*1 Appellees urge p. lawyer representing appel- that the number of the [Brief 9] reading 101(a)(8) correct of section is: lant who was a D.C. Bar member. [R. 14] The record contains letter also Initially, attorney the [R. must file 49] praecipe representing appellant law firm containing the re- information quired which copy accompanied complaint under the Rule when it and serve praecipe presented on this was filing. Court’s Commit- for The letterhead listed, others, tee on Unauthorized among Practice. Once attorneys the two praecipe, signed which must also be represented appellant expressly who counsel, served, local has been filed and noted that one of them was a of member attorney may the out-of-state file then the D.C. Bar.5 case, pleadings papers and other gov- recognized have that “the rules provided signa- such documents bear erning appearance of withdrawal [Emphasis ture of local counsel. added.] designed promote counsel are rather However, 101(a) note we that Rule than frustrate the of interest fundamental appearing state that an attorney behalf justice,” Urciolo, 287, Urciolo v. complainant of a in good who is a member (D.C.1982). Under the circumstances standing anof out-of-state bar must first persuaded we are that the trial court had praecipe pleadings. file a before he can file entry effect appearance by an a D.C. Therefore, persuaded we are not that Rule Bar member on behalf of at the 101(a)(3) required the trial court to con- presented complaint time he to the clerk clude appellant’s complaint was defective filing. appellant’s and hence dismiss action as out judgment We reverse the and remand of time. may case so that action be We are mindful of govern the need to reinstated. appearance practice attorneys in our So ordered. court who are not members of the D.C. Bar. Brookens v. Committee on Unau Law, 1120,
thorized Practice 538 A.2d (D.C.1988). There, we noted that in pro appearance case of a hac vice “the contemporaneous entry appearance of an by a member the District of Columbia required.”
Bar is at 1124 Id. n. 12.4 Here, the record does not contain an WOODWARD, Appellant, Earl J. entry-of-appearance form attorney representing appellant who was a member STATES, Appellee. UNITED However, of the D.C. Bar. the record re- flects that the trial court did receive notice No. 92-CF-295. complaint presented at the time the Appeals. District of Columbia Court of filing the clerk complainant that the represented by attorneys, two one of 12, Submitted Feb. 1993. whom was a member of the D.C. Bar and 21, Decided 1993. June the other a member of the bar of the Supreme Court of Illinois. [R. 11]
The clerk of the trial court prepare did
information sheet that listed the D.C. Bar Also, attorney Opposi- a case be dismissed if an of Plaintiffs Motion Nunc Pro Tunc in 4. engages practice Dismiss, in unauthorized of law in this tion to Defendant’s Motion to as well jurisdiction. Associates, J.H. Marshall & Inc. v. Appeal. aas Notice of Enclosed in the former Burleson, (D.C.1973). receipt Express motion was a from Federal indi- cating initially complaint that the filed with attorney representing appel- 5. We note that the May the clerk’s office on 1991. [R. 44] lant who is a member of the Bar D.C. has filed a delivery receipt Support record of Evidence in *2 Atty., F. Asst. U.S.
Edward McCormack Atty. Jay Stephens, with B. U.S. whom filed, the time the brief and John R. was Fisher, Thomas C. and G. Hor- Black John an, DC, Washington, Asst. Attys., brief, on the appellee. were ROGERS, Judge, Before and Chief KING, Judges. TERRY and Associate KING, Judge: Associate possession Appellant was convicted cocaine, intent to distribute viola- with 33-541(a)(l) (1989). tion of D.C.Code On § (1) his appeal, appellant contends that: due rights process were violated when him to call court denied already government witness testi- who by his fied and cross-examined coun- been sel, (2) by failing and the trial court erred him inquiry of to make an on-the-record knowing, that he had intelli- ensure made voluntary gent and decision not contentions, affirm. reject both
I. government’s revealed that
The evidence appellant Robinson observed Officer appeared craps game what Streets, S.E., of 23rd and corner Savannah early 1991. Offi- morning of June then location cer Robinson left that ob- returned tain assistance. When Robinson officers, appellant other he observed with and start box from his sock take a Sucrets Similarly, Ruiz testified running. Officer object appellant he saw take a white ground pants place it on from Appellant running from the area. before throwing money as he also observed was box, which contained The Sucrets ran. cocaine, bags with ziplock filled small King within 45 recovered Officer James appellant’s departure seconds of appre- ultimately Appellant scene. Driver, ap- pursued hended Officer who (on motorcycle) after Driver was pellant appellant had by Robinson that informed appeared to be contraband. discarded what he did not him- Reiter, VA, testified that Arlington, was on Driver David H. Officer contraband, appellant appellant. self see discard brief peaching testimony prior with a incon that he first as saw running Impeachment statement. of this from the scene. sistent nature, however, proper during is cross- testify. The did not defense of the witness but not examination witness, single called a who testi- examination. direct See Fletcher v. United present during craps fied that he was *3 States, (D.C.1987)(impeach 524 A.2d game. The witness further testified that “strictly party’s ment of a own witness is arrived, police appellant grabbed the when the wit limited” to the situation where and, money craps game along the party by “sur testimony ness’s takes the people, a ran from with number of other prise”). appellant seeking to What he the area. The witness also testified that further