Curtis L. WATSON, Appellant, v. UNITED STATES, Appellee.
Nos. 83-996, 83-1136 and 83-1150.
District of Columbia Court of Appeals.
Decided April 8, 1986.
Thomas J. Tourish, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Judith Hetherton, Wendy Bebie, and Harry R. Benner, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before NEBEKER and MACK, Associate Judges, and GALLAGHER, Senior Judge.
These consolidated appeals have two facets. First, we have for consideration a test on the issue of ineffectiveness of counsel while on appeal. Secondly, we review a challenge to separate orders of the Superior Court dealing with the issue of ineffectiveness of trial counsel and denying collateral relief from prior judgments of conviction. We deny the motion to recall our mandate, which raises the claim of ineffective counsel on appeal, and we affirm the judgments.
I
To understand this case, a review of its procedural history is helpful. Appellant was indicted in 1976 on several charges related to two separate incidents occurring at 1926 Quincy Street, N.E.: the May 30, 1976 assault on Richard Knight and the June 6, 1976 shootings of Cynthia Durham and Robert Swearinger. The matters came to trial in 1977, but a mistrial was soon declared because several jurors had been exposed to publicity surrounding the murder of Timothy Reeves, which had also taken place at the Quincy Street premises.
Appellant was later indicted for the Reeves murder and a related weapons charge. The trial court subsequently granted the government‘s motion to consol
On appeal, appellant‘s convictions were affirmed. Watson v. United States, Nos. 13796, 13815, Memorandum Opinion and Judgment (D.C. Nov. 5, 1979) (unpublished). As grounds for reversal, he had assigned three errors: (1) the trial court had prejudiced his case by interrupting defense counsel and commenting on counsel‘s performance; (2) the court improperly consolidated the indictment charging first-degree murder with the indictment containing the charges related to the 1976 assaults; and (3) the court failed to grant a judgment of acquittal on the first-degree murder charge despite insufficient evidence of premeditation. This court rejected each contention.
On the issue of consolidation, appellant had maintained on appeal that the assaults and the murder were not sufficiently connected to warrant a joint trial. In our decision, we concluded that consolidation of the indictments for a single trial did not rise to the level of plain error, as would have been necessary for reversal because counsel did not object to the consolidation either before or during trial. See Watts v. United States, 362 A.2d 706, 708-09 (D.C. 1976) (en banc). In our opinion, we noted that prior to trial, counsel did object to joinder of the cases against appellant and Joan Swearinger. We also noted that in appellant‘s motion for a new trial it was argued that consolidation of the indictments had been improper. We held that the argument is sufficiently strong for consolidation that the trial court did not commit plain error by failing, absent objection, to sever the murder and assault charges. Watson, supra, Memorandum Opinion and Judgment at 7 (citations omitted).3
Regarding the trial court‘s denial of a judgment of acquittal, appellant had argued that the government‘s evidence was not sufficient to support his first-degree murder conviction. More specifically, he had contended that proof of premeditation was lacking. We disagreed, however, finding “facts ample to permit a reasonable jury to find guilt beyond a reasonable doubt.” Watson, supra, Memorandum Opinion and Judgment at 7 (citations omitted). This court thereby concluded that the evidence was sufficient for guilt as a matter of law. And, on the specific question of premeditation, we concluded that there was sufficient circumstantial evidence to permit the jury to “infer premeditation from the
Shortly before this court had decided appellant‘s direct appeal, he collaterally attacked his convictions by filing, pro se, a motion to vacate his sentence pursuant to
Later that month, appellant sought relief from his convictions by a different collateral procedure. Pursuant to
Several months later, appellant filed a motion in this court to recall the mandate affirming his convictions on direct appeal (Appeal Nos. 13796 and 13815).8 Appellant requested that we “either remand for resentencing or permit the out-of-time filing” of a brief which he claims should have been filed in his direct appeal. To this end, appellant argues in his motion to recall the mandate that he had been denied the effective assistance of his retained appellate counsel. He principally faults appellate counsel for failing to point out to this court the prejudicial impact that consolidation of
[i]f this court had been informed of the manner in which the government had used the evidence of the assaults at . . . [his] trial, it could not have found that the evidence of the assaults and the murder was “simple and distinct” or that appellant was not prejudiced by their joinder.
