Anthony M. Washington v. U.S.

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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-CO-31 A NTHONY M. W ASHINGTON, A PPELLANT v. U NITED S TATES, A PPELLEE Appeal from the Superior Court of the District of C olumbia (F-10821-86) (Hon. Hiram E. Puig-Logo, Motions Judge) (Submitted February 6, 2003 Decided November 6, 2003) Anthony M . Washington filed a b rief pro se. Roscoe C. Ho ward , Jr., United States Attorney, and John R. Fisher, Barbara J. Valliere, and John P. Gidez, Assistant United States Attorneys, were on the brief for appelle e. Roy W. M cLeese, III, Assistant U nited States Attorney, was also on the supplemental memorandum for appellee. Before TERRY and S CHWELB, Associate Judges, and PRYOR, Senior Judge. T ERRY, Associate Judge: This is an appeal from the d enial of appellant s second motion to vacate sentence pursuan t to D.C. Code § 23-110 (2001 ). Appellant contends that the trial court erred in concluding that his motion was 2 procedu rally barred. He also challenges the denial of his separate motion for new trial based on a claim of newly discovered evidence. We affirm both rulings. I. F ACTUAL B ACKGROUND On February 18, 1988, a jury found appellant guilty of second-degree murder while armed.1 On April 22, 1988, he was sentenced to a prison term of fifteen years to life. We affirmed his conviction in an unpublished Memorandum Opinion and Ju dgme nt. Washin gton v. Un ited States, No. 88-C F-502 (D .C. April 12, 1990). On October 4, 1991, appellant filed his first pro se motion to vacate sentence under D.C. Code § 23-110. In that motion, appellant argued (1) that he should not have been a llowed , mainly becau se of his youth, t o waive his Miranda rights 2 without the presence of an attorney, and (2) that certain hearsay evidence should not have been admitted at trial. The government responded that appellant s claims 1 Because this appeal deals solely with procedural issues concernin g appellant s motions f or post-con viction relief, we need not recite the fa cts underlying his conviction. 2 Miranda v. Arizona, 384 U.S. 436 (19 66). 3 should be rejected b ecause the y could have been, but w ere not, raised before trial or on direct appeal. In due course the trial court entered an order d irecting app ellant to show cause for not having asserted [these claims] prior to trial and that the admission of his statement was a serious defect which was not correctable on direct appeal or that he was prevented by exceptional circumstances from raising it on appea l. In respons e, appellant m aintained in a mem orandum in support of his motion that he wa s legally inco mpeten t to make s tatements to the police an d that his counsel should ha ve raised the issue of his co mpeten cy before tria l.3 Furthermore, appellant cited the following as exceptional circumstances which, he maintained, excused his failure to raise this ineffective ness claim on direct ap peal: (1) his youth, (2) his naive belief that his attorney would preserve and protect his rights, and (3) his utter ig noranc e of the la w as it p ertained to these issues. In an order dated October 2, 1992, th e trial court denied the § 23-110 motion, ruling that appellant s motion did not require a hearing because his allegations were vague and conclusory. T he court also concluded that appellant s claims of youth-related incompetency were without m erit because he was tw enty 3 It was not until appellant filed this memorandum that it becam e clear that his motion w as based o n a claim o f ineffective as sistance of co unsel. 4 years old at the time of his arrest, and that appellant had no t shown good cause for failing to raise a ny of these issues befo re trial or on dire ct appeal. On September 20, 2001, more than thirteen years after his conviction and more than eleven years after that conviction was affirmed on appeal, appellant filed a second pro se motion to vacate his sentence u nder section 23-110. A ttached to this motion was a separate motion for new trial based on a claim of n ewly discovered evidence.4 In the § 23-110 motion, appellant again asserted that his trial counsel (now decea sed) ha d rende red inef fective a ssistanc e. This time, however, he based his claim on counsel s failure (1) to call an exculpatory witness, (2) to crossexamine an advers e witness, (3) to conduct a sufficient investigation a nd prepare adequate ly for trial, and (4) to challenge allegedly false evidence presented by the government at his sentencing hearing. As for the motion for new trial, the supposed newly discovered evidence was an affidavit (which bore no date) signed by 4 The latter motion was captioned as a motion pursuant to Rule 60 (b) due to newly discovered evidence , apparen tly referring to S uper. Ct. Civ. R. 60 (b). That rule, however, applies on ly in civil cases . Because this is a crimin al case, the trial court correc tly treated appellant s motion as one filed under Super. Ct. Crim. R. 33, which is applicable in criminal cases. 