Oesby v. United States

• Decision Date: 13 December 1977
• Docket Number: No. 13196.<SMALL><SUP>*</SUP></SMALL>,No. 10980.,No. 10939.,10939.,10980.,13196.<SMALL><SUP>*</SUP></SMALL&gt
• Parties: Lawrence C. OESBY, Appellant, v. UNITED STATES, Appellee (Two cases). David I. PARKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1

398 A.2d 1

Lawrence C. OESBY, Appellant, v. UNITED STATES, Appellee (Two cases).

David I. PARKER, Appellant, v. UNITED STATES, Appellee.

No. 10939.

No. 10980.

No. 13196.^*

District of Columbia Court of Appeals.

Argued December 13, 1977.

Wayne M. Lee, Washington, D.C., appointed by this court, for appellant Oesby.

Leslie J. Harris, Public Defender Service, Washington, D.C., for appellant Parker. Silas J. Wasserstrom, Public Defender Service, Washington, D.C., also entered an appearance for appellant Parker.

James F. Hibey, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, William D. Pease and Joseph B. Valder, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. [Pa] Before KELLY, GALLAGHER and FERREN, Associate Judges.

KELLY, Associate Judge:

Appellants Lawrence Oesby and David Parker were convicted by a jury of two counts of assault on a police officer with a dangerous weapon (D.C.Code 1973, § 22-505(a), (b)); two counts of assault with a dangerous weapon (D.C.Code 1973, § 22-502); and one count of carrying a pistol without a license (D.C.Code 1973, § 22-3204). Appellant Oesby argues here that he was denied his Sixth Amendment right to effective assistance of trial counsel;¹ appellant Parker raises the related issue that the court's repeated admonitions and criticisms of Oesby's counsel in the jury's presence denied him a fair trial.²

Government testimony was that on the morning of January 2, 1975, Marcia Summers argued bitterly with her boyfriend, appellant Parker, whom she had recently spurned. The argument was continued when, about 1:00 p. m., Parker visited Summers at her place of employment. Parker eventually told Summers that he would return at 6:00 p. m. to "scare a hole in [her] heart," a statement which she understood to be a threat to her life. After Parker left, Summers asked a co-worker, Gregory Davis, to call his brother John, a Metropolitan Police Officer. Officer Davis, who was then off-duty, volunteered to pick Summers up at the end of the day and take her home. As she left work with Officer Davis, Gregory Davis, and a friend, Eugene Small, Summers noticed Parker's car coming down the street. Approximately ten minutes later, still in Officer Davis' car, she again noticed Parker's car passing in the opposite direction. She recognized Parker as the driver of the car and Oesby as one of its two passengers. Officer Davis let his brother and Summers out of his car and made a U-turn to follow the Parker vehicle. Before departing the vehicle, Summers said that Parker might be carrying a gun.

Davis and Small followed the Parker car and at some later point flagged down a marked police cruiser occupied by Officers Thomas Gallogly and Jerry Benzing, who agreed to join in the pursuit. The three cars traversed several blocks before Parker stopped for a red light. Officer Davis pulled adjacent to the passenger side of Parker's automobile while the marked cruiser stopped directly behind the vehicle. Davis, getting out of his car with his service revolver in one hand and his badge in the other, approached the Parker car and shouted, "Police." Simultaneously, Officer Gallogly stepped out of the cruiser and walked to the driver's side of the Parker car.

Parker opened his car door and Officer Davis noticed a hand gun being passed between the two men in the front seat. Officer Benzing noticed the same movement. Within five seconds Davis heard gunshots and saw the right front windshield of the Parker car shatter outward. Believing that both the driver and passenger were firing at him, Davis fired at both appellants.

In the meantime, Officer Gallogly, who tried to open the driver's door, noticed a gun in Parker's hand. He then glanced across the front seat and saw that Oesby was leveling a second gun at him. Gallogly reacted at once by firing two shots at Oesby, both of which missed their target. The Parker car then sped off, followed by both the cruiser and the Davis car. The cruiser lost the Parker car in traffic but Davis continued the chase to North Capitol Street where the occupants of the Parker car abandoned their automobile and fled. Appellants were later apprehended.

