Arrington v. United States, No. 97-CF-1219

• Decision Date: 15 August 2002
• Docket Number: No. 01-CO-811., No. 97-CF-1219, No. 99-CO-381
• Parties: Jerome L. ARRINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

804 A.2d 1068

Jerome L. ARRINGTON, Appellant, v. UNITED STATES, Appellee.

Nos. 97-CF-1219, 99-CO-381, 01-CO-811.

District of Columbia Court of Appeals.

Argued June 27, 2002.

Decided August 15, 2002.

Kenneth E. Sealls, Washington, DC, appointed by the Court, for appellant.

Joseph W. Clark, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Joan Draper, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB, FARRELL, and GLICKMAN, Associate Judges.

SCHWELB, Associate Judge:

Jerome L. Arrington was convicted by a jury of one count each of kidnaping while armed,¹ armed robbery,² assault with intent to commit rape while armed,³ and possession of a firearm during a crime of violence.⁴ Arrington subsequently filed a number of post-trial motions, each of which was denied. Arrington noted timely appeals from his convictions and from the denial of two of his post-trial motions. We conclude that the denial of the two motions, especially when the two are considered together, requires reversal. We therefore vacate the orders denying the two motions and remand the case for further proceedings consistent with this opinion.

I. THE EVIDENCE

At Arrington's trial, the prosecution presented evidence that on the morning of February 27, 1994, Deon Moore and Tonya Gray had just returned to the apartment building in which Ms. Moore lived when they were approached by a man who was carrying a double-barreled shotgun. Using abusive language, the armed man forced the women into the basement, where the assailant was joined by a second man. The assailant demanded the women's money and took $190 from Ms. Moore, who had recently cashed a welfare check. The robber then ordered both women to pull down their pants; terrified, the women complied. The robber pulled out his penis, and Ms. Moore began to scream. The man shouted at Ms. Moore: "Bitch, you are gonna fuck me or you're gonna suck my dick." At this point the second man warned the robber that he (the confederate) would not permit the women to be raped. In response, the robber pointed the shotgun at the second man. Subsequently, however, the robber relented and let the women leave, warning them not to report what had occurred and telling them to forget his face.

After a brief delay, and at the direction of her social worker, Bernice Muskelly, Ms. Moore reported the incident to the police. She described her attacker as a short, dark-complexioned man with pink lips and a missing tooth. She reported that the robber's confederate had called the robber "Tyrone" or "Jerome." Ms. Moore indicated that she had seen her assailant in the neighborhood prior to the robbery, but she was not otherwise acquainted with him.

Three days after reporting the robbery to the police, Ms. Moore saw a man she believed to be the robber coming out of an apartment across from her own apartment. She immediately advised Ms. Muskelly, who telephoned the police, and officers promptly apprehended the suspect. Ms. Moore identified the suspect as her assailant. The man turned out to be Jerome L. Arrington, the appellant in this case.

Arrington did not take the stand at his trial, which was before Judge Gladys Kessler, and he presented no witnesses.⁵ Arrington was convicted of all charges. He filed a timely notice of appeal, and his direct appeal (No. 97-CF-1219) remains pending and is presently before us.

Following his conviction, Arrington filed a number of post-trial motions attacking his trial and sentence. These motions included one filed on March 3, 1998, pursuant to D.C.Code § 23-110 (1981), in which Arrington asserted that his trial counsel was constitutionally ineffective because he failed to interview or call allegedly exculpatory witnesses. On February 28, 1999, following an evidentiary hearing at which Arrington was not present, the motion was denied by Judge Henry F. Greene in a written order. Arrington noted a timely appeal from this order (No. 99-CO-381).

On July 24, 2000, Arrington filed a pro se motion purportedly pursuant to D.C.Code § 23-110. In substance, however, Arrington sought a new trial on the basis of newly discovered evidence, and the government agrees that the motion should be treated as one pursuant to Super. Ct.Crim. R. 33. This motion was denied on December 22, 2000, by Judge Patricia A. Wynn in a written order. Arrington again noted a timely appeal (No. 01-CO-811). The three appeals were consolidated by order of this court and are now before us.⁶

II. THE MOTION BASED ON THE ALLEGEDLY INEFFECTIVE ASSISTANCE OF COUNSEL

A. Background.

In his motion seeking a new trial on the basis of ineffective assistance of trial counsel, Arrington asserted that his attorney had failed to interview and call potential defense witnesses who would have contradicted Ms. Moore's testimony that Arrington was essentially a stranger to her. Arrington's motion was accompanied, inter alia, by affidavits by Andre Dudley, Norman Hendrickson, and Arrington himself. The gravamen of the motion was that counsel's failure to interview and call Dudley and Hendrickson left unchallenged an essential part of the prosecution's case, namely, that Ms. Moore was an innocent individual who was assaulted by and robbed by a stranger. If the jury could be persuaded that Arrington and Ms. Moore were crack-smoking associates and that Ms. Moore lied about this association, then, in Arrington's view, her credibility would be shattered.

