Payne v. US

• Decision Date: 24 July 1997
• Docket Number: No. 93-CF-1643,94-CF-1445.,93-CF-1643
• Citation: 697 A.2d 1229
• Parties: Ronnie PAYNE and Ronald E. Garris, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

697 A.2d 1229

Ronnie PAYNE and Ronald E. Garris, Appellants, v. UNITED STATES, Appellee.

Nos. 93-CF-1643, 94-CF-1445.

District of Columbia Court of Appeals.

Argued June 26, 1997.

Decided July 24, 1997.

Joseph R. Conte, appointed by this court, Washington, DC, for appellant Payne.

Shawn Moore, appointed by this court, Washington, DC, for appellant Garris.

Geoffrey Bestor, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, KING and REID, Associate Judges.

REID, Associate Judge:

Appellants Ronald E. Garris and Ronnie Payne were convicted on two counts of premeditated first degree murder while armed, in violation of D.C.Code §§ 22-2401, -3202 (1989), two counts of assault with intent to kill while armed, in violation of D.C.Code §§ 22-501, -3202; one count each of carrying a pistol without a license, in violation of D.C.Code § 22-3204(a), and possession of a firearm during a crime of violence, in violation of D.C.Code § 22-3204(b).¹ They filed timely appeals challenging their convictions. We affirm.

FACTUAL SUMMARY

Terence Woodfork, Hezekiah Vaughn, Kenyetta Jeter and Maurice Carey, all good friends, were seated in a Nissan Pulsar automobile, outside the Breezes Metro Club on Channing Street and Bladensburg Road, N.E., on the night and in the early morning hours of March 12 and 13, 1992.² While they were sitting and drinking beer in the Nissan Pulsar, they spotted a blue or gray car carrying a white female and a black male, later identified as Christine Terry and Preston Coe, approach and park. Terry and Coe got out of the car and walked toward the Metro Club. Soon another car drove up, occupied by two black males. The two black males emerged from their car and eventually stood in front of the Nissan Pulsar and opened fire, killing Vaughn and Jeter, and injuring Carey in the back and arm. At the time the shots were fired, neither Woodfork nor Carey saw anyone else on the street. Later, the police showed Woodfork a photo array and he picked out Garris and Payne as the assailants. He also made an in-court identification of both men.³ When Carey was shown the photo array by the police, he initially picked out only Coe, the black male who was with the white female. He did not identify Garris and Payne until his testimony during their trial.⁴ However, Carey testified that after the shots were fired, he saw both the car carrying the two black males and the one bearing the white female and the black male leave the area. The car carrying the black male and white female departed first.

At the time of the shootings, Officer Stacey Davis was on duty in the Metro Club area. He "heard . . . gunshots, stepped to the corner and observed the gunshots." As he ran up Channing Street, he saw a vehicle containing a black man and a white woman moving on the street. He also "observed two black males firing into or onto a vehicle." One was dark in complexion and had on a blue jean outfit, and the other was light-complected and had on an orange muscle sweat shirt with blue jeans.⁵ When the men saw the officer, they got into a car and drove away. Officer Davis identified Payne in court as one of the men he had seen shooting into the Nissan Pulsar.⁶

Christine Terry testified at trial that she had known Garris for about nine to ten months prior to March 13, 1992, and Payne for about six months prior to that time. She met both through her then boyfriend, Preston Coe. Earlier on the night of the shooting incident, she saw Garris and Payne sitting in a car. Garris had a 45 millimeter gun in his lap, but she did not see Payne with a weapon. After Terry arrived in the area of the Metro Club, she overheard Coe tell Garris and Payne to put their guns in the trunk of the car before they went into the club. Payne "said no, that the boys in the occupied car Vaughn, Jeter, Woodfork and Carey might see where they're putting their guns." She heard Garris say, "we'll try our shootouts on these young niggers behind us. . . . We'll smoke these young niggers behind us." Coe and Terry left the area. As Coe and Terry were leaving the area, Terry said she "saw Ronald Garris in front of the . . . blue car . . . shooting into it." She did not see Payne with any gun. About half an hour after Coe and Terry reached their apartment, they received a telephone call, and about fifteen minutes after the call Payne and Garris arrived. Garris went into Coe's bedroom with Coe, where the two men remained for about twenty-five to thirty minutes.⁷ Garris and Payne were arrested approximately one month after they killed Vaughn and Jeter.

