Long v. United States

• Decision Date: 02 February 2012
• Docket Number: No. 08–CO–1613.,08–CO–1613.
• Citation: 36 A.3d 363
• Parties: Colie L. LONG, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

36 A.3d 363

Colie L. LONG, Appellant,

v.UNITED STATES, Appellee.

No. 08–CO–1613.

District of Columbia Court of Appeals.

Argued April 6, 2011.Decided Feb. 2, 2012.

Sydney J. Hoffman, for appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Roy W. McLeese III, Suzanne C. Nyland and James Sweeney, Assistant United States Attorneys, were on the brief, for appellee.

Before THOMPSON, Associate Judge, and SCHWELB and REID, Senior Judges.^*REID, Senior Judge:

We previously resolved part of appellant Colie L. Long's consolidated appeal following his conviction on charges of conspiracy to commit murder, first-degree premeditated murder while armed, assault with a dangerous weapon, and possession of a firearm during a crime of violence. See Long v. United States, 910 A.2d 298 (D.C.2006) ( Long I ). Mr. Long was convicted of the shooting death of a fourteen-year-old boy, Ronald Williamson, two weeks after Mr. Williamson threatened Mr. Long at gunpoint. Id. at 301. The government's evidence established that William Tilghman and Mr. Long were together at the time of the murder, that Mr. Long instructed Mr. Tilghman to kill Mr. Williamson, but that when Mr. Tilghman hesitated, Mr. Long grabbed the gun and shot Mr. Williamson multiple times.¹ Id. at 301–02. As we stated in Long I, “the theory of [Mr. Long's] defense was that [Mr.] Tilghman killed Mr. Williamson by himself, and that he was lying about [Mr.] Long's participation in the murder in order to receive a lighter sentence.” Id. at 302.

Although we rejected two of Mr. Long's direct appeal claims, we vacated the trial court's order denying his D.C.Code § 23–110 (2001) motion for a new trial based on ineffective assistance of counsel, because the trial court denied that motion without a hearing. Id. at 301. We said that a hearing was necessary to assess the credibility of witnesses, because “credibility determinations cannot be based on affidavits or countered by conclusory statements but may be resolved only by recourse to a full evidentiary hearing.” Id. at 310 (quoting Newman v. United States, 705 A.2d 246, 261, 262 (D.C.1997) (internal quotation marks omitted)). Consequently, we remanded the case “for further proceedings on the [D.C.Code § 23–110] motion in accordance with our opinion.” Id. at 310–11. On remand, the trial court held an evidentiary hearing on the ineffective assistance of counsel motion and subsequently denied the motion. Mr. Long challenges the denial of his motion. We affirm the trial court's judgment of conviction, and its judgment denying Mr. Long's D.C.Code § 23–110 motion.

In addition to the ineffective assistance of counsel issue, before us is the trial court's denial of Mr. Long's renewed motion for correction of sentence pursuant to Super. Ct. Civ. R. 35. He asserts that his sentence is illegal because the trial court made findings on matters that should have been decided by the jury. We disagree and affirm the trial court's denial of Mr. Long's Rule 35 renewed motion for correction of sentence.

SUMMARY OF THE EVIDENTIARY HEARING ON REMAND

On remand, the trial judge conducted an evidentiary hearing on Mr. Long's D.C.Code § 23–110 motion. The hearing took place on, April 23 and 24, 2008, and August 5, 2008.

Mr. Long's Witnesses

Mr. Long presented seven witnesses.² Their testimony variously focused on (1) an alleged statement by Mr. Tilghman showing that he and not Mr. Long killed Mr. Williamson; (2) the injury to Mr. Long's hand which allegedly made it impossible for him to shoot Mr. Williamson; (3) Mr. Long's dissatisfaction with his attorney, Mitchell Baer; and (4) an alleged conspiracy to harm Mr. Tilghman. Following is a summary of the testimony of Mr. Long's witnesses.

Halim Flowers, who grew up with Mr. Long, stated that he had been in prison for eleven years, and that he had met Mr. Tilghman ³ in 1997, when they were incarcerated in the juvenile block at the D.C. Jail. Mr. Tilghman told him (Mr. Flowers) “that he had committed a murder, or that he was going to beat the murder ... by blaming it on another individual by the name of Meatball [Mr. Long].” Others who heard Mr. Tilghman's confession were Michael Plummer, Momolu Stewart, Dominique Littlejohn, and Michael White. Sometime between February 1998 and May 1998, Mr. Flowers and Mr. Stewart met with a defense lawyer or investigator and recounted what Mr. Tilghman had said. Mr. Flowers was impeached with his felony convictions (including first-degree murder and first-degree burglary while armed).

