ALI v. U.S.

• Decision Date: 16 October 1990
• Docket Number: No. 86-733,No. 89-90,No. 86-64,86-64,86-733,89-90
• Citation: 581 A.2d 368
• Parties: Abdus-Shahid M.S. ALI a/k/a James C. Long, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

581 A.2d 368

Abdus-Shahid M.S. ALI a/k/a James C. Long, Appellant, v. UNITED STATES,Appellee.

Nos. 86-64, 86-733, 89-90.

District of Columbia Court of Appeals.

Argued May 30, 1990.

Decided October 16, 1990.

Appeal from the Superior Court, District of Columbia, Fred B. Ugast and Nicholas S. Nunzio, JJ.

Lawrence M. Baskir, appointed by the court, for appellant.

James A. Meade, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, and Helen M. Bollwerk, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, BELSON and STEADMAN, Associate Judges.

BELSON, Associate Judge:

Appellant Abdus-Shahid M.S. Ali challenges his conviction for first-degree murder while armed in violation of D.C.Code §§ 22-2401, -3202 (1989) on numerous grounds. His principal contentions are that the trial court erred in that it permitted appellant to represent himself at trial, admitted irrelevant testimony concerning a shotgun unconnected with the crime as well as photographs of that shotgun, gave inadequate jury instructions, and denied appellant's motions for new trial.¹ We reject each ground for reversal, and affirm.

I.

Appellant was previously convicted of first-degree murder in 1964, and served a sentence of 20 years.² Approximately one year after his release, appellant committed the murder charged in this case. Following a trial by jury, appellant was convicted of first-degree murder while armed for the February 3, 1985 murder of Dwayne³ Lovells, this time receiving a sentence of 20 years to life in prison. Lovells owed appellant a debt for which Lovells paid with his life after suffering a blast at short range from a sawed-off shotgun. The government's theory at trial was that the victim owed appellant a debt for drugs appellant gave to the victim to turn over quickly for a profit to finance appellant's plan to open a health food store. Appellant testified that he loaned the victim $500 to pay bills and that the victim repaid all but $50. Dwayne Lovells died with $40.00 in his wallet.

Appellant did not commit this murder unassisted; his cousin Vanessa Conway set up appellant's meeting with his victim Lovells — ostensibly to enable Conway to purchase drugs from Lovells — and appellant's friend Marshall Manning drove Manning's blue pick-up truck from which appellant emerged to talk with Lovells before pulling the sawed-off shotgun from his coat to shoot him to death near the corner of 12th and Franklin Streets, N.E., in the District of Columbia. Conway and Manning, among others, testified against appellant at trial.

The government's evidence demonstrated that following the shooting appellant got out of Manning's truck near Conway's apartment with a bag, and asked Conway to take the bag to his friend Larry Cannon in exchange for $500 worth of pure cocaine. Conway testified that appellant did not want her to carry the bag and that appellant carried it from her apartment and put it into the trunk of his car which Conway drove to Larry Cannon's. The rest of appellant's evening was spent first with his parents, then at his cousin Vanessa's residence until 5 a.m. the next day.⁴ Once appellant learned on February 5, 1985 that there was a warrant for his arrest for the murder of Lovells, he fled to nearby Virginia with Mary Dickens and her son. There he was apprehended by police on March 13, 1985.

II.

A jury found appellant guilty of first-degree murder while armed on March 12, 1986.⁵ Appellant was sentenced to 20 years to life in prison on April 22, 1986. Appellant noted his direct appeal on April 30, 1986 (No. 86-733). Appellant's pro se motion for a new trial⁶ dated May 7, 1986was denied by Judge Nunzio on July 25, 1986 as untimely. Appellant failed to note his appeal from this order because he apparently did not receive a copy of the order while in prison as he had been moved from one facility to another. On July 29, 1987, appellant filed a second motion for new trial, incorporating a motion to appoint appellate counsel as counsel on the motion and a motion for authorization for investigative services, and also filed a motion to vacate and re-enter the July 25, 1986 order to enable appellant to note his appeal through his appointed counsel. Judge Nunzio denied the July 29, 1987 motion for new trial, but vacated and re-entered his July 25, 1986 order on January 17, 1989.⁷ Appellant then noted timely appeals of the denials of the May 7, 1986 and July 29, 1987 motions for new trial (No. 89-90). These three appeals were consolidated for consideration by this court.

