Mayfield v. US

• Decision Date: 12 June 1995
• Docket Number: No. 93-CO-1257.,93-CO-1257.
• Citation: 659 A.2d 1249
• Court: D.C. Court of Appeals
• Parties: Kevin MAYFIELD, Appellant, v. UNITED STATES, Appellee.

659 A.2d 1249

Kevin MAYFIELD, Appellant, v. UNITED STATES, Appellee.

No. 93-CO-1257.

District of Columbia Court of Appeals.

Argued September 13, 1994.

Decided June 12, 1995.

John A. Shorter, Jr., Washington, DC, for appellant.

Barbara A. Grewe, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Roy W. McLeese III, and L. Jackson Thomas II, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before TERRY and STEADMAN, Associate Judges, and PRYOR, Senior Judge.

STEADMAN, Associate Judge:

In a joint trial, a jury convicted appellant of premeditated first degree murder while armed under an aiding and abetting theory, but convicted the actual killer only of second-degree murder while armed. On direct appeal, appellant's conviction was affirmed. A subsequent denial by the trial court of his first motion under D.C.Code § 23-110 (1989) was also affirmed by us.

Now before us is an appeal from the denial of a second motion to vacate judgment pursuant to § 23-110. In that motion, appellant claimed that he was denied due process because the conviction of the principal of second-degree murder constituted a "failure of proof" of one of the elements of aiding and abetting; namely, that someone other than appellant committed first degree murder while armed.

The trial court denied the motion, concluding that the claim was procedurally barred from consideration on the merits. Appellant asserts that his failure to raise the issue previously should have been excused on either of two grounds: first, that he made a colorable claim of actual innocence, and second, that he had in fact made a sufficient showing of cause and prejudice. We affirm.

I.

On April 2, 1987, appellant walked into a house at 1723 Montana Avenue, N.E., and stated to those present that he was going to "kill that bastard Michael Ward." Later that day, appellant and codefendant Gene Dudley drove to the apartment building where Ward resided. Dudley approached Ward, who was standing in front of the building, and started punching him. Appellant joined the fight by holding Ward as Dudley continued to assault him. Dudley retrieved a baseball bat from his car and chased Ward, who fled into his apartment building. As they left the scene, appellant stated "come on, he's going to get his gun," "we going to do him," and "we're going to get the burner."

Appellant and Dudley then went to appellant's house, where appellant apparently retrieved a gun, and drove to a recreation center on Montana Avenue. Appellant got out of the car, carrying the gun, and went with Dudley into the recreation center. Inside the recreation center, appellant told people that he was going to "fuck Michael up" or "kill" Ward when he saw him.

Appellant and Dudley returned to the car, and drove away. Appellant's beeper went off, and he stopped the car and went outside. When appellant returned to the car, appellant said that "this was a set up to get Mike outside."

Appellant and Dudley returned to Ward's apartment building and parked in front, yelling for Ward and honking the horn. Dudley was now holding the gun. Ward came out, walked into the middle of the street, and showed appellant and Dudley that he was not carrying a gun. After an exchange of some words, Dudley moved his arm in front of appellant, who "eased back" in the car seat, out of the gun's path, and Dudley fatally shot Ward in the back. Appellant drove back to his mother's house, and stated "we have to do something with the gun." Dudley and another person threw the gun down a sewer.

Appellant and Dudley were jointly tried before Judge Robert A. Shuker in January 1988 for first degree murder while armed, D.C.Code §§ 22-2401, -3202 (1989), and carrying a pistol without a license ("CPWL"), D.C.Code § 22-3204. The appellant, although indicted as a principal, was tried under an aiding and abetting theory. The jury convicted appellant of first degree murder while armed and CPWL. However, the jury found Dudley guilty of the lesser-included offense of second-degree murder while armed, as well as CPWL.

Appellant's trial counsel, W. Gary Kohlman, filed a motion for a new trial. Among the grounds asserted were: (1) the jury verdicts were "hopelessly irreconcilable"; it simply "made no sense" that the aider and abettor was found guilty of first degree murder where the government failed to prove that the gunman as principal premeditated the killing; and (2) the evidence was insufficient to sustain a conviction of first degree murder; since the jury found that the principal did not premeditate, there was necessarily insufficient evidence to show that appellant premeditated. The trial court denied the motion in all respects.

