Godfrey v. United States

• Decision Date: 30 November 1982
• Docket Number: No. 80-1205.,80-1205.
• Citation: 454 A.2d 293
• Parties: Sterling L. GODFREY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 293

454 A.2d 293

Sterling L. GODFREY, Appellant, v. UNITED STATES, Appellee.

No. 80-1205.

District of Columbia Court of Appeals.

Argued April 13, 1982.

Decided November 30, 1982.

As Modified March 25, 1983.

COPYRIGHT MATERIAL OMITTED

G. Hamilton Loeb, Washington, D.C., for appellant.

Kathleen E. Voelker, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and William J. Birney, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before MACK, FERREN, and BELSON, Associate Judges.

FERREN, Associate Judge:

Appellant raises three principal issues in appealing his convictions for pandering, D.C.Code 1973, § 22-2705, and procuring, id., § 22-2707. First, appellant claims the trial court erred in denying his motion for a new trial based on complainant's recantation of her trial testimony. We conclude that the court did not abuse its discretion in denying this motion on the ground that the recantation was incredible. Second, appellant argues, for the first time on appeal, that he was deprived of effective assistance of counsel because trial counsel failed to act when the complainant informed him — during the trial — that she wished to recant. Applying the required standard, we conclude that trial counsel's inaction constituted gross incompetence but did not blot out the essence of a substantial defense, since no reasonable juror could have believed the recantation. This argument, therefore, also fails. Finally, appellant contends that the court erred in refusing to permit impeachment of the complainant's credibility by reference to her guilty plea in an earlier case. We disagree. At issue is a guilty plea on which no judgment was entered, in contrast with a prior conviction. Such a plea does not present a proper basis for impeachment. Accordingly, we affirm the judgments of conviction.¹

I. Facts and Proceedings

In support of its charges, the government relied to a significant extent on the trial testimony of complainant, a twenty-year old native of Bermuda.² She testified that she came to the District of Columbia in October 1978 to join her fiance, Leroy Henry, whom she had met in New York. After complainant arrived, Henry asked her to engage in prostitution to support his drug habit. She refused; they fought; and he abandoned her in the District without any money. Complainant decided to return to Bermuda.

Just before her planned departure, complainant visited an acquaintance, Mike Ford, who introduced her to appellant, Sterling Godfrey. Complainant told appellant what had happened to her. He offered to help, paid for her hotel, and brought her back to his apartment in Maryland. She accompanied appellant when he visited his mother in Virginia for a few days, and complainant had sexual relations with him.

After returning from Virginia, appellant told complainant that he was a pimp and that if she liked him or "wanted to be about him" she should try prostitution. He added that he would help her go back home to Bermuda if that was what she wanted to do. A few days later, appellant again suggested that complainant try prostitution. She agreed. Appellant drove complainant to the District, where he introduced her as "his lady" to a prostitute that he knew. This woman told complainant about the rules of the "trick house," what to charge, and how to approach men while avoiding plainclothes police. Complainant earned between $95 and $100 that night and gave appellant all the money.

The next night, November 2, 1978, appellant took complainant to 14th and "P" Streets. She solicited a police officer, Wesley Gibson, who arrested her.³ When asked where she lived, complainant gave appellant's address. After her release, appellant met her and they spent the evening talking over her feelings about the arrest. The next night, appellant told complainant that if she ever were going to go back out on the street, she should go then. Complainant returned to the street. She continued to solicit until five nights later, when she was arrested again. Complainant gave the police a false address as appellant, after the first arrest, had instructed her to do. On December 4, 1978, complainant was arrested a third time.⁴

While working as a prostitute, complainant made up to $110 per night, although on some nights she made nothing. She usually left the money for appellant on his dresser, but, on several occasions, she gave him the money directly. He provided her with clothes and money for food.

During the period November — December 1978, appellant sent complainant to Florida and Canada with the understanding that she would work there as a prostitute. Complainant did not engage in prostitution on these trips, however, and, while in Canada, she called appellant to tell him she was quitting. Appellant told her that either she could come home or he would come to Canada to get her. Complainant returned to the District of Columbia.

