McFadden v. US

• Decision Date: 14 August 1992
• Docket Number: 88-CO-440.,No. 87-CF-778,87-CF-778
• Citation: 614 A.2d 11
• Parties: William H. McFADDEN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

614 A.2d 11

William H. McFADDEN, Appellant, v. UNITED STATES, Appellee.

Nos. 87-CF-778, 88-CO-440.

District of Columbia Court of Appeals.

Argued March 18, 1992.

Decided August 14, 1992.

Gary T. Brown, Washington, D.C., appointed by this court, for appellant.

Julie G. Weidenbruch, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN and WAGNER, Associate Judges.

PER CURIAM:

Appellant William McFadden appeals his convictions by a jury on the grounds that the trial judge erred by failing to conduct a pretrial inquiry as required by 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), and that he was denied the effective assistance of counsel at trial.¹ We reverse.²

I

On December 20, 1986, appellant and Romone Gabriel, the co-defendant, were arrested while driving in a stolen Volkswagen in Northeast Washington, D.C. Gabriel was driving and appellant was in the back seat. Appellant had his hands on top of a tall grey bag, which contained gold jewelry, personal papers, credit cards, and a wide assortment of other personal property that had been stolen on December 19 and December 20, 1986. Some of the jewelry was found in the clothes pockets of appellant and Gabriel. Gabriel was also wearing a stolen dark brown leather jacket.

The defense was alibi. Appellant's father, William H. McFadden, Sr., testified that before appellant's arrest appellant had been working for him, constructing a restaurant in a building at 4th Street and Florida Avenue, Northwest, and that he had seen his son at work on the mornings of December 19 and 20, 1986. On crossexamination Mr. McFadden admitted that although appellant was at work "most of the time" on December 19, he was uncertain how long appellant was at work on December 20.

The co-defendant, Romone Gabriel, called four witnesses. His mother testified that her son was home sick from 1:30 a.m. on December 18, 1986, until the evening of December 20. That evening appellant came to her home driving a Volkswagen, which he had claimed belonged to a friend. Gabriel and appellant gave Gabriel's mother a ride to a party, dropping her off just before midnight. Gloria Pearson, the exgirlfriend of Gabriel's brother, testified that she saw appellant driving a grey Volkswagen on December 19, 1986, but admitted on cross-examination that she had a "special relationship" with the Gabriel family, and that she had known them for about two years. Two other witnesses, including Gabriel's sister, provided corroborating testimony.

In rebuttal, Corporal Vance McDonald of the D.C. Department of Corrections testified that the visitor's log at the Lorton Reformatory indicated that on Saturday, December 20, 1986, between 8:30 and 11:45 a.m., appellant and Gabriel had visited inmates at Lorton. McDonald's testimony thus contradicted the testimony of appellant's father and Gabriel's mother and sister.³

Appellant's pro se motion "For New Trial Pursuant to Ineffective Assistance of Counsel, Title 23, Section 110 of the D.C.Code," was denied following evidentiary hearings.⁴

II

A.

Pursuant to the rule established in Shepard v. United States, 533 A.2d 1278, 1286 (D.C.1987), this court consolidated appellant's direct and collateral appeals. Preliminarily, therefore, we must address a question of first impression: should this court review both issues or defer consideration of the Strickland⁵ issue until the Monroe-Farrell issue has been resolved? When a Monroe/Farrell⁶ claim of pretrial ineffective assistance of counsel, alleged on direct appeal, is joined with a Strickland claim of ineffective assistance of counsel at trial, alleged on collateral attack under D.C.Code § 23-110, we conclude for several reasons that this court should rule on the Monroe-Farrell claim (direct appeal) before reaching the Strickland claim (collateral attack). Therefore, if there is a basis for a Monroe-Farrell reversal or remand, this court will not reach the Strickland claim. See Pierce v. United States, 402 A.2d 1237, 1238 n. 2 (D.C.1979). If this court remands under Monroe-Farrell, and the case comes back on appeal, the court will then dispose of the Monroe-Farrell issue, assisted by the trial court's findings, before reaching the Strickland claim (if necessary).

