Lopez v. US, No. 01-CO-107

• Decision Date: 06 June 2002
• Docket Number: No. 01-CO-107, No. 98-CF-1619.
• Parties: Gilfredo S. LOPEZ, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

801 A.2d 39

Gilfredo S. LOPEZ, Appellant, v. UNITED STATES, Appellee.

Nos. 01-CO-107, 98-CF-1619.

District of Columbia Court of Appeals.

Argued February 21, 2002.

Decided June 6, 2002.

Paul Y. Kiyonaga, for appellant.

Joseph W. Clark, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Anthony Asuncion, Carolyn K. Kolben, and John P. Gidez, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and REID and GLICKMAN, Associate Judges.

REID, Associate Judge:

Appellant Gilfredo S. Lopez challenges his convictions of the lesser included offense of murder in the second-degree while armed, in violation of D.C.Code §§ 22-2403, -3202 (1996);¹ assault with intent to kill while armed, in violation of §§ 22-501, -3202;² possession of a firearm during a crime of violence, in violation of § 22-3204(b);³ and carrying a pistol without a license, in violation of § 22-3204(a).⁴ He contends that the trial court committed reversible errors with respect to his assertion of a self-defense theory; and that he was substantially prejudiced by the prosecutor's alleged improper cross-examination and argument. Mr. Lopez also appeals from the denial without a hearing of his post-conviction motion alleging ineffective assistance of counsel. He maintains that his defense was prejudiced by his trial counsel's deficient trial preparation and failure to present key witnesses who would have supported his claim of self-defense. We conclude that (1) Mr. Lopez presented affidavits alleging facts warranting relief, and thus, he was entitled to a hearing on his § 23-110 motion; but that (2) the trial court did not commit reversible error either with respect to the opening statement of defense counsel or the giving of jury instructions pertaining to self-defense.

FACTUAL SUMMARY

The record on appeal shows that in the early morning hours of December 23, 1995, while he was working as a security guard outside a nightclub located in the Southeast quadrant of the District of Columbia, Luis Galeano watched as seven men were thrown out of the night club, including Mr. Lopez and his co-defendant Raul Lopez-Gonzalez;⁵ and Carlos and Ruben Flores (the decedent), who are cousins.⁶ Mr. Lopez and Mr. Lopez-Gonzalez, left the nightclub in a white Honda Civic automobile driven by Mr. Lopez, and Ruben and Carlos Flores departed in a green Toyota Forerunner truck driven by Carlos Flores. Carlos Flores testified that when they saw the white Honda, Ruben Flores pointed to the occupants as the "ones who just punched [him]." The Flores cousins proceeded to follow the white Honda. Mr. Galeano stated on cross-examination that: "[I]t's fair to say that [the Toyota truck] was chasing [Mr. Lopez's vehicle]."

Carlos Flores recalled that when they were chasing the white Honda, Ruben Flores threw a bottle out of the window of the Toyota truck at the Honda. Mr. Lopez testified that he fired a warning shot out of the window of the Honda. Mr. Galeano saw the driver of the white Honda stop and get out of the car, with a gun in his hand, and watched as the driver of the green Toyota, Mr. Carlos Flores, who had parked directly behind the Honda, exited the truck.⁷ To Mr. Galeano, "it just looked like it was going to be a fistfight." Mr. Lopez "raise[d] his hand towards the front of the car, . . . [and] one shot was fired. . . ." Carlos Flores testified that Ruben Flores "kept yelling at [him], get back in the [truck], get back in the [truck], and I got back in the [truck], and that is when the gunshots started." According to Carlos Flores, Ruben Flores never left the truck. Mr. Galeano called for assistance. He heard approximately three to four shots, at least one of which fatally wounded Mr. Ruben Flores.⁸

Mr. Lopez testified on his own behalf, claiming self-defense.⁹ He stated that the two men in the Toyota truck began to pursue his Honda and the passenger, Ruben Flores, threw beer bottles at his car. Even after Mr. Lopez "fired a warning shot," the Toyota truck continued to follow his Honda. Mr. Lopez thought the men in the Toyota truck were armed and he feared for his life. Eventually, Mr. Lopez had to stop his vehicle because cars in front of him were not moving. He opened the driver's side of the Honda and got out. He testified that he had "no intentions of hitting anyone that night." However, he "didn't know if [Carlos and Ruben Flores] had a weapon or not . . . [or] whether [Ruben Flores] was looking for a weapon. . . . So [he] fired in the passenger side and when [he saw] Ruben Flores open his door." Later in his testimony he declared: "I was shooting at the truck and I shot at the passenger side when [Ruben Flores] opened his door."

