487 F.2d 1197 (D.C. Cir. 1973), 72-1283, United States v. DeCoster

Docket Nº:72-1283.
Citation:487 F.2d 1197
Party Name:UNITED STATES of America v. Willie DeCOSTER, Jr., Appellant.
Case Date:October 04, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1197

487 F.2d 1197 (D.C. Cir. 1973)

UNITED STATES of America

v.

Willie DeCOSTER, Jr., Appellant.

No. 72-1283.

United States Court of Appeals, District of Columbia Circuit.

October 4, 1973

Argued Feb. 23, 1973.

Rehearing Denied Dec. 27, 1973.

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Calvin Davison, Washington, D.C. (appointed by this Court), for appellant.

Richard S. Vermeire, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry, Asst. U.S. Atty., and Philip L. Cohan, Asst. U.S. Atty. at

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the time the brief was filed, were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

BAZELON, Chief Judge:

The only serious issue in this case is whether appellant was denied his constitutionally guaranteed right to the effective assistance of counsel. 1

I

The facts are relatively simple. The victim testified that he was accosted by appellant and two accomplices in a parking lot at about 6 p.m. He stated that one of the accomplices held him from behind, while the other stood in front of him with a knife and appellant went through his pockets. The robbers took a wallet containing $110, then fled when the police arrived.

Two policemen testified that they were cruising in an unmarked car when they saw the robbery in progress. The officers alighted from their vehicle and gave chase. One officer followed and arrested a man identified as Eley, and found a straight razor in his pocket. The second policeman and the victim chased appellant and his other cohort. When this pair of robbers split up, the policeman continued after appellant. The officer's quarry ran into a nearby hotel and the policeman followed; he found appellant standing at the desk in the lobby and arrested him. The victim immediately identified appellant as one of the robbers. A search of appellant turned up neither the stolen wallet nor any weapons. And neither officer had seen any weapon in use during the robbery.

Between the time of the offense and the time of trial, the victim was in a serious automobile accident, which caused lapses in his memory and damage to his eyesight. At trial, he was unable to identify either appellant or the straight razor taken from Eley.

Appellant testified that on the afternoon of the crime he met the victim for the first time at a bar near the parking lot where the robbery was alleged to have occurred. At around 6 p.m., after having a few drinks with the victim, appellant claims to have returned to his hotel, where he was arrested while trying to obtain his key from the desk. The victim was unsure whether he had met appellant before the robbery. The accomplice, Eley, testified that on the day of the robbery he saw appellant and the victim drinking together at the bar and, later, fighting in a nearby parking lot when the police arrived.

DeCoster was convicted by a jury of aiding and abetting in an armed robbery and an assault with a dnagerous weapon. 2 He was sentenced to 2-8 years on each count, to be served concurrently.

II

Several events and circumstances suggest that appellant may have been denied his sixth amendment right to the effective assistance of counsel:

1) Although appellant, who failed to meet bail, was accepted for pretrial custody by Black Man's Development Center

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on October 12, counsel did not file a bond review motion until November 9. Even then, the motion did not mention the third party custody arrangement, and was filed in the wrong court. On November 13, DeCoster wrote to the court indicating that counsel had promised he would file a motion for his release. On December 8, counsel filed a motion in the proper court and defendant was released.

2) It appears that defense counsel (who is not counsel on appeal) announced "ready" although he was not prepared to go to trial. As appellant's two day trial was about to begin, the following colloquy regarding the Government's alibi demand notice occurred:

Court: All right, are you ready for trial? If you are can you give the names and addresses [of your alibi witnesses] to the prosecutor? Are you prepared to give the names and addresses?

Defense: No, at the present time I am not. . . .

Court: Well are you here for trial?

Defense: I am here for trial but if the court pleases, under the statute we have 20 days. 3

Court: Are you asking for a continuance?

Defense: I would ask for a 4 or 5 day continuance for this trial which might give me an opportunity to give the prosecutor what we can in response to this notice.

Court: Well you did announce ready for trial, . . . and if you are going to rely on an alibi, then you must know the witnesses you are going to use as alibi witnesses. You announced ready.

******

* * *

Court: [I]t seems to me that if you have your witnesses ready for trial there seems to be no reason why you shouldn't be able to give the names of the people you intend to call as alibi witnesses at this time.

Defense: We will proceed without alibi witnesses. We will consider we don't have any alibi witnesses.

Court: You will not rely on an alibi defense?

Defense: That is correct.

3) Counsel apparently made no effort to inquire into the disposition of the cases against appellant's two alleged accomplices. In fact, they had both already pled guilty before the same judge who was to sit on DeCoster's case. Thus, counsel agreed to waive a jury trial totally unaware that his client would, as the court pointed out, "be tried by a judge who has heard a portion of this evidence in connection with the other two defendants." (The Government, however, refused to waive a jury trial.)

4) There are indications of a lack of communication between appellant and his trial counsel. When DeCoster personally requested the court to subpoena his two accomplices, counsel indicated that he had thought of calling them but "we have no address [sic] for them." Appellant immediately responded that one of the men was at the D.C. Jail under sentence for the instant offense. The other man had recently been placed on probation, also for his involvement in the instant offense, by the same judge who was presiding over DeCoster's case. This witness was never called.

Defendant informed the court, first be letter and then at the opening of trial, that he was dissatisfied with his appointed counsel. On the later occasion he pleaded:

Your honor, I feel that this case should be continued because this is, I can't get proper representation that I should be getting.

His request was denied without inquiry into the basis of his claim. 4

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5) The defense called only two witnesses: appellant and an alleged accomplice who contradicted appellant on a fundamental point. On direct examination, he placed DeCoster at the scene of the crime engaged in a fight with the victim at a time when DeCoster himself had testified he was at his hotel. This contradiction confused the defense case and stripped it of its credibility.

III

This court does not sit to second guess strategic and tactical choices made by trial counsel. 5 However, when counsel's choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel. 6 The present record, as is typical in cases raising a claim of ineffectiveness, poses more questions about counsel's preparation and investigation than it answers. For example, it is unclear whether an informed tactical judgment or a lack of preparation was at the root of counsel's inability to identify any alibi witnesses at the outset of trial, or his decision to call both DeCoster and his accomplice who contradicted him. Accordingly, the record is remanded for a supplemental hearing on counsel's preparation and investigation, and appellant's present counsel is given leave to file a motion for a new trial on remand. 7

IV

Since we remand for a determination of appellant's claim, it is necessary to discuss the governing principles. The effective assistance of counsel is a defendant's most fundamental right "for it affects his ability to assert any other right he may have." 8 The Supreme Court has observed, "if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel." 9

The first major ineffectiveness case in this Circuit was Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945). Applying a due process-fundamental fairness approach, we held the standard to be whether counsel's incompetence rendered the trial a "farce and a mockery." In Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967), we reconsidered Jones and held that the "farce and mockery" language was "not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness." The rule announced in Bruce required a defendant to prove:

both that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . . 379 F.2d at 116-117.

In Bruce, the claim of ineffective assistance arose on collateral attack. In several cases since then, when the ineffectiveness issue was raised on direct appeal, the court has silently ignored the Bruce requirement that the defendant has a "heavy burden" to show prejudice. implying that a different test was applicable on direct appeal. United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970)

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; Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971). Indeed, in Bruce itself the court pointed out that "a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an...

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