5 Paulette Lanham, who had been a witness for the government, in which she recanted her trial testimony.5 In a single order dated Novem ber 29, 2001, both m otions were denied. The court found appellant s latest § 23-110 motion to be an abuse of writ because he was raising issues that he had failed to raise in his previous § 23-110 motion, even though he knew or sh ould have kno wn of these matters when he filed the earlier motion. The court also held tha t it was without jurisdiction to hear ap pellant s motion for new trial beca use, un der Cri minal R ule 33, s uch motions must be filed within three years after the guilty verdic t. Appellan t then noted the instant ap peal. II. T HE § 23-110 M OTION A. Abuse o f Writ There is a presumption that a trial judge should conduct a hearing on a § 23-110 motio n. See, e.g ., Wright v . United States, 608 A.2d 763, 765-766 (D.C. 1992) (citing cases). 5 T his court ha s recognize d, howe ver, that in some Although appellant refers to Ms. Lanham s statement as an affid avit, the document in which Ms. Lanham purported to recant her testimony was not notarized or otherwise s worn ; hence it was n ot an aff idavit. Woldeamanuel v. Georgetown University Hospital, 703 A.2d 124 3, 1245 n.4 (D.C . 1997). 6 circumstances a hearing is not always req uired. See Ramsey v. United States, 569 A.2d 142, 147 (D.C. 199 0) (listing three categories o f claims that do not merit hearings ) ; Pettaway v. United States, 390 A.2d 981 , 984 (D.C. 1978 ) (same). Here we are dealing with appellant s second § 23-110 motion, in which he raises issues not raised either on direct app eal or in his first § 23-110 m otion. In such circumsta nces the rule is more strict. [I]f an appe llant does no t raise a claim of ineffective assistan ce of co unsel d uring th e pend ency o f the dire ct appe al, when at that time appellant demonstrably knew or should have known of the grounds for alleging counsel s ineffectiveness, that procedural default will be a barrier to this court s consideration of appellant s claim. Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987). 6 Where a defenda nt has failed to raise an ava ilable 6 Appellant argues that Shepard is inapplicab le to his ca se, since we have stated that its holding ap plies only to cases tried after December 2, 1987, the date of the Shepard opinion. Dobson v. United States, 711 A.2d 78, 84 n.11 (D.C. 1998); see Shepard, 533 A.2d at 12 80. Wh ile appellant c orrectly poin ts out that his indictment was filed in February 1987, he fails to m ention that h is trial did not take place until February 1988, two months after the Shepard case was decided. The record does reflect that appellant s case was initially called for trial on July 6, 1987, an d that a jury w as selected and sworn on that date. However, on the next day, July 7, the defense moved for a continuance; the motion was granted, the jury was disch arged, and the trial was continued until Octobe r 14. After two m ore continuances, the trial actually began on February 22, 1988. 7 challenge to his conv iction on dire ct appeal, he may not raise that issue on collateral attack unless he show s both cause for his failure to do so and prejudice as a result of his failure. Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (citing United States v. Frady, 456 U.S . 152, 167-1 68 (1982 )); accord , e.g., Thomas v. United States, 772 A.2 d 818, 82 4 (D.C. 20 01); Vaug hn v. U nited State s, 600 A.2d 96, 97 (D.C. 1991) . More over, w hen, as in this case, the defendant has already launched several collateral attacks on his conviction, the reasons supporting the application of the cause and prejudice test are even more compelling. Matos v. United States, 631 A.2d 28, 30 (D.C. 199 3); see McCleskey v. Zant, 499 U.S. 467, 490 (1991) ( abuse of writ doctrine generally prohibits subsequent . . . consideration of claims not raised, and thus defaulted, in the first [collateral] proceed ing ). 7 The procedural default articulated in Shepard and other cases is not insurmountable. To establish legally sufficient cause for his failure to raise a claim on direct appeal, however, appellant must show (if he can) that he was prevented by excep tional circum stances fro m raising th e claim at th e approp riate time. Head, 489 A.2d at 451; see Murray v. Carrier, 477 U.S. 478, 488 (19 86) (a 7 The abuse of writ doctrine can be traced back at least as far as the 1920 s. See Salinger v. Loisel, 265 U.S . 224, 231-2 32 (1924 ); Wong Doo v. United States, 265 U.S. 239, 24 1 (1924). 8 defendant must demonstrate that some objective factor external to the defense impeded counsel s efforts to raise the claim o n direct appeal). 