair just five to ten minutes before the shooting. The prosecutor may cross-examine not only about the facts asserted by a defendant in testimony, but may also ask questions reasonably related to the inferences to be drawn from the direct testimony.
United States v. Raper,
Assuming that but for the asserted legal error of trial counsel, he would have advised Kinard against taking the stand, the requisite showing of prejudice under Strickland was still not satisfied, as the trial court found. The trial court concluded that the government’s evidence in its case-in-chief was strong and that the verdict based on that evidence alone would not be unreliable nor cause the court to lack confidence in the outcome. Kinard argues that the trial court erred in its conclusion that the evidence was strong, and consequently in its determination that prejudice under Strickland had not been shown.
In determining whether there is a reasonаble probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different, the court must consider the totality of the evidence.
Strickland, supra,
IV.
Finally, Kinard argues that the constructive or actual absence of Ms. Harris and Mr. Copacino at various stages of the proceedings requires a finding of prejudice as a matter of law. Essentially, Kinard contends that prejudice must be legally presumed because the circumstances of this case involve actual or constructive denial of the assistance of counsel rather than simply the ineffective assistance of counsel who was present. In support of this position, Kinard relies upon
Green v. Arn,
The rule from
Am
has been used in cases where counsel has been prevented
from
assisting the accused during a critical stage of the trial or where counsel was totally absent.
See United States v. Cronic,
In this case the trial court found, and Kinard does not challenge, that Harris was alert at all times and that she devoted her exclusive attention to trial responsibilities, even though she was unable to focus on all of the testimony. As the trial court observed in rejecting Kinard’s argument, Harris’ testimony that she was distracted at times recounts circumstances not unlike those encountered by lawyers who must try a case without assistance, and the testimony does not show that she was absent. We agree. Moreover, Harris had a full opportunity to review the transcripts, along with newly appointed counsel, when the trial court recessed the case for seven days for that purpose. Here, Kinard was represented at all times by at least two attorneys, and not one of them was absent at any time in the sense described in the cases upon which he relies. Moreover, at least one of Kinard’s attorneys was fully focused on the trial at every phase.
The rationale for presuming prejudice where counsel is absent at critical stages of the proceedings is that meaningful adversarial testing of the government’s case would be eliminated.
See Cronic, supra,
For the foregoing reasons, the case is remanded to the trial court for resentencing with instructions to vacate one of Kinard’s two murder convictions. 20 In all other respects, the judgments of conviction appealed from hereby are
Affirmed.
Notes
. This count was indicted originally as armed first-degree (premeditated) murder. However, the count was submitted to the jury on the lesser-included offense of second-degree murder while armed.
. We note, sua sponte, that a defendant may not be convicted of more than one murder of the same victim, as he was here. Therefore, we must remand to the trial court for resentencing and with instructions to vacate one of the two murder convictions. See Cowan v. United States, 629 A.2d 496, 497 (D.C.1993).
. Zimmerman had seen a sketch of Kinard's profile in the newspaper prior to the line-up.
. Zimmerman explained that she picked two men because "there were two look-alikes for each person involved in the crime.” She said that both of the men she picked "looked like the one on my side.” She also stated that she thought two other men, Kinard being one, resembled the "shooter." When asked why she did not tell the police she thought she recognized all four men, she rеsponded "there are only nine people in the lineup, and I felt like for me, at least, it was more important to make sure that I got the one that was on my side, because I had a better memory of him, and I felt like if I chose four out of nine, it would look like I was choosing everybody, and who would believe me if I chose four people.”
.Blair and Zimmerman testified that Kinard was wearing a striped tee shirt. Blair said that Kinard also wore a baseball cap, but Zimmerman could not remember whether the shooter wore a cap or not.
. Crimes involving two of the criminal episodes had been severed, while a third had been indicted separately.
