Frank E. WESLEY, Appellant, v. UNITED STATES, Appellee.
No. 80-939.
District of Columbia Court of Appeals.
Argued Sept. 9, 1981. Decided July 26, 1982.
It is clear on this record that when appellant did file the amended comрlaint there was no existing violation. If no violation then existed, then none could have been continuing. Furthermore, the “severing of the employment relationship ordinarily terminates a discrimination against the severed employee, and activates the time period for filing charges. . . .” Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 366, 567 F.2d 429, 473, cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1976). Appellant had one year from the date of his discharge to file a complaint alleging retaliation. He failеd to do so and his claim is now barred by the limitation period.
We hold that the Act‘s one year limitation period,
Affirmed.
Steven R. Kiersh, Washington, D. C., for appellant.
Evelyn E. Crawford Queen, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, John A. Terry, John R. Fisher, R. Dennis Osterman, and Pamela B. Stuart, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before KELLY and BELSON, Associate Judgеs, and YEAGLEY, Associate Judge, Retired.
YEAGLEY, Associate Judge, Retired:
Appellant was found guilty by a jury of grand larceny and the unauthorized use of a motor vehicle in violation of
We decline to resolve the issue of whether the cоnvictions for grand larceny and the
There are many cases that hold that the constitutional immunity from double jeopardy cannot be raised for the first time on appeal. The constitutional immunity from double jeopardy is a personal right which, unless affirmatively pleaded, will be waived. Christian v. United States, D.C. App., 394 A.2d 1, 38 (1978), cert. denied sub nom., Clark v. United States, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); Mason v. United States, D.C.App., 346 A.2d 250, 252 (1975); In re J. A. H., D.C.App., 315 A.2d 825, 827 (1974); United States v. Scott, 150 U.S.App.D.C. 323, 324, 464 F.2d 832, 833 (1972). The court in United States v. Scott, supra at 324, 464 F.2d at 833 stated:
Scott did not raise the issue of double jeopardy at the second trial. The constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived. Hence, the appellant waived the defense of double jeopardy, and that issue is not before us for determination on the merits. [Citations omitted.]
A waiver may be either express or implied and “it will be implied where the accused pleads not guilty and proceeds to trial, verdict and judgment without raising the defense of former jeopardy.” In re J. A. H., supra at 827, citing United States v. Reeves, 293 F.Supp. 213, 214 (D.D.C.1968).
We are aware that there exists a strong presumption against waiver of constitutional rights and that waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilеge. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Nonetheless, we conclude that in this instance appellant waived any potential double jeopardy claim. We rely on several persuasive factors. First, appellant failed
On the afternoon of November 8, 1977, the manager of the Atlantic Garage at 1900 L Street, N.W., parked complainant‘s car near an exit with the keys under the floor mat in response to complainant‘s request that he do so, as she was returning soon to pick it up. Sometime later, the manager heard the engine of complainant‘s car start and observed appellant driving the car away. Appellant failed to negоtiate the turn from the garage into the alley, allowing the manager to reach the car and open the door. Appellant jumped from the car directly in front of the manager and fled down the alley. The manager pursued appellant into the alley and subsequently reported the theft and identified appellant for the police. He noted that appellant was wearing a green jacket with a design on thе back.
After having been found guilty of both charges by a jury and sentenced to five to fifteen years on the grand larceny count, and two to six years on the unauthorized use count to run concurrently, appellant filed a motion to set aside sentence pursuant to
In order to prevail in this court on a claim of ineffective assistance of counsel, appellant must demonstrate both that there has been gross incompetence of counsel and that this [incompetence] has in effect blotted out the essence of a substantial defense. Angarano v. United States, D.C.App., 312 A.2d 295, 298 n.5 (1973), rehearing en banc denied, 329 A.2d 453 (1974). See also Bruce v. United States, 126 U.S.App.D.C. 336, 339-40, 379 F.2d 113, 116–17 (1967). Mere errors of judgment as disclosed by subsequent events are not sufficient to establish ineffective assistаnce. Angarano, supra at 298. Appellant must establish the existence of a legal defense available from facts known or obvious to the trial attorney. Id. at 299. We are left totally unpersuaded that trial counsel‘s performancе in this case offended the Sixth Amendment.
Appellant‘s primary contentions are that his alibi defense was blotted out by trial counsel‘s failure to produce an alibi witness and that his misidentification defense was mismanaged by counsel‘s decision to admit his green coat into evidence without first inspecting it. We find these contentions to be without merit.2
In regard to the alibi defense, we note that the record reflects that efforts had been mаde to locate the alibi witness, but it was found that his testimony would not have supported appellant‘s alibi defense. The witness testified at the post-trial hearing that he was not with appellant at the time of his arrest and that he had told appellant prior to trial that he “couldn‘t lie” and would not provide an alibi for appellant.
Appellant‘s misidentification argument revolves around trial counsel‘s decision to introducе appellant‘s green jacket into evidence based upon appellant‘s representation that there was no design on the back of the jacket, but without conducting an examination of the jaсket herself. The decision to
Accordingly, the trial court‘s order denying appellant‘s motion to vacate is
Affirmed.
BELSON, Associate Judge, concurring:
I concur, but I cannot join in the opiniоn of the court because I do not agree that appellant fairly can be held to have waived a claim of double jeopardy. The double jeopardy issue here involves merger of offenses. The legal analysis in merger is subtle and complex. It seems unreasonable to hold that appellant intentionally relinquished a known right or privilege. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Indeed, controlling case law in this jurisdiction at the time of appellant‘s trial suggested that a double jeopardy claim would not lie in a case like appellant‘s where one was convicted of both grand larceny and unauthorized use of a motor vehicle and concurrent sentences were imposed. See Evans v. United States, 98 U.S.App.D.C. 122, 123, 232 F.2d 379, 380 (1956).
The cases cited by the majority for the proposition that a claim of double jeopardy cannot be raised for the first time on appeal are distinguishable. In them, the claim arose either when there were successive prosecutions for the same offense, Mason v. United States, D.C.App., 346 A.2d 250, 252 (1975); United States v. Scott, 150 U.S.App.D.C. 323, 324, 464 F.2d 832, 833 (1972), or when a trial was resumed after a motion for judgment of acquittal had been granted. In re J. A. H., D.C.App., 315 A.2d 825, 827 (1974).1 Moreovеr, this court has recognized a double jeopardy claim based upon merger of offenses when the claim was raised for the first time on appeal. Ball v. United States, D.C.App., 429 A.2d 1353 (1981).
Although I conclude that there was no waiver, I agree with the majority that we should not consider double jeopardy or merger. Appellant did not raise, either in the trial court or on this appeal, any such claim in connection with the fact that he was convicted аnd sentenced concurrently for both grand larceny and unauthorized use of a motor vehicle. The issue was addressed in oral argument only as the result of an inquiry by the court communicated to counsel by the clerk рrior to the day of oral argument. Considering all the circumstances, including the fact that any collateral consequences to appellant are diminished by reason of his already being subject to sentenсing as a repeat offender, I feel we should decline to address the matter in the exercise of our discretion. See Foster v. United States, D.C.App., 290 A.2d 176, 177 (1972), and cases cited therein.