Nelson v. US, 86-1219.

CourtCourt of Appeals of Columbia District
Citation601 A.2d 582
Docket NumberNo. 86-1219.,86-1219.
PartiesDerrie A. NELSON, Appellant, v. UNITED STATES, Appellee.
Decision Date30 December 1991

Mindy A. Daniels, appointed by the court, for appellant.

Julieanne Himelstein, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, were on the brief, for appellee. R. Jeffrey Behm, Asst. U.S. Atty., also entered an appearance for appellee.

Before FERREN, TERRY and SCHWELB, Associate Judges.

TERRY, Associate Judge:

Appellant Nelson was convicted of one count of felony murder while armed,1 first-degree burglary while armed,2 assault with intent to kill while armed,3 kidnapping while armed,4 and carrying a pistol without a license.5 The jury acquitted him of armed robbery6 and of a second count of felony murder while armed, as to which that robbery was the underlying felony. On appeal he presents ten separate assignments of error, of which one is conceded by the government (see note 33, infra) and eight more are without merit. As to the tenth, we hold that the trial court erred in failing to consider a pre-trial claim of ineffective assistance of counsel in the manner prescribed 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 Farrell v. United States, 391 A.2d 755 (D.C.1978). We therefore remand the case for further proceedings consistent with the Monroe-Farrell line of cases. If the Monroe-Farrell proceedings on remand result in a finding that appellant's Sixth Amendment right to the effective assistance of counsel was infringed, the trial court shall set aside his conviction and order a new trial. If the Sixth Amendment issue is resolved against appellant on remand, however, then the judgment of conviction shall stand affirmed.

I
A. The Government's Evidence

Leonard Kelly, the manager of a restaurant (Louie's) and the co-owner of another (the Nob Hill), owned a house in the 1100 block of Lamont Street, N.W. From time to time during the years he had lived in that house, Kelly had taken in a number of roomers. One of those roomers was appellant Nelson, who had been referred to him by an employee of the Nob Hill. Nelson rented a room on the second floor and moved in on December 1, 1984. However, when he failed to pay his rent, Kelly asked him to leave. Nelson moved out on the first weekend in January 1985, taking with him his set of house keys,7 but leaving virtually all of his possessions behind except the clothes he was wearing. Kelly then placed Nelson's belongings in boxes and put them in the basement. A couple of weeks later, upon finding that some of the clothing and other items had been removed in his absence, Kelly assumed that Nelson had returned to collect them.

Shortly after Nelson moved out, Kelly rented another room in the house to Robert Nichols, whom he had known for several years. Nichols' room was on the second floor of the house, at the rear. Kelly testified that Nichols and Nelson had never met, nor did Kelly ever mention to Nelson that Nichols had become a tenant in his home.

On February 12, 1985, Kelly left home at about 5:30 p.m. to go to work at Louie's. At the time he left, Nichols was the only other person in the house. At 11:45 p.m. that same evening, Kelly's next-door neighbor, Tami Battle, had just returned home from a date and was parked in front of her house, saying goodnight to her boy friend, when she saw a man wearing bib overalls, work boots, a rust-colored jacket, and something blue on his head walk up the street toward Kelly's house. The man paused briefly at the front door and then continued inside. Battle testified, in response to a specific question, that this man did not have to "force anything or break anything" to get in. Battle then entered her own home, where her brother Troy was baby-sitting with her child, and went upstairs to a bedroom where Troy and the baby were sleeping. As she stood in the bedroom, Battle heard noises through the wall between her house and Kelly's house8 that "sounded like a fight." Troy Battle said that he also "heard some noises like something was happening exactly adjacent to my room, like somebody was being banged up against the wall ... and then I heard some muffled sounds, like somebody screaming or yelling ... but it was kind of muffled because it was through the wall." Both Tami and Troy Battle then heard two gunshots, and a few moments later Tami Battle heard the sound of someone running through the adjacent house. She immediately went outside to her front porch, but Kelly's house was dark, and she saw nothing.

At approximately 2:30 a.m., Kelly drove home from work and parked his car in the garage. As he approached the back door of his house, he noticed that the rear gate, which had been locked when he left for work, was swinging open. Kelly was walking up the steps toward the back door when Nelson suddenly appeared and demanded to be let inside to pick up his belongings. Kelly told him to come back another time because it was too late in the evening, but Nelson refused to leave, pulled out a knife, and insisted that Kelly deliver his possessions.

