Gale v. State, 80-96.

• Citation: 429 A.2d 177
• Decision Date: 19 March 1981
• Docket Number: No. 80-96.,80-96.
• Parties: Melvin GALE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

429 A.2d 177

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

No. 80-96.

District of Columbia Court of Appeals.

March 19, 1981.

Before KELLY and FERREN, Associate Judges, and GALLAGHER, Associate Judge, Retired.^*

ORDER AND JUDGMENT

PER CURIAM.

This case came on for consideration on the motion of court-appointed counsel for appellant to withdraw. The court has considered counsel's motion, appellant's motion for the appointment of new counsel, and the record on appeal and is of the view this case presents no nonfrivolous issue. Accordingly, it is ORDERED that counsel's motion be granted, and it is

FURTHER ORDERED and ADJUDGED that the order on appeal be, and hereby is, affirmed.

FERREN, Associate Judge, dissenting:

My colleagues grant counsel's motion to withdraw — and affirm the denial of appellant's motion attacking sentence under D.C. Code 1973, § 23-110 — on the basis of counsel's two-page memorandum asserting "there exist no non-frivolous issues raised by this appeal." I respectfully dissent, for I perceive at least two nonfrivolous issues on this record: (1) whether there was sufficient evidence for conviction of Burglary I, and (2) whether there was ineffective assistance of trial counsel. Accordingly, while I would grant counsel's motion to withdraw, I also would grant appellant's pro se motion for appointment of new counsel to pursue his case.

I.

A jury convicted appellant of first-degree burglary and grand larceny. The court denied a motion for new trial and sentenced appellant to concurrent terms of 12 to 40 years and 3 to 9 years. On appeal, this court affirmed the convictions. Gale v. United States, D.C.App., 391 A.2d 230, cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1978).¹

After this court had ruled, appellant filed a pro se motion under D.C. Code 1973, § 23-110 alleging three new grounds for relief: insufficiency of evidence for the burglary conviction, the trial court's failure sua sponte to instruct the jury on certain lesser included offenses, and ineffective assistance of counsel. After receiving a reply from the government, the trial court entered a memorandum order denying the motion without a hearing. Appellant filed a pro se notice of appeal; this court appointed counsel to represent him. See D.C. Code 1978 Supp., § 11-2601 to -2609. Counsel, however, filed a motion to withdraw — presumably on authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) — stating that the appeal presented no nonfrivolous issues. Appellant promptly responded with a motion asking for appointment of new counsel or leave to proceed pro se.

II.

When a prisoner collaterally attacks a sentence for violation of statutory or constitutional rights, see D.C. Code 1973, § 23-110, he or she is entitled to a hearing "[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id. § 23-110(c). See Glass v. United States, D.C.App., 395 A.2d 796, 809 (1978); Pettaway v. United States, D.C.App., 390 A.2d 981, 983 (1978); Gibson v. United States, D.C.App., 388 A.2d 1214, 1215 (1978) (per curiam); Session v. United States, D.C.App., 381 A.2d 1, 2 (1977). Here, the record suggests the possibility of relief.

A. To obtain a conviction for Burglary I, D.C. Code 1973, § 22-1801(a),² the government must show that another person was on the premises at the time the defendant broke in. United States v. Hammonds, 138 U.S.App.D.C. 166, 168 & n. 5, 425 F.2d 597, 599 & n. 5 (1970). Specifically, one may be convicted of Burglary I "if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking." D.C. Code 1973, § 22-1801(a); see Criminal Jury Instructions for the District of Columbia, No. 4.42 (3d ed. 1978). In this case, however, there is a serious question whether the government's evidence at trial was sufficient to prove this element of the crime.

Testimony established that on the day in question, the exterior basement door of the rooming house had been broken, and that several items of property were missing from the basement apartment. Willie Alford, a resident of the second floor of the rooming house, testified that he had heard someone climb the stairs to his floor, enter the room next to his, and then go down the stairs. Alford further testified that, through his window, he had seen a man leave the house carrying a partly covered TV set and place the set in a waiting car. Alford said he "did not know" whether other residents of the house "were there or not" at the time, and no other evidence showed that anyone else had been present. Alford had positively identified appellant as the thief from two different photo arrays and at a lineup. Alford identified him again in court. Two other witnesses testified that appellant had been in the house on prior occasions. All witnesses testified they had not given appellant permission to enter on the day of the burglary.

