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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 01-CF-1091, 01-CF-1106, 03-CO-1490, and 03-CO-1569
D YRELL G AMBLE, A PPELLANT
v.
U NITED S TATES, A PPELLEE
Appeals from the Superior Court
of the District of Columbia
(F-5298-00, F-7642-98)
(Hon. Russell F. Canan, Trial Judge)
(Argued February 3, 2005
Decided June 15, 2006)
Kenneth H. Rosenau, appointed by the court, for appellant.
John C. Einstman, Assistant United States Attorney, with whom Kenneth L.
Wainstein, United States Attorney, John R. Fisher, Assistant United States Attorney
at the time the brief was filed, and Roy W. McLeese, III, Robert C. Little, and
Carolyn K. Kolben, Assistant United States Attorneys, were on the brief, for
appellee.
Before R EID and G LICKMAN, Associate Judges, and T ERRY, Senior Judge.*
*
Judge Terry was an Associate Judge of the court at the time of argument.
His status changed to Senior Judge on February 1, 2006.
2
T ERRY, Senior Judge: Appellant Gamble was convicted of first-degree
murder while armed, possession of a firearm during a crime of violence (“PFCV”),
and two counts of carrying a pistol without a license (“CPWL”).1 On appeal he
makes several assignments of error. He contends that the trial court violated the
Monroe-Farrell doctrine 2 by failing to take adequate precautions before trial to
ensure the effective assistance of counsel. Second, he argues that his pre-trial
motion to suppress evidence was wrongfully denied. Appellant also makes several
claims of plain error based on various evidentiary rulings by the trial court:
admitting alleged hearsay statements at the suppression hearing, permitting a witness
to testify about appellant’s prior possession of a gun, and preventing a defense
witness from testifying that a government witness was a police informant (to show
that the government witness was biased). Finally, appellant contends that the court
erred in denying his motion to vacate sentence under D.C. Code § 23-110 (2001),
based on a claim of ineffective assistance of counsel.
We reject all of these
1
The second CPWL charge was brought in a separate indictment, filed some
time after the original indictment. It was based on the fact that appellant had a gun
in his possession when he was arrested three days after the murder. Shortly before
trial, on the government’s motion, the two indictments were consolidated, and a
count in the first indictment charging possession of cocaine was dismissed.
2
See Monroe v. United States, 389 A.2d 811 (D.C. 1978); Farrell v. United
States, 391 A.2d 755 (D.C. 1978).
3
contentions and affirm both the judgments of conviction and the denial of the §
23-110 motion.
I
A. The Government’s Evidence
One day in early October 1998, Edward McCoy handed appellant Gamble
ten “ziplock dime bags” of crack cocaine to hold for him temporarily because
McCoy had plans to “see a female” and did not wish to be found with drugs in his
possession in case of a police stop. McCoy testified that he “thought [he] could
trust” Gamble, but when McCoy returned about an hour later to retrieve the drugs,
Gamble was gone.
Several days later, Davinia Simmons, a friend of both Mr. Gamble and
Kareem Holland (the eventual murder victim), was standing at the corner of 10th
and N Streets, N.W., when Gamble walked over to her and, referring to Holland,
said that he was “going to kill that [man].”
When she asked why, Gamble’s
expletive-laced reply mentioned that Holland kept “harassing him . . . about [the]
drugs” he had received from McCoy.
4
A couple of days later, Edward McCoy and William Childs heard Holland
tell Gamble that he had to pay for the unreturned drugs.3 Ms. Simmons also saw
Holland “pushing [Gamble] up the street.” Later, when she asked Mr. Gamble why
he was “letting that [man] push you like that,” Gamble replied, “Don’t worry about
it. I got this.” He went on to explain that he allowed Holland to push him only
because he did not have his gun with him at the time.
In the early morning hours of October 20, at about 3:00 a.m., McCoy and
Holland were walking along N Street near 11th Street when a car pulled up, and
Gamble got out. McCoy confronted Gamble and told him to “stop dodging and
ducking” and to repay him for the bags of cocaine. Gamble replied that he did not
know McCoy was going to be “out here.” McCoy and Holland then walked away,
but Gamble followed behind them. As they approached an intersection, McCoy
heard a shot. Quickly he turned around and saw Gamble, holding a silver pistol with
a black handle in his right hand, standing over Holland, who was lying on the
3
The testimony does not reveal where this conversation took place, but it
appears that there were several other persons present.
5
ground.4 McCoy watched as Gamble walked away, concealing the pistol behind a
bottle of beer that he was holding in his left hand.
A deputy medical examiner later testified that Holland died within “a couple
of minutes” after being shot, and that the cause of his death was a gunshot wound to
the head.
