Sykes v. US, 87-1154

• Decision Date: 28 January 1991
• Docket Number: No. 87-1154,88-1607.,87-1154
• Citation: 585 A.2d 1335
• Parties: Gary M. SYKES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

585 A.2d 1335

Gary M. SYKES, Appellant, v. UNITED STATES, Appellee.

Nos. 87-1154, 88-1607.

District of Columbia Court of Appeals.

Submitted April 24, 1990.

Decided January 28, 1991.

Michael R. Murphy, Washington, D.C., appointed by this court, filed a brief, for appellant.

Jay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman, Michael D. Brittin and Kevin A. Ohlson, Asst. U.S. Attys., Washington, D.C., filed a brief, for appellee.

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

SCHWELB, Associate Judge:

Following a jury trial, Gary M. Sykes was convicted of distribution of heroin and possession of heroin.¹ D.C.Code § 33-541(a)(1) (1988). Sykes filed a post-trial motion to vacate, set aside or correct his sentence pursuant to D.C.Code § 23-110 (1989). The trial judge denied the motion without a hearing. In these consolidated appeals from the judgment of conviction and the post-trial order, he argues that he was denied the effective assistance of counsel at trial and that the trial judge should have held a hearing on his § 23-110 motion. We affirm.

I

The evidence against Sykes consisted essentially of the testimony of Metropolitan Police Department Officers Gerald Awkard, Victor Graves, and Joseph M. Zovak. Officer Awkard testified that on November 13, 1986, while operating undercover, he approached a corner known for narcotics activity and asked if "anybody had anything." According to Officer Awkard, Sykes responded: "Come on. I've got it." The two men walked to a small "airway" between some apartment buildings. Officer Awkard testified that Sykes asked him whether he was a police officer; Awkard responded that he was not. Sykes then handed Officer Awkard a small plastic bag containing white powder, which was later determined to contain a usable amount of heroin. Officer Awkard handed Sykes twenty-five dollars in prerecorded funds. The prerecorded bills were never recovered.

Officer Awkard then returned to his car and broadcast a look-out for Sykes based on his physical description and clothing. Meanwhile, Officer Graves, who had observed Officer Awkard meet with Sykes, but who had not seen the alleged transaction between the two, watched Sykes exchange something with a woman who was wearing a green dress. Shortly thereafter, this woman left the scene with another man.

Within minutes, the arrest team arrived in an unmarked car and, true to its nickname,² "jumped out" of the vehicle to apprehend the suspect. Officer Zovak, a member of the team, approached Sykes and observed him drop an object in the grass. Officer Zovak immediately retrieved the object, which consisted of three plastic packets containing what later proved to be heroin in a usable amount. It was these three packets that led to the PWID charge against Sykes and his ultimate conviction of simple possession of heroin.

Sykes testified in his own defense. He stated that Officer Awkard had indeed solicited him for drugs. He claimed that he had responded "in a disrespectful manner" because he knew Officer Awkard was the same police officer to whom he had sold cocaine four months earlier. The prior sale had resulted in his arrest and, following his plea of guilty, in a probationary sentence from a Superior Court judge. According to Sykes, a woman named Audrey Smith was standing with him at the time. Sykes told Ms. Smith that Awkard was a police officer, but Ms. Smith nevertheless proceeded to sell drugs to Officer Awkard. Sykes denied that he was the seller, that he possessed any heroin, or that he threw packets of it to the ground. He claimed that he had been falsely charged in retaliation for "blowing" the officer's "cover."

II

In his post-trial motion, which was filed on his behalf by his present counsel, Sykes' principal contention was that his trial attorney was ineffective because he failed to interview Ms. Smith or to call her as a witness.³ Sykes swore in an accompanying affidavit that he had provided his trial counsel with Ms. Smith's name and address in advance of trial, and that Ms. Smith

would have been able to corroborate my testimony, and establish my innocence of the charges against me. Her testimony would have refuted the police officer's testimony that I sold him drugs, which I did not.

Sykes further stated that the trial attorney told him that no one would believe Ms. Smith's testimony and that "having her testify would not help my case."