It is further argued that appellate counsel was ineffective in that he failed to challenge on appeal the sufficiency of evidence from an identity standpoint, i.e., that appellant was the person who murdered Timothy Reeves. Thus, appellant asserts that to this day he has been denied “meaningful review” of his convictions.
This brings us to the issues at hand.9 The upshot is we now have pending before us for decision (1) appellant‘s motion to recall the mandate, which is predicated on the assertion that appellate counsel on direct appeal was ineffective because he failed (a) to effectively argue that it was reversible error by the trial court to consolidate the indictments for trial or fail to sever the cases when the prejudice of joinder became apparent, and (b) to raise the sufficiency of evidence issue on the first-degree murder conviction (from the standpoint of identity); (2) appellant‘s direct appeals from orders denying his various requests for collateral relief (§ 23-110 motions and habeas corpus petition) which, together, are premised on the claim that appellant‘s trial counsel was ineffective principally because he failed to (a) oppose consolidation of the indictments against appellant, (b) move for a severance or a mistrial when it became apparent that consolidation was prejudicial, (c) object to the government‘s use of “highly prejudicial other crimes evidence,” and (d) adequately prepare for appellant‘s trial by, for example, not obtaining hospital records showing that a key government witness was intoxicated on the night of the 1976 shootings.
II
Appellant‘s motion to recall the mandate is predicated on a claim that he was denied the effective assistance of counsel on his direct appeal. To reiterate, counsel‘s claimed ineffectiveness was his failure to (a) explain to this court “how appellant was demonstrably prejudiced by the improper consolidation [of the indictments],” and (b) raise the insufficiency of evidence.10 Recognizing that Evitts v. Lucey, 469 U.S. 387, 830, 836 (1985), establishes a Fourteenth Amendment due process right to effective assistance of an attorney, whether retained or appointed, on a “first appeal” as of right, appellant contends in his motion that we should either remand for resentencing or
Before reaching the merits of appellant‘s due process claim, we must dispose of the procedural matter of how one may challenge previous counsel‘s effectiveness on appeal. The approach taken by appellant, filing with this court a motion to recall the mandate, is a proper one.
RECALL OF MANDATE: In any appeal from a judgment of conviction in a criminal case, no motion to recall a mandate based on the asserted failure of counsel to represent the appellant effectively on appeal shall be considered by the court unless the motion is filed within 180 days from the issuance of the mandate.
Appellant‘s motion to recall the mandate was filed before Rule 41(c) became effective. He was not required, therefore, to comply with the 180-day provision of our rule.12
Rule 41(c) does not by its terms affirmatively require the filing of a motion to recall the mandate as the means of presenting a Lucey-type challenge of ineffectiveness on a direct appeal. However, no more suitable method of raising such a claim is available procedurally.
To be sure, there are procedures which are not available. In Streater v. United States, supra, 429 A.2d at 174, we stated that
For much the same reason,
A motion to recall the mandate, therefore, is the appropriate avenue to take in presenting a Lucey challenge. See
Our decision in Streater v. United States, supra, suggests that this is an acceptable procedure. That case derived from our decision in the earlier Streater v. United States, supra, 429 A.2d at 174, in which we held that Streater‘s claim that he had been denied the effective assistance of appellate counsel was not cognizable in Superior Court under § 23-110.16 Following this ruling, Streater petitioned for a writ of habeas corpus in the federal district court for this jurisdiction. The federal district court dismissed the petition, however, on the ground that Streater could seek relief in Superior Court under § 16-1901 and therefore had not exhausted his local remedies. On appeal, the federal circuit court, in Streater v. Jackson, supra, vacated the judgment of the district court. It agreed with Streater‘s argument that our earlier decision foreclosed any remedy in Superior Court “on the ground that a trial court is not positioned to review proceedings in a court of appeals.” 223 U.S. App. D.C. at 395, 691 F.2d at 1028.
