Derrington v. US

• Decision Date: 01 August 1996
• Docket Number: No. 93-CF-1335,95-CO-101.,93-CF-1335
• Citation: 681 A.2d 1125
• Parties: Anthony C. DERRINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

681 A.2d 1125

Anthony C. DERRINGTON, Appellant, v. UNITED STATES, Appellee.

Nos. 93-CF-1335, 95-CO-101.

District of Columbia Court of Appeals.

Argued May 8, 1996.

Decided August 1, 1996.

Deborah A. Persico, Alexandria, VA, appointed by this court, for appellant.

Leanne Shaltis Fallin, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB and RUIZ, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

Anthony Derrington was convicted of selling crack cocaine to an undercover officer. He contends on appeal that his trial attorney, Douglas Wood, Esq., had a disqualifying conflict of interest and that Wood's performance was otherwise constitutionally deficient. The government responds that any conflict of interest was hypothetical or speculative, and that Wood's representation of Derrington satisfied constitutional standards. Concluding that an actual conflict of interest adversely affected Wood's representation, we reverse.

I. BACKGROUND

On December 4, 1991, Derrington and his co-defendant, Ricky Tillery, were charged by grand jury indictment with one count of distribution of cocaine and one count of possession of cocaine with intent to distribute it. See D.C.Code § 33-541(a) (1993). Derrington retained Wood to represent him with respect to these charges,¹ and Tillery was represented by Bernard Grimm. Wood and Grimm were former law partners, and they shared office space.

When Derrington retained Wood, Wood also represented Donald "Pig" Taylor. Pig Taylor was a defendant in the so-called R Street Crew case, an unrelated prosecution in the United States District Court for the District of Columbia. At that time, Grimm also represented McKinley Board, another defendant in the R Street Crew case.

A. The Pre-Trial Proceedings.

At a status hearing on October 21, 1992, nearly six months before Derrington's trial, Wood informed the judge that he might have to withdraw as Derrington's attorney because of a potential conflict of interest. Wood told the judge at a bench conference:

I represent Mr. Derrington in this case and in another case. And, yesterday, Mr. Grimm was in a trial, the R Street trial, over in federal court and it came out at that trial that Mr. Derrington was ... an informant in that case against the R Street Crew. I represented Donald Taylor, one of the members of that ... alleged organization for two to three years on a variety of matters. Mr. Derrington denies that he worked with the government as an informant.

* * * * * *

I raised the issue with Mr. Derrington this morning. He denies it. I've prepared a motion to withdraw.²

What I would like to do is probably, if we could continue this—and I can contact Mr. Duncan the prosecutor in the R Street Crew case to find out if Derrington is the informant.

Wood explained the potential conflict as follows:

If Derrington is the informant, then I'd have to withdraw. Because Mr. Derrington has this case and another case and he would need someone to bargain for him to get—to help out with these cases and probably use as a bargaining chip ... his informant status.

The status judge inquired whether Wood's relationship with Taylor was ongoing. Wood responded:

I represented him prior to my representation of Derrington. Mr. Taylor pled guilty in the R Street Crew case. . . . Sentencing is coming up in about three weeks. But, the problem is that in order to bargain for Mr. Derrington, I would have to say to the prosecutor well you know Mr. Derrington cooperated against the R Street Crew, he did this, that, he was an informant, got paid, gave them reliable information. . . .

The judge stated that "it may be a false conflict in the timing," apparently meaning that the dual representation perhaps did not present an actual conflict because Taylor had already entered a plea of guilty in the R Street Crew case and was about to be sentenced. However, Wood explained that "it hurts my relationship with Mr. Taylor if he finds out that I represented someone who's cooperating in the R Street case."

The judge agreed that a continuance was necessary to determine whether a conflict existed, and he addressed Derrington as follows:

Mr. Derrington, Mr. Wood will explain to you what we were talking about up here. The long and short of it though is that it may be necessary for him to withdraw as your lawyer in this case and for you to get another lawyer in this case and in another case in which he represents you.

It's not clear whether it's going to be necessary or not until he talks to you further and talks to others. So, I'm going to bring you back here ... next week... for Mr. Wood to tell me whether he's going to be able to represent you in this case or not. If he is, then we'll go forward as planned and you'll tell me what you want to do about this case and your other one. If he's not able to represent you, ... you'll certainly have an opportunity to retain another lawyer.