The next day, October 21, McCoy went to see Ms. Simmons and told her
that Holland had been shot. On October 22 she encountered Mr. Gamble on the
street and asked why he “wasn’t at the Greyhound or the Dulles Airport.” Gamble
responded, “I’m not worried about [those men],” and opened his coat to reveal two
pistols, one of which was silver. On October 23 William Childs ran into Mr.
Gamble and asked him, “What’s up?” Gamble replied, “I got my man.” Childs
testified that Gamble appeared proud of killing Holland.
That same day, Ms. Simmons was walking in the neighborhood when she
saw “some guys” who were “talking about killing” Mr. Gamble. Ms. Simmons
4
McCoy also stated that he had seen Gamble with this same pistol a few
weeks earlier.
6
decided to go to the police and tell them what she knew. She spoke with Detective
Bret Smith, who was in charge of the investigation, and explained that her motive in
identifying Gamble as Holland’s killer was to keep Gamble from being killed.
Several hours later, around 4:00 in the afternoon, Ms. Simmons saw Mr.
Gamble walking along 11th Street, N.W. She entered a liquor store where she
thought she might find a police officer. Inside the store she recognized off-duty
Officer Ricky Hammett and approached him for help. Officer Hammett already
knew about Holland’s murder, so together he and Ms. Simmons drove around the
neighborhood in the officer’s car until they caught sight of Gamble. The officer
promptly called for assistance, and additional officers soon arrived in a police car.
Hammett and Officer Christopher Myhand then approached Gamble, who by then
had entered a barber shop, and told him to place his hands on the wall. When
Officer Myhand felt a pistol while patting him down, both officers together
handcuffed him. Myhand then reached into Gamble’s coat pocket and seized a .380
caliber pistol.
A police firearms expert testified that the recovered gun was test-fired and
found to be operable, and that a bullet from the test-firing was a match to the bullet
recovered from Holland’s head.
7
B. The Defense Evidence
William Jenkins, who had been previously incarcerated with McCoy,
testified that he once overheard McCoy tell another inmate that he was “high” on
drugs on the night of the shooting “and he [didn’t] really know what happened.”
Another inmate, James Parker, related a similar conversation with McCoy.5
Two other defense witnesses gave testimony that called into question Ms.
Simmons’ credibility. One of these witnesses, Ronnie Coley, testified that he was
near the scene of the crime, and that a few seconds after the shooting he saw a “real
tall” man running away from the scene with a shiny object in his hand. Coley said
he did not see Mr. Gamble running.
II
Mr. Gamble was initially represented by appointed counsel from the Public
Defender Service, who withdrew from the case on February 26, 1999. Sharon Styles
5
Later, in rebuttal, the government presented testimony from Detective
Gregory Sullivan, who interviewed Mr. McCoy immediately after the shooting. He
stated that McCoy was “very quiet” and “very morose,” but that he answered all
questions clearly and coherently. Sullivan concluded that McCoy might have been
drinking earlier, but “he did not appear intoxicated.”
8
Anderson entered her appearance as retained counsel a week later, on March 5. By
letter dated December 22, 1999, investigator Joseph Aronstamn, originally retained
by Ms. Anderson, informed Mr. Gamble that as of November 16 he had ceased all
investigatory activities because of an overdue balance of approximately $3100. The
letter stated that “many valuable defense witnesses who could potentially help in
your case may be lost permanently.” Mr. Aronstamn also said in the letter that he
would not release signed statements or reveal the identities of six potentially
exculpatory witnesses.
On February 4, 2000, just three weeks before what was then the scheduled
trial date, Ms. Anderson filed a motion to withdraw as counsel. Despite “a number
of continuances” that had already occurred, the court granted the motion. Kenneth
Page then entered his appearance, and the trial date was continued into the fall.
After further continuances, the case finally went to trial in January 2001, and
appellant was found guilty as charged. Sentencing was scheduled for March 8 but
was later continued until May 18. Shortly before that date, Mr. Page was allowed to
9
withdraw from the case because he had recently moved to New York. Another
attorney was appointed to represent appellant at sentencing.6
Appellant argues that the trial court failed to take the pre-trial precautions
required by the Monroe and Farrell line of cases to prevent ineffective assistance.
An obvious difficulty with this argument is the fact that appellant never made the
pre-trial challenge necessary to trigger the court’s obligation to conduct a MonroeFarrell inquiry. But even if he had raised the issue in a timely manner, appellant
was not prejudiced, because the trial court effectively granted the precise relief
required by Monroe and Farrell — a searching inquiry and an opportunity to obtain
new counsel — which appellant unequivocally rejected.