Yielding to the threat of Nelson's knife, Kelly opened the back door, and the two men went inside. Immediately Kelly saw that a television set and a video cassette recorder (VCR) were missing from the sun room. Once inside, Nelson pulled out a gun and pointed it at Kelly's head, pulling the trigger twice. After the gun clicked but failed to fire, Nelson said to Kelly, "You think it's a toy, don't you?" Nelson pulled the trigger a third time, but still the gun did not fire. Again Nelson demanded his belongings, and Kelly responded that they were in the basement. Kelly then started toward the kitchen. As he turned, Nelson shot him in the back of the head, and Kelly fell to the floor. Nelson walked over and took Kelly's keys from his hand, then told him to stand up. Kelly, however, could feel blood running down the back of his neck and replied, "I can't get up." Despite Kelly's pleas, Nelson grabbed him by the arm and forced him to get up and go out to the garage.

When they reached the garage, Nelson ordered Kelly to lie face down on the floor. Nelson then opened the trunk of Kelly's car and told Kelly to climb into it. Kelly stood up as if to do so, but instead he reached into the trunk, grabbed an umbrella, and hit Nelson on the side of the head. Kelly then fled down the alley behind his house, but Nelson caught up with him, and the two men resumed their fight. Kelly "got another swing" with the umbrella and started running again toward the Nob Hill restaurant, which was just a few doors away at the end of the alley. Nelson, however, caught up with Kelly outside the restaurant, slashed his face several times with the knife, and then picked up a cinder block and hit him once in the head with it.

Nelson fled when the manager of the Nob Hill, Ralph Smith, along with a bartender, came out of the restaurant. Smith, who had known both Nelson and Kelly for several years, testified that Nelson was wearing bib overalls and an orange "top" that night.9 Lynette Edwards, another neighbor, also saw Nelson beating Kelly near the steps of the Nob Hill and then saw Nelson run away.10 Kelly immediately telephoned the police, reporting the assault and naming Derrie Nelson as his assailant. He described Nelson as dressed in bib overalls, a red sweatshirt, and a dark knitted hat.

Officer Francis Nauheimer was the first to respond to the Nob Hill restaurant. Nauheimer spoke with Kelly and then went to Kelly's home nearby, where he found the garage open and, inside the garage, a car with an open trunk. Nauheimer returned to the Nob Hill and again spoke with Kelly. He then went back to the house and found Kelly's keys on a ledge inside the garage.

Circling to the front of the house, Officer Nauheimer, along with Officer Martin Manfredi, opened the front door and went inside. Finding the first floor ransacked, the two officers headed upstairs. In the back bedroom on the second floor, Nauheimer found the body of Robert Nichols lying on his right side on the floor, with blood on his head and right hand. Next to his head was a pillow with what appeared to be a bullet hole in it. There was also a bullet hole in the floor. Nauheimer felt Nichols' body for a pulse, but found none.

Officer Manfredi testified that he spoke with Leonard Kelly at approximately 2:50 a.m. and that Kelly, who was bleeding from the back of the head, told him that his assailant was a former tenant named Derrie Nelson. Kelly described Nelson as wearing bib overalls and an orange or red shirt. Manfredi broadcast a lookout, giving both a description and Nelson's name, and then began searching for Nelson himself. At about 3:10 a.m. Manfredi spotted a man on Sherman Avenue, N.W., who matched Kelly's description as to height. Manfredi stopped this man, whom he identified in court as Nelson, and asked him to unzip his jacket. Nelson complied, revealing neither bib overalls nor an orange or red shirt. Without asking Nelson his name, Manfredi let him go.

Shortly thereafter Officer Robert Panizari stopped Nelson in front of 2824 Sherman Avenue, N.W., about four blocks from the 1100 block of Lamont Street. Although Nelson did not appear to fit the description given in the broadcast lookout, Panizari asked him his name. When he replied that his name was Derrie Anthony Nelson, Officer Panizari placed him under arrest.11 Panizari "did a fast patdown," read him his rights, and called for a transport vehicle to take him back to Lamont Street, the scene of the crime. Officer Melvin Bellamy, the driver of the transport, conducted a full search and found a closed knife with blood on it in the pocket of Nelson's jacket. After they arrived at Lamont Street, Nelson told Officer Panizari that he had been playing cards all...

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