Any other approach allowing consideration of a Strickland issue before resolving a Monroe-Farrell issue could result, in some cases, in a Strickland affirmance on collateral attack mooting out the Monroe-Farrell inquiry on direct appeal. Although conceivably this court could review Strickland claims first, thereby accepting — even encouraging — the mooting of Monroe-Farrell claims if, as it happened, the defendant received ineffective assistance at trial, to do so would undermine our mandate to carefully and seriously deal with a defendant's pretrial complaint of ineffectiveness of counsel in order to assure competent representation going into trial.

Quite often, this court resolves Strickland claims, in the manner suggested by the Supreme Court, by dealing first with the second Strickland criterion of "prejudice" — whether the defendant can show a reasonable probability that, but for counsel's alleged unprofessional errors, the result would have been different — without resolving, or even carefully addressing, the first criterion of whether counsel rendered "deficient performance." 466 U.S. at 691-96, 104 S.Ct. at 2066-69. Consequently, it is possible that we could affirm a conviction under a Strickland challenge by reference to overwhelming evidence of guilt and thus a lack of prejudice, without much, if any, regard to how effectively counsel prepared for, and conducted, trial. Such an approach would minimize, if not nullify, the importance of pretrial ineffectiveness claims. This court has emphasized that a defendant is entitled to adequate preparation by, and consultation with, counsel, which "often may be a more important element in effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom." Monroe, supra, 389 A.2d at 819 (quotation omitted).

Theoretically, of course, we could fashion a rule that, before affirming under Strickland when Monroe-Farrell is at issue, this court would look carefully at the deficiency criteria, including pretrial preparedness issues presented under Monroe-Farrell, and make certain that any affirmance based on lack of prejudice pays very careful attention to the quality of defense counsel's representation. But that would inevitably lead to a reverse Strickland analysis, distorting the application of Supreme Court doctrine. Heretofore, this court has scrupulously preserved Monroe-Farrell rights against erosion by hindsight examination of at-trial performance of counsel. Monroe "rejected the argument advanced by the government that we should apply the post trial test of outcome prejudice in evaluating the prejudicial impact of error on the disposition of pretrial claims of ineffective assistance of counsel." Monroe, 389 A.2d at 821. The court has since reaffirmed that principle, rejecting the government's argument "that counsel's performance at trial may be considered on appeal in assessing whether the trial court's Monroe-Farrell error was harmless." Bass v. United States, 580 A.2d 669, 672 n. 6 (D.C. 1990). Rather, the court has limited examination of counsel's trial performance to its circumstantial value for the trial court's analysis of Monroe-Farrell contentions on remand. In that context — and that context only — the court has noted that "counsel's actual performance at trial will constitute circumstantial evidence on the issue of whether she was adequately prepared before trial." Nelson v. United States, 601 A.2d 582, 592 (D.C.1991) (citing Bass, supra, 580 A.2d at 672 n. 6).

This court has made clear that pretrial claims of ineffective assistance must be taken seriously in view of "the fundamental interests which the Sixth Amendment seeks to protect...." Monroe, 389 A.2d at 819. Indeed, in Monroe the court stated that "the trial court's omission of meaningful inquiry into appellant's claim ... would normally constitute reversible error." Id. at 822. In Bass, 580 A.2d at 672, the court reminded both trial judges and counsel:

that they must act before trial to ensure that defendants are given prompt and sufficient consideration of their Monroe-Farrell complaints about their attorneys. If in a given case the judge hesitates or fails to act, then the attorneys — both prosecutor and defense counsel — should press the matter as persuasively as they can, urging that the claims be ventilated fully on the record.... In this way the defendants' rights can be protected, and countless hours of the courts' and the parties' valuable time can be saved (emphasis in original).

In Bass, 580 A.2d at 672.

In sum, we conclude that whenever, as here, a Monroe-Farrell claim (direct appeal) is joined with a Strickland claim (collateral attack) — as is required under Shepard, 533 A.2d at 1286 — this court must make sure that the Monroe-Farrell claim has been definitively resolved before dealing with the Strickland inquiry. This may require remanding the record for Monroe-Farrell findings or a ruling. Only after the remand results in a trial court ruling will this court deal definitively with the pretrial and post-trial ineffectiveness claims.

B.

We turn to appellant's contention that the trial judge did not make the requisite inquiry under Monroe, supra, 389 A.2d at 820. This contention is based on the circumstance that on the day trial was scheduled to begin, appellant's trial counsel advised the trial judge that he had filed a motion for a continuance because he was not ready for trial. Counsel explained that he "had not spent enough time talking to appellant,"...