ANALYSIS

The Collateral Attack

We turn our attention first to Mr. Lopez's collateral attack, based on allegations of ineffective assistance of counsel. He contends that the trial court erred by not holding a hearing on his D.C.Code § 23-110 motion. He also claims that his trial counsel failed to: (1) call two critical lay witnesses, Miguel Sandoval and Nelson Reyes, and one expert witness, Hal Sharpe; (2) prepare him adequately for his testimony; and (3) develop a coherent strategy concerning gang affiliation.

Applicable Legal Principles

We continue to adhere to the presumption that when a § 23-110 motion is filed, the trial court should conduct a hearing on the motion. See Lanton v. United States, 779 A.2d 895, 901 (D.C. 2001)

. "In order to uphold the denial of a § 23-110 motion without a hearing, we must be satisfied that `under no circumstances could the petitioner establish facts warranting relief.'" Id. (quoting Ramsey v. United States, 569 A.2d 142, 147 (D.C. 1990)) (quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). We have stated consistently, however, "that no hearing is required where defendant's motion `consists of (1) vague and conclusory allegations, (2) palpably incredible claims, or (3) allegations that would merit no relief even if true.'" Courtney v. United States, 708 A.2d 1008, 1011 (D.C.1998) (quoting Ready v. United States, 620 A.2d 233, 234 (D.C. 1993) (citation omitted)), cert. denied, 525 U.S. 1087, 119 S.Ct. 837, 142 L.Ed.2d 692 (1999). Whether to hold a hearing is a matter committed to the sound discretion of the trial court. See Little v. United States, 748 A.2d 920, 922 (D.C.2000) (citation omitted).

Furthermore, to establish ineffective assistance of counsel, Mr. Lopez "must show (1) deficient performance by his trial counsel, and (2) prejudice traceable to his trial counsel's deficiencies. The burden is a heavy one because of a strong presumption that defense counsel has rendered reasonable professional assistance." Zanders v. United States, 678 A.2d 556, 569 (D.C. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The Post-Trial Affidavits and the § 23-110 Hearing Issue

Where an allegation is made that trial counsel was deficient because he or she "fail[ed] to call prospective witnesses, we have required `an affidavit or other credible proffer as to the allegedly exculpatory nature of [the prospective witnesses'] testimony," Lanton, supra, 779 A.2d at 902 (quoting Ready, supra, 620 A.2d at 235) (second alteration in original). Such affidavits may demonstrate the need for a hearing on an appellant's § 23-110 claims of ineffective assistance of counsel. Here, affidavits from Mr. Sandoval, Mr. Reyes, Mr. Sharpe, and Mr. Lopez were attached to the § 23-110 motion. In addition, trial counsel filed an affidavit in support of the government's opposition to Mr. Lopez's motion.

The trial court in essence discounted the affidavits presented in support of Mr. Lopez's motion, declaring that: "Because the motion and files and records of the case conclusively show that Defendant is entitled to no relief, no hearing will be ordered." Furthermore, the court stated that: "Assuming for the sake of argument the truthfulness of each of the affidavits submitted by Defendant, Defendant has not met his burden of showing either deficient performance by counsel or prejudice." In disposing of the motion, the trial judge relied upon defense counsel's affidavit to explain his tactical reasons for not calling Mr. Reyes, Mr. Sandoval and Mr. Sharpe as witnesses. Yet, even though there were conflicts between defense counsel's affidavit and those from Mr. Reyes, Mr. Sandoval and Mr. Sharpe, the trial judge asserted that Mr. Lopez's "entitlement to relief does not depend on the Court making any credibility determinations between affiants." An examination of the affidavits suggests otherwise; in fact, the trial court credited the affidavit of trial counsel, but not those lodged by Mr. Lopez. Furthermore, the affidavits reveal matters that cannot be resolved by reference to the existing record in this case.

Defense counsel's affidavit states that he did not call Mr. Reyes as a witness because, according to notes from an investigator hired by one of Mr. Lopez's prior attorneys: Mr. Reyes indicated that, while he saw both the passenger and driver side doors open, "[h]e did not see anyone get out." However, the investigator's notes are not attached to defense counsel's affidavit, and defense counsel did not personally interview Mr. Reyes. Furthermore, defense counsel did not mention in his affidavit that Mr. Reyes indeed had been duly scheduled to testify and was under a defense subpoena; that the testimony of Mr. Reyes was "critical"¹⁰ and that both counsel and Mr. Lopez had telephoned Mr. Reyes's home the previous evening to remind him to be in court on the following day; and that efforts would continue to get Mr. Reyes to report to court voluntarily. The trial court then indicated that it would "authorize a bench warrant, a forthwith bench warrant for [Mr. Reyes]." After defense counsel conferred with Mr. Lopez,...