The standard for assessing a post-trial claim of ineffective assistance of
counsel has been set forth in myriad cases in this and other courts, most notably
Strickland v. Washington, 466 U.S. 668 (1984). However, when a defendant asserts
a claim of ineffective assistance before the trial begins, traditional post-trial
concerns are “absent, or certainly less compelling,” Monroe, 389 A.2d at 819, and
“different considerations prevail.” Id. at 818. Nevertheless, a pre-trial complaint
6
He is represented on appeal by a new attorney appointed by this court.
10
about counsel’s performance triggers the court’s “constitutional duty to conduct an
inquiry sufficient to determine the truth and scope of the defendant’s allegations.”
Id. at 820; see Farrell, 391 A.2d at 761 (finding error in denial of pre-trial motion
for new counsel without conducting an inquiry). While the court must refrain from
ruling on the claim merely on the basis of the defendant’s “naked request,” the
precise scope of inquiry will depend on particular circumstances and the court’s
sound discretion. Monroe, 389 A.2d at 821.
Appellant asserts in his brief that “[c]learly, [the trial court] recognized the
Monroe-Farrell issue . . . [and] found that a violation of Monroe-Farrell was
occurring . . . [but] failed to provide a sufficient remedy beyond an oral reprimand.”
We think he reads too much into the court’s remarks at the pre-trial hearing and
misconstrues the applicability of Monroe-Farrell.
On September 18, 2000, a scheduled trial date, an extensive exchange
occurred between the court and defense counsel Page after counsel urgently
requested a “last-minute continuance.” Given the abrupt nature of the previous
attorney’s withdrawal, the trial court expressed doubts about the performance of that
former attorney:
11
I must say that this . . . is disgraceful. There’s no other
way around it. . . . [Ms. Anderson’s] conduct in leaving the
case without the Court’s permission and leaving the case up
in the air . . . and just doing absolutely nothing and then just
coming — see, Judge, I got a new job, I’m out of here,
which is basically her attitude . . . and quite frankly, I
considered then referring her to Bar Counsel, I was so upset
with the way, the cavalier way she defended this case.7
The court’s remarks also reflected great frustration with the case generally:
[T]he Court has an independent obligation to make sure that
these cases go to trial. This case is two years old. There’s
been a whole litany of continuances, and it’s just
disgraceful. . . . [T]his is a first-degree murder case, and as
far as I can see, Mr. Gamble’s rights are not being protected
....
However, contrary to appellant’s contention, the trial court never explicitly
recognized the applicability of the Monroe-Farrell principles to the instant case.
The court’s oblique reference to the court’s “independent obligation to make sure
that these cases go to trial,” which appellant cites in support of his assertion, cannot
reasonably be read as an invocation of the Monroe-Farrell standard.
7
Apparently, however, the court never referred the matter to Bar Counsel.
12
Appellant therefore misconstrues the record when he claims that “once the
incompetence was identified, there was an obligation [for the trial court] to correct it
by finding adequate counsel for Mr. Gamble.” We have repeatedly held that the
need for a Monroe-Farrell inquiry is limited to cases in which a defendant has raised
a specific pre-trial challenge to the effectiveness of counsel. See, e.g., Mills v.
United States, 796 A.2d 26, 28 (D.C. 2002) (“In Monroe we held that: ‘When a
defendant makes a pretrial challenge to the effectiveness of counsel . . . ’ ”); Garrett
v. United States, 642 A.2d 1312, 1314 n.1 (D.C. 1994) (“Under . . . the
Monroe/Farrell rule, when an accused raised pretrial claims of ineffective assistance
. . . ”); Bass v. United States, 580 A.2d 669, 670 (D.C. 1990) (quoting Monroe). The
record before us here reveals that appellant never claimed, before trial, that his
attorney was deficient — and thus the court’s “special duty” under Monroe and
Farrell to conduct an inquiry was not triggered.
But even if appellant had successfully presented a proper Monroe-Farrell
claim, the court’s subsequent discussion at the hearing on September 22, just four
days later, would nullify, or at least render harmless, any prior failure to undertake a
searching inquiry. See Monroe, 389 A.2d at 823. After admonishing appellant’s
former and then-current defense counsel for their poor case management, the court
repeatedly asked appellant whether he would like a new attorney:
13
T HE C OURT: Now, Mr. Gamble, you’ve heard all this,
all right. And if you want Mr. Page now — it seems like
things are in place now to get your case finally ready for
trial almost two years after you’ve been locked up here. If
you want Mr. Page to stay — and you’ve heard all this on
your case — that’s fine. If you want a new lawyer, I
suppose you can get a new lawyer. What is your decision,
sir?
