Doe v. US, 84-702

• Decision Date: 07 December 1990
• Docket Number: No. 84-702,88-670 and 89-78.,84-702
• Citation: 583 A.2d 670
• Parties: Melvin DOE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

583 A.2d 670

Melvin DOE, Appellant, v. UNITED STATES, Appellee.

Nos. 84-702, 88-670 and 89-78.

District of Columbia Court of Appeals.

Argued March 5, 1990.

Decided December 7, 1990.

Lawrence M. Baskir, appointed by the court, for appellant.

Kirby D. Behre, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN, and BELSON, Associate Judges.

BELSON, Associate Judge:

Appellant Melvin Doe appeals his conviction for voluntary manslaughter while armed (D.C.Code §§ 22-2405, -3202 (1989 Repl.)) contending that the trial court erred in failing to instruct the jury, sua sponte, on causation, and that statements made in the prosecutor's closing argument to the effect that appellant was a "bad person" improperly prejudiced appellant. Appellant's direct appeal of his conviction has been consolidated with his appeals from the trial court's denials, without hearing, of his two post-trial motions under D.C.Code § 23-110 (1989 Repl.). Finding no merit in appellant's arguments, we affirm. Because appellant's counsel has raised questions with respect to the duties of counsel appointed by this court for direct criminal appeals to investigate possible claims of ineffective assistance of trial counsel, we will discuss those duties in the course of addressing appellant's arguments. See Shepard v. United States, 533 A.2d 1278 (D.C.1987).

I.

On September 18, 1982, appellant Melvin Doe stabbed Leroy McCray with a knife at 208 Morgan Street, N.W., where appellant had rented a room from McCray. The stabbing followed an earlier altercation between the two men that stemmed from McCray's having locked appellant out of the house and blocked appellant's girlfriend's exit from appellant's bedroom. After the girlfriend, Ms. Betty Jean Poteat, had shaken the bedroom door open, she let appellant in the front door of the house. After appellant entered the house, he confronted McCray in McCray's bedroom. McCray then became angry and hit appellant with a spear-like object that made a small cut on appellant's left side. As McCray continued to pursue appellant with the "spear," appellant stabbed McCray four times with a butcher knife he had been carrying in his pocket. McCray required emergency surgery. Two days later, McCray, an alcoholic who was experiencing delirium tremens, suffered a cardiac arrest, experienced severe brain damage, and then lapsed into a coma. McCray never regained consciousness and died on May 2, 1983.

II.

Doe argues that the trial court improperly denied his ex parte motion for the appointment of counsel and for expert and investigative services.¹ Doe contends that these appointments were necessary in order to prepare adequately for a motion to vacate judgment and order a new trial under D.C.Code § 23-110 based on trial counsel's having been ineffective in that he failed to pursue the "complete defense" of lack of proof of causation of McCray's death. Moreover, Doe argues, "appointed appellate counsel must be appointed at the trial level as counsel for proposed new trial proceedings...." The government responds by arguing that Doe's § 23-110 motion failed to demonstrate a sufficient basis for these appointments, and that the motion was properly denied without a hearing.

The Constitution does not require the appointment of counsel to pursue post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). Similarly, there is no statutory basis for an unqualified right to such appointment. Jenkins v. United States, 548 A.2d 102, 104 (D.C.1988). See D.C.Code §§ 11-2601(3)(A) and 11-2602 (1989 Repl.). The decision whether to appoint counsel to pursue collateral relief is "entrusted to the sound discretion of the trial court." Jenkins, supra, at 105. The guiding standard is whether such an appointment is in the "interests of justice." Id.²

In order to demonstrate a need for the appointment of counsel, a petitioner usually must satisfy the same criteria that would entitle the petitioner to a hearing on the § 23-110 motion under Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978). A prisoner is not entitled to a hearing on a § 23-110 motion if the motion:

(1) is "`palpably incredible' (though not merely `improbable')," or (2) "fails to state a claim," i.e., the assertions, even if true, would not entitle the prisoner to relief under § 23-110, or (3) is "`vague and conclusory,'" i.e., the "prisoner does not present a factual foundation in some detail."

