Barnes v. US, No. 97-CF-2000

• Decision Date: 12 October 2000
• Docket Number: No. 99-CO-641., No. 97-CF-2000, No. 98-CO-390
• Citation: 760 A.2d 556
• Parties: Kenneth M. BARNES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

760 A.2d 556

Kenneth M. BARNES, Appellant, v. UNITED STATES, Appellee.

Nos. 97-CF-2000, 98-CO-390, 99-CO-641.

District of Columbia Court of Appeals.

Argued September 12, 2000.

Decided October 12, 2000.

Robert S. Becker, Washington, DC, appointed by the court, for appellant.

Elizabeth H. Carroll, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Elizabeth Trosman, and Matthew G. Olsen, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN, FARRELL, and GLICKMAN, Associate Judges.

FARRELL, Associate Judge:

Found guilty by a jury of possession with intent to distribute cocaine (PWID) and unlawful possession of ammunition, and by the court of unlawful possession of drug paraphernalia, Barnes challenges the sufficiency of the evidence supporting his PWID conviction and contends that the trial court erroneously denied his post-trial motion under D.C.Code § 23-110 (1996) alleging ineffective assistance of counsel. We affirm.

I.

A.

Executing a warrant based partly on information obtained from a confidential informant, police entered a rowhouse at 1335 5th Street, N.W., in which Barnes lived together with his wife and three children, including her teen-age nephew. Barnes's sufficiency argument contests the evidence that he constructively possessed the sixteen ziplock bags of cocaine which the police found in the kitchen of the house.¹ In the closet of an upstairs bedroom occupied by the two adults, the police found drug distribution paraphernalia in a shoebox, including an electronic scale and plate (containing apparent narcotics residue), razor blades, a strainer, a piece of cardboard, and ziplock bags. A bag containing loose and boxed ammunition was found in a dresser drawer in the same bedroom. Additional empty ziplock bags and paraphernalia were discovered in the medicine cabinet in the first floor bathroom and beneath a bed in another bedroom containing male clothing. When the police entered the house they found Barnes lying with his eyes open on an upstairs bed, fully clothed, wearing a baseball hat and sneakers. He had $392 in cash in his pockets, as well as a set of house keys and a pager. The seized cocaine had a street value of $1200-1500. Barnes admitted residing in the house and that he was unemployed. At trial, he denied possessing the cocaine but admitted that the drug distribution paraphernalia (and ammunition) were his, purported evidence of an earlier time when he had intended to sell drugs but was talked out of it by his wife.

B.

This evidence was sufficient to establish Barnes's possession of the drugs, jointly or individually.² His occupancy of the house as only one of two adults living there; his admitted ownership of the tools of cocaine distribution found in the bedroom in which he slept; the discovery of additional paraphernalia elsewhere in the house; his possession of a pager and a sizeable amount of currency although (otherwise) unemployed; and the circumstances in which the police found him — all combined to support the jury's conclusion that he had knowledge of and exercised dominion and control over the cocaine. See, e.g., Hicks v. United States, 697 A.2d 805, 807 n. 3 (D.C.1997); Davis v. United States, 623 A.2d 601, 603-04 (D.C.1993); Williams v. United States, 604 A.2d 420, 421 (D.C.1992).³

II.

Barnes's second contention is that the trial judge erred in determining that he was not prejudiced, within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by his trial attorney's failure to call the father of Barnes's wife (Samuel Taylor) as a witness to explain how the cocaine happened to be in the kitchen. At the evidentiary hearing on the § 23-110 motion, Taylor testified essentially that he had found the drugs in a playground while cleaning it up (in January) for a baseball game, then put them in his daughter's house intending to get some money for them later. The trial judge assumed that the attorney had been deficient under Strickland in not interviewing Taylor or otherwise exploring his availability as a witness.⁴ The judge nonetheless found that Taylor's testimony was "extremely ... implausible and would have been found so by the jury," both for intrinsic reasons⁵ and because it was contradicted significantly by testimony which the defense did present from his ex-wife, Ann Taylor, at trial.

A.

