Ricky READY, Appellant, v. UNITED STATES, Appellee.
No. 91-CO-714.
District of Columbia Court of Appeals.
Argued June 3, 1992. Decided Feb. 5, 1993.
619 A.2d 233
Leslie Ann Wise, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.
Before ROGERS, Chief Judge, SULLIVAN, Associate Judge, and PRYOR, Senior Judge.
PRYOR, Senior Judge:
Appellant seeks reversal of the trial court‘s decision to deny without a hearing
In 1980, after a jury trial, appellant was convicted of second-degree murder while armed, assault with a dangerous weapon, and carrying a pistol without a license. A summary of the evidence presented at appellant‘s trial is set forth in this court‘s opinion affirming his convictions. Ready v. United States, 445 A.2d 982 (D.C. 1982), cert. denied, 460 U.S. 1025, 103 S.Ct. 1279, 75 L.Ed.2d 498 (1983). In 1991, appellant filed a motion alleging ineffective assistance of counsel based primarily on the ground that his trial counsel failed to secure at trial the presence of Mandell Cooper, an eyewitness who appellant claims would have presented exculpatory testimony.2 The trial court denied appellant‘s motion without a hearing. We now consider both the trial court‘s decision not to hold a hearing and the decision to deny the claim.
There is a presumption in favor of holding a hearing on a
To prevail on a claim of ineffective assistance of trial counsel, the claimant must demonstrate two things: (1) deficient performance on the part of his trial counsel, and (2) prejudice as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In considering the first, “[j]udicial scrutiny ... must be highly deferential. ... [A] Court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. In considering the second, the court must find that appellant has shown “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result [at trial] would have been different.” Id. at 694, 104 S.Ct. at 2068.
We conclude that appellant‘s motion, which was based on the unsubstantiated assertion that he suffered prejudice as a result of his trial counsel‘s decision not to call Cooper as a witness, was too speculative to warrant a hearing. Since appellant‘s motion was deficient as to the prejudice prong of Strickland, we need not reach the issue of his counsel‘s deficient performance. See, e.g., Griffin v. United States, 598 A.2d 1174, 1176 (D.C. 1991) (”Strickland ... suggest[s] that it is sometimes efficacious to address the prejudice prong first since without prejudice there can be no ineffective assistance of counsel.“); Strickland, supra, 466 U.S. at 697, 104 S.Ct. at 2069. Therefore, we hold that the trial court did not err in denying appellant a hearing on the basis of the information then available to the trial court.
I told [trial counsel] that [Cooper and another] may give testimony to the effect that Tyrone Barnett was the shooter on the night of the offense.
Nor has he offered any basis for concluding that there is any possibility that Cooper could provide such testimony. Indeed, we do not even know that Cooper is even alive at this point. The absence of an affidavit or other credible proffer4 as to the allegedly exculpatory nature of Cooper‘s testimony persuades us that the trial court did not err in declining to hold a hearing. See Sykes v. United States, 585 A.2d 1335, 1338 (D.C. 1991); see, e.g., Smith v. United States, 608 A.2d 129, 132 (D.C. 1992) (reversing denial without a hearing of motion alleging that counsel‘s failures to adequately investigate location of incident, prepare defense, and examine witnesses resulted in presentation of uncorroborated defense where new counsel “proffered physical evidence regarding the location of the incident” and “proffered the statements of eleven witnesses, each of whom would have confirmed some portion of appellant‘s version of the incident“); Wright v. United States, 608 A.2d 763, 766 (D.C. 1992) (reversing denial without hearing of motion alleging ineffectiveness where appellant asserted in affidavit facts supporting his claim); Rice v. United States, 580 A.2d 119, 121 (D.C. 1990) (reversing denial without a hearing where allegation of ineffective assistance for failure to prepare alibi defense was supported by list of alibi witnesses who signed statements corroborating alibi and attesting that trial counsel never interviewed them); Ramsey v. United States, 569 A.2d 142, 149 (D.C. 1990) (affidavit of witness raising material issue of fact considered significant factor in concluding that evidentiary hearing was required to resolve alleged factual dispute); see also 1 CRIMINAL PRACTICE INSTITUTE, TRIAL MANUAL 11.17 (1991) (“In order to obtain a hearing, it is advisable to substantiate the allegations of the motion by affidavits or other documents.“).
Put succinctly, we are not persuaded that the fact that evidence might be Brady material is sufficient to require a hearing in every case. Under the Brady rule, evidence in the possession of the government which is material and favorable to the accused must be disclosed. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). “[B]ecause the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). Thus, after the record is complete, not all evidence identified by the government as Brady information will necessarily be material to the defense.
Moreover, the record does contain Cooper‘s grand jury testimony. To the extent that it reflects what Cooper‘s testimony may have been, it provides appellant no support; in fact, it undercuts his claim. The trial court reasoned that Cooper‘s testimony at trial would have been either (1) consistent with his grand jury testimony and therefore not exculpatory, or (2) inconsistent with his grand jury testimony and therefore dubious, given that it would have been subject to impeachment.