Persuaded that this court would be best suited to resolve Streater‘s ineffective assistance of appellate counsel claim, the federal circuit court remanded the case to the district court with instructions that it hold Streater‘s habeas corpus petition in abeyance pending his application to this court to recall the mandate and reopen the direct appeal. Id. Accordingly, Streater then filed a motion in this court to “reopen his direct appeal,” which we treated as a motion to recall the mandate. Streater v. United States, supra, 478 A.2d at 1057 n. 3. A motions panel granted the request, vacated our original judgment, and thereby revitalized Streater‘s direct appeal. Id. at 1057. Therefore, this court, as it did in Streater, will pursue a claim of ineffective assistance of appellate counsel which initially has sufficient merit by recalling the mandate and reopening the movant‘s direct appeal.
One final procedural matter must be addressed. It is conceivable that a Lucey claim will be premised on an argument which requires the resolution of some material factual issue. Suppose a defendant filed a motion to recall the mandate affirm
III
The question remains in this case whether there is merit to appellant‘s contention that he was denied his Fourteenth Amendment due process right to effective assistance of counsel on appeal. As the government suggests in its supplemental brief, in Evitts v. Lucey, supra, the Supreme Court left open “the content of appropriate standards for judging claims of ineffective assistance of appellate counsel.” 105 S.Ct. at 833-34 (citing Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S. 648 (1984)). This was so because there had been no challenge to a lower court finding that Lucey received ineffective assistance on his first appeal. Lucey, supra, 105 S.Ct. at 833.17 Consequently, we must proceed to fashion a standard and apply it to this case.
The government has framed the following suggested standard: in reviewing a claim of ineffective assistance of appellate counsel, this court must inquire (a) whether counsel‘s performance was grossly incompetent, (b) whether, as a result of such gross incompetence, the defendant was “deprived altogether of a meaningful appeal,” and (c) whether the absence of a meaningful appeal resulted in such a “complete miscarriage of justice that it is more likely than not that an innocent man stands convicted.” Given this standard, the government ultimately suggests that an appellant receives “effective assistance” if his counsel presents on appeal “one or more nonfrivolous issues to the best of his ability.”
Appellant, on the other hand, argues that in formulating a standard, this court should be guided by the Supreme Court‘s decision in Strickland v. Washington, supra. In that case, the Court set forth a Sixth Amendment test for determining whether trial counsel was ineffective, saying:
The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. . . . First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 686-87. In expounding on the deficiency component of the test, the Court later concluded that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. See Hill v. United States, 489 A.2d 1078, 1080-81 (D.C. 1985). However, at no place in the Strickland opinion does the court intimate that these particular standards should govern in assessing the performance of appellate counsel.
Just as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits. See Griffin v. Illinois, 351 U.S. 12, 20 (1956). Therefore, Douglas v. California, 372 U.S. 353 (1963), recognized that the principles of Griffin required a State that afforded a right of appeal to make that appeal more than a “meaningless ritual” by supplying an indigent appellant in a criminal case with an attorney. Id. at 358. . . . [T]he attorney need not advance every argument, regardless of merit, urged by the appellant, see Jones v. Barnes, 463 U.S. 745 (1983). But the attorney must be available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U.S. 258 (1967) (per curiam) and must play the role of an active advocate rather than a mere friend of the court assisting in a detached evaluation of appellant‘s claim. See Anders v. California, 386 U.S. 738 (1967); see also Entsminger v. Iowa, 386 U.S. 748 (1967).