Oesby's contention on appeal to the contrary, the test in this court for determining whether a defendant has received effective assistance of counsel is governed by our decision in Angarano v. United States, D.C. App., 312 A.2d 295 (1973), petition for reconsideration denied, 329 A.2d 453 (1974) (en banc), which adopted the effectiveness standard of Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).³ Although the Bruce standard was set in a collateral attack proceeding, this court has used that test in disposing of issues of counsel's effectiveness raised on direct appeal. See, e. g., Proctor v. United States, D.C. App., 381 A.2d 249 (1977); Horton v. United States, D.C.App., 377 A.2d 390 (1977); Woody v. United States, D.C.App., 369 A.2d 592 (1977); Johnson v. United States, D.C. App., 364 A.2d 1198 (1976); White v. United States, D.C.App., 358 A.2d 645 (1976); Terrell v. United States, D.C.App., 294 A.2d 860 (1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1398, 35 L.Ed.2d 603 (1973). Representation by counsel is deemed ineffective where the accused demonstrates "gross incompetence" which "has in effect blotted out the essence of a substantial defense." Bruce v. United States, supra, 126 U.S.App.D.C. at 339-40, 379 F.2d at 116-17. The standard requires that a convicted defendant show that counsel was grossly incompetent and that counsel's incompetence blotted out the essence of his defense.

The right to effective assistance of counsel attaches before trial, McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and extends through the post-trial proceedings; consequently, we examine trial counsel's conduct chronologically from the time of the pretrial suppression hearing.⁴ At that hearing, counsel called as a witness the owner of the car in which appellants were riding, apparently for the purpose of testifying that he saw no bullet holes in the windshield of the automobile. The relevance of this testimony in the context of a hearing on a motion to suppress statements and identification is not apparent, yet the court allowed counsel to proceed to a point where he failed to qualify the witness as being able to determine whether the holes in the windshield were made by bullets. The court then struck the testimony as irrelevant.

Counsel also alleged at the suppression hearing that he had filed a motion to dismiss the indictment for failing to comply with D.C.Code 1973, §§ 22-501 and 32-505(a).⁵ Neither the court nor the prosecutor was aware of any such motion having been filed, so the court refused to entertain the motion.

Additionally, the record reveals numerous examples of counsel's incompetence at trial.⁶ For example, during cross-examination of Officer Gallogly, counsel attempted to impeach the officer by reading from a transcript of a pretrial lineup. Counsel was warned by the court not to read the transcript into evidence, but he continued to do so. At side bar, the prosecutor revealed that while counsel was attempting to impeach Gallogly by use of a prior inconsistent statement, he unfortunately was reading from a prior statement of a different police officer.

Counsel waived opening statement and first addressed the jury before presenting Oesby's defense. His statement, in its entirety was:

Ladies and gentlemen of the jury, we shall prove conclusively to your satisfaction that Mr. Oesby was not only not there but was described by Officer Gallogly as a man with a clean-shaven face and by other officers in such a manner as to confuse and contradict each other. If we prove to your satisfaction that this is so, we shall, at the proper time, ask for the proper verdict.

The purpose of an opening statement for the defense is to explain the defense theory of the case, to provide the jury an alternative interpretative matrix by which to evaluate the evidence, and to focus the jury's attention on the weaknesses of the government's case. Counsel's statement in this case was at best confusing and unilluminating. It did little to inform the jury of any weaknesses in the government's case, and supplied only a bare bones description of the defense theory.

In presenting the defense case, counsel sought to call Marcia Summers, who had testified as a key government witness. The court summoned counsel to the bench for a proffer as to what testimony counsel would elicit and the following colloquy ensued:

Counsel: I proffer her testimony to be that she visited with Mr. Davis (sic) while he has been incarcerated on this charge.

The Court: Mr. Davis has never been incarcerated on this charge. Who is Mr. Davis?

Counsel: Well, the other defendant.

Counsel for Appellant Parker: Mr. Parker? I object to that, Your Honor.

The Court: What would that have to do with it?

Counsel: I think it has a lot to do with it. Her testimony —

The Court: What is the relevancy?

Counsel: It goes to her credibility.

The Court: You could have used that while she was on cross-examination to attack her credibility. You can't put her on to attack her credibility. You had the opportunity to cross-examine her.

Later, counsel called Officer Gallogly, who had also previously testified for the government. The court again asked counsel for a proffer:

Counsel: If Your Honor please, my proffer is that this gentleman did file an affidavit and in that affidavit he stated that Oesby was the driver of the car.

The Prosecutor: Your Honor, counsel cannot call a witness in this case simply to impeach him. The time for this was during his earlier testimony.

The Court: No, he could have done it in his direct. You can't call him to impeach him now. You had your opportunity to impeach him.

Counsel: I don't want to impeach him.

The Court: Well, that's what you're...