Cooper told the grand jury that he saw “a whole lot of people” in the car, and that at the time he recognized only the driver and the individual who had been sitting in the back seat behind the passenger side
With respect to the possibility that Cooper‘s trial testimony would have been essentially the same as his grand jury testimony, we are persuaded by the trial court‘s reasoning that if Cooper presented testimony consistent with what he told the grand jury, there is no reasonable probability that the result would have been different. Ready v. United States, 445 A.2d at 990 n. 16; see United States v. Frost, 502 A.2d 462, 464 (D.C. 1985), cert. denied, 479 U.S. 836, 107 S.Ct. 134, 93 L.Ed.2d 77 (1986). As for the latter, the hypothetical possibility that Cooper‘s trial testimony may have been different than that presented to the grand jury is an issue we do not reach for the reasons set forth above: appellant has offered no indication beyond sheer speculation that such would be the case. Thus, Cooper‘s grand jury testimony only undercuts appellant‘s already deficient showing that he is entitled to a hearing. See White v. United States, 484 A.2d 553, 558-89 (D.C. 1984) (affirming denial of a hearing on claim of ineffective assistance of counsel where failure to prepare alibi defense, which was supported by an affidavit of the alibi witness, was too vague to support claim of ineffective assistance and contradicted appellant‘s testimony at trial).6
Accordingly, the judgment of the trial court is
Affirmed.
ROGERS, Chief Judge, dissenting.
The majority affirms the denial of a
In my view there are four flaws in the majority‘s analysis. First, while acknowledging the presumption in favor of holding a
First,
Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.
Review of the instant case must begin with the understanding that “[t]o uphold the denial of a
In addition, the majority ignores the fact that the court has held that the presumption in favor of a hearing is strengthened in certain circumstances, several of which exist here. For instance, the court has held that the necessity for a hearing is increased where the
The court also has made clear that a hearing is more likely needed when the motions judge is not the trial judge. Gaston, supra, 535 A.2d at 900. This is because the motions judge “ha[s] no recollection of the proceedings and [i]s not familiar with the actual events that transpire [].” Id. Finally, the court has stated that “any question regarding the appropriateness of a hearing should be resolved in favor of holding a hearing,” Gillis v. United States, 586 A.2d 726, 728 (D.C. 1991), since
Second, the majority opinion ignores the full content of appellant‘s motion. See majority opinion at 234, 235 (appellant relies on the “unsubstantiated notion that he suffered prejudice,” that the support for his allegation of prejudice rests “solely” on the fact that Cooper was identified as a Brady witness, that “appellant has not offered a credible indication as to what that testimony [of Cooper] might entail,” and that appellant‘s proof consisted “merely” of quoting the prosecutor who stated that Cooper might identify Barnett as the shooter). In fact, appellant‘s motion is properly characterized, in view of our caselaw, as quite comprehensive. Appellant‘s
Appellant attached to his motion a copy of Cooper‘s grand jury testimony. Cooper testified before the grand jury that he saw a person get out of the car from the rear passenger‘s door, reach under his coat, and that he then heard three gun shots. Cooper also testified that the driver and the man who got out of the back seat of the car had been at the dice game the night before. Even if there was other testimony at trial about another shooter, the motions judge was not in a position to determine that the record conclusively shows that Cooper could not provide exculpatory evidence for appellant. It would not be unreasonable to expect Cooper to testify that it was the rear passenger who had been the shooter, and not appellant, whom government witness Paul Fitzhugh had identified as sitting behind the driver; appellant also was not one of the two men who had been at the dice game the night before.5
In addition, Cooper‘s signed pretrial statement to the defense investigator was a part of the trial record.6 The majority
The record before the motions judge therefore indicated that, based on Cooper‘s grand jury testimony and his statement to the defense investigator, Cooper was, as the prosecutor indicated, a Brady7 witness for appellant. Consequently, the motions judge could not properly conclude that appellant had failed to make a credible proffer of Cooper‘s likely trial testimony. Nor could the motions judge deny a hearing on the basis that “appellant had offered ‘no credible evidence,‘” since to do so would “have assumed the answer to the very question which an evidentiary hearing could illuminate.” Rice v. United States, 580 A.2d 119, 123 (D.C. 1990). There also was no basis on which the motions judge could deny a hearing because of the strength of the government‘s evidence. Id. (also pointing out that “asserted strength of the government‘s case may itself be a product of trial counsel‘s ineffectiveness“).
Thus, the majority‘s emphasis on the absence of an affidavit summarizing Cooper‘s trial testimony elevates form over substance. See majority opinion at 235. While affidavits are sometimes attached to these motions,8 there is no requirement that other documents cannot serve the same purpose as an affidavit. See Gray v. United States, supra, 617 A.2d at 523 (finding three signed statements and one letter attached to
For example, the majority cites Gillis, supra, 586 A.2d 726, to support the conclusion that appellant failed to present a credible proffer. See majority opinion at 235. But, in Gillis, this court reversed the summary denial, rejecting the conclusion that because trial counsel had stated that there were “reasons” why certain evidence was not presented he was insulated by the tactical decision protection of Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-67. The court held that a cursory branding of trial counsel‘s decision not to call certain witnesses as “tactical,” was insufficient under the statute and a more searching review, by means of a hearing, of counsel‘s reasoning was necessary.10 Id.