8 Once cause is shown, appellant must then shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. at 170 (em phasis in original). We hold that the trial court did n ot err in conc luding that a ppellant was procedurally barred from asserting his claim of ineffective assistance of counsel because he failed to meet the cause and prejudice standard. Instead of demonstrating sufficient cause for his failure, either on direct appe al or in his first § 23-110 motion, to raise his present claims of ineffective as sistance, app ellant mere ly recites in his brief the s ame arg uments th at he mad e in his second § 23-110 motion as to why his counsel s performance was supposedly deficient. He makes no real attempt to explain why these claims could not have been raised e arlier. The closest that appellant comes to arguing cause is the assertion that his counsel never 8 The Court in Murray went on to explain: Without attempting an exhaustive catalog of such obje ctive impe diments to comp liance with a procedu ral rule, we n ote that a showing that the factual or legal basis for a claim w as not reaso nably ava ilable to counsel . . . or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard. Murray, 477 U.S. at 488 (citations omitted). Appellant has not even come close to making such a showing. 9 provided to him, and thus he never received , the governmen t s Mem orandum in Aid of Sentencin g which , according to appellant, contained false inform ation that his attorney should have challenged. One answer to this argument is that appellant himself was present at his sentenc ing hearing and sure ly must have known that the government was making false statements if in fact it did so. Thus he was aware of this basis for an ineffectiveness claim before he even noted his direct appeal, let alone before filing his first § 23-110 motion.9 9 We are not, of course, sug gesting that a convicted defendan t has any d uty to read the governme nt s sentencing mem orandum if the govern ment elec ts to file one although w e may, an d do, expe ct that a competent defense attorney will share the contents of such a memorandum with his client so that the client may respond to any errors or inaccuracies in the memorandum before sentence is actually imposed. Appellant states in his brief that his trial counsel did not do so, and that he did not see the memo randum un til a later attorney obtained a copy sev eral years after the trial and gave it to him. For the sake of argument we assume that this is true. Nevertheless, an attorney s failure to pro vide his clien t with a cop y of a sente ncing memorandum, without m ore, will not necess arily constitute ineffective assistance especially in the absence of any showing of prejudice. A particular problem in this case is that we do not know what the prosecutor may have said at the sen tencing he aring. Tha t, howev er, is mainly a ppellant s fau lt for delaying so long before filing his second § 23-110 motion. Although appellant s delay, by itself, does not bar the court from considering the motion, the passage of so much tim e make s it all the more difficult to assess appellant s claim of ineffective assistance. The longer the delay, the greater the diffic ulty. See Dobson, supra note 6, 711 A.2d at 84. 10 Indeed, the same reasoning can be applied to each of the ineffectiveness claims raised in appellant s second § 23-110 motion, since he was present at his trial and therefore aware of any alleged errors as they took place. As the government observes in its brief, appellant s claims are on their face the types of claims that he knew or should h ave know n about at th e time he filed either his brief on direct appeal in 1989 or his first § 23-110 motion in 1990.10 In fact, appellant even acknowledges being aw are of at least so me of his a ttorney s de cisions with which he now finds fault. Regarding cou nsel s failure to cross-examine a government witnesses (Christine Blake), for example, appellant alleges that at trial he asked [counsel] repeatedly to do so. The same is true with respe ct to counse l s failure to call an exculpatory witness (Paula Hackney). In his brief appellant states that counsel s inactions became clear when he refused to speak with Ms. Hackney at appellant s trial proceed ing. Statements such as these plainly show that appellant knew of the facts on which he now bases his ineffectiveness claims as they were 10 Citing Murray v. Carrier, supra, appellant argues that a showing of ineffective assistance is by itself enough to overcom e the proce dural bar. T his argument stems from a misinterpretation of the Court s statement in Murray that [i]neffective assistance of counse l . . . is cause for a procedural default. 477 U.S. at 488. When this sentence is read in context, it becomes clear that the Court is saying that ineffectiveness of counsel may constitute cause only when that ineffectiveness itself is the very reason why such claims were not made on direct appea l. See id. at 488-489 ; see also McCleskey, 499 U.S. at 494. 