Johnson v. United States

• Decision Date: 14 March 1980
• Docket Number: No. 79-287.,79-287.
• Parties: Jimmy JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 499

413 A.2d 499

Jimmy JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 79-287.

District of Columbia Court of Appeals.

Argued November 14, 1979.

Decided March 14, 1980.

William E. Findler, Arlington, Va., appointed by the court (counsel on appeal only), for appellant.

Cary M. Feldman, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, Michael W. Farrell, and Timothy J. Reardon, III, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and PRYOR, Associate Judges.

NEWMAN, Chief Judge:

Appellant was convicted of taking indecent liberties with and enticing a minor child.¹ In a post-trial motion appellant asked for a new trial, alleging he had received ineffective assistance from trial counsel. The trial court denied this motion without a hearing. After a remand from this court on an appeal from that denial,² the trial court held a hearing on appellant's allegations. Subsequently, the trial court again denied the motion for a new trial, holding that any incompetence of trial counsel did not "`[blot] out the essence of a substantial defense" under Angarano v. United States, D.C.App., 312 A.2d 295, 298 n. 5 (1973), rehearing denied, D.C.App., 329 A.2d 453 (1974) (en banc), because the evidence left undeveloped by trial counsel would have been useful solely for purposes of impeachment. We reject the trial court's overly restrictive interpretation of the Angarano standard and hold that gross incompetence of counsel which results in failure to present highly credible evidence bearing on the credibility of a key government witness may rise to the standard of prejudice enunciated in Angarano.

We reverse and remand for a new trial.

I

Appellant was tried on September 22 and 23, 1976, less than four months after the alleged incident occurred. The government's case rested principally on the testimony of the complaining witness, an eleven-year-old girl. Her testimony was circumstantially corroborated by testimony from her brother and her mother. Appellant testified on his own behalf as the sole defense witness. He denied ever having committed any indecent acts with complainant and insisted instead that complainant fabricated her story out of spite. As the trial court noted in its order denying appellant's new trial motion, the relative credibility of the complainant and of the appellant was the crucial issue at trial.

The testimony was undisputed that on the day of the alleged incident complainant was assisting her brother on his paper route. Both children were sitting in the lobby of appellant's apartment building, inserting sections of the Sunday paper, when appellant returned to the building. Appellant sought to purchase a sports section, but lacked the proper change. After some discussion, complainant agreed to accompany appellant to his apartment to receive the change.

According to complainant, after she entered appellant's apartment he asked her to sit on his couch while he went into the bedroom and came back with a five-dollar bill. He gave the five-dollar bill to complainant as a "donation" and told her she might become a model someday. He then proceeded to help her raise her blouse so that he could look at her chest. Appellant next unbuckled her pants, put his hands inside her pants, and placed his finger inside her vagina. Appellant then removed complainant's left shoe, took her pants off one leg, and placed her on a sheet on the floor. The complainant testified that appellant again placed his finger into her vagina, "for not too long but for a little while, two minutes or so." She stated she was not hurt by this fondling. Complainant's mother testified that she had taught her daughter the names of the various parts of her body and that complainant was familiar with those terms.

Appellant testified that the complainant had, in fact, come to his apartment on the date and time in question, in order to be paid for the newspaper. He contended, however, that complainant, while in the apartment, never left the immediate vicinity of the doorway. When appellant could not find the proper change, he handed complainant a five-dollar bill and told her to return four dollars in change from her brother. When, after approximately five minutes, complainant had not returned with his change, appellant left his apartment and found complainant standing by the elevator. He threatened to call her parents and tell them she had failed to give him his change.

Approximately two hours later the complainant's mother, accompanied by complainant, accosted appellant at his apartment and warned him not to make advances on the children in the neighborhood. Testimony as to the statements made at that time was in conflict, but all parties testified that it developed into a heated exchange.