Lucey, supra, 105 S.Ct. at 834-35 (emphasis in original; citations given in full). Recognizing that in the case before it counsel had effectively deprived Lucey of his first appeal, the court went on to say:
To be sure . . . [Lucey] did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right—like nominal representation at trial—does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.
Id. at 836 (emphasis added).
As Lucey, supra, makes clear, the Supreme Court has on occasion examined on unequal treatment grounds18 the constitutional rights of criminal defendants in relation to appeals. In Griffin v. Illinois, supra, the Court held that an indigent defendant was denied equal protection (and due process of law) when the State refused to provide him a free transcript for an appeal. In so holding, the Court seemed primarily concerned that the State not deny “adequate and effective appellate review to indigent defendants.” 351 U.S. at 20 (emphasis added). And in Douglas v. California, supra, the Supreme Court found that indigent defendants had been denied equal protection of the law where the merits of the one appeal they had as of right from their convictions was decided without the benefit of counsel, after a determination by the State appellate court that appointed counsel would be of no value to the defendants or the court. 372 U.S. at 356-57. The Court then offered the following rationale:
There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel‘s examination into the record, research of the law, and marshalling of arguments on his behalf,
while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.
Id. at 357-58.
Later cases from the Court have expounded these general concepts. In Swenson v. Bosler, supra, the Court applied Douglas to a similar set of facts and concluded that
the assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. This advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.
In the same year (1967), the Court decided Entsminger v. Iowa and Anders v. California, supra. Entsminger challenged an Iowa appellate criminal procedure concerning the provision of transcripts. The Court held that the particular procedure “precluded [Entsminger] from obtaining a complete and effective appellate review of his conviction. . . .” 386 U.S. at 752 (emphasis added). In summarizing its decisions in this area, the Court reiterated the precept that “appointed [appellate] counsel must function in the active role of an advocate, as opposed to that of amicus curiae . . . .” Id. at 751 (citing Ellis v. United States, 356 U.S. 674 (1958)). Anders v. California, supra, addressed the duties of a court-appointed counsel on a first appeal of right when he has conscientiously determined that there is no merit to the indigent‘s appeal. In concluding that in such a case counsel is required to file what has become known as an Anders brief, the Court stated:
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate on behalf of his client, as opposed to that of amicus curiae. . . . His role as advocate requires that he support his client‘s appeal to the best of his ability.
Finally, in the recent opinion of Jones v. Barnes, supra, the Supreme Court confronted the question whether appellate counsel had a constitutional duty to raise every nonfrivolous issue requested by the defendant. Construing Anders, the Court held that counsel was under no such obligation if, “as a matter of professional judgment, [he] decides not to present those points.” 103 S.Ct. at 3312. The Court reasoned that
Anders recognized that the role of the [appellate] advocate “requires that he support his client‘s appeal to the best of his ability.” 386 U.S. at 744. . . . Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.
Id. at 3313-14 (emphasis added).
It is evident that the level of performance required of counsel on appeal will differ in some respects from that required of counsel at the trial level. The distinct nature of each proceeding mandates standards peculiar to each:
The purpose of the trial stage from the State‘s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the
court, and makes direct arguments to the court and jury seeking to persuade them of the defendant‘s guilt. . . . By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State‘s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt.
Ross v. Moffitt, 417 U.S. 600, 610-11 (1974).19 Moreover, while a defendant may be vindicated at either stage, quite often an appellate reversal acts only to breathe new life into his defense, whereas a favorable verdict at trial sets him free.