Momolu Stewart also was incarcerated with Mr. Tilghman in the juvenile block of the D.C. Jail, in 1998. He was a co-defendant in a case with Mr. Flowers before the charges against him (Mr. Stewart) were dismissed. He acknowledged that Mr. Flowers, Mr. Plummer, Mr. Long, Mr. Hunter, and Mr. Bellinger also were at the D.C. Jail in 1998. He became “real close” with Mr. Tilghman and talked with him “[p]retty much like every other day” about how Mr. Tilghman “said he was going to put the case on Colie Long because somebody ... said they was going to do something to his mother.” Mr. Tilghman “[b]asically said he committed the murder on [Mr. Williamson].” Mr. Stewart admitted that he had been convicted of first-degree murder in 1998, and he also acknowledged convictions on weapons offenses on more than one occasion. He stated that Mr. Tilghman had spoken to him “[a]bout ten times” concerning Mr. Long's case, but that he could not remember the details.

Patrick Andrews described himself as “an old friend” of Mr. Long. Their families lived in the same neighborhood. In early 1996, Mr. Andrews saw Mr. Long with a “hard cast” on his right hand.⁴ He spoke with Mr. Long again sometime in 1998; Mr. Long said “he needed [Mr. Andrews] to be a witness for him.” Mr. Andrews later talked with Mr. Long's counsel about Mr. Long's hand. Mr. Andrews did not testify on behalf of Mr. Long. He acknowledged that he was incarcerated in March 1998. Mr. Andrews admitted that he had been convicted in two separate cases for first-degree murder while armed and related weapons charges.

Kevin Bellinger and Mr. Long are cousins. He was with Mr. Long at a club when a fight broke out and Mr. Long injured his hand. Later, Mr. Bellinger saw Mr. Long with a hard cast on his hand on more than one occasion within about a two-week period. Mr. Bellinger admitted that he was found guilty, in 1999 and 2002, of weapons offenses, attempted possession with intent to distribute cocaine, and assault with intent to kill while armed, with accompanying weapons violations.

Lawrence Hunter was incarcerated with Mr. Long and Mr. Tilghman at the D.C. Jail, in 1996. While he was on the juvenile block, he heard Mr. Tilghman brag about killing [Mr. Williamson]. Mr. Hunter was not called as a witness at Mr. Long's trial, and he did not recall being in court on March 16, 1998, and invoking the Fifth Amendment, or being told that “the government believed they had evidence that he [Mr. Hunter] [was] part of a conspiracy to harm [Mr.] Tilghman.” Nor did he remember refusing to speak with Mr. Long's counsel on February 27, 1998, because Mr. Long “advised [him] not to speak to his [Mr. Long's] attorney.” Nor did he remember having written letters containing threats against Mr. Tilghman. Mr. Hunter admitted that he was convicted of first-degree murder in a 1996 case. On redirect examination, Mr. Hunter recalled being angry with Mr. Tilghman about his attempt to put Mr. Williamson's murder on Mr. Long, because it was wrong. However, he never told anyone about Mr. Tilghman's plan. He stated that he was never charged with threats against Mr. Tilghman or with obstructing justice in Mr. Long's case.

Michael Plummer was incarcerated with Mr. Tilghman in the juvenile block of the D.C. Jail in 1997. He heard Mr. Tilghman say that he committed a murder but that he would “put it on Meatball” (Mr. Long). When Mr. Plummer turned 18, he was moved to the adult block where he met Mr. Long. Mr. Long had heard that Mr. Plummer had been on the juvenile block with Mr. Tilghman. Mr. Plummer gave testimony at Mr. Long's first trial.⁵ Government counsel impeached Mr. Plummer with his convictions on charges of first-degree murder while armed and related weapons offenses. Mr. Plummer acknowledged that his own counsel advised him not to testify at Mr. Long's second trial; Mr. Plummer's own retrial occurred at the same time as Mr. Long's retrial.⁶ On redirect examination at the § 23–110 hearing, Mr. Long's counsel tried to pose questions to determine whether Mr. Plummer did not testify at Mr. Long's second trial because of fear of an obstruction of justice charge, but the trial court sustained objections to the questions. However, the court allowed Mr. Plummer to respond to the question: “Did you not testify at the second trial because you would get into trouble?” Mr. Plummer responded, “Yes.”

Government counsel inquired about the prosecutor's cross-examination of Mr. Plummer during his testimony at Mr. Long's first trial. The cross-examination included questions concerning whether (1) Mr. Plummer “had authored a report in jail that people were pressing on [him],” that is, “people were violating [his] body”; (2) “he would do anything to keep them off of [him]”; (3) a man “named Gangster came up to [him and another man named Littlejohn], told [him] to go after [Mr.] Tilghman, [and] that's exactly what [Mr. Plummer] started to do”; (4) he had stolen the shoes he was wearing in court from Mr. Tilghman, and (5) when Mr. Tilghman “asked for his shoes back, ... [he] t[o]l[d] [Mr.] Tilghman, ‘you better be glad that I just took your shoes, because we were supposed to kill you.’ ” Government counsel used the March 13, 1998, transcript from Mr. Long's first trial to establish that the questions had been asked and that Mr. Plummer had denied the accusations. Government counsel then asked Mr. Plummer at th...