Likewise, the majority‘s reliance on Sykes v. United States, 585 A.2d 1335 (D.C. 1991), is misplaced since the movant in Sykes merely attached his own self-serving affidavit reciting that a woman would corroborate his testimony that she was in fact the one who had sold the drugs to the undercover officer, but offered no proof that the woman had ever confirmed his story or would be willing to testify about it. Id. at 1337. By contrast, appellant attached to his motion the transcript of Cooper‘s grand jury testimony and Cooper‘s signed statement to the defense investigator. While not affidavits, these supporting documents clearly amount to a more credible proffer than that submitted in Sykes.
Moreover, the court‘s decision in Sykes was expressly premised on the observation that in order to exculpate Sykes, the uncalled witness would have to inculpate herself by admitting that it was in fact she who had sold the drugs. Id. at 1338 The court concluded that such a scenario was improbable and that it was more likely the witness would deny the allegations or invoke her Fifth Amendment privilege against self-incrimination. Id. Neither circumstance exists in the instant case. In deed, the nature of Cooper‘s role in the events giving rise to the charges against appellant increases the exculpatory value of his testimony. Cooper and David Wise were the two men who were shot at along with the victim, Darryl Woodson, and were actually the complainants on the assault with a deadly weapon charges that appellant faced; neither inculpated appellant.11
The majority‘s reliance on Rice, supra, 580 A.2d 119, to support the conclusion that appellant‘s failure to attach an affidavit or “credible proffer” to his motion warranted summary dismissal, is to no avail. See majority opinion at 235. In Rice, this court reversed the trial court for failing to conduct an evidentiary hearing. The movant had submitted three signed statements from witnesses who claimed they would have provided alibi testimony and one from a woman who claimed that she saw the shooters emerge from the building and that the movant was not one of them. Id. at 121. This court concluded that a hearing was required even though none of the statements submitted by Rice was in the form of affidavits or sworn testimony and the government‘s evidence was strong. Id. at 123. By contrast, appellant offered Cooper‘s sworn grand jury testimony as well as his statement to the defense investigator. In addition, the government‘s case against Ready was far less compelling than in Rice, where there were four witnesses who identified the movant as the gunman and the movant was later found with the gun used in the attempted robbery. Id. at 122 n. 5. The government‘s case against appellant consisted of the testimony of Paul Fitzhugh and Tyrone Barnett that appellant was the gunman; Fitzhugh was the brother of the co-defendant and Barnett, who testified that he and Paul Fitzhugh were like brothers, was indirectly identified by Cooper as the shooter.
Third, the majority underestimates the potential exculpatory value of Cooper‘s testimony and thus incorrectly evaluates the prejudice prong of the Strickland analysis. With regard to his grand jury testimony, the majority states:
To the extent that it reflects what Cooper‘s testimony may have been, it provides appellant no support; in fact, it undercuts his claim.
The trial court [i.e., the motions judge] reasoned that Cooper‘s testimony at trial would have been either (1) consistent with his grand jury testimony and therefore not exculpatory, or (2) inconsistent
See majority opinion at 235. This is a false dichotomy. If Cooper had testified at trial consistently with his grand jury testimony it does not follow that he could not have provided exculpatory evidence for appellant. Cooper‘s testimony at trial did not have to be limited to his grand jury testimony in order to be consistent with it; clearly, his testimony before the grand jury left room for amplification. For example, when Cooper testified before the grand jury that there were a lot of people in the car, the obvious follow-up question was, “Who was in the car?” This question was not asked by the prosecutor; appellant‘s counsel was not present. Moreover, when Cooper‘s grand jury testimony is read in conjunction with his statement to the defense investigator, it follows that Cooper would have identified Tyrone Barnett as the shooter. Cooper testified before the grand jury that the man who got out of the car emerged from the rear passenger door and that that person had been at the dice game the night before; there was no evidence that appellant was among those who had been at that dice game. In his statement Cooper said he thought the person who got out of the car had been the gunman. In view of the unrefuted testimony at trial that it was Barnett who had been sitting in the rear passenger‘s seat and who had emerged from the car, as well as Barnett‘s admission that he and Paul Fitzhugh had been at the dice game the night before, a jury crediting Cooper‘s testimony could reasonably infer that appellant was not the gunman.12
By underestimating the exculpatory value of Cooper‘s testimony, the majority opinion distorts the analysis of Strickland‘s prejudice prong. The determination of appellant‘s guilt revolved exclusively around credibility issues. Two government witnesses identified appellant as the gunman; one defense witness, Wise, claimed appellant was not in the car, and another witness, Cooper, would have testified that Barnett was the shooter. The two government witnesses were impeached during cross-examination, and each could easily be considered biased.13 Under these circumstances, the motions judge was not in a position to conclude, in the absence of a
Fourth, the majority opinion fails to acknowledge the significance of the distinction between summary denial of a
Accordingly, I would reverse the summary denial and remand the case for a hearing.