Butler v. United States, 10330.

• Decision Date: 29 April 1980
• Docket Number: No. 10330.,10330.
• Citation: 414 A.2d 844
• Parties: Raymond E. BUTLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 844

414 A.2d 844

Raymond E. BUTLER, Appellant, v. UNITED STATES, Appellee.

No. 10330.

District of Columbia Court of Appeals.

Argued En Banc March 22, 1979.

Decided April 29, 1980.

Silas J. Wasserstrom, Public Defender Service, Washington, D. C., for appellant.

Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time of en banc argument, and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK and FERREN, Associate Judges, and REILLY, Chief Judge, Retired, and YEAGLEY, Associate Judge, Retired.^*

MACK, Associate Judge:

In this en banc proceeding reviewing criminal convictions, we have examined challenges to 1) the denial of a motion to suppress evidence and 2) the effective assistance of defense counsel who, prior to a hearing told the motions judge of his client's intention to commit perjury, and who permitted his client to go to a bench trial before the same judge.¹ Although the first issue presents a troublesome question in light of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we need deal here only with the second; we have concluded that appellant, as a result of developments following counsel's revelations to the court, has been prejudiced by errors of constitutional dimensions fatally infecting both the suppression hearing and the subsequent trial. We therefore reverse the convictions for assault on a police officer and carrying a pistol without a license (D.C. Code 1973, §§ 22-505(a), -3204), and remand for new proceedings.

The flavor of the proceedings is best conveyed by a lengthy chronological recitation of the facts.

Appellant was arrested on January 31, 1975, and counsel was appointed for him on February 1. Indictment followed on April 4, and counsel, on April 19 filed a motion to suppress. On September 25, 1975, the day set for the hearing on the motion to suppress, defense counsel asked leave for his client to address the court on preliminary matter. Thereupon appellant asked for the appointment of "another" counsel until such time as he could secure his own. He explained that he had been incarcerated since February and had experienced difficulty in communicating with present counsel — that is, that he had not had sufficient time to discuss his case. He added that he had written the Bar Association, the Public Defender Service and the court about his difficulty, that he understood that counsel was a busy man, but that he would appreciate having a counsel with more time.

Counsel addressed the court in return to say that, while he did not object to being removed from the case, he had talked to his client for an hour on the day of appointment, conferred with him for 30 minutes prior to a preliminary hearing, and filed the motion to suppress. The real reason for his client's complaints, he said, was the length of incarceration occasioned by the defendant's parole status. ["The evidence is such, Your Honor, that he's in violation of the parole even if he wins the case, because the Parole Board can determine that the defendant had a pistol on him . . . ."] Conceding that he had not visited the jail in "two, three, four months" counsel continued:

This is an open and shut case, Your Honor, where I talked for approximately two hours with the defendant, filed an appropriate motion, and there are one or two witnesses that are police officers, for the government, and this defendant's word against theirs as to an incident on the street that took about ten minutes to occur. It is not a case where you put character in evidence, because the defendant is on parole for a crime of moral turpitude, and he doesn't have an alibi because he was arrested on the scene and, to be frank, Your Honor, because I expect he wants to testify in this case he is concerned that I do not want to put him on the stand, because he's told me before that he had the pistol, and today for the first time he tells me that's not true.

I have explained to the defendant, Your Honor, that I cannot put him on the stand if I think he's committing perjury, without telling the Court.

To which the court replied:

Of course you can't. To do so would be a violation of the law and your professional ethics and responsibility. And I don't have any doubt in the world but that he represented to you that he had this pistol on him.

Now, based upon your change in your story, Mr. [Defense Counsel] can't put you on the stand after you told him that and testify that you didn't have it. It doesn't really make any difference anyway, if, as I understand the government's evidence in this case to be that the pistol was recovered from the small of your back. What difference does it make whether you say you had it or you didn't have it. Where did it come from? Out of thin air?

Thereafter in answer to the court's further inquiry as to what the case was about, the government's evidence was detailed by both counsel.

In the course of the discussion of the evidence defense counsel (noting that he would not be revealing these matters on the record but for the accusation of ineffective assistance) spoke of his efforts to convince his client that if the suppression motion was unsuccessful, he would probably be convicted of the pistol charge² (a felony by virtue of a previous conviction) and that a plea of guilty to the pistol charge, in exchange for the government's waiver of allocution, would give him a stronger chance for concurrent time.

When appellant protested that the pistol charge stemmed from an illegal search, a long colloquy followed³ during the course of which the court told the appellant that the law and the Constitution would not help him in the decision he had to make (i. e. whether to enter a plea of guilty), that if the motion went to a hearing and was denied, it was all over for him, that under these circumstances he would have nothing to bargain with, that a jury would see the pistol and he would then be in a "pickle." The court added that it thought the government had offered "a pretty decent disposition under the circumstances and it would be well worth your while to take it."

The court advised appellant that he must decide what he wanted to do. Appellant noted at one point, "I accept the counsel," and at another, "I want to go on with the trial." During this discussion the court explained that the officers could justify the warrantless search by showing that they had reasonable suspicion for a patdown, that reasonable suspicion "means almost anything, to tell you the truth" and that the advice of defense counsel was sound.⁴

Defense counsel, after a private conference with appellant, told the court that the problem was that the defendant did not trust him; he requested that the case be passed over until the following day and that another attorney be appointed that appellant might listen to. Counsel said he would be happy either to remain in or get out of the case, but that he hated to see appellant make the tragic mistake of going to trial. The court told appellant that he saw no reason to remove counsel, an abortive discussion followed as to the chances of appellant securing his own counsel, and the appellant then said he would accept the government's offer.⁵ When the court began its Super.Ct.Cr.R. 11 inquiry, appellant again expressed reluctance, the court refused to accept the plea, and instructed the government to call its first witness for the purpose of hearing the motion to suppress. After testimony from one police officer describing appellant's apprehension⁶ the motion for suppression was denied and a trial date set.

Trial was scheduled for October 28, 1975 before the same judge who had heard the motion to suppress. On that morning counsel and the court disposed of preliminary matters while waiting for appellant to be brought to court. Defense counsel told the court that "we intend" to have a nonjury trial which he anticipated, because of stipulations, would take no more than ten minutes. After counsel spoke to evidentiary matters, defense counsel, in answer to the court's inquiry, indicated that he did not think his client would take the stand:

I explained the problems with the Court the last time regarding whether or not he was telling the truth about having the pistol. So I reserve stating what I'll do until he gets here and let him make the decision but I don't think he will take the stand.

Counsel explained he had taken this approach because he had assured appellant that this way he would still have an appeal and that the court would assist him in getting an attorney.

The court spoke of its recollection that appellant had at least one prior conviction. Government counsel recited all prior convictions: attempted robbery in the United States District Court, possession of implements of crime in 1970, and carrying a pistol without a license in 1971. Defense counsel indicated, upon inquiry from the court, that he would not have any difficulty with those convictions in the event appellant took the stand.

When the case was called for trial, defense counsel stated for the record:

We are going to have just a trial by the Court. I have spoken to Mr. Butler Friday, he was in agreement with that advice at that time and again this morning at about 9:15, at that time Mr. Butler indicated he would prefer that we go to trial before Your Honor.

* * * * * *

I have advised Mr. Butler that the court will assist him . . . in getting . . . . a very competent attorney to handle his appeal. . . .

Thereafter, a written waiver of trial by jury was executed. The testimony of the officer who had appeared at the pretrial motion was admitted by stipulation. Two other officers testified to identify the pistol and give details of the assault charge. Motions for a judgment of acquittal were denied, the defendant elected not to testify, and the...