III.

On appeal appellant argues first that he was not fully apprised of the dangers and disadvantages of representing himself in this complex case and thus did not make a knowing and voluntary waiver of his right to counsel. Although the court made inquiries of appellant before granting the waiver, appellant asserts that they were merely a "litany of questions and answers" that failed to get to the substance of the dire consequences to which appellant exposed himself by his choice to represent himself, and did not amount to the requisite "searching inquiry." Appellant's involvement in his previous murder trial, together with his independent reading of opinions in murder cases, did not constitute, in appellant's present view, sufficient experience in litigation to permit him to represent himself adequately. Thus, appellant contends, the court erred when it permitted him to represent himself at trial.

The government responds that appellant's decision to participate actively in his own defense was made knowingly and intelligently, and that the quality of his decision was ensured by the trial court's searching inquiry of appellant. The government posits that the inquiry to which appellant responded was more thorough than the inquiry made of the appellant in Abney v. United States, 464 A.2d 106 (D.C. 1983), and approved by us in that opinion. It goes on to argue that even if this court finds that the trial court did not conduct an adequate inquiry, circumstantial evidence supports the conclusion that appellant's decision to play a role in his own representation was nevertheless knowing and voluntary, accompanied as it was by initial discussions with counsel and the continuing availability of standby counsel. Finally, according to the government, appellant's technical legal skills were not relevant to the trial court's assessment of appellant's ability to represent himself and the court's determination that the waiver was knowingly and intelligently made.

A constitutional right to conduct one's own defense is implied in the Sixth Amendment. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). The Supreme Court in Faretta cautioned, however:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458], at 464-465 [58 S.Ct. 1019, at 1023, 82 L.Ed. 1461 (1938)]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323-324, 92 L.Ed. 309 (1948)] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so thatthe record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. [269], at 279 [63 S.Ct. 236, at 242, 87 L.Ed. 268 (1942)].

422 U.S. at 835, 95 S.Ct. at 2541.

This court in Hsu v. United States, 392 A.2d 972 (D.C. 1978) quoted the "script" fashioned by Justice Black which is to be followed by trial judges when they undertake to ensure that a defendant's waiver of his Sixth Amendment right to the assistance of counsel is knowing and intelligent:

To be [made] valid such waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandably and wisely made only from a penetrating and comprehensive examination of all the circumstances. . . .

Id. at 983 (quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323-24, 92 L.Ed. 309 (1948) (plurality opinion)). Although reversal is not mandatory if the script is not followed, "absent virtually the complete inquiry prescribed by Justice Black, the appellate courts cannot uphold the finding of a valid waiver unless the inquiry of record is buttressed by a compelling case of circumstantial evidence that the pro se defendant knew what he or she was doing." Hsu, supra, at 983.

Our review of the trial transcript demonstrates that Judge Nunzio fully examined appellant concerning his decision to participate in his own representation as required by the case law. The trial court noted initially that:

The key issue would be, gentlemen, Mr. Ali representing himself. I have no problem with it. We have to go through a dissertation of questions, Mr. Ali. I have in the past and it has been my policy not to choose one or the other, to question and deny you to represent yourself or alternatively to be satisfied with it and say that you are it and you are not entitled to any other counsel.

The trial judge then stated that the hybrid procedure that had proven successful for him in the past was to have the defendant be lead counsel, but to have the assistance of an attorney as a back-up. Then, the court stated, "I think that we can do the same thing here if I am satisfied that...