According to his affidavit filed in support of Arrington's motion, Andre Dudley had been advised that Ms. Deon Moore had testified at Arrington's trial, and that she had claimed "that she had no prior acquaintance or association with Mr. Jerome Arrington." Dudley asserted in his affidavit, inter alia, that if Ms. Deon Moore had indeed so testified, she had "[c]ategorically lied under oath." Dudley stated that he, Ms. Deon Moore, and Mr. Jerome Arrington "often associated, and during that association used [c]ocaine for our personal enjoyment or habit." In other words, according to Dudley, Arrington and Ms. Moore were his cocaine-smoking buddies and, contrary to Ms. Moore's testimony, were not strangers to one another at all.

Norman Hendrickson essentially corroborated Dudley's account. Hendrickson stated in his affidavit that he had been acquainted with Ms. Deon Moore and Mr. Jerome Arrington "over a period of [m]onths." Hendrickson continued as follows:

During this association, the affiant observed Ms. Deon Moore, and Mr. Jerome Arrington together smoking [c]rack [c]ocaine. Further, [a]fter being an eye-witness to this association, the affiant indulged in the smoking of [c]rack cocaine with Ms. Deon Moore and Mr. Jerome Arrington, during the [m]onth of November 1993.

Arrington swore in his affidavit that he had provided his trial counsel with the names and addresses of the following witnesses well in advance of trial:

Jamel Norris (now deceased) Andre Dudley Norman Hendrickson Margie Parker.⁷

The record thus contains an assertion, under oath, that the identities of both Dudley and Hendrickson were known to Arrington's attorney prior to the trial.

The government responded to Arrington's motion with an affidavit and a supplemental affidavit by Arrington's trial attorney and an affidavit by counsel's investigator. The investigator related in his affidavit that he had interviewed Arrington at the outset of the investigation about potential witnesses, and that Arrington had never mentioned Andre Dudley or Norman Hendrickson to him. The investigator related, however, that he had "located one person . . . named `Norman' who had no information about the case but who did take me to the location of the offense and assisted me in locating people who tried, to no avail, to help me find Mousey."⁸ Arrington's trial attorney made no mention of Dudley or Hendrickson either in his affidavit or in his supplemental affidavit. The attorney ultimately produced his own notes of his discussions with Arrington; these notes did not mention Dudley or Hendrickson.

On November 20, 1998, Judge Henry F. Greene conducted a hearing on Arrington's claim of ineffective assistance of counsel. Judge Greene acknowledged that Arrington, who was serving his sentence at a penal institution in Ohio, had requested to be present at the hearing. The judge ruled, however, that Arrington's presence was not required in order to dispose of the motion.

The only witness at the hearing was Arrington's trial counsel, who was examined by the prosecutor and by Arrington's present attorney.⁹ At the hearing, trial counsel produced a memorandum from Arrington giving Arrington's version of the relevant events, but he made no mention of Dudley or Hendrickson. Arrington's present counsel protested that Arrington should have been permitted to be present in order to explain and counter the memorandum produced by his trial counsel, and he requested a continuance. At the conclusion of the hearing, Judge Greene stated:

I'm going to examine the exhibits and the notes in this case and I'm going to do one of two things. I'm going to either resolve this matter on the record that we have at this point or set a further date when we can have Mr. Arrington here.

On February 28, 1999, the judge issued a written order in which he denied Arrington's § 23-110 motion. The judge explicitly found, inter alia, that Arrington never advised his attorney regarding Andre Dudley and Norman Hendrickson. The judge "credit[ed] the testimony of defendant's trial counsel ... supported by notes written to him by the defendant prior to defendant's trial." The judge made this finding without hearing testimony from Arrington, who had provided an affidavit in which he had sworn to facts that were contrary to the judge's credibility finding. The judge thus rejected Arrington's statement, made under oath, without observing Arrington testify and without being able to assess...