Jenkins, supra, at 105 (quoting Pettaway, supra, at 984). Considering the nature of these standards for hearings, it is not surprising that few cases will require the appointment of counsel when no § 23-110 hearing is required under Pettaway. When a hearing is required, however, the appointment of counsel by the trial court is obligatory. Even when the matters advanced by a movant do not appear to require a hearing, the trial court has the discretion to appoint counsel to aid movant in marshalling and presenting a request for relief.

It is implicit that the trial court rejected Doe's motion because the "assertions, even if true, would not entitle the prisoner to relief under § 23-110." See Jenkins, supra, at 105. The trial court noted that there was enough evidence on causation for the jury to determine that appellant caused McCray's death. In addition, the trial court deemed trial counsel's decision not to pursue a causation defense to be a tactical choice, a finding that would preclude Doe from obtaining relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Doe, we should note, argued that he had acted in self defense. Having stated grounds that evinced the strong likelihood that Doe's claims would not succeed even if counsel were appointed, the trial court found no reason for granting Doe's ex parte § 23-110 motion for the appointment of counsel and expert and investigative services.³

Doe's ex parte motion for the appointment of counsel and other services failed to state any specific grounds why expert or other investigative services would be necessary to delve further into the causation issue. As the trial court indicated, the cause of McCray's death was explored during trial. Doe's trial counsel fully cross-examined the government's witnesses who testified on that issue.

Clyde Callender, M.D., testified at trial as an expert witness as follows:

The cause of McCray's death was related to—well, the cause of death was his heart stopped beating but basically all of this was related to the traumatic event that occurred in September of the stab wound of the chest and abdomen which caused him to require surgical intervention and then made him susceptible to delirium tremens which then caused him to have the cardio-respiratory arrest and which eventually resulted in his demise some eight months later.

Q. But for the stab wounds would any of these things happened?

A. No.

Doe's trial counsel cross-examined Dr. Callender about his testimony and the treatment McCray received while he was in the hospital, including the delirium tremens McCray suffered as a result of his surgery. Specifically, trial counsel asked whether the valium administered to McCray could have caused him to become unconscious. Appellant's trial counsel asked Dr. Callender to assign percentages to the effect of the valium and the delirium tremens on the cardiac arrest. The doctor responded, "it was my opinion that the delirium tremens was in my opinion was 70 percent likely to have caused the arrest, but there's a thirty percent likelihood that the valium at least was contributor to it."

The doctor who performed the autopsy, Rak W. Kim, M.D., testified that the cause of death was "bronchial pneumonia associated with bad bed sores. That is secondary to stab wounds." He also testified that the pneumonia and infection from the bed sores were complications of the stab wounds. Defense counsel also cross-examined Dr. Kim as to the cause of McCray's death and exposed a limitation of Dr. Kim's report, i.e., that Dr. Kim did not have information about McCray's alcoholism when he completed the autopsy report and he based his findings on hospital and police reports. Defense counsel also brought out during his cross-examination information about whether another listed cause of death, "cerebral cortical necrosis," was related to delirium tremens, and elicited that the doctor considered it "secondary to diminished oxygen supply to the brain as to heart failing and unable to pump enough blood to the brain." Toward the end of the cross-examination, Dr. Kim concluded that he could not separate the causes from each other and that they should be grouped together as a complication of the critical injury.

In sum, the record refutes appellant's argument that Doe's trial counsel was ineffective in that he failed to press the defense that cause of death was not established. To the contrary, the record demonstrates that trial counsel cross-examined fully, but that despite his efforts the jury had ample evidence on cause of death to find that McCray died as a result of the stab wounds and secondary complications due to those wounds. Doe does not now assert the existence of any contrary evidence.

Under the standards enunciated in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, and Ellerbe v. United States, 545 A.2d 1197, 1198-99 (D.C.), cert. denied, 488 U.S. 868, 109 S.Ct. 174, 102 L.Ed.2d 144 (1988), Doe's ineffective assistance of counsel claim fails. Doe cannot meet the "but for" test of Strickland because Doe has failed to demonstrate that the results of his trial would have been different had his trial counsel pursued the causation defense. So even though Doe's assertion that his trial counsel did not press a causation defense was true, Doe was not entitled to a hearing. It follows that the order denying the ...