Under the second — or prejudice — prong of Strickland, "the errors of counsel [need not] be shown by a preponderance of the evidence to have determined the outcome," but neither is it "enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." 466 U.S. at 693, 104 S.Ct. 2052. Rather,

[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694, 104 S.Ct. 2052. Although this court independently reviews the ultimate finding of prejudice (or not) under that standard, "[w]here ... a defendant's claims have been the subject of a hearing, [we] must defer to the trial court's credibility determinations respecting witnesses who testify at the hearing." Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992); United States v. Frost, 502 A.2d 462, 463 (D.C.1985). In this case, after hearing Taylor's testimony, the trial judge found no reasonable probability that a jury similarly considering it would have found it believable enough to call for a different result in the case. Besides the deference to that finding which Johnson commands, we recognize — as we have in the analogous context of a claimed Brady⁶ violation — that "the trial judge was on the scene" and "[i]n a far better position than we are ... to determine whether, given all that had occurred, [Barnes's] defense was ... prejudiced" in the Strickland sense by the failure to adduce Taylor's testimony. Edelen v. United States, 627 A.2d 968, 972 (D.C.1993).

B.

We find no reason to substitute our judgment for the trial judge's as to the probable effect of counsel's performance. As the judge found, Taylor's explanation — only grudgingly self-inculpating — of how the drugs came into the house lacked inherent plausibility because of the unlikely scenario it posited of his chance discovery of them while raking a field in preparation for a baseball tournament in late January.⁷ Barnes argues that the jury might have discounted the portions of Taylor's testimony implicitly denying that he was a drug dealer and found reason — enough to create reasonable doubt — to impute possession of the drug stash to him rather than Barnes.⁸ But we are not convinced any more than was the trial judge that this hypothesis yields the required "reasonable probability" of a different outcome. Cf. Strickler v. Greene, 527 U.S. 263, 289-90, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (emphasizing the defendant's burden, in the related Brady context, "to establish a reasonable probability" and not "a reasonable possibility" of a different result (emphases in original)). The government's case for constructive possession included the fact that tools for cocaine distribution were found in a closet of the bedroom Barnes shared with his wife, a fact telling enough that Barnes at trial felt constrained to admit possession of those tools while denying possession of the cocaine. Nowhere has Barnes argued that, except for counsel's failure to pursue Taylor's testimony, he would not have taken the stand and admitted owning the paraphernalia. Indeed, as evidence of Taylor's credibility, he urged the judge in the post-trial motion to consider the fact that Taylor's testimony dovetailed with his own at trial, Taylor claiming sole possession of the cocaine but denying knowledge of the paraphernalia on the second floor, while Barnes asserted the converse. Moreover, Ann Taylor, in testifying for the defense at trial, had described seeing her ex-husband in the kitchen ("he had no business coming in there") shortly before the day of the police search as he "went into the cabinet where the canned goods and foods are kept," then gave her an "[un]believable explanation" for his actions.⁹ We are not persuaded that adding Taylor's testimony to his ex-wife's would have strengthened the inference of exclusive possession by Taylor enough to meet the Strickland test for prejudice.

C.

Barnes further argues that the trial judge erroneously assessed the weight added to the tally of prejudice by the proffered testimony of Isaac Truesdale, which Barnes presented by way of a separate motion for a new trial based on newly discovered evidence. The judge held a hearing on this motion as well, at which Truesdale essentially declared (a) that over time he had witnessed Samuel Taylor engage in hand-to-hand exchanges with others in the vicinity of the Barnes home in a way suggesting drug transactions, and (b) that he had heard others "tease" Taylor about "letting his daughter take the rap for him [in this case]," prompting Taylor to reply angrily, "Mind your F- business." (On the other hand, Truesdale had never heard Taylor say the drugs found in Barnes's home were his, nor seen Barnes place any drugs there.)

An initial difficulty with Barnes's weighting of the Truesdale testimony is that he explicitly conceded below he was offering it under "[t]he high standard for [assessing] newly discovered evidence claims," Strickland, 466 U.S. at 694, 104 S.Ct. 2052, not the standard of prejudice for gauging ineffective assistance of counsel.¹⁰ Barnes, in other words, did not argue that his trial attorney's failure to interview Taylor resulted, among other things, in the unavailability of Truesdale as a corroborative witness. Evaluating Truesdale's testimony as we must under the newly discovered evidence standard, we find...