Dyer v. United States
| Decision Date | 23 March 1967 |
| Docket Number | No. 20052.,20052. |
| Citation | 379 F.2d 89,126 US App. DC 312 |
| Parties | Ernest E. DYER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James R. Scullen, Washington, D. C. (appointed by this court), for appellant.
Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Dean W. Determan, Asst. U. S. Atty. at the time the record was filed, also entered an appearance for appellee.
Before FAHY and DANAHER, Circuit Judges, and BASTIAN, Senior Circuit Judge.
This appellant on January 12, 1966 was convicted of impersonating an officer in violation of D.C.Code § 22-1304 (1961). He has contended on appeal that he was denied a fair trial due to the ineffective assistance of counsel.
In view of the nature of the challenge, we observe at once that we enter upon our consideration of the problem arising on this record with no lack of confidence in the appellant's court-appointed trial counsel. His general competence is well known to the court. That an awkward situation arose is clear; that counsel went forward under trying circumstances and with an uncooperative client is apparent.
But the majority is satisfied that in net result the defense fell substantially short of what we should consider adequate. Cumulatively, various facets became so meaningful that we are of the opinion a new trial fairly is required, particularly since the case was so close. The trial judge deemed himself obliged to decide — quite properly — that four counts should be dismissed. Indeed it is obvious that he seriously considered dismissing the remainder of the case.
Without extensive detail, we may briefly illustrate the basis for the misgivings arising from our review of the trial transcript.
The evidence disclosed that about 12:30 A.M. on June 12, 1965, the appellant came upon two young men seemingly engaged in an altercation. The appellant took it upon himself to intervene in what those witnesses described as mere horseplay. Appellant's trial counsel told the jury in his opening statement that by way of defense the appellant would be shown to have been accredited in the District of Columbia as a special police officer. The Government proved the contrary. Counsel told the jury that the badge "that you will see will be that of a special police officer." The Government proved that whatever badge the appellant was said to have exhibited is "not the type" officially issued to special police officers who have been accredited. Counsel told the jury that if there be need to rebut the Government's evidence, the accused would take the stand. But he was not called as a witness. No subpoena had been issued for an allegedly material witness with whom counsel had not conferred. The attorney had been appointed three weeks earlier. No continuance was sought; the witness was not produced. Counsel explained that he had never talked to his client, the appellant, until the morning of the day the case went to trial. As to repeated hearsay statements, counsel informed the court "I have been allowing narrative testimony so that I can get a picture."
I think the judgment in this case should be affirmed. In my opinion the defendant (appellant) had at the trial adequate counsel, who protected defendant's interest. The following facts appear from the record:
Experienced and able counsel was originally retained by the defendant. Thereafter, counsel asked for permission to withdraw as defendant had not satisfied his agreement on counsel fee and had "failed and refused to appear at the office of counsel for the purpose of preparing his defense." Counsel was permitted to withdraw and the court appointed new counsel from one of the experienced and highly regarded law firms of the District of Columbia.
According to statements made in court, counsel arranged for an appointment with the defendant, who failed to keep that appointment. Another letter was sent to the defendant but counsel was not able to see him until the morning of the trial. Counsel made known to the court that he had been unable to contact the defendant earlier, for the reason stated, and the case was continued until two o'clock that afternoon. During the interval, the defendant conferred with his lawyer. Counsel then advised the court, and the defendant apparently agreed, that he was ready to proceed with the trial. Obviously counsel had acted to prepare the case prior to the trial date, as is shown by his citation at the trial of relevant statutory language and case law to support various objections and motions, and by certain instructions requested, and granted by the court, having to do with the offenses of which the defendant was charged.1
The only eyewitnesses to the events charged in the indictment were the two complaining witnesses and a neighbor, all of whom testified, and the defendant himself, who did not testify. The only other witnesses at the trial were representatives of the District of Columbia government, who testified that the records of the District of Columbia government did not show that the defendant was or ever had been a member of the Metropolitan Police Department, nor did the records show that the defendant had a commission as a special police officer in the District of Columbia.
Contrary to my colleagues, I think that the defense was adequately presented. Counsel succeeded on his motion to have judgment of acquittal entered on Counts 2, 3, and 5.2 After the defendant was found guilty on Counts...
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