Asbell v. United States, 14163.

• Decision Date: 09 September 1981
• Docket Number: No. 14163.,No. 79-1275.,14163.,79-1275.
• Citation: 436 A.2d 804
• Parties: Quinton R. ASBELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 804

436 A.2d 804

Quinton R. ASBELL, Appellant, v. UNITED STATES, Appellee.

No. 14163.

No. 79-1275.

District of Columbia Court of Appeals.

Argued October 29, 1980.

Decided September 9, 1981.

Barry H. Gottfried, Washington, D.C., with whom Lawrence H. Schwartz and Barbara Kammerman, Washington, D.C., were on brief, for appellant.

Robert F. O'Neill, Asst. U.S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U.S. Atty., and John A. Terry, Michael W. Farrell, and Genevieve Holm, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before KELLY, HARRIS and FERREN, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant, Quinton R. Asbell, of robbery, D.C. Code 1973, § 22-2901, and second-degree burglary, id. § 1801(b).¹ After noting an appeal and receiving new appointed counsel, appellant requested, and was denied, a new trial based on a claim of ineffective assistance of counsel. Although many issues have been raised on appeal, most coverage in a basic question: whether appellant's counsel, whom the trial court found grossly incompetent, prejudiced appellant to the extent of denying him the essence of a substantial defense. We conclude that counsel's gross incompetence had this effect. We further conclude, however, that this case does not warrant dismissal for lack of a speedy trial; nor does it warrant reconsideration of suppression issues raised — and disposed of favorably to the government — in connection with the effectiveness claim. We thus reverse and remand the case for a new trial.

On September 17, 1975, at approximately 4:00 p. m., two men entered Randolph E. Appenzeller's trailer, put a gun to his head, then beat, hog-tied, and robbed him of his wallet, keys, ring, and surveying and other equipment. Two days later police arrested appellant for possessing the stolen property. On April 28 and 29, 1976, appellant, then age 17, was tried as a juvenile for receiving stolen goods, D.C.Code 1973, § 22-2205. He was acquitted. Less than a month later, police executed a warrant for appellant's arrest, this time charging participation in the armed robbery itself. On the same day, May 18, 1976, the court appointed counsel for appellant. He remained in custody until July 22, 1976, when he was released on bond. Appellant was indicted on January 26, 1977, and arraigned two weeks later. Largely due to "court congestion" and "institutional factors," appellant was not tried until July 17 and 18, 1978.²

At trial, Appenzeller identified appellant as one of the robbers and as the individual he had seen in court two years earlier at appellant's trial for receipt of stolen goods.³ In addition, Edward Massey, Appenzeller's co-worker, testified that he had seen one of the robbers in custody when the police had called him to identify the stolen property. Although Massey stated that he had been sure of his identification at the time, after three years he "couldn't swear that [appellant was] the same guy." He did indicate, however, that appellant looked similar to the individual he had earlier identified. The government then called Sergeant Thomas G. James to testify that appellant had been in police custody when Massey had identified the stolen property and claimed to have recognized one of the robbers. Finally, the government called Detective Lorren D. Leadmon, who testified that appellant, after being arrested and advised of his rights on September 19, 1975, admitted he had gone with the robbers on September 17 but insisted he had stayed in the car while two others had robbed Appenzeller.

Appellant was the only witness for the defense. He denied participation in the robbery. He also denied having made any statement about the robbery to Detective Leadmon. On cross-examination, appellant testified that on the afternoon of September 17, he had been at home with his mother. He claimed that he remembered this day because it was his nephew's birthday. Also on cross-examination, appellant described his activity on September 19. The prosecutor impeached this latter testimony with statements appellant had made at his earlier trial. In addition, the prosecutor was able to impeach appellant's testimony that he had never seen Appenzeller before the day of the second trial, for Appenzeller had testified against appellant at his first trial. See note 3 supra.

On July 19, 1978, the jury found appellant guilty of robbery and second-degree burglary, while acquitting him of the other charges. On November 13, 1978, the court committed appellant under the Federal Youth Corrections Act. 18 U.S.C. § 5010(b) (1976). He noted an appeal. This court appointed new counsel, who filed a motion for a new trial alleging ineffective assistance of counsel, in violation of Sixth Amendment rights. The court heard the motion on September 24 and 25, 1979, and denied it on November 9, 1979. The court concluded that, although appellant's trial counsel had been grossly incompetent, his incompetence "ha[d] not caused the defendant actual prejudice by blotting out the essence of a substantial defense." Consolidated before us now are the appeals from the trial and the denial of the new trial motion.