11 occurring, yet he can point to no external factors (as required by Murray) which prevented him from timely presenting those claims to the court at an earlier date. For these reasons we hold that appellant has not demonstrated cause for his failure to raise his current claims of ineffective assistance either on direct appeal or in his first § 23-110 motion. Because appellant ha s failed to sho w cause , this court need no t decide w hether he su ffered prejud ice or even if the trial court w as in error. Head, 489 A.2d at 451 n.5. B. The Massaro Case After this case was submitted, appellant filed a pro se memorandum asserting that the Supreme Court s recent decision in Massaro v. United States, 123 S. Ct. 1690 (2003), is highly relevant to this appeal. We then requested the government to file a supplemental memorandum discussing (1) the effect of Massaro, if any, on this case; and (2) how the conflict, if any, between Massaro and our decision in Shepard should be resolved. Appellant, with leave of court, filed a response to the government s memorandum. 12 In Massaro, after the petitioner s conviction on federal racketeering charges had been affirmed on direct appeal, he filed a motion to vacate his conviction under 28 U.S.C. § 2255 (the federal counterpart of D.C. Code § 23-110), alleging ineffective assistance of counsel at his trial. In affirming the District Court s denial of Massaro s motion , the Secon d Circuit co ncluded th at he was procedu rally barred from bringing the ineffectiveness claim in a collateral proceeding. In a previous case, Billy-Eko v. United States, 8 F.3d 111, 114 (2d C ir. 1993), the Secon d Circuit acknowledged that in most cases a petitioner should not be barred from raising an ineffectiveness claim on collateral attack if that claim was not presented on direct appeal. The court further h eld, however: If the defend ant has new appellate co unsel on d irect appeal, and the record is fully developed on the ineffective assistance issue, there is little reason to extend the defendant an unlimited opportunity to delay bringing the claim. Thus, in this narrow category of cases, but only in these cases, the petitioner must still show cause for not bringing the ineffective assistance claim on direct appeal, and prejudice resulting therefro m. Id. at 115. The Second Circuit reiterated this holding in the Massaro case, stating that, [a]s a gen eral matter, a federal priso ner canno t employ § 2255 to litigate issues that cou ld have been, b ut were not, raised on direct appeal. Massaro v. United States, 27 Fed. Appx. 26, 29 (2d Cir. 2001) (citation omitted). Observing that Massaro was represented by new co unsel on h is direct appeal, that the supposed 13 ineffectiveness was evident from the record, and that he failed to show cause for not raising the issue on direct appeal, the court held that he was procedurally barred from bringing the ineffective assistance claim on collateral attack under 28 U.S.C. § 2255. The Supreme Court reversed, and held that an ineffective-assistance-ofcounsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner c ould have raised the cla im on dire ct appe al. Massaro, 123 S. Ct. at 1694. Acknow ledging that the procedu ral default rule of Frady and other cases was designed to conserv e judicial resources and to respect the law s important interest in the finality of judgments, id. at 1693, the Court nevertheless concluded that requiring a defendant to bring an ineffectiveness claim on direct appeal does not promote these objectives, since it w ould crea t[e] the risk that d efendants would feel compelled to raise the issue before there has been an opportun ity fully to develop the factual predicate for the claim. Id. at 1693-1694. Moreover, the issue would be raised the first time in a forum not best suited to assess those facts, id. at 1694, and appellate courts would waste time and resources attempting to address some claims that w ere meritless and other c laims that, tho ugh color able, would be handled more efficiently if addressed in the first instance by the district court on collateral review. Id. at 1695 (citation omitted). 14 Because appellant s case is in a completely different procedural posture from Massaro, we are satisfied that the Massaro decision has no impact on the matter before us. The trial court denied appellant s most recent motion which is the subject of this appe al no t because appellant failed to raise his ineffectiveness claim on direct appeal, as the District Court ruled in Massaro, but because he had already asserted a different ineffective as sistance claim in an earlier collateral attack. Nothing in Massaro undermines the well-settled principle in th is court, 11 and in the federal courts generally,12 that a claim not raised in a pre vious collate ral attack is procedurally defaulted. Furthermore, we also hold that Massaro in no way conflicts with this cou rt s decision in Shepard. The ma in concern of the Sup reme C ourt in Massaro was that inefficiencies and delays would occur if a defendant were required to present an ineffectiveness claim on direct appeal before the issue could be considered, and an adequate record made , by the tr ial court . Massaro, 123 S. Ct. at 1694-1695. The 11 See, e.g., Thomas, 772 A.2d at 824; Matos, 631 A.2d at 30; Vaughn, 600 A.2d at 97. 