T HE D EFENDANT: I want to keep Mr. Page.
T HE C OURT: You’re satisfied with his services?
T HE D EFENDANT: Yes, sir.
T HE C OURT: You understand that I’ve been very frank
with my criticism as to why all the people working for you
have let you down in some way. You understand that, sir?
T HE D EFENDANT: Yes, sir.
In McKenzie v. United States, 659 A.2d 838 (D.C. 1995), we held that
“[w]hen a defendant makes complaints that might trigger a full Monroe-Farrell
inquiry, but later tells the court that he is now satisfied with his counsel or no longer
desires new counsel, the court need not continue further into the matter.” Id. at 840
(citation omitted). We see no material difference between McKenzie and this case.
Moreover, at the September 22 hearing the court offered appellant the only relief
that a favorable Monroe-Farrell ruling would have provided, namely, an opportunity
to obtain new counsel — which appellant flatly rejected (“I want to keep Mr.
14
Page”). The court then continued the case for trial until the following January,
giving Mr. Page ample time to prepare. We hold accordingly that appellant would
not have been prejudiced even if he had properly presented and preserved a MonroeFarrell claim.
III
Next, appellant contends that the trial court improperly denied his motion to
suppress the gun that was seized during what he regards as an unlawful stop. He
argues that the police, alerted only by Ms. Simmons’ “surmises or gossip,” did not
have “articulable suspicion” to conduct an investigative Terry stop.8 He also argues
that “what occurred inside the barber shop was an arrest . . . not a Terry stop, and
[that] the trial court committed reversible error in not finding it to have been an
arrest without probable cause.”
We disagree and hold that the officers had
reasonable suspicion to conduct a Terry stop and frisk. Once they found a gun in
appellant’s pocket, they had probable cause to arrest him. See Nixon v. United
States, 870 A.2d 100, 105 (D.C. 2005) (defendant’s statement, during a Terry stop,
8
See Terry v. Ohio, 392 U.S. 1 (1968).
15
that he had “one little bag” in his possession gave police officer probable cause “at
that instant” to arrest him for drug possession and search his person).
“Our review of the trial court's disposition of a motion to suppress ‘is
limited.’ ”
White v. United States, 763 A.2d 715, 719 (D.C. 2000) (citations
omitted). “We must defer to the trial judge's findings of evidentiary fact . . . and
view all reasonable inferences therefrom . . . in favor of sustaining the trial court
ruling.” Id. (citations and internal quotation marks omitted). “Essentially, our role
is to ensure that the trial court has a substantial basis for concluding that no
constitutional violation occurred.” Thompson v. United States, 566 A.2d 57, 60
(D.C. 1989) (citation omitted). Any ruling on an issue of law, however, is reviewed
de novo. White, 763 A.2d at 720.
Furthermore, “[t]he trial court’s determination as to whether the officer had
reasonable suspicion . . . is a mixed question of law and fact.” Umanzor v. United
States, 803 A.2d 983, 991 (D.C. 2002) (citations omitted). We must examine the
totality of circumstances surrounding the seizure under the well-established standard
set forth in White (and many other cases):
A police officer must have a reasonable, articulable
suspicion that criminal activity is afoot before that officer
16
lawfully can stop (or seize) an individual without that
person's consent. In that regard, the Fourth Amendment
requires some minimal level of objective justification for
making the stop. Thus, it is insufficient for a police officer
to merely articulate an inchoate and unparticularized
suspicion or hunch.
White, 763 A.2d at 720 (citations and quotation marks omitted); see also Umanzor,
803 A.2d at 991-992. The information known to Officer Hammett in this case went
well beyond anything that might be called a hunch or an “unparticularized
suspicion.”
Officer Hammett’s involvement began when a woman he had known for
many years, Ms. Simmons, unexpectedly came up to him when he was off duty with
the tip that the person responsible for Mr. Holland’s murder was nearby. She
approached Officer Hammett on her own and specifically asked whether he was
familiar with “the homicide at 11th and O [Streets] a couple of days ago.” When
Officer Hammett replied that he was, she told him that “the guy who did the
shooting is around the corner.”
This court has often recognized that “a citizen informant, particularly one
who identifies herself, is a ‘more credible source than a paid police informant.’ ”
Davis v. United States, 759 A.2d 665, 670 (D.C. 2000). By “identifying herself,
17
[Ms. Simmons] exhibited a willingness to be held accountable for the information
she had provided the police.” Parker v. United States, 601 A.2d 45, 49 (D.C. 2000).