Later the same day complainant and her mother reported the appellant's alleged indecent acts to the police. Complainant was taken to D.C. General Hospital where she was examined by Dr. Paul Gaither, a resident in obstetrics and gynecology. The doctor made a thorough examination and concluded that there was no evidence of trauma in complainant's vagina or genital area.

Appellant's trial counsel was informed at a status hearing on September 10, 1976, approximately twelve days prior to trial, of the existence of Dr. Gaither's report and of his conclusion that no evidence of trauma was found. At no time prior to trial did trial counsel attempt to locate the doctor, or to talk to him, nor did he attempt to subpoena the doctor to testify on behalf of the defendant at trial. Trial counsel apparently assumed, instead, that the doctor would be called to testify by the government and that he would have an opportunity to cross-examine the doctor.³

At approximately 6:00 p. m. on the evening of the first day of trial, after the government rested its case without calling Dr. Gaither, trial counsel had a forthwith subpoena issued for the doctor. The subpoena was addressed to Dr. Gaither at D.C. General Hospital and was returned with the notation that Dr. Gaither no longer worked at the hospital and had left no forwarding address. The following day the court ordered the trial to continue as scheduled. Trial counsel requested and was allowed to argue in closing argument that the failure of the government to call Dr. Gaither gave rise to the negative inference that his testimony would have been favorable to the defense.

II

Pursuant to the order of this court,⁴ the trial court held two hearings on appellant's claim of ineffective assistance of counsel. At these hearings the court received testimony from trial counsel, from appellant, and from Dr. Gaither. Trial counsel testified that he had personally handled all of the investigatory and preparatory work on appellant's case. He further testified that he had not at any time requested the medical report be provided to him by the government, but that he was told the conclusions reached in the report at the status hearing held on September 10, 1976.⁵ He testified that he never saw the medical report until it was given to him as part of the Jencks material at trial.

Dr. Gaither reviewed a copy of the complainant's written statement to the police and his own medical report and concluded that the results of his examination of complainant were incompatible with the complainant's allegations. In particular the doctor testified that if a finger had been inserted into complainant's vagina, some indication of trauma would have been evident. In addition, on cross-examination, the doctor testified that fondling of the exterior of a young girl's genitals in the manner described by complainant would have resulted in a scratch or some other observable trauma, although mere touching would not. Finally, the doctor testified that he was never contacted by trial counsel nor by any representatives of the defense, although at the time of the trial he was still living in Arlington, Virginia, and had a telephone listed in his name.

In denying appellant's motion for a new trial the trial court held that the failure of trial counsel to sufficiently investigate and develop the incompatibility of Dr. Gaither's medical report with complainant's allegations did not "blot out the essence of a substantial defense." The trial court noted that penetration is not an element of either of the offenses. The incompatibility of Dr. Gaither's testimony at the post-conviction hearing and complainant's trial testimony would thus be solely relevant to complainant's credibility, and not to any specific element of the offense.⁶ The trial court noted that trial counsel did attempt to impeach both the credibility of the complainant and that of her mother by attacking their identification testimony. However, the defense never asserted misidentification and appellant conceded in his testimony that the complainant visited his apartment at the time of the alleged incident. Trial counsel also attempted to present the medical report's negative findings indirectly in his closing argument by arguing that the government's failure to produce the results of the medical examination allows an inference that the evidence would have been favorable to the defendant. The court concluded that counsel placed the issues of credibility and the medical evidence before the jury "`in a reasonably effective manner,'" quoting Glass v. United States, D.C.App., 395 A.2d 796, 811 (1978), and therefore appellant had not met his burden under Angarano of showing sufficient prejudice.

III

A defendant's Sixth Amendment right to the effective assistance of counsel is violated if "there has been gross incompetence of counsel and this has in effect blotted out the essence of a substantial defense." Bruce v. United States, 126 U.S. App.D.C. 336, 339-40, 379 F.2d 113, 116-17 (1967); Angarano v. United States, supra at 298 (adopting the Bruce...