Spencer v. US

• Decision Date: 13 April 2000
• Docket Number: No. 95-CO-254, No. 93-CM-1184, No. 96-CO-1971.
• Citation: 748 A.2d 940
• Parties: Steven SPENCER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

748 A.2d 940

Steven SPENCER, Appellant, v. UNITED STATES, Appellee.

Nos. 93-CM-1184, 95-CO-254, 96-CO-1971.

District of Columbia Court of Appeals.

Submitted September 1, 1999.

Decided April 13, 2000.

Billy L. Ponds, Washington, DC, was on the brief for appellant.

Wilma A. Lewis, United States Attorney, with whom John R. Fisher, Elizabeth Trosman, Carolyn Kolben, and Michael G. Geffroy, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL, Associate Judge, and MACK and BELSON, Senior Judges.

BELSON, Senior Judge:

Steven Spencer appeals from his conviction by jury for possession of cocaine¹ and from the trial court's denial of his motion to vacate his conviction filed pursuant to D.C.Code § 23-110 (1996 Repl.). The trial court denied Spencer's § 23-110 motion on the ground that the court was without authority to entertain the motion because Spencer was no longer in custody and, additionally, on its merits. In these appeals Spencer contends: (1) he was denied his Sixth Amendment right to effective assistance of counsel; (2) the trial court erred in denying his § 23-110 motion without a hearing; and (3) the trial court erred in deeming that the defense was ready for trial. We need not rule on the question of the effect of appellant's custody status upon his ability to invoke § 23-110, as we uphold the trial court's alternative ruling, on the assumption that it could entertain the motion, that the motion was lacking in merit. We also reject appellant's argument that the trial court erred in requiring the case to go forward to trial.

I.

The government adduced evidence that Metropolitan Police Department Officer Gavin Morrison observed an unknown individual who was standing outside a brown four-door Chevrolet take a ziplock bag out of his pocket and hand it to Eric Wilkins in exchange for money. Wilkins then entered the front passenger's side of the car while Tahjon Spencer ("Tahjon") entered the back seat.² Appellant was already in the driver's seat.

Officer Morrison drove Officers James Towne and Tonce Cutler in his unmarked police car up to the brown Chevrolet and all three exited the vehicle. While Officer Morrison attempted unsuccessfully to apprehend the individual who sold the ziplock bag, Officers Towne and Cutler removed appellant and Wilkins from the car.

Officer Towne asked appellant to put his hands on the vehicle. Officer Towne testified that appellant instead put his hands in his pocket, removed a ziplock bag, and dropped it on the ground. When appellant then put his hands on the car, he attempted to kick the bag under the car. Officer Towne handcuffed appellant and recovered the bag. The bag contained a white rocklike substance that tested positive for cocaine. In the meantime, Officer Cutler recovered drugs from Wilkins and Officer Morrison recovered marijuana from Tahjon.

Appellant did not testify in his own defense. Wilkins, testifying for appellant, stated that Tahjon, after "fumbling with something in the back seat" threw something out of the window when the police officers removed appellant and Wilkins from the front seat. Wilkins testified that he did not see appellant reach into his pockets. The jury found Spencer guilty as charged.

II.

The nature of the appellant's arguments requires us to describe in some detail what happened when the case came on for trial. This matter was initially set for trial on December 1, 1992, and then continued to March 8, 1993. Defense counsel subpoenaed Tahjon, appellant's seventeen-year-old nephew, and Tahjon appeared on those prior occasions. The trial court was unable to hear the case at that time and the case was continued. On June 29, 1993, both parties initially represented to the court that they were ready to proceed to trial. Even though defense counsel announced that he was ready, he also told the court that he wished to call Tahjon, but Tahjon had not appeared and had apparently absconded from a drug program. Counsel could offer no substantial excuse for not having filed a motion for a continuance, and after much discussion the judge deemed the defense ready to proceed. Nonetheless, the court granted a one day continuance to allow the defense to locate Tahjon.

On June 30, 1993, defense counsel indicated that a defense investigator had located Tahjon on the previous day, but could not serve him with a subpoena due to the intervention of three possibly armed body-guards. The investigator spoke from a distance, informing Tahjon of the court date, and Tahjon did not reply, but two of the three men surrounding him placed their hands in their pants is if they were reaching for weapons, which trial counsel took to mean that Tahjon "had no intentions of showing up."