After her return, appellant told her that she was not "street material" and arranged for her to go to Atlanta to be trained to pick pockets and rob hotel rooms. Complainant was not successful and returned to the District. Complainant moved back in with appellant and resumed work as a prostitute. She indicated, however, that she had not wanted to do so. When asked why she did, she replied, "[T]o be a part of [appellant] you have to be a part of the street." She added that, at the time, "I knew I loved him."

On several occasions, complainant moved out of appellant's apartment for a few days. Eventually, in March 1979, she decided to make a permanent break. She stopped by to pick up her belongings and talked with appellant. He became enraged and beat her with a pipe, a bottle, and a hammer until her legs were numb. During the next three days, complainant did not leave the house because she was too sore to stand. When appellant went out on the third day, complainant called the police. They took her to the hospital and then sent her to a shelter for battered women.⁵ Complainant returned to Bermuda after she left the shelter. She came back to the United States for the trial.⁶ Complainant testified that she never had engaged in prostitution except when she was with appellant between October 1978 and March 1979.

Appellant took the stand in his own defense.⁷ He testified that he met complainant in the fall of 1978 through Mike Ford. He told complainant that he did not want to have a relationship with her or anyone else. He also told her that he was on parole for pandering and racketeering and that he was no longer involved in these illicit activities. At this time, he showed her newspaper clippings of stories about his arrest.⁸ Appellant further testified that, soon after meeting complainant, he took her with him on a trip to his mother's in Virginia. She lived with him, on-and-off, until December 1978. Appellant claimed that he asked complainant to leave his apartment because she was always getting into trouble, but he admitted that he let her move back in later. Appellant denied complainant's allegations that he had arranged for her to engage in prostitution or taken money from her. He admitted that complainant stayed with him once when she was injured. He claimed that one morning, at 2:30 a.m., she appeared at his door, suffering from injuries, and he let her stay.

On cross-examination, the prosecutor impeached appellant with his prior convictions. The prosecutor also questioned appellant about the jobs he had held after his release from the Atlanta Federal Penitentiary in June 1977. Appellant worked for about six months for a company that managed musicians' bands. He then worked as a salesman for a company that converted van interiors and earned between six and eight hundred dollars per month. During this period, appellant paid $283 as monthly rental for his apartment. Appellant claimed that he made loans to complainant and paid for her collect phone calls to him⁹ but that he never took money from her. Appellant, nonetheless, amassed a considerable amount of money by the end of 1979. During that summer, appellant opened his own business of selling cycles. Between May and October, 1979, appellant deposited over twenty-five thousand dollars into his business checking account. At the time of his arrest, appellant was carrying $2,008. Appellant was not asked, nor did he explain, how he earned so much.

Appellant rejected complainant's testimony and said that he never had taken her down to 14th Street or picked her up downtown. Nor had he: taken money she had earned on the street, met her when she left the courthouse after her arrest, arranged for her lawyer, given her a false address to use in case of arrest, or given her money to go to Tampa, Toronto, or Atlanta. Nor had he beaten her. He claimed that he did not know she had engaged in prostitution until after her first arrest.

The jury found appellant guilty of both charges, obviously crediting the complainant's trial testimony, not appellant's.

The testimony relevant to our inquiry is not limited to that presented to the jury. It also includes statements, in evidence at the hearing on the motion for a new trial, that complainant made to counsel for the defense and for the government during the last days of trial and jury deliberation. On July 4, 1980,¹⁰ after two days of trial, complainant told defense counsel¹¹ that she wished to recant her previous testimony.¹² At first, defense counsel told her to show up to testify on July 7. He called her on July 5, however, and told her that he did not wish to risk criticism for attempting to influence a government witness and, therefore, he could not use her testimony.

On the afternoon of July 8, while the jury deliberated, complainant told the prosecutor that she had testified falsely at trial.¹³ The prosecutor, then engaged in another...