12 See, e.g., Potts v. United States, 210 F .3d 770, 771 (7th Cir. 200 0); United States v. Kleinbart, 307 U.S. App. D.C. 136, 140-141, 27 F.3d 586, 590-591 (citing Frady), cert. denied, 513 U.S. 978 (19 94)). 15 procedure required under Shepard for bringing an ineffectiveness claim under section 23-110 is significantly different from that articulated in Billy-Eko (and ultimately overturned in Massaro). In fact, the procedure prescribed in Shepard is the opposite of, and implicitly counsels against, the Second Circuit s approach. Under section 23- 110, there is no requirement that a convicted defendant initiate an ineffectiveness claim on direct appeal under the circumstances articulated in BillyEko, or any other circumstances for that matter. On the contrary, the defendant must file a § 23-110 motion with the trial court during the pendency of the direct a ppeal if he is aware of the grounds for an ineffectiveness claim.13 [T]hat motion can furnish appellant a means of making a record regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct a ppeal. Shepard, 533 A.2d at 1280 (citations omitted). Indeed, that is the principal reason for the Shepard rule. See Williams v. United States, 783 A.2d 598, 602 (D.C. 2001) (en banc) (ineffectiveness claim, far more probably than [other claim s], will require amplification through evidence not present, and findings not possible, within the four corners of the trial record ). 13 An appellant may assert an inef fectiveness c laim for the first time on direct appeal, thereby lim iting the cou rt s considera tion of the issue to the existing trial record, see Proctor v. United States, 381 A.2d 249 , 252 (D.C. 1977 ), but he is by no means required to do so. 16 While the § 23-110 motion is pend ing in the trial co urt, this court w ill usually order that the direct appeal b e stayed . See id. at 600 (our usual practice has been to stay the direct appeal); Shepard, 533 A.2d at 1280 ( this court has routinely granted requests for stay ). 14 Then, if the motion is denied, any appeal from that denial is consolidated with the direct ap peal, and the two ap peals are considered together. Th is procedu re make s it possible for th e motion to be ruled upon first by the trial judge, who would already be familiar with the trial record 15 and who could, if necessary, hold an evidentiary hearing on the ineffective assistance claim. Th us the proc edure set forth in Shepard actually alleviates the concerns articulated in Massaro, enabling this court to conserve its time a nd effort by deciding the entire case in a single proceeding.16 14 This is not an inflexible rule, however. We made clear in our recent en banc opinion in Williams that if appellate counsel is concerned about potential delay, he may request that th e appeals not be consolidated and [that] resolution of the direct appeal not be deferred . . . . Williams, 783 A.2d at 602 n.4. 15 In the instant case, as oc casionally happe ns, the original trial judge had retired before the motion was filed, so the motion had to be considered by a new judge. The fact that this may occur now and then as a result of the passage of time, however, does not weaken either the holding of Shepard or the basic principles that underlie it. 16 We have, on several occasions since Shepard, explained why following the Shepard procedure would relieve this court of the very burdens that caused the Supreme Court to be concerned in Massaro. See, e.g ., Mack v. United States, 570 A.2d 777, 785 (D.C. 1990) ( This court is in the best position to assess a claim of (contin ued...) 17 III. T HE M OTION FOR N EW T RIAL As we hav e mention ed, the new ly discovered evidence on which appellant based his motion for new tria l was the rec antation of th e trial testimony of a government witness, Paulette Lanham. The trial court ruled that the motion was barred on jurisdictional grounds, citing Criminal Rule 33. For the first time on appeal, appellant incorporates his claim of newly d iscovered e vidence in to his argument that the court erred in denying him a hearing on his § 23-110 motion, asserting that his trial counsel was deficient by failing to uncover the alleged perjury . Appellant has apparently re-styled his newly discovered evidence argument as an ineffectiveness claim on appeal to avoid Rule 33 s stringent time restrictions. Because this argument was not made below at least not in this context it is not properly before this court as the basis of an ineffective assistance claim. See Miller v. Avirom, 127 U.S. App. D.C. 367, 369-370, 384 F.2d 319, 321- 16 (...continued) ineffective assistance o f counsel w here a sepa rate motion has been filed and an appropriate record has been made ); Ramsey, 569 A.2d at 146 ( Ineffective assistance of counse l is the type of s erious defe ct which is ty pically not co rrectable on direct appeal and is therefore an appropriate ground fo r a collateral attack ); Jenkins v. United States, 548 A.2d 102,106 (D.C. 1988) ( over the years we have encouraged appellate counsel to pursue collateral attacks under § 23-110 alleging ineffective assistance of trial counsel . . . before the direct appeal is resolved, with a view to consolidating this court s review of the direct appeal and of the collateral attack in one proceed ing ). 