Parenthetically, it seems evident that, generally speaking, ineffective representation at the trial stage is apt to have a more telling effect on a defendant‘s case than poor representation on appeal. Trial counsel may forfeit a defense to any but the weakest prosecution if unprepared or otherwise inadequate. On the other hand, it is the unusual appeal whose outcome depends upon exceptional skill of counsel because even a poor appellate argument is met with incisive consideration by the appellate court, where deliberation and review are undertaken to the extent necessary for considered decision. To illustrate what we mean by this, where counsel in his brief, for example, summarily contends, with little explanation, that an arrest was not supported by probable cause, this court will scrutinize the pertinent portions of record and applicable law in order to reach its determination. No matter how poor the advocacy in support of the illegal arrest contention, the appellate court will determine whether it has merit provided the issue has been raised. But if, for example, counsel raised in the trial court the illegal arrest question to no avail but appellate counsel failed to even raise it on appeal, and the question not only had merit but would be determinative on the prosecution of the defendant, then in that event there may well be ineffective assistance of counsel.20 In the first example, the unedifying assistance is compensated by the penetration of appellate review.21 In the second instance, this compensation is unlikely to occur and the lack of effective advocacy may be fatal.
For these reasons, Strickland will not literally control in disposing of claims of ineffective assistance of counsel on appeal. But neither can we accept the suggestion by the government that counsel be deemed effective if he raises and argues to the best of his ability one or more nonfrivolous issues. Such a standard might permit nominal representation on appeal. For one thing, it excludes from consideration even a disastrous omission on counsel‘s part. Instead, we choose to borrow language from this court‘s plain error standard to serve as due process boundaries.22 The perform
To state the standard more exactly—in order to prevail on a motion to recall the mandate due to ineffective assistance of appellate counsel, the movant must show that counsel failed to raise an available issue on direct appeal which, if factually supported, would create the reasonable probability of reversal.24 Mere general assertions are not enough. The movant must relate the facts of record (or otherwise) to support an assertion. This should be clearly understood. Where a sufficient showing is made, the mandate will be recalled and a division of this court will review for substance the asserted error. However, that counsel unsatisfactorily argued an assigned error on direct appeal will not alone support a claim of ineffective assistance of appellate counsel. We say this because on the original appeal once this court is directed toward asserted error, it examines the merits of the issue, and the court recognizes prejudicial error when a contention of this gravity is brought to the court‘s attention.25
IV
Turning to the claims in this case, appellant‘s principal contention in his motion to recall the mandate is that his appel
On direct appeal, appellant‘s counsel raised the contention that the trial court erred in granting the government‘s motion to consolidate the separate indictments. In his analysis, counsel specifically maintained that the government had used the evidence of the 1976 assaults “to show the defendant‘s general bad character and tendency to commit the particular offense charged [the 1977 murder of Timothy Reeves].” Therefore, in essence, appellant would have us recall the mandate and reopen his appeal on this issue because counsel unsatisfactorily represented his position. This we will not do. Improper consolidation of the indictments was assigned as error on direct appeal, and was considered by this court. Our conclusion that “the argument [was] sufficiently strong for consolidation . . . that the trial court did not commit plain error in failing, absent objection, to sever the murder and assault charges” was based not only on the submissions of counsel, but on a review of the pertinent portions of record and governing law. To be sure, had there been plain error on this point this court would have recognized it. See generally Allen v. United States, 495 A.2d 1145 (D.C. 1985). We will not afford a second review on this issue.
Appellant also submits that appellate counsel was ineffective in that he challenged the sufficiency of evidence of first-degree murder based on the premeditation element, rather than on identity which, he submits, presented a stronger case for reversal. This is a more pointed way of phrasing a claim of insufficiency of the evidence to support a conviction. On direct appeal, counsel argued that “the trial court erred in failing to grant appellant‘s motion for judgment of acquittal as to the charge of first-degree murder.” This argument was developed by counsel, however, primarily from the standpoint of insufficient evidence of premeditation. In this regard, counsel maintained that “there is no evidence whatsoever from which the jury could have found that appellant planned to kill Timothy Reeves in advance.” The court stated the issue correctly: “[a]ppel-lant argues . . . that the government‘s evidence was not sufficient to support his conviction. . . .” Watson, supra, Memorandum Opinion and Judgment at 7. This court rejected this claim, finding “facts ample to permit a reasonable jury to find guilt beyond a reasonable doubt.” Id. (citing Jackson v. United States, 395 A.2d 99, 102 (1978)). And, on the specific question of premeditation, we concluded that “[a]lthough the evidence supporting premeditation is circumstantial, the jury may infer premeditation from the surrounding facts and circumstances. The facts established here provide adequate support for the jury‘s conclusion.” Id. at 8 (citations omitted).