ANALYSIS

Garris's Ineffective Assistance Of Counsel Argument

Garris maintains that he was denied the effective assistance of counsel. To prevail on this issue, Garris "must show (1) deficient performance by his trial counsel, and (2) prejudice traceable to his trial counsel's deficiencies. The burden is a heavy one because of a strong presumption that defense counsel has rendered reasonable professional assistance." Zanders v. United States, 678 A.2d 556, 569 (D.C.1996) (citing Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055, 80 L.Ed.2d 674 (1984)). Garris contends that his "trial counsel's illegal drug usage during a serious double homicide trial was outside the boundaries of reasonable professional norms" and his performance not only was deficient but also prejudicial to him. "To prove prejudice he `must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Zanders, supra, 678 A.2d at 569 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068).

We have never before decided whether an attorney's drug usage by itself constitutes ineffective assistance of counsel. Both Garris's counsel and the government acknowledge that drug or alcohol usage by an attorney is not per se evidence of ineffective assistance of counsel. We agree. Indeed, "under Strickland the fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel's performance was deficient and whether that deficiency prejudiced the defendant." Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (emphasis in original).⁸ Garris's pro se motion sets forth several conclusory allegations.⁹ However, neither those allegations nor the others raised during his D.C.Code § 23-110 (1996 Repl.) hearing, or discussed on appeal, are supported by credible evidence. At the § 23-110 hearing, only two persons testified: Garris's attorney and Kevin Moye, who allegedly saw Garris's counsel, in a pool room, exchange money for packages he presumed to be drugs. Moye offered no testimony regarding Garris's counsel's performance at trial.

After listening to the testimony of Garris's counsel and Moye, and hearing arguments of counsel, the trial court concluded in part:

First of all, the Court was aware of the problem that counsel had and we observed and looked at him throughout the trial and observed all counsel and we were — we never saw any indication of any inattention to the matter and we saw him on every motion exercising the most profound skills that we have ever seen a lawyer exercise.

There is no question in the Court's mind but that counsel was the most outstanding lawyer in this case. Absolutely none at all.

He performed better than the other two lawyers and including, as the Assistant U.S. attorney suggests, the Assistant U.S. attorney. He just had no equal in it. He did an outstanding job in the defense of this man.

... We had CJA lawyers representing the other defendants.

They had complete and unlimited funds to investigate this case so to speak. They investigated it from A to Z and this Court is aware that co-counsel in cases have opportunities to cooperate and take benefits from other investigations.

. . . .

The type of cross examination he did on witness Terry was in-depth and he got every pound of advantage that could be gotten from such a witness who came across believable and she was able to convince these jurors that these defendants committed the offense.

We just find nothing that would indicate that there was any such lack of preparation on the part of counsel in this case.

The trial court found no deficiency in the performance of Garris's counsel, and "no errors so serious as to deprive Garris of a fair trial or trial whose results . . . are unreliable."

Based upon our review of the record and transcripts in this case, we agree that there is no credible evidence of deficient performance by Garris's counsel. Furthermore, we see no error that "undermines confidence in the outcome" of Garris's trial, or that rises to the level of the prejudice required for Garris to prevail on the second prong of the Strickland standard. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Payne and Garris's Other Arguments

The remaining issues raised by Payne and Garris require only brief discussion. Both Payne and Garris contend that the trial court erred in denying their motion for a new trial. In August 1993, approximately six months after appellants' trial ended in conviction, Payne filed (and Garris later joined) a motion for a new trial under Super. Ct.Crim. R. 33, based upon newly discovered evidence, a 9mm. Calico Model M-950 pistol.¹⁰ In March 1993, Maria Thompson, a former girlfriend of Preston Coe, discovered a green and beige Polo bag left at her residence by Coe. The bag contained the Calico pistol. She got in touch with a private detective for the defense, who had previously contacted her to ascertain the whereabouts of Coe, and turned the bag and weapon over to him. A defense expert, Lester W. Roane of the H.P. White Laboratory, examined 19 cartridge cases and 22 fragments from the...