18 322 (1967). But even if it were, app ellant s argum ent wou ld fail becaus e his Rule 33 motion simply cannot be interpreted as asserting an ineffectiveness claim.17 Appellant also argues that the trial court erred as a matter of law in failing to decide whether the recantation of [a government witness] is credible. As a general rule, [i]f the mo tion for a new trial is based on the recantation of a witness, the trial court first deter mines the credibility of the recantation and that w itness s trial testimony. Herbin v. United States, 683 A.2d 437, 441 (D.C. 199 6) (citation and footnote om itted). Only if the recantation is credible need the court determine the effect that the recantation would have had on the jury. Id. (citations omitted). But in this case the credibility of the recantation is irrelevant because the motion was filed ten years too late. 17 Appellant argues that the trial court erred in considering his motion under Rule 33, rather than as an in effective assista nce claim under section 23-110, without first giving him n otice tha t it wou ld do so . Not only is this argume nt withou t merit, but it mischaracterizes his motion. The motion was filed as a motion for new trial based on newly discovered evidence, and it is only on appeal that appellant, for the first time, describes the motion as presenting an ineffectiveness claim. Thus the trial court treated th e motio n precis ely as ap pellant in tended it to be tre ated. In any event, we hav e often and consistently h eld that [t]he na ture of a m otion is determin ed by the re lief sought, no t by its label or c aption. Wallace v. Warehouse Employees Union, 482 A.2d 801 , 804 (D.C. 1984 ) (citations omitted). 19 Regardless of the potential credibility of the recantation and the effect it may have on the jury, the trial court correctly ruled that appellant s motion was jurisdictionally barred. A motion for a new trial based on newly discovered evidence may be made only before or within thre e years after the verdict or finding of guilty. Super. Ct. Crim . R. 33. Bec ause app ellant did no t file his motion until more than thirteen y ears after he w as found g uilty, the trial court was without jurisdiction even to consider it. The time periods for filing [a] new trial motion are jurisdictional; this court has no power to consider an untimely new trial motion, even if the resu lt seem s harsh . . . . Taylor v. United States, 759 A.2d 604, 609 (D.C. 200 0); accord , e.g., Diamen v. United States, 725 A.2d 501, 506 (D.C. 1999) (trial court had no power to grant motion based on claim of newly discovered evidence which was filed many years after time ex pired und er Rule 33 ; defendan ts could not avoid or circumvent the jurisdictional bar by captioning the motion as one filed under section 23-11 0). Here again (see note 9, supra) appellant s long delay in filing the motion weighs heavily against him. Even if there were no jurisdictional bar under Rule 33 (and of course th ere is; see Diamen, 725 A.2d at 506 (citing authorities)), appellant s delay makes vital parts of the record unavailable, and the passage of time would probably make it impo ssible fo r the go vernm ent to ret ry the ca se. See, e.g ., 20 Dobson, 711 A.2d at 84; Legrand v. United States, 570 A.2d 786, 791 (D.C. 1990). As to the allegedly recanting witness, it is impossible for us now, as it was for the trial court wh en it ruled on the new tria l motion, to assess just h ow imp ortant a witness she was. Since appellant has mad e no show ing at all that he was una ble to obtain a statement from the witness within the three-year time limit imposed by Rule 33,18 we would not be willing to overlook his delay even if we had the power to do so. We therefore ho ld that the cou rt comm itted no error in denying appellant s motion fo r new trial. IV The orde r from w hich this app eal is taken is in all respects Affirmed. 18 Indeed, appellant himself stated, in an affidavit attached to the motion for new trial, that he told his attorney at trial . . . that Ms. Lanham was not the person whom I met on my way dow nstairs after discovering the body (emphasis add ed), thus indicating that both appellant and his attorney had cause to doubt Ms. Lanham s testimony before the case even went to the jury.

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