Although appellant‘s claim now that counsel should have attacked his conviction on appeal on the ground that there was insufficient evidence that he committed the murder arguably draws into question counsel‘s failure to assign a more particular error, we cannot say that had the issue been specifically raised in that fashion there would have been a reasonable probability of reversal. This is so because counsel did raise a claim of insufficiency of the evidence on the first-degree murder conviction. And in our earlier opinion, this court noted this insufficiency of the evidence contention before stating appellant‘s more specific contention that evidence of premeditation was insufficient. Watson, supra, Memorandum Opinion and Judgment at 7.
We conclude that appellant‘s due process challenge to the effectiveness of his counsel on appeal must fail. Appellant has not shown initially that counsel failed to present an available issue on direct appeal which, if supported by the record on appeal, would create a reasonable probability of reversal. We therefore deny appellant‘s motion to recall the mandate.
V
Appellant‘s § 23-110 motions and habeas corpus petition focused on the adequacy of trial counsel. Appellant now challenges the trial court‘s disposition of each, claiming that he was prejudiced by instances of actual ineffectiveness, to wit: (1) counsel‘s failure to oppose consolidation of the indictments or move for a severance or mistrial when the prejudice of joinder became evident; and (2) counsel‘s failure to object to the admission of “other crimes” evidence. Appellant also contends that counsel‘s general lack of preparation, taken together with various errors committed at trial, constituted ineffective assistance. He thus urges this court to grant him new trials on the separate indictments.27
At the outset, we should reiterate the constitutional standard on effective assistance of trial counsel as promulgated by the Supreme Court in Strickland v. Washington, supra. In Hill v. United States, supra, 489 A.2d at 1080-81, we recently related the Strickland standard as follows:
“The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, supra, 466 U.S. at 686 (quoted in White v. United States, 484 A.2d 553, 558 (D.C. 1984)). In more concrete terms, this requires a showing that counsel‘s performance was deficient, i.e., unreasonable under the prevailing norms, and that such deficiency prejudiced the defense. White, supra, 484 A.2d at 558 (citing Strickland, supra, 466 U.S. at 687). “Prejudice” in this context connotes error “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. (quoting Strickland, supra, 466 U.S. at 687).
With this in mind, we examine appellant‘s claims.
Appellant‘s principal contention is that “trial counsel‘s failure to oppose consolidation of offenses or to move for a severance when the evidence was misused, standing alone, was an error ‘so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.‘”28 (Quoting Strickland, supra, 466 U.S. at 687.) We do not agree. As Strickland makes clear, in order for appellant to succeed on an ineffective assistance of trial counsel claim, he must first prove that counsel‘s performance was deficient. He must then demonstrate that but for counsel‘s unprofessional performance, there is a reasonable probability that the result of the proceeding would have been different. See Hill v. Lockhart, supra, 106 S.Ct. at 369. And this will only be accomplished by a factual recitation of exactly what transpired below. We need not explore whether trial counsel‘s performance was deficient in that he did not oppose consolidation of the separate indictments or later move for a severance, for appellant has failed to meet his burden of showing that had counsel done so, there is a reasonable probability that the result of the proceeding would have been different.