[1] Appellant bears a heavy burden in attempting to show violation of his Sixth Amendment right to effective assistance of counsel. In Angarano v. United States, D.C.App., 312 A.2d 295, 298 n. 5 (1973), rehearing denied, 329 A.2d 453 (1974) (en banc), we adopted the test of Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967), that, to establish an ineffective assistance claim, a defendant must show "both that there has been gross incompetence of counsel and that this in effect blotted out the essence of a substantial defense either in the District Court or on appeal." Id. at 339-40, 379 F.2d at 116-17 (footnotes omitted). See, e. g., Tillery v. United States, D.C.App., 419 A.2d 970, 972 (1980); Johnson v. United States, D.C.App., 413 A.2d 499, 502 (1980); Wright v. United States, D.C.App., 387 A.2d 582, 586 (1978). Thus, it is not enough for appellant to show that trial counsel was grossly incompetent; appellant also must show a casual relationship between that incompetence and the failure of the defense.⁴

In determining whether trial counsel's performance blotted out the essence of a substantial defense we apply a "totality of the circumstances" test. Tillery, supra at 973 (quoting Oesby v. United States, D.C.App., 398 A.2d 1, 8 (1979)). Thus, even though any one specific error by counsel may not constitute ineffective assistance, "the totality of the omissions and errors" may be sufficient. United States v. Hammonds, 138 U.S.App.D.C. 166, 173, 425 F.2d 597, 604 (1970). In reviewing this totality of circumstances, moreover, we are not limited to considering only the loss of affirmative defenses; ineffective attack on the government's case-in-chief may result in unconstitutional deprivation of counsel. As we recently stated in Johnson v. United States, supra:

A "substantial defense" . . . is not limited to an affirmative defense or the presentation of an alibi defense. A defense may be predicated upon disproving an element of the crime charged or simply discrediting the testimony of the prosecution witness. A substantial defense would be lost, for example, if defense counsel failed to use available prior perjury convictions to impeach the sole prosecution witness, or to use prior inconsistent statements which sharply undercut the witness' credibility. Such failures could "blot out" a substantial defense even where it would be entirely appropriate for the defense to put on no evidence at all of its own. The defense may rely on the presumption of his innocence and on the government's obligation to prove each and every element of an offense beyond a reasonable doubt. [Id. at 504-05 (citations omitted).]

III.

The trial court's conclusion that appellant's counsel had been grossly incompetent was based on the following findings of fact:

1. Trial counsel failed to conduct a full interview with the defendant to determine all relevant facts known to the defendant.

2. Trial counsel failed to keep the defendant informed of his case or prepare him adequately for trial.

3. Trial counsel failed to conduct a prompt investigation of the case and failed to interview any of the witnesses called by the government.

4. Trial counsel failed to engage in any meaningful discovery with the government with regard to the facts of this case.

5. Trial counsel failed to engage in any meaningful plea discussions with the prosecutor.

6. Following the verdict, trial counsel did not submit favorable information to the court for purposes of sentencing.

7. Trial counsel apparently has not retained any records with regard to this case.

We agree that the record supports these findings, as well as the conclusion that trial counsel was grossly incompetent — determinations which the government does not contest. In order to evaluate whether counsel's gross incompetence prejudiced appellant, we examine the course of the trial in greater detail.

A. "Trial counsel failed to conduct a full interview with the defendant to determine all relevant facts known to the defendant."

At the hearing on the new trial motion, trial counsel acknowledged that he only had interviewed his client in hallways and courtrooms when both were required to be at the courthouse for some other purpose. Counsel stated that all he had learned from

these interviews was appellant's claim that he had not been present at the robbery. Appellant testified that his counsel never asked him about a possible alibi. In response, counsel testified that he could not recall whether he had asked his client about an alibi.⁵

As result of trial counsel's failure to interview his client in depth, counsel learned of appellant's alibi claim for the first time while the prosecutor was cross-examining appellant. Counsel never had interviewed the witness who appellant claimed would have...