Matthews v. United States

• Decision Date: 12 April 1983
• Docket Number: No. 81-1242.,81-1242.
• Citation: 459 A.2d 1063
• Parties: John D. MATTHEWS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

459 A.2d 1063

John D. MATTHEWS, Appellant, v. UNITED STATES, Appellee.

No. 81-1242.

District of Columbia Court of Appeals.

Argued October 6, 1982.

Decided April 12, 1983.

Cathy Surace, Washington, D.C., appointed by this court, for appellant.

John R. Fisher, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., at the time the brief was filed, and Richard C. Bicki, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

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

KERN, Associate Judge:

Appellant was tried by a jury and convicted of second-degree burglary and grand larceny. The prosecution evidence consisted of testimony (1) by an eyewitness to the crime who observed appellant break and enter a camera store; (2) by the arresting officer who observed appellant a block and a half from the scene attempt to dispose of camera equipment; and (3) by the store owner who identified the items in appellant's possession as the store's property and who denied giving appellant permission to take them.

Appellant urges on appeal that his conviction be reversed and a new trial granted on one ground only; because the trial court proceeded to trial without any inquiry of appellant or his trial counsel concerning a letter from appellant to the judge received in his chambers slightly more than two weeks before trial. In this handwritten letter appellant requested "new counseling" because his attorney "is puting up or getting no defence together" [sic], "has not represented me a little bit from the beginning," and is "unworkative." The trial court treated appellant's letter as a pro se motion for appointment of new counsel and denied such motion in a written order because the trial was scheduled to commence in less than three weeks and appellant had failed "to advance specific grounds in support of his motion."¹

Appellant cites to Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), to support his contention that reversal must be granted. Monroe requires a trial court "[w]hen a defendant makes a pretrial challenge to the effectiveness of counsel . . . to conduct an inquiry sufficient to determine the truth and scope of the defendant's allegations." Id. at 820.² Appellant argues that since the trial court failed to comply with the dictates of Monroe he is necessarily entitled to a reversal of his judgment of conviction and a new trial on the charged offense, which occurred some 29 months ago.

The government responds "that the interests of justice are not served by automatically reversing appellant's conviction simply because of the trial court's failure to conduct the appropriate inquiry. . . . To assume, simply because of a lack of information, that appellant was deprived of his right to the effective assistance of counsel, would be to exalt form over substance." (Brief at 6.) The government urges "that this case be remanded to the trial court for a full hearing on appellant's claim of ineffective assistance of counsel." (Brief at 8.)

In determining whether a retrial is required because our mandate in Monroe was not followed, we turn to the rationale for the Monroe procedure which we adopted as a means of protecting a defendant's Sixth Amendment rights. In Monroe, we concluded that the trial judge must conduct a pretrial inquiry whenever a defendant articulated before trial "any substantial basis for dissatisfaction" with his attorney, so as to enable the court "to take steps to eliminate any deficiencies in the representation of counsel before the resources of the judicial system have been invested in a fullblown trial." 389 A.2d at 818 (emphasis added). We also concluded in Monroe that the trial court's inquiry before trial into defendant's pretrial claim of inadequate preparation by his counsel also "may serve to minimize or expedite the disposition of . . . [post-trial] ineffective assistance claims." 389 A.2d at 819.

Obviously, in the instant case, appellant's trial has been had and we are giving posttrial consideration to a claim of ineffective assistance of counsel raised by him before trial. Therefore, the advantages we deemed in Monroe of having a pretrial inquiry, viz., to save a trial that might be a nullity if counsel were inadequately prepared and to lessen the chance of a post-trial attack on the verdict because of the alleged ineffectiveness of that counsel, have been lost.³ Thus, we are left to determine now whether the trial court's omission may be remedied and at the same time appellant's right to effective representation at trial by his attorney assured without the need to repeat the entire trial process. To resolve this issue, we must review what the trial court's Monroe inquiry was designed to obtain and how it was to be conducted.

We concluded in Monroe that "issues such as the lawyer's pretrial preparation are susceptible to reasonably objective determinations. The trial court is not required to evaluate the strategic options open to an attorney . . . or to otherwise engage in speculative judgments. It is required only to ascertain the concrete steps taken by counsel in preparation of the case and to evaluate their sufficiency under the circumstances." Id. at 819 (emphasis added).

In Monroe, we further required that defense counsel, when his pretrial preparation was challenged, must demonstrate to the court preparation for trial "`within the range of competence demanded of attorneys in criminal cases.'" Id., at 819, quoting from McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). In Monroe we identified the criteria for determining that a defense counsel's preparation was within the normal range of competence required in preparing criminal cases: (1) whether counsel conferred with the defendant as often as necessary and advised him of his rights, (2) whether counsel elicited from the defendant matters of defense and then ascertained if any potential defenses were unavailable, and (3) whether counsel conducted both factual and legal investigation sufficiently in advance to permit reflection and to determine if matters of defense could be developed. Id. at 821.⁴

Since the point of the inquiry mandated by Monroe is to determine at the time of the defendant's complaint "the truth and scope" of his allegations while the matter of counsel's pretrial preparation is fresh in the minds of all concerned, there is a strong argument for outright reversal where the court failed to make inquiry prior to trial. On the other hand, were we to lay down a per se rule that every time—without exception—a trial court fails to conduct a Monroe pretrial hearing when a defendant complains prior to trial about his attorney there must be a reversal, we risk reversing a judgment of conviction in a case tried after thorough pretrial preparation and constitutionally effective representation by counsel solely because of an inadvertent omission by the trial court. We decline to lay down a hard and fast rule that a failure to hold a hearing pretrial on the defense attorney's preparation for trial amounts to reversible error in every case.

We do not read our holding in Farrell v. United States, 391 A.2d 755 (D.C. 1978), to require a reversal of the conviction in the instant case rather than a remand. There, the court granted the defendant's request to represent himself after the court had refused to appoint a new attorney to represent defendant. The trial court advised the defendant that "it was too late to appoint a new lawyer to be prepared to represent you in this case." While the trial court did make some inquiry of the defense attorney, the court went on ultimately to allow defendant to proceed pro se after concluding that he validly waived his right to counsel. Under the circumstances there a remand for a hearing, which is the remedy we order in this case, would have been wholly inappropriate and the government did not even so request.

We turn now to the issue of the burden of persuasion upon remand here for inquiry into whether defense counsel had adequately prepared for trial. The government concedes that it should bear such burden and we agree. We place the burden of persuasion upon the government because we deem it most appropriate that the prosecution, which may have achieved its conviction at trial by reason of inadequate defense representation, assure the trial court by clear and convincing evidence that at the time appellant went to trial his attorney's representation was effective.

We emphasize our concern by requiring that there be a showing on the record by clear and convincing evidence that appellant was accorded representation at his trial by an attorney who was prepared within the normal range of reasonable competence demanded of attorneys in criminal cases. We adopt the clear and convincing standard of proof only for the particular situation here: where it is demonstrated after trial that the trial court failed to hold any hearing at all prior to trial upon appellant's pretrial assertion that his attorney had not prepared for his trial. In our view, the "standard [by clear and convincing evidence] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (civil commitment of mentally ill person requires proof greater than the preponderance-of-the-evidence standard). Here, as in the area of a mental health commitment, the issue of an attorney's preparation for trial raised by his client before the trial, and not addressed then by the court, requires, when it is finally addressed by the court, a standard of proof by more than near-equipose. See District of Columbia v. Hudson, 404 A.2d 175, 179 (D.C. 1979) (en banc).

We will retain the case but remand the record...