At the next status hearing on October 29, 1992, Wood reported:

I've looked into the potential conflict, and I don't believe it's a conflict.... I've explained to the United States Attorney here today and I've talked about what my client—I've made some phone calls.

The judge responded:

That's good enough for me. . . . As far as I'm concerned that is between you and your client, I see no reason to inquire further. I trust you have explored that with whomever you need to, to protect yourself and Mr. Derrington.

At the October 29 hearing, Derrington indicated that he wanted to go to trial rather than to accept a plea offer. During the six months which elapsed prior to the commencement of Derrington's trial, Wood did not discuss with Derrington the latter's option of cooperating with the prosecutors in exchange for more lenient treatment, nor did he approach the prosecutors to request dismissal of the charges, or any other favorable treatment, based on any past or potential cooperation by Derrington.

B. The Trial.³

A jury trial commenced on April 6, 1993. The government introduced evidence, which was apparently credited by the jury, showing that on November 19, 1991, Derrington and Tillery sold a zip-lock bag of crack cocaine to Gary Curtis, an undercover officer. Officer Curtis used twenty dollars in pre-recorded funds to pay for the contraband. After the transaction was complete, Curtis returned to his vehicle, field-tested the cocaine, and broadcast a lookout describing Derrington and Tillery. Within minutes, Derrington was spotted with some other individuals. Two officers observed him drop to the ground what turned out to be thirty-nine dollars, including ten dollars of the pre-recorded funds, and a white zip-lock bag containing crack cocaine. Derrington was detained, and Officer Curtis, who had returned to the scene, positively identified him as one of the sellers.⁴ Detective Charles Culver, who was qualified as a narcotics expert, testified that the cocaine in each of the two zip-lock bags, i.e., the bag dropped by Derrington and the bag purchased by Officer Curtis, had a purity of ninety-three percent, indicating a high probability that the contents of each bag came from the same source.

Although Derrington did not testify, Wood called two witnesses on Derrington's behalf. James Bouknight testified that, when the police arrived, he and Derrington had been playing chess on the back hood of Derrington's car for approximately one hour. According to Bouknight, a group of people had gathered to watch the game, and Ricky Tillery was part of that group. He testified that he did not see anyone selling drugs, and that Derrington never left the chess game. Donald Deans testified that he observed Derrington and Bouknight playing chess for about an hour before the police arrived, and that he did not see Derrington sell drugs to anyone.

In addition to calling Bouknight and Dean, Wood also sought to establish that the police had falsely accused Derrington of the crime in order to obtain leverage against him and to pressure him into providing information about the September 1991 murder of a man named Michael Green. Wood mentioned this theory in his opening statement to the jury. He also cross-examined Officer Curtis and Detective Truesdale about the Green homicide, but the officers denied any knowledge of it.

The jury convicted Derrington⁵ of both charges on April 9, 1993.⁶ On September 17, 1993, Derrington was sentenced to concurrent prison terms of ten to thirty years.

C. The Post-Conviction Proceedings.

On April 16, 1993, Derrington wrote a letter to the trial judge in which he stated:

Your honor, I'm not a drug dealer. And I feel if I'd been effectively assisted by counsel, whom I hired, this would not have been proven beyond a reasonable doubt. My attorney Mr. Wood never investigated the case. He never called my key witness, or the other witness. . . . My case was inadequately prepared. . . . I would like the court to appoint a lawyer to represent me during my appeal. Upon doing so, I'll need him to contact the prosecutor's office on a case, for I'm a key witness to a homicide that happened around my neighborhood. The defendant as charged for the homicide resides in this facility. Your honor, I also found out that Mr. Wood has been representing the defendant from the beginning who is charged with the homicide. The resident saw me and said, "I know you're not testifying now." This is why I'm in protective custody.... My name also came up in the R Street Gang case as the one who told where the stash house was. . . .

The trial judge treated this letter as a motion for a new trial based on ineffective assistance of counsel, and appointed a new attorney to represent Derrington. On July 8, 1994, Derrington's attorney submitted a supplemental motion for a new trial pursuant to Super. Ct.Crim.R. 33 and D.C.Code § 23-110 (1996...