Porter v. United States

Decision Date16 February 2012
Docket NumberNo. 09–CO–425.,09–CO–425.
Citation37 A.3d 251
PartiesEarl PORTER, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals


Jonathan W. Anderson, Public Defender Service, with whom Jaclyn S. Frankfurt and James Klein, Public Defender Service, were on the brief, for appellant.

Michael J. Friedman (counsel for argument on March 24, 2011) and David B. Goodhand, (counsel for argument on November 9, 2011), Assistant United States Attorneys, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Elizabeth Trosman and Margaret J. Chriss, Assistant United States Attorneys, were on the briefs, for appellee.

Before THOMPSON and OBERLY, Associate Judges, and NEWMAN, Senior Judge.*THOMPSON, Associate Judge:

Appellant Earl Porter appeals from the trial court's denial of his D.C.Code § 23–110 motion, in which he sought relief on the ground that he received ineffective assistance from his trial counsel. The motion argued that Porter's trial counsel was ineffective in failing to seek suppression of evidence recovered from the scene of an alleged robbery. The trial court assumed that appellant's trial counsel was remiss in that regard and that a motion to suppress would have been successful, but it denied the § 23–110 motion because the remaining evidence against appellant was “overwhelming.” Because the factual record is not sufficiently developed to permit us to conclude that the omitted motion to suppress would have resulted in exclusion of a significant quantum of evidence, and because we also are unable to agree with the trial court that there is no reasonable probability that the outcome of Porter's trial would have been different had some or all of the evidence in question been excluded, we are constrained to vacate the trial court's ruling on the § 23–110 motion, and to remand for further proceedings.


Appellant was tried on one count of robbery of a senior citizen, stemming from an event in October of 2003; and on charges of armed robbery, possession of a firearm during a crime of violence (“PFCV”), and possession of an unregistered firearm, all stemming from an incident in December 2003. The jury acquitted appellant of the October robbery count, but found him guilty on all charges related to the December incident.

The October robbery charge was based on the testimony of John Anderson, who testified that he drove to the home of Marvella Bruce, with whom he had previously had intercourse, hoping to have intercourse with her. Anderson testified that when he arrived, he saw appellant, but accompanied Bruce into her bedroom after she assured him that appellant would not interfere. Anderson then testified that after he had been alone with Bruce for several minutes, appellant burst into the room with his hand under his shirt. Anderson testified that Bruce told him not to move and to empty his pockets. After giving appellant $345 and a watch, Anderson was allowed to take his keys and leave.

Vincent Walker recounted a similar story. He testified that in the early morning of December 4, 2003, after he had finished his evening work as a cigar salesman and had a few drinks, he encountered Bruce on the side of the road. He assumed she was a prostitute, let her into his car, and asked her to take him somewhere more secluded. She took him to the same house that Anderson testified he had visited in October. Once at the house, Walker and Bruce negotiated a price for a sex act. As Walker was undressing, appellant entered the room, pointed a sawed-off shotgun at Walker, and ordered him to sit on the couch. Walker testified that at some point, Bruce took his car keys, went to his car, came back and reported, “all he's got in there is cigar stuff.” Walker testified that appellant took his bracelet, cufflinks, watch, earrings and other personal effects. Appellant then returned Walker's keys and told him he was lucky to be leaving with his life. When Walker returned to his car, he noticed that the interior was in disarray, the trunk was open, and his backpack had been “rummaged through.”

Walker testified that he then drove to a nearby 7–Eleven store and called the police. After police met Walker at the store (at about 4:07 a.m.), he accompanied them back to the scene, and four officers (Officers Tighe, Frost, Jackson, and Terrell) approached the house he had described. Officer Kevin Tighe testified that the officers knocked on the door, identified themselves, and then asked and were granted permission to briefly sweep the house “for our safety and your safety,” explaining that they were investigating an armed robbery. Officer Tighe testified that Bruce told him that she and “two adult males” (appellant and Tyrone Hunt) were the only ones in the house. Officer Tighe further testified that the purpose of the sweep was “to make sure that there was nobody else in the house ... other than the three people that we were aware of,” because [w]e didn't want anybody jumping out with firearms.”

Officers escorted Bruce, appellant, and Hunt, in turn, outside for “show up” identifications, and Walker positively identified Bruce and appellant as the robbers. At the time, appellant was wearing a bracelet that Walker later identified as his. Appellant and Bruce were arrested and secured in police cars. During Hunt's show-up appearance, Walker identified Hunt only as a man he (Walker) “had seen in front of the location when he was leaving out after the robbery.” Thereafter, according to Officer Tighe's written report, 1 an officer escorted Hunt back inside the house while the officers awaited a WALES (i.e., Washington Area Law Enforcement System database) check on Hunt.2 Also according to the written report, during that time, Officers Frost and Jackson told Officer Tighe that “during their sweep of the house they observed in plain view several items that they believed was [ sic ] property taken from [Walker] during the robbery,” including “several cigar boxes and some other items.” Tighe then went back into the house, this time accompanied by Walker (an entry that the parties and the trial court referred to as the “second entry”). Asked at trial whether he was “given permission to enter the premises at that point,” Officer Tighe responded, “Well, there was an officer still there.” Inside the house, Walker proceeded to identify various items of property that had been taken from his person or his car. According to Officer Tighe's report, after Walker left the house and after Hunt was arrested, a crime scene search technician took photographs of the scene. Officer Tighe also took some Polaroid photos of the scene and the property and seized the property that Walker had identified. The officers did not see a shotgun, but police returned the next day with a warrant and recovered a sawed-off shotgun from the attic of the house.

On March 26, 2004, the jury returned verdicts finding appellant not guilty of the October incident, but guilty of the December armed robbery of Walker and of the associated weapons charges.3 In December 2007, appellant filed his D.C.Code § 23–110 motion. He argued that his trial counsel was ineffective in that he failed to file a motion to suppress the evidence seized during the second entry into the home (i.e., all of the physical evidence except the bracelet and the shotgun). At a hearing on December 3, 2008, the trial court assumed that the motion to suppress would have been granted if filed, but told the parties that in its view the remaining evidence against appellant was “overwhelming” and reasoned that appellant therefore was not prejudiced by his counsel's omission and was not entitled to relief (but afforded the parties time to file supplemental memoranda).

On April 15, 2009, the court convened the parties to issue its final ruling. The court told the parties that it would conduct an evidentiary hearing if they wanted, but that it would not hear evidence as to the second entry (i.e., the request for an evidentiary hearing would have “to be based on something in regards to the first time and the third time [i.e., the entry pursuant to the search warrant], but not the second time”). The court did not specifically address the government's argument that some of the evidence recovered during the second entry was admissible because officers had seen the evidence in plain view during their initial entry and could have seized it. Instead, in its brief ruling from the bench, the court said that it “would ... suppress” the evidence from the “second search,” distinguishing this case from cases in which “the searching party was already on the scene entitled to be there.” The court reasoned, however, that appellant was not prejudiced by his counsel's failure to file a motion to suppress because of the strength of the remaining evidence: the evidence that appellant was found in the house, matched Walker's description of his assailant, and was wearing Walker's bracelet; appellant's “incredible trial testimony”; and “most importantly[,] the shotgun.” This appeal followed.


To succeed on an ineffective assistance of counsel claim, a defendant must show (1) that trial counsel made errors so serious that counsel was not functioning as the counsel guaranteed under the Sixth Amendment; and (2) that counsel's deficiency prejudiced the defendant such that it deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To satisfy the prejudice...

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