Moreover, when she pointedly asked Officer Hammett whether he was aware of the
recent homicide, her account gained credibility. As the trial court stated:
There was a witness who purported to . . . know about the
homicide, and . . . directly that there was a homicide on 11th
and O several days before the event. So there clearly was a
homicide involved, with a shooting, obviously the most
serious crime that we know, and that involved . . . a firearm
of some sort.
In light of Ms. Simmons’ communication to Officer Hammett, the trial court held,
and we agree, that the police had a “reasonable articulable suspicion” to stop and
frisk the man “around the corner” that she was talking about.
Officer Hammett and Ms. Simmons then drove around the neighborhood
looking for that man. After she spotted him, the officer tailed appellant while
calling his dispatcher on the radio with a request for backup assistance, and also to
confirm that she had contacted the police earlier that day. In addition, Officer
Hammett spoke with Detective Smith, who corroborated Ms. Simmons’ story that
she had previously gone to the police and implicated appellant in the shooting of Mr.
Holland. Moments later Officer Hammett saw a group of young men on the street,
18
and Ms. Simmons again identified appellant as one of those men. Thus, as the trial
court emphasized, the “critical evidence” was known to the police before appellant
was stopped.9
Officer Hammett’s requested backup assistance approached quietly. When
the first police car arrived, Officer Hammett had already parked his own car out of
sight of appellant and his friends and was walking down the street toward the barber
shop, where the other young men were also congregating. He directed the police car
toward them, and it pulled in front of the barber shop. As that car was being parked,
Officer Hammett walked toward the shop, displaying his police badge, which was
on a chain around his neck (apparently because he was off duty and not in uniform).
Upon seeing the officers approaching, appellant separated himself from the group,
entered the barber shop, and took a seat. Officer Myhand then got out of the police
car and joined Officer Hammett on the sidewalk, and together they entered the
barber shop. Contrary to appellant’s claims, the testimony shows that only Officers
9
As the government states in its brief, at this point the police had reasonable
suspicion based on “the fact that (1) a known citizen gave Officer Hammett a faceto-face report that appellant had told her that he killed Holland; (2) Officer Hammett
confirmed that she had previously provided the same or similar information to the
detective in charge of the investigation; (3) the citizen was concerned enough to
accompany the officer while he searched for appellant; and (4) the citizen reported
that she had just seen the killer around the corner.”
19
Hammett and Myhand entered the barber shop while another officer remained
standing near appellant’s friends outside; furthermore, no weapons were ever
drawn.10 The officers asked appellant to stand up and place his hands on the wall.
When he did so, Officer Myhand frisked him and found a gun in his pocket. That
discovery gave the police probable cause to arrest appellant.
Given the facts available to the officers “at the moment of seizure,” we hold
that they were warranted in the “reasonable suspicion” that appellant was connected
with the recent homicide of Kareem Holland. See Umanzor, 803 A.2d at 992. The
trial court was of the same view:
[T]he critical question in these kinds of cases is, in light of
the totality of the circumstances, when viewed from the
perspective of a prudent and experienced police officer, was
the degree of force deployed . . . necessary to neutralize the
potential for harm here.
In these circumstances, it seems to me that the police
had reasonable articulable suspicion that Mr. Gamble was
involved in the homicide. . . . [A]nd understanding that the
homicide involved the use of a firearm, it was certainly
10
Appellant states in his brief that “[m]ultiple officers cornered Mr. Gamble in
a small barber shop, allegedly with guns drawn.” The brief also states that “one
[officer] was supposedly set up at the door to prevent escape.” Appellant has not
cited any testimony to back up these assertions, and there is no evidence in the
record to support them.
20
reasonable to stop Mr. Gamble and make a limited inquiry
of him. The fact that the homicide involved a firearm,
certainly from a police officer’s viewpoint, it was not only
reasonable, but almost required that they not only protect
themselves, but protect others who might — particularly in a
barber shop . . . . [A]nd it would be prudent for a police
officer to, at the very least, conduct a patdown. [Emphasis
added.]
On these facts, with knowledge that an armed homicide had occurred three
days earlier and that appellant had been pointed out and identified as the shooter, the
officers had — at the very least — reasonable suspicion to conduct a patdown of
appellant.
The officers’ actions were “justified at [their] inception” and were
“reasonably related in scope to the circumstances which justified the [police]
interference in the first place.” In re D.A.D., 763 A.2d 1152, 1155 (D.C. 2000).
Viewing all the facts and inferences in the light most favorable to sustaining the trial
court’s ruling, id. at 1155, we hold that the motion to suppress was properly denied.