cross- accomplishwas no more than sight appellant appel- never lost and that Driver; examination of Officer and a trial any object lant neither removed from his deciding in court has broad discretion placed anything ground. sock nor party reopen whether to allow a to cross- rested, government After the examination. This court reverse a trial will counsel informed the trial court that he reopen decision a court’s not to allow Driver, intended to call Officer the officer only cross-examination for an abuse of dis apprehended appellant, who had and who cretion. See Coleman v. United previously during govern- testified the (D.C.1986), ment’s case-in-chief. Government counsel 481 U.S. 95 L.Ed.2d S.Ct. objected, stating that it seemed to be a (1987). appellant given Since the attempt “second of cross-examination of opportunity to cross-examine the witness Officer proffer Driver....” After a testified, sought when the witness first and requested, explained defense counsel that only impeach testimony to further that he believed that testimony Officer Driver’s own, calling when his witness as in day court that differed from his testimo- trial court did not its discretion in abuse ny during previous appearance a denying appellant opportunity to recall same case. Specifically, proffered counsel Singletary witness. See that Driver had earlier testified that when (D.C.1978) he entered the area craps game, he (“once party opportunity a has had an sub appellant observed package take a out of stantially right to exercise the of cross- sock, his place ground, it on the and start examination, the extent of further cross- running. questioned by When the trial examination is within the sound discretion why court impeached he had not the officer court”) (citations omitted). of the trial with this during information cross-examina- tion, counsel conceded that he should have III. so, explained
done but that he wanted to thoughts confirm his with the actual tran- Appellant also contends that he is script. The trial gov- court sustained the hearing entitled to a judge before the trial objection, ruling ernment’s appel- that what in judge order for the to determine whether sought lant to do was not direct examina- knowing voluntary he “made a waiver tion, anything and that is not that “[t]his right testify.” Specifically, appel his to you should call him in your own Boyd lant claims that case....” (D.C.1991), requires A.2d 670 that a trial judge engage in an on-the-record
II. non-testifying with a defendant in order to knowing contends that his due ensure that the defendant made process rights intelligent were violated when the trial waiver of his to testi court him fy. reject appellant’s denied to call contention for First, Officer Driver as own witness. We reasons. two has never disagree. By knowingly defense counsel’s own admis claimed that he did not waive sion, being second, Officer Driver was testify, called as to this court defense purpose witness for the of im- has never held that the trial court has a however, adopting the sponte ings, to make an on-the-record we are not Instead, simply hold-
inquiry to determine if a defendant waived demand rule.
arewe
right.
ing
properly
that
that a defendant
raise
must
point
the issue
non-waiver at some —not
A review of the
that at no
record reveals
necessarily during
trial —before the
during
appellant express
time
trial did
required
perform
court will be
court a
testify.
the trial
desire to
Similar-
the defendant has
ry to determine whether
ly,
post-trial
are no
there
motions in
adequately
testify.
waived his
record in which
that he
appellant claimed
at 676-77.
id.
did not waive his
The
contain,
four-page
record does
Here, appellant
any
did not claim
prior
judge,
letter written to the trial
post-trial mo
time
stated,
sentencing,
in which
court,
tions, or
in his
even
brief
*4
“[y]es
guilty,
I
found
but that
to be
right
knowingly
he did not
his
to
waive
guilty.”
not mean I
The remain-
does
testify. Where a
has made no
defendant
appellant’s eco-
explains
der of the letter
court, we
claim of non-waiver in the trial
circumstances,
family
nomic and
and is ba-
obligated
are not
to consider
asserted
sically request
leniency. Despite
a
part
judge
trial
to
failure
of the
so,
to do
never
inquiry.
Kelly
make an
v.
See
United
in the
to
claimed
letter that he desired
(D.C.1991) (trial
A.2d
590
1031
trial,
testify
prevented
at
or
he
that
addressed
defendant waived
court
whether
doing
from
so.
testify
right
his
to
when defendant raised
during
post-trial hearing
a
for a
the issue
Moreover, appellant
in
does not claim
trial);
new
Hunter
588
knowingly
this court that he did
waive
not
(trial
(D.C.)
a
A.2d 680
court conducted
right
testify. Acknowledging
his
to
that
hearing
filed a motion
after
defendant
he did not make
on-the-record demand to
to vacate and for
trial under D.C.Code
new
behalf,
argues
testify
on his own
(1989)in
alleged
23-110
which defendant
§
in
that
may
his brief
“a
be
defendant
right
voluntarily
that he did not
waive his
that he or
a constitutional
unaware
she has
—
trial),
denied,
testify at
U.S.
to
added).
right
testify”
to
He also
(emphasis
-,
(1991);
112
210
S.Ct.
116 L.Ed.2d
argues
if he
required
that
were
to demand
(when the
Boyd, supra,
victed that were either or misinformed concerning their testify. Our re- authorities, however, view of the persuade us that we should mandate an on- long
the-record
so
appropri-
as an
inquiry
ate
is made once the defendant
post-conviction
raises a
challenge
based
NORTHBROOK INSURANCE
a claimed
denial of the
testify.
See
COMPANY, Appellant,
Boyd, supra,
time, including appeal, that he was denied 20, Argued May 1993. testify at his this court Decided June 1993. has no occasion to hold that the trial court had a sponte to conduct
ry into whether or not waived his See Banks v. Ferrell, 55-56 & n. Kelly See, 1031;
1.
In neither
e.g., Kelly, supra