While there can be no doubt that this evidence is sufficient for a conviction of Burglary II, D.C. Code 1973, § 22-1801(b),³ it is not altogether clear whether the government established the Burglary I requirement that a person be present on the burglarized premises "at the time" appellant broke in. Id. § 22-1801(a). The United States Court of Appeals for the District of Columbia Circuit has held that similar evidence was sufficient to convict only of second-degree burglary. In Hammonds, supra, the court held the evidence insufficient for Burglary I because there was no evidence to show that any occupant of the building was present "when appellant entered the Elmore premises"; they were present only "when he was discovered." Id. at 168-69, 425 F.2d at 599-600.⁴

In the present case, if Willie Alford was in the rooming house at the time someone broke into the basement, the evidence would suffice for Burglary I. See id. But the record contains no direct evidence that Willie Alford (or anyone else) was present anywhere in the building at the time the burglar entered. The occupant of the basement apartment found the broken window and door when she returned from work, but she did not testify as to the time she had left the house or returned. Two other occupants testified that they had left for work at 7:30 a. m. and 8:05 a. m., respectively. Willie Alford testified that he had seen someone leaving with a TV set at about 9:50 a. m., but he did not testify as to the time the burglar entered or as to how long he had been home. See id. at 169, 425 F.2d at 600.

In a sufficiency case, of course, the court must take the evidence in the light most favorable to the government. Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1513, 91 L.Ed. 1850 (1947). The government is entitled, moreover to every legitimate inference from circumstantial as well as direct evidence. See Johnson v. United States, D.C.App., 293 A.2d 269, 271 (1972). Even so, there is a presentable argument that, in order to convict appellant of Burglary I, the jury would have had to enter "the realm of surmise and conjecture." Hammonds, supra at 169, 425 F.2d at 600. The record leaves open the possibility that the rooming house was empty between approximately 8:05 a. m. and 9:50 a. m., that the break-in occurred during that interval, and that Alford returned home in time merely to hear the burglar come upstairs, enter the room next door, and leave. Under that view of the evidence, there would have been no one in "any part" of the building "at the time of [the] breaking and entering." D.C. Code 1973, § 22-1801(a).

I express no view on the merits of this argument. I want to stress, rather, that appellate arguments of this sort are common, they have prevailed on occasion as in Hammonds, supra, and they even have succeeded in attracting this court to announce a "rigid rule of proof" for every case in the analogous context of grand and petit larceny. Moore v. United States, D.C.App., 388 A.2d 889, 891 (1978) (reiterates a "rigid rule of proof" for establishing the $100 value required for conviction of grand larceny); Wilson v. United States, D.C.App., 358 A.2d 324, 325 (1976) (same); Boone v. United States, D.C.App., 296 A.2d 449, 450 (1972) (same). The argument, therefore, cannot be deemed "wholly frivolous." Anders, supra 386 U.S. at 744, 87 S.Ct. at 1400.

B. There is, however, a stumbling block to appellant's collateral attack on the sufficiency of evidence. In Atkinson v. United States, D.C.App., 366 A.2d 450, 452 (1976), a collateral attack under D.C. Code 1973, § 23-110, we implied that the court will not hear a sufficiency claim under § 23-110: "This court, of course, affirmed the judgments of conviction thus bringing to an end any controversy respecting the identification procedures and the sufficiency of the evidence." The appellant in Atkinson, however, had not expressly raised the sufficiency claim on direct appeal, see 322 A.2d 587 (1974); thus, in response to the collateral attack we felt constrained to address the merits of that claim even while making the above statement. See Atkinson, supra at 452 n. 9. Arguably, therefore, it is still an open question whether Atkinson requires rejection of a sufficiency claim made for the first time on collateral attack, even when the claim appears to have merit.⁵

If Atkinson forecloses a collateral attack on sufficiency of the evidence for appellant's Burglary I conviction, we would have to confront appellant's claim of ineffective assistance of trial counsel, based on failure to present this defense. The differences between convictions for Burglary I and Burglary II are obviously of consequence to a defendant; the permitted sentences (without regard to enhancement for prior crimes) are 5 to 30 years and 2 to 15 years, respectively. Thus, this case...