IV
Appellant contends that the trial court erred in three evidentiary rulings
which now entitle him to reversal of his conviction. In the trial court, however, he
failed to challenge any of these rulings, and thus we must find plain error in order to
reverse. See United States v. Olano, 507 U.S. 725, 736-737 (1993); Watts v. Unied
21
States, 362 A.2d 706, 709 (D.C. 1976) (en banc). We find no plain error in any of
the three instances; indeed, we find no error at all.
A. Alleged Hearsay Testimony
Appellant contends that at the pre-trial suppression hearing, the court
admitted certain hearsay statements during the direct testimony of Officer Hammett
as he related the circumstances surrounding appellant’s arrest.
The officer
recounted what Ms. Simmons said when she approached him as he waited (off-duty)
in line inside a liquor store, where he had gone to buy a lottery ticket. He then
described his own actions in going to look for the suspect and those of Officer
Myhand in the moments leading up to the arrest. Asserting that “hearsay includes
both words and actions of another,” appellant argues that this testimony by Officer
Hammett should have been excluded as hearsay. We disagree.
“It is fundamental that an out-of-court statement is not hearsay if it is offered
for a purpose other than to prove the truth of the matter asserted.” Perritt v. United
States, 640 A.2d 702, 704 (D.C. 1994). The testimony about what Ms. Simmons
told the officer was not offered to prove the truth of the matters asserted in those
statements; rather, it was presented to demonstrate to the court why the police had
22
reasonable suspicion to stop appellant and frisk him. Moreover, the statements
regarding Officer Myhand’s actions were merely descriptive of the investigation and
thus were not subject to a hearsay challenge. As we said in Perritt, “[e]vidence
outlining the background of an investigation is admissible as non-hearsay.” Id. at
705 (citations omitted). Appellant concedes that he never objected to this testimony,
but even if he had, such evidence is generally admissible at pre-trial suppression
hearings anyway. See Mitchell v. United States, 368 A.2d 514, 518 (D.C. 1977)
(“because the rules of evidence normally applicable in criminal trials do not apply
with full force in suppression hearings before a judge, ‘reliable’ hearsay generally
would be admissible”). No error, plain or otherwise, arose from the admission of
the officer’s testimony.
B. Prior Gun Possession
Appellant contends that the court erred in ruling before trial that the
government could elicit testimony from Mr. McCoy that he had seen appellant with
a “chrome-plated .380 [pistol] with a black handle” “a couple of weeks” before the
murder. At trial Mr. McCoy testified that at the crime scene he saw appellant
holding a gun matching the same description. Appellant did not object to the
testimony about appellant’s prior possession of the gun, either when the government
23
first announced its intention to present it or later when McCoy testified before the
jury, so we review its admission only for plain error. We find no error whatsoever.
Appellant seems to be contending that the testimony about appellant’s prior
gun possession was impermissible evidence of “other crimes.” In so contending,
however, he misconstrues well-established case law. “[A]n accused person’s prior
possession of the physical means of committing the crime” is relevant and
admissible because it offers “some evidence of the probability of his guilt.”
Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977); accord, e.g.,
McConnaughey v. United States, 804 A.2d 334, 339 (D.C. 2002); Jackson v. United
States, 623 A.2d 571, 587 (D.C. 1993). Not only was the testimony admissible, but
Mr. McCoy’s description established the “requisite link” that the gun he saw earlier
was the same gun used in the crime. See Stewart v. United States, 881 A.2d 1100,
1111-1112 (D.C. 2005); McConnaughey, 804 A.2d at 338-339; King v. United
States, 618 A.2d 727, 729-730 (D.C. 1993). Indeed, the challenged testimony in this
case was more closely connected to appellant than evidence that we have held to be
admissible in other cases.
See, e.g., McConnaughey, 804 A.2d at 338-339
(testimony of prior sighting that occurred eleven months earlier was admissible);
Johnson v. United States, 701 A.2d 1085, 1092 (D.C. 1997) (photograph depicting
gun used in crime admissible even though it was more than one year old); see also
24
Morton v. United States, 87 U.S. App. D.C. 135, 136, 183 F.2d 844, 845 (1950)
(testimony of two witnesses who saw a gun on the defendant’s bed two weeks
before the murder was admissible despite the absence of any proven connection
between that gun and the murder weapon). We find no error by the trial court in
admitting Mr. McCoy’s testimony about the gun.
C. Bias
Appellant’s third claim of plain error is that the court prevented his counsel
from questioning his own witness, Ronnie Coley, about his belief that Ms. Simmons
was a paid government informant and limited counsel’s examination only to Coley’s
awareness of her reputation for truthfulness. Appellant contends that this was an
impermissible restriction because counsel “is permitted to inquire into a witness’s
knowledge of bias that could potentially have affected [her] actions or words.”