. The stipulation read in pertinent part as follows:
It has been agreed and stipulated between the parties as follows. Daniel Kinard was seеn with a gun by two witnesses other than Shawn Blair on Friday, July 21st, 1989, within 10 minutes before the Hotz-Zimmerman incident that occurred on 11th Street, Northeast. Mr. Kinard spoke with one of these witnesses. It was dark outside and the block was lined with trees. The area where they stood, however, received some illumination from a street light across the street. Mr. Kinard stood within two feet of the witness. The witness observed Mr. Kinard holding a gun at Mr. Kinard’s side. The witness, who had experience with and knowledge of handguns, will testify that based upon his experience, the gun appeared to be a large caliber service revolver similar to a .38 caliber revolver. The witness never handled the weapon or its ammunition. The second witness also observed Mr. Kinard with a gun.
. Ms. Harris testified that she was responsible for managing the documentary and other tangible evidence, answering appellant’s questions during the course of the trial, and preparing for her next activity. Appellant contends that these activities distracted her at times, and thus, resulted in her constructive absence from the trial.
. The rule provides in pertinent part as follows:
The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.... A motion for a new trialbased on the ground of newly discovered evidence may be made only before or within 2 years after final judgment, but if an appeal is pending, only on remand of the case may the Court grant the motion. A motion for new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the Court may fix during the 7-day periоd.
. Appellant had told the police that he was in Southeast Washington with friends and a cousin on the night of the murder from 5:30 p.m. until 3:30 or 4:30 a.m. the following morning.
. It is appellant's contention that his trial counsel legally erred in asking him the following questions:
(1) “Now, how would you characterize your relationship with Shawn Blair”; (2) "Do you remember what you had done earlier [on July 21, 1989], say after six o’clock"; and (3) "Did you have a gun on July 21, 1989?”
. The government contends that Kinard presents this theory for the first time on appeal, and therefore this court need not consider it.
See United States v. Porter,
. Other crimes evidence is admissible when relevant to "(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial."
Drew, supra,
. The stipulation that two witnesses saw Kinard with a gun ten minutes before the Hotz-Zimmer-man robberies and the murder is on a different footing. As previously determined, it is probative evidence of the charged offenses.
See Martin, supra,
. The trial court found that Mr. Lee’s overall performance at trial was effective, a finding amply supported by the record. However, the court also found essentially the follоwing described deficiency in counsel's performance:
[Lee] did not fully think through the implications of asking [Kinard] the door-opening questions, nor, in fact, the implications of having Kinard testify at all. Thus, he did not call to mind, or investigate to discover, the law that permitted introduction of the impeachment evidence, even though it carried with it evidence of other crimes.
The court did not resolve whether this deficiency was "so serious that [Mr. Lee] was not acting as the ‘counsel’ guaranteed by the Sixth Amendment.”
Strickland,
. Preliminarily, the government argues that Ki-nard failed to establish in the trial court the factual predicate for these arguments. Specifically, the government contends that Kinard never established as a matter of fact that Lee failed to inform him of the impeachment consequences of his direct testimony or that he would have done anything differently if he had been so informed. The record reflects that it was Lee who suggested and thought it necessary that Kinard testify and that Kinard did not insist on doing so. In his affidavit, defense counsel also indicated that it was his decision to ask Kinard about his whereabouts on the night of the crimes and whether he had a gun. The record adequately supports the trial court's findings that the attorney did not think through the consequences of his decision in this regard and that counsel’s advice would have been different if he had done so.
. It must be recognized that the exclusionary rule cases and the excеptions to the rule involve the use of evidence which has been determined to be unconstitutionally obtained. Therefore, the rules developed for its exclusion have involved the policy consideration of deterring police misconduct.
United States v. Leon,
. In the context of James and Walder, the evidence is inadmissible in the first instance because illegally seized.
. We agree with the trial court that Ms. Harris' representation was within the "wide range of reasonably professional assistance" required under
Strickland, supra,
. See footnote 2, ante.