On direct appeal, appellant, through his attorney Fred R. Joseph, raised two issues relating to the refusal to sever and one issue relating to refusal to grant certain pre-trial discovery. We affirmed in an unpublished opinion, noting, however, in connection with the claim that conflicting defenses required a severance, that "there was ample independent evidence to support Mayfield's conviction." Dudley v. United States, No. 88-362, Memorandum Opinion and Judgment (D.C. June 15, 1990).

On November 7, 1990, appellant pro se filed his first motion under D.C.Code § 23-110. Among numerous issues raised were: (1) ineffective assistance of appellate counsel; and (2) insufficient evidence to convict for aiding and abetting since the evidence showed that the co-defendant actually killed the victim. The trial court denied the motion, ruling that the claims either had been previously resolved on direct appeal or were barred from consideration for failure to show cause and prejudice for not raising them on direct appeal. With respect to appellant's argument of ineffective assistance of appellate counsel, the trial court "did not reach this issue, since the performance of appellate counsel is a matter solely within the purview of the Court of Appeals."

Appellant appealed the denial of this first § 23-110 motion. On May 23, 1991, appellant, acting through his counsel, Michael Stern, filed a motion with this court to recall the mandate on the direct appeal, claiming ineffective assistance of appellate counsel for his failure: (1) to argue ineffective assistance of trial counsel either on direct appeal or in a § 23-110 motion; (2) to argue on appeal the inconsistency of the verdicts, and (3) to argue that appellant was prejudiced by pretrial publicity. On June 11, 1991, the division of this court that heard the direct appeal denied the motion pursuant to Watson v. United States, 536 A.2d 1056, 1060 (D.C.1987) (en banc), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988). Subsequently, a different division, in an unpublished opinion, affirmed the denial of the § 23-110 motion, agreeing with the trial court that appellant had not sufficiently explained his failure to present on direct appeal the issues raised in the instant collateral attack. Mayfield v. United States, Memorandum Opinion and Judgment, No. 91-297, April 7, 1992. Specifically, ineffective assistance of trial counsel could not be a basis for cause where the claim was not raised during the pendency of direct appeal by a § 23-110 motion and where the errors alleged were correctable on direct appeal. Moreover, with respect to his claim of cause due to ineffective assistance of appellate counsel, this court rejected the assertion because appellant had not prevailed on his motion to recall the mandate. We concluded that "Mayfield presented no new issues here; he merely restated claims that were presented or could have been presented before."

On June 4, 1993, appellant, now represented by John A. Shorter, Jr., filed his second § 23-110 motion, to which we now turn.

II.

"Section 23-110 is not designed to be a substitute for direct review." Head v. United States, 489 A.2d 450, 451 (D.C.1985). Hence, for many years, it has been a well-established principle for collateral attack on a criminal conviction that "where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure." Id. While recognizing this doctrine, relied upon by the trial court in denying the motion, appellant makes several arguments in an attempt to avoid its application here.

A.

First, appellant argues that the allegation in his second § 23-110 motion of ineffective assistance of his appellate counsel on direct appeal constitutes sufficient cause. However, as Judge Shuker correctly ruled in denying appellant's first § 23-110 motion, the issue of ineffective assistance of appellate counsel can only be litigated through the filing of a motion to recall the mandate in this court. Watson v. United States, 536 A.2d 1056, 1060 (D.C.1987) (en banc) ("A motion ... to recall the mandate is the appropriate avenue to take in presenting an ineffective assistance of appellate counsel challenge"); see Head v. United States, 626 A.2d 1382, 1384 (D.C.1993) ("§ 23-110 does not authorize the relief that appellant seeks even if the court were to conclude that he was denied the effective assistance of appellate counsel"), cert. denied, ___ U.S. ___, 115 S.Ct. 156, 130 L.Ed.2d 95 (1994). The reasoning is clear: "the Superior Court should not have authority to rule on the constitutionality of an appellate proceeding." Watson, 536 A.2d at 1060. Here, as in Head, appellant first filed a motion to recall the mandate, and later filed a § 23-110 motion based on the same ground, ineffectiveness of appellate counsel. Our ruling in Head applies to this case as well:

although appellant ... filed motions ... to recall the mandate ... the merits underlying his challenge to the denial of his § 23-110 motion are still not properly before the court.... By denying his motion to recall the mandate, this court

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