This argument lacks merit for several reasons. First, appellant’s counsel
never characterized any of Coley’s expected testimony as relevant to any asserted
bias on the part of Ms. Simmons. Rather, counsel said that he intended to offer it to
show that, given Ms. Simmons’ “interaction and her behavior with the police in and
about the neighborhood,” it was unlikely that appellant either told her of his
25
intention to kill Mr. Holland or discussed the murder with her afterwards.11 Thus, if
appellant is merely claiming that counsel failed to argue that Coley’s testimony
(regarding Ms. Simmons’ status as an informant) was admissible to show bias on her
part, then that contention is better understood as an ineffective assistance claim.
Because appellant did not raise this objection either at trial or in his § 23-110
motion, it would now be barred, for a party cannot raise new claims of
ineffectiveness on appeal that were not first raised in the trial court. See McKenzie,
659 A.2d at 840 n.5; Young v. United States, 639 A.2d 92, 97 n.8 (D.C. 1994); Jones
v. United States, 512 A.2d 253, 259 n.8 (D.C. 1986).
In any event, counsel asked Ms. Simmons on cross-examination if she had
ever been a police informant, and she responded that she had not been. In light of
that response, the government contends that Coley’s testimony regarding Ms.
Simmons was nothing more than impeachment testimony.
Defense counsel,
however, stated during a bench conference that Coley’s testimony was not intended
for impeachment. “An ‘impeachment witness,’ by definition, includes one who will
11
At a bench conference, counsel stated that Mr. Coley “is aware that she used
to be a police informant. He is aware of that.” Appellant’s brief, however, states
that although Coley did not believe that Simmons was a paid police informant at that
time, he could have testified that “she is considered to be untrustworthy and has
been known to affiliate with the police.”
26
testify that the adversary’s witness has made a prior inconsistent statement, and is
therefore less worthy of belief than if she had testified consistently.” R. & G.
Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 537 (D.C.
1991). Therefore, if Coley’s statements necessarily amounted to impeachment
testimony despite counsel’s stated intention otherwise, the trial court’s ruling was
correct because, with limited exceptions,12 a party may not introduce extrinsic
evidence to impeach a witness on collateral issues. See Washington v. United States,
499 A.2d 95, 101 (D.C. 1985) (citing cases).
Moreover, in an abundance of caution, the court on several occasions asked
counsel to proffer facts showing that Ms. Simmons was a police informant, even
stating, in one instance, “If you have got a specific proffer, then I will probably
allow that.”
Without a proffer capable of meeting this minimum threshold,
however, the court would not permit any questions about Ms. Simmons’ informant
status (assuming she was an informant, which was never really proved) because “it
is very prejudicial.” On this record we find no error in the trial court’s limitation of
Mr. Coley’s testimony.
12
See Patterson v. United States, 580 A.2d 1319, 1322-1323 (D.C. 1990) (trial
court has discretion to allow impeachment on collateral issues “provided [the
evidence] has sufficient bearing on the issues which the trier of fact must resolve”).
27
V
Finally, appellant maintains that he was denied the effective assistance of
counsel because his retained attorney “failed to pursue potentially crucial witnesses
and evidence” during the three-and-one-half-month period following the September
22 hearing, at which appellant told the court that he “want[ed] to keep” that attorney.
He focuses his attention on counsel’s alleged failure to pursue six supposed
exculpatory witnesses.
To establish ineffective assistance, appellant must show both deficient
performance and prejudice that produced errors “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington,
466 U.S. 668, 687 (1984). The deficient performance prong requires a showing that
counsel’s conduct fell below a standard of “reasonableness under prevailing
professional norms.” Id. at 688. Because of the difficulty inherent in making such
an evaluation, Strickland and other cases have recognized a strong presumption that
counsel’s conduct was within the wide range of reasonable professional assistance.
Appellant therefore “must overcome the presumption that . . . the challenged action
‘might be considered sound trial strategy.’ ” Id. at 689 (citation omitted). We must
also take into account counsel’s entire performance throughout the trial, not simply
28
an isolated act or omission. Brewer v. United States, 609 A.2d 1140, 1142 (D.C.
1992), cert. denied, 506 U.S. 1068 (1993). To establish prejudice, the second
Strickland requirement, appellant must demonstrate that a “reasonable probability”
exists — sufficient to “undermine confidence in the outcome” — that “the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. Appellant
fails both parts of the Strickland test.
A. Deficient Performance
After holding a two-day evidentiary hearing on appellant’s § 23-110 motion,
the court denied it, finding that counsel was “certainly a vigorous advocate for the
defendant” at trial. Upon considering the totality of counsel’s performance, the
court concluded:
He made certainly an acceptable opening statement and
closing argument. He forcefully cross-examined witnesses.