The trial judge issued a written order denying the motion without a hearing. Relying on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the judge noted that it was incumbent upon Sykes to establish both deficient performance on the part of his counsel and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. She held that Sykes had failed to sustain his burden on either issue.

With respect to the deficient performance prong, the judge noted that whether to call a witness for the defense is a tactical decision which is to be made by the defense attorney, and that

in light of the availability of a Fifth Amendment privilege to Ms. Smith, the attorney, no doubt, decided it would not be useful or provident to call her.

She pointed out that if Ms. Smith had invoked her privilege against self-incrimination, this would not have corroborated the defendant's innocence, for the testimony would have been taken out of the presence of the jury. Davis v. United States, 482 A.2d 783, 785 (D.C.1984). The judge stated that "even if counsel's strategy was improvident," it would not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the trial was a "mockery of justice." Terrell v. United States, 294 A.2d 860, 864 (D.C.1972).

In regard to the prejudice prong, the judge noted the strength of the evidence against Sykes, as well as the availability of Ms. Smith's Fifth Amendment privilege. She held that "on this record it cannot be said that any omission by counsel otherwise would have produced a different result."

III

We agree substantially with the reasoning of the trial judge. We assume for purposes of this appeal that, if a hearing had been held, Sykes' trial attorney would have testified that he did not interview Ms. Smith. Although it would have been judicious on the part of trial counsel at least to attempt to obtain Ms. Smith's version,⁴ it does not inexorably follow that his failure to do so was sufficient to establish ineffective assistance in the constitutional sense. Judicial scrutiny of counsel's performance is deferential, and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances," applying a heavy measure of deference to counsel's judgment. Id. at 691, 104 S.Ct. at 2066. Moreover, the defendant must show that his attorney made errors so serious that he was not functioning as the "counsel" guaranteed him by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064.⁵

A defense attorney has a professional obligation to interview witnesses who have knowledge of a crime. Miller v. United States, 479 A.2d 862, 870 (D.C. 1984); cf. Ramsey v. United States, 569 A.2d 142, 147 (D.C.1990). It would have behooved Sykes' counsel to attempt to do so in this case. Ms. Smith, however, was no ordinary witness. The possibility that she would have "confessed" to the serious crime of distribution of heroin, and would have thereby voluntarily made herself vulnerable to the possibility of prosecution, conviction, and incarceration, was surely remote. On the other hand, the likelihood that upon being interviewed Ms. Smith would have denied having been the perpetrator of the charged offenses (either falsely, as Sykes contends, or truthfully, as the government maintains), or would have invoked her constitutional privilege against self-incrimination, was substantial. See, e.g., Wilson v. United States, 558 A.2d 1135 (D.C.1989).⁶

In McAdoo v. United States, 515 A.2d 412 (D.C.1986), McAdoo alleged that he had been denied the effective assistance of counsel because his attorney had failed to heed his plea to interview a "contract killer" who, according to the talk on the street, may have been responsible for the death of the victim of the homicide which had led to McAdoo's prosecution. This court rejected McAdoo's contention, noting that "given the implausibility of the `contract killer' admitting his own guilt to exonerate McAdoo, counsel's judgment that an interview with this person was not warranted was certainly `within the wide range of reasonable professional assistance.'" McAdoo, supra, 515 A.2d at 423 (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065); see also Terrell, supra, 294 A.2d at 864. The same rationale holds true in the case at bar. Given the improbability of the notion that Ms. Smith would have admitted her own guilt to exonerate Sykes, counsel's decision not to interview her was arguably within that wide range of "reasonable professional assistance" to which the court referred in McAdoo, and therefore did not constitute ineffective assistance of counsel.

We need not decide, however, whether what we regard as, at least, a most unfortunate omission on the part of Sykes' trial attorney was sufficient to meet the deficient performance prong of Strickland. Assuming without deciding that it was, we are satisfied that Sykes has not satisfied the prejudice prong.⁷ If Ms. Smith had been willing to provide exculpatory evidence, as Sykes implies, then Sykes' present attorney could surely have secured an affidavit from her.⁸ Counsel did not do so, however, and the absence of such an affidavit is significant. As we stated in Mc...