We concluded on the previous appeal that the trial court did not commit plain error in ordering consolidation of the indictments, or in failing to later grant a severance, because the argument was “sufficiently strong” for consolidation on the basis that the evidence of each crime was “simple and distinct.” Watson, supra, Memorandum Opinion and Judgment at 7 (citing Drew, supra, 118 U.S. App. D.C. at 17, 331 F.2d at 91).29 This holding necessarily disposes of appellant‘s Strickland contention. “Plain error” encompasses only such error, unnoticed at trial, which so affects substantial rights of the parties as to jeopardize the very fairness and integrity of the trial. See
Our holding on this issue is supported by another consideration. At the hearing at which the court ruled that the indictments would be consolidated, the court related that it fully considered the matter, saying:
[A]fter reading everything and listening to argument . . . [at the last hearing], [there is] no question in my mind that the cases should be severed. It can be severed in one of two ways. Let Mr. Watson be tried for both offenses individually, and Ms. Swearinger separately, or try Ms. Swearinger and Mr. Watson on the . . . shooting[s]. And then try Mr. Watson for the other matter individually.
The court thereupon ruled that it would consolidate all the charges against appellant and sever the charges against Joan Swearinger. Thus, it is not as though trial counsel‘s failure to raise the issue before trial precluded the court from considering consolidation. In short, we do not conclude that appellant was sufficiently prejudiced in view of the trial court‘s consideration.30
Appellant‘s other allegations of actual ineffectiveness may be addressed without much elaboration. Appellant argues that trial counsel failed to try to exclude “other crimes” evidence that two weeks before the murder of Timothy Reeves he had fired two or three shots in anger at a neighbor‘s apartment with a .25 caliber gun that he routinely carried, and that he owned and regularly carried various guns. We note, however, that counsel did object to evidence of the earlier gun firings on relevance grounds, although he did not specifically argue the “bad acts” aspect of the relevancy objection, which is a form of relevance. See
Appellant‘s final contention is that “trial counsel‘s general lack of preparation and other errors at trial, when considered together, also constituted ineffective assistance of counsel and require reversal.” In this respect, appellant points principally to: (1) counsel‘s failure to obtain the medical records of Robert Swearinger, a key government witness, which reveal that Swearinger may have been intoxicated on the night of the 1976 shootings; and (2) counsel‘s failure to adequately cross-examine Richard Knight, the sole witness to the May 30, 1976 assault. While we agree that trial counsel may well have committed some “errors” in defending appellant,31 we cannot say that these particular errors, even when taken together, were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
We are not persuaded that the trial court incorrectly determined there had been effective assistance of counsel since it cannot be said that but for counsel‘s shortcomings, there is a reasonable probability that the result of appellant‘s trial would have been different. Id. at 694. We hold therefore that the trial court properly denied appellant relief from his convictions.
CONCLUSION
We conclude that appellant is not entitled to a recall of the mandate and his motion for recall is denied. We see no grounds for a reversal of the trial court in the § 23-110 and habeas corpus proceedings. These judgments are affirmed.
So ordered.
NEBEKER, Associate Judge, concurring:
I concur in Judge Gallagher‘s opinion for the court. Surely, if appellate courts must entertain challenges to the performance of appellate counsel, they should do so under the highest threshold and consistent with “the strong policy of repose, that there be an end to litigation. . . .” Ante at 80-81. With the decision in Evitts v. Lucey, 469 U.S. 387 (1985), that policy of repose has been shaken. For example, in High v. United States, No. 79-776, petitioner filed a Petition for Rehearing or Rehearing En Banc to review the denial of a motion to recall and reissue the mandate to start the time in which to move for reduction of sentence. In High, supra, petitioner challenges appellate counsel‘s performance four and one-half years after our mandate affirming convictions for second-degree murder and attempted robbery.