He competently litigated pretrial motions, including to
suppress evidence, statements, and I believe identifications.
He objected at appropriate times. He clearly called a
number of witnesses, four witnesses. He presented in my
view during the trial itself a professional and competent
defense on the face of it.
29
Addressing appellant’s allegations about counsel’s pre-trial failure to interview
potentially exculpatory witnesses, the court ruled that the motion “must be rejected”
because insufficient evidence had been “unearthed” after trial to support those
allegations. Specifically, there was no evidence that the two witnesses who testified
at the § 23-110 hearing (Barringer and Sheffield) ever communicated their
knowledge to counsel13 or that the “six . . . valuable and potentially exculpatory
witnesses” discussed in appellant’s brief even existed. The court also expressed
doubts about the credibility of the two testifying witnesses, and we must defer to
those determinations.14 See, e.g., Barnes v. United States, 760 A.2d 556, 559 (D.C.
2000) (citing Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992)).
Moreover, there was no evidence that these witnesses’ information, even if true,
could reasonably have been discovered by the defense before or during trial.
13
The court had “serious questions regarding the credibility of testimony that
whatever information they had was given to the defense camp at all. . . . Here, it’s
not the implausibility per se of the testimony, it’s the implausibility that this
information was communicated to the defense.” The court also was suspicious of
the claim that the witnesses were interviewed by a “Mr. Johnson” when there was no
further evidence identifying this man.
14
The court noted that Sheffield was a good friend of appellant, admitted using
PCP shortly before the shooting, told police at the scene that he did not see the
shooter, and made an inconsistent statement about talking with appellant.
Barringer’s testimony was undermined by the fact that he never reported anything to
the police.
30
With respect to the six potentially exculpatory witnesses, the trial court was
understandably doubtful that they “ever existed.” Contrary to appellant’s assertion
that six witnesses had been “identified” and were “valuable” and that there was “no
doubt that these witnesses would have served a beneficial purpose at trial,” they
were mentioned only obliquely in Mr. Aronstamn’s letter of December 22, 1999, to
appellant, a letter devoid of any names or other specific information. As the court
noted, they might have “existed” merely “for the purposes of leverage, financial
leverage,” because Mr. Aronstamn, an investigator hired by his attorney, wanted to
convince appellant to pay his outstanding debt. At the § 23-110 hearing, only three
possible witnesses were named, and appellant presented no evidence that six
exculpatory witnesses even existed. Nor were Ms. Anderson, Mr. Page, and Mr.
Aronstamn — persons who might have been able to assist in determining the
identities of the alleged exculpatory witnesses — called by appellant’s counsel to
testify at the hearing. We are mindful that the “decision to call witnesses is a
judgment ‘left almost exclusively to counsel,’ ” Oliver v. United States, 832 A.2d
153, 158 (D.C. 2003) (citation omitted), but we question the wisdom of not putting
any of these individuals on the stand in light of this particular claim. We agree with
the trial court that, without record support, appellant offered nothing more than
“speculation that other witnesses could have presented evidence.” From the record
31
before us, we cannot conclude that trial counsel’s performance was constitutionally
deficient.
B. Prejudice
Even if appellant could successfully establish deficient performance, he
could not make the prejudice showing required under Strickland. The court stated
that “the Government had a very strong case against Mr. Gamble,” which included
testimony about an extended drug dispute between appellant and Mr. Holland before
the murder, statements by appellant of his intention to kill Holland, eyewitnesses to
the murder, admissions by appellant after the crime, a ballistics match between the
bullet that killed Holland and the .380 caliber pistol found in appellant’s pocket only
a few days after the murder, a false alibi that appellant gave the police, and the fact
that family members were subpoenaed and unwillingly provided testimony
contradicting the false alibi. Furthermore, the court to some extent discredited the
testimony of the two witnesses who testified for appellant at the § 23-110 hearing
because they raised credibility concerns — a determination that we have no reason
to overturn. See, e.g., Barnes, 760 A.2d at 559.
32
Granting, as we must, substantial deference to the court’s factual findings,
we hold that appellant has not satisfied either Strickland requirement. He has not
presented evidence to rebut the presumption that counsel’s performance reflected
sound trial strategy. Moreover, we are not persuaded that a reasonable probability
exists that the outcome of the trial would have been different if the two witnesses
who testified at the § 23-110 hearing had also testified at trial or if the evidence
presented in their hearing testimony had been communicated to trial counsel.
VI
The two judgments of conviction and the order denying the § 23-110 motion
in both cases are all
Affirmed.