The court asked counsel if he had information that could be provided to the Marshals Service on the whereabouts of Tahjon, and counsel responded that he did and would provide it to the marshals. The court issued a bench warrant to be executed forthwith. The court placed the case on the list of matters ready to be certified to other judges for trial, but granted a continuance until the next day in order to allow the marshals to execute the warrant. The case was again continued to July 1, 1993. Following certification to another judge and jury selection, the case was once more continued until the next day. After the government presented its case, defense counsel moved for a recess until July 6, 1993, which the court granted.

On July 6, 1993, the court heard testimony from Deputy Marshal William Penn. He testified concerning the considerable efforts made in an attempt to secure the attendance of Tahjon. Despite investigating several locations, the marshals had proven unable to locate Tahjon. The court concluded that reasonable efforts had been made to secure Tahjon's attendance, and that further delay would not increase the likelihood that he would appear. The defense then presented its case, seven days after the trial court determined that the case was ready for trial. The jury convicted Spencer on July 7, 1993.

On May 14, 1994, appellant filed a motion for a new trial based on the assertion that he had newly discovered evidence. Appellant based this motion upon the affidavit of Tahjon Spencer which states in relevant part, "When I saw the officers approaching, I dropped a rock of crack cocaine beside the driver's side of the car my uncle was driving. . . . When Steven Spencer was removed from the car, the rock of crack cocaine was a few feet away from him, on the ground.... I informed the officers who were arresting us that the rock of crack cocaine for which they were arresting Steven Spencer actually belonged to me. . . . I am willing to testify in Steven Spencer's behalf in the event of a new trial." On February 16, 1995, the trial court denied the motion because this information was not "newly discovered," but rather had been the reason "that both defense counsel and the Court took great pains to procure his presence at trial." See Wright v. United States, 387 A.2d 582, 587 (D.C.1978)

. Alternatively, the trial court denied the motion because the evidence was not likely to produce an acquittal at a new trial. See id. The court found the following:

First, during the course of the trial defendant was fully able to put forward, through another witness, the defense theory that Tahjon Spencer, not the defendant, was the individual who possessed the cocaine for which defendant was arrested, and had thrown it from the car; however, the jury rejected defendant's theory and this Court cannot find that Tahjon Spencer's personal testimony would probably produce an acquittal. As mentioned above, defense witness Eric Wilkins, the other passenger in the car, testified and contradicted the government witnesses' testimony, stating that he saw Tahjon Spencer fumbling with something in the back seat, and then saw him throw a rock out of the driver's side window. He also testified that from the time he was removed from the vehicle to the time when he saw the ziplock on the ground, he was able to see the defendant's hands and never saw him reach into his pocket. Indeed, it is noteworthy that Tahjon Spencer's testimony would be merely cumulative, considering the similarity between the trial testimony of Mr. Wilkins, and Tahjon Spencer's affidavit.

United States v. Spencer, No. M10306-92 (D.C.Super.Ct. February 16, 1995) (order denying motion for new trial at 9-10). Spencer appealed that ruling (95-CO-254), but does not make any argument in this court regarding newly discovered evidence. Thus, any error in the ruling appealed from in case number 95-CO-254 is waived, and the order below will be affirmed.

On July 5, 1995, appellant filed his § 23-110 motion alleging ineffective assistance of trial counsel alleging that trial counsel (1) had failed to conduct pretrial investigations and more specifically that he (2) failed to investigate whether Tahjon pleaded guilty to "possession of the same drugs that Steven Spencer [was convicted of] possessing in this case," that he (3) failed to file a motion for continuance and (4) that he failed to serve Tahjon with a subpoena. The government responded that (1) appellant had suffered no prejudice from counsel's failure to file a motion for continuance because the trial court granted an extended defense continuance, and additionally utilized the court's resources to search for Tahjon; (2) trial counsel was not deficient for his failure to subpoena Tahjon because Tahjon had appeared previously pursuant to a subpoena on an earlier trial date for this case, and thus counsel had no reason to anticipate Tahjon's failure to appear; (3) there was no merit to appellant's claim that counsel failed to conduct a pretrial investigation regarding Tahjon's role, as shown by the fact that counsel submitted an affidavit stating Tahjon's expected testimony before trial commenced, and arranged his presence on a previous trial date; (4) trial cou...