The decision in Evitts v. Lucey did not articulate a standard by which appellate counsel‘s performance is to be judged. This is understandable for two reasons: first, because a Statement of Appeal had not been filed, the state appeal was not decided on the merits; second, the inadequacy of counsel for failure to file the statement was conceded. 105 S.Ct. at 833. It is quite another matter to be pressed to divine a standard of competence in cases that have been briefed and decided. This case is a good example of the contention that counsel did not put the right gloss on the arguments he advanced. High v. United States, supra, presents another example: inadequacy is asserted based on counsel‘s failure to advise the convicted appellant that he had 120 days after our mandate to request sentence reduction. Presumably, the most frequent claim will be that counsel failed to raise a particular issue. It is certain that whatever the issue, it will be born of hindsight.
Judge Gallagher‘s opinion most ably fashions our standard for deciding when our earlier judgment is vulnerable to attack for perceived failures of counsel. An appeal should not be reopened except upon the clearest showing that the result of the appeal would have been other than an affirmance if handled differently. But the fact remains the decision not to recall the mandate necessitates a later revisit of the record on appeal. In such instances, the facts and issues have been long forgotten. Indeed, the original division or court may not be available and new judges will have to be assigned to the case.
All this suggests strongly that the Evitts v. Lucey holding be limited to cases in which the appeal has not been decided on the merits. Indeed, the majority in Lucey has left this avenue open. It cited approvingly to the Jones v. Barnes, 463 U.S. 745 (1983), holding that counsel need not raise every issue regardless of merit. 105 S.Ct. at 835, 836-37 n. 8. The majority also did not hesitate to leave the so-called “Anders Procedure,” Anders v. California, 386 U.S. 738 (1967), as a valid method of deciding appeals on the merits when counsel can find no issue profession-
Accordingly, in the absence of a clear holding to the contrary, it seems to me that the process due on appeal of right has been supplied when the case has been reviewed on the merits and the decision becomes final with our mandate. I would not leave issue identification and the briefing process open after the appeal has been decided on the merits. The burden on the appellate process is too great if months or years later we must reexamine the record to decide if the result could have been different.
GALLAGHER
Senior Judge
Notes
We agree with appellant that, on the facts here, consolidation of the murder charge with the two assault charges (which are properly joinable) cannot be justified by any of the five exceptions to the general bar against “other crimes” evidence set forth in Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). However, if “the evidence of each crime is simple and distinct,” Drew also permits consolidation of two indictments for trial “even though [other crimes] evidence might not have been admissible in separate trials.” Id. at 17, 331 F.2d at 91. We conclude that the argument is sufficiently strong for consolidation on this basis that the trial court did not commit plain error in failing, absent objection, to sever the murder and assault charges.
Watson, supra, Memorandum Opinion and Judgment at 6-7 (footnote and other citations omitted).
We should note, however, that some federal courts, in post-Lucey cases, have looked solely to the Strickland test in assessing claims of ineffective assistance of appellate counsel. See, e.g., Beavers v. Lockhart, 755 F.2d 657, 661 (8th Cir. 1985); Bowen v. Foltz, 763 F.2d 191, 195 (6th Cir. 1985) (Contie, J., dissenting). In light of the distinct nature of the appellate process, as well as the scope of appellate review, it is our view that the Strickland standard cannot be so mechanically transformed, for the reasons we have delineated earlier.
Robert Mitchell also testified that appellant left the family store on the night of June 28 carrying the pouch for his .357 magnum. As he left, appellant stated that he intended “to go over to the house and take care of some business.”
Watson, supra, Memorandum Opinion and Judgment at 7-8 (emphasis added and record references omitted).
[E]ven where the evidence of [other crimes] would not have been admissible in separate trials, if, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that the accused is not confounded in his defense and the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need not order severance or election at the commencement of the trial. If, however, it appears at any stage in the trial that the defendant will be embarrassed in making his defense or that there is a possibility that the jury will become or has become confused, upon proper motion, the trial judge shall order severance.
Drew, supra, 118 U.S. App. D.C. at 17-18, 331 F.2d at 91-92. Decisions of this court have followed this reasoning. See, e.g., Fields v. United States, 484 A.2d 570, 574 (D.C. 1984), cert. denied, 471 U.S. 1107 (1985).