Thomas v. US, No. 94-CF-744
| Decision Date | 17 May 2001 |
| Docket Number | No. 96-CO-1764, No. 96-CO-1266, No. 99-CO-1232., No. 94-CF-744 |
| Citation | 772 A.2d 818 |
| Parties | Charles A. THOMAS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
John T. Moran, Washington, DC, appointed by the court, for appellant.
Chad T. Sarchio, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.
Before TERRY, RUIZ and REID, Associate Judges.
After a jury trial, appellant Charles Thomas was convicted of assault with a dangerous weapon ("ADW"), in violation of D.C.Code § 22-502. On appeal, Thomas raises one direct, and two collateral challenges, to his conviction. We affirm.
According to the government's evidence presented at trial, on November 21, 1991, Junious W. Roberts, Jr., now deceased due to an unrelated matter, took a short afternoon break from his job as a janitor with the Walter Reed Army Hospital, in the District of Columbia, during which he consumed approximately forty ounces of beer. As he returned from his break, an individual approached him and hit his lower left leg with what appeared to be a pipe. Mr. Roberts testified that he "got a really good... look" at his assailant, and that he "remembered his face" from "all up and down Georgia Avenue," in the District.
Detective Loren Cook, an eleven-year veteran of the Metropolitan Police Department ("MPD"), who had interviewed Mr. Roberts while he was recovering from his injuries at the Washington Hospital Center, testified on cross-examination that "[Mr. Roberts] stated that he had been drinking," but agreed that "[a]side from the fact that he said that, [he] did [not] appear to be under the influence of alcohol." Defense counsel did not pose an objection to this testimony. Although Mr. Roberts could not recall the name of his assailant, he Mr. Roberts also stated that his assailant had "[b]rown" eyes and "black" hair.
Detective Melvin Hemphill, an MPD Officer with over twenty years of experience, testified that on January 3, 1992, as Mr. Roberts examined a photograph array, he "got to the picture of Mr. Thomas" and said, "[t]his is him right here." He then "continued to go through the stack of pictures and came back to [Mr. Thomas's picture] and said `[t]his is him right here.'" Based upon this identification, Detective Hemphill scheduled a line-up of eight individuals, and, on February 21, 1992, Mr. Roberts selected Thomas from the line-up.
Thomas was found guilty on the ADW count, but the jury deadlocked on the mayhem while armed count. Subsequently, he was sentenced to a term of thirty to ninety months in prison. He filed a timely direct appeal.
The Direct Appeal
Thomas contends that the trial court conducted an inadequate pre-trial hearing concerning his assertions of ineffective assistance of counsel. "[W]hen a criminal defendant complains pretrial about the performance of counsel, the trial judge must make an on-the-record inquiry to elicit whether or not the criteria of professional competence have been met and make findings of fact sufficient to permit appellate review of the ability and preparedness of counsel to render effective assistance." Gordon v. United States, 582 A.2d 944, 945 (D.C.1990) (citing Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978)). The trial court may, in its discretion, determine "`the exact nature of the inquiry....'" Lane v. United States, 737 A.2d 541, 552 (D.C.1999) (quoting Nelson v. United States, 601 A.2d 582, 592 (D.C.1991)); see also Wingate v. United States, 669 A.2d 1275, 1279 (D.C.1995)
.
The record before us shows that the trial court fully explored Thomas's alleged dissatisfaction with his counsel. Prior to trial, the trial judge specifically asked Thomas:
[I]s there anything about your preparation for trial with [defense counsel] that causes a problem for our proceeding to trial? I mean, are you ready for trial? ... [D]ifferences in personality and style can exist no matter who your lawyer is. [B]ut objectively ... are there any witnesses ... is there any evidence, is there something that is out there that [defense counsel] has not investigated for you?
To this question, Thomas responded:
Just about everything I think he did, that I think that he did. I can't think of nothing right offhand that he hasn't. . . . I think all I would like to do is contact some people, but I have no access to that, so.
Defense counsel stated:
If I might, Your Honor, one of the witnesses that Mr. Thomas is referring to is somebody who we think was an eyewitness to the offense. And my investigator is trying to get him served.... [a]s we speak. My understanding from my investigator is that he had contact with this individual on Tuesday. . . . And apparently did not serve a subpoena on him for reasons known to him, and what I understand were good reasons, but I have told him to go back again and try to locate this individual and serve him.
After learning that Thomas's counsel essentially had resolved the main issue behind his pre-trial claim, the trial judge then stated, "[s]o I gather all of these matters are being worked on even as we speak?" Defense counsel agreed.
In viewing the record, we conclude that the trial judge's specific inquiry was "sufficient to determine the truth and scope of [Thomas's] allegations," Monroe, supra, 389 A.2d at 820, and was "designed to elicit whether or not the . . . criteria of professional competence ha[d] been met." Id. at 821. Defense counsel devoted time during a two-year period to the preparation of Thomas's case and there is no indication, as there was in McFadden v. United States, 614 A.2d 11 (D.C.1992), that he had insufficient time to prepare Thomas's case. Thomas's chief complaint was that he wanted to contact certain witnesses. However, the record shows that none of the witnesses would have testified that Thomas did not commit, or could not have committed, the acts with which he was charged. Furthermore, based upon Thomas's responses to the trial judge, the trial court was not required to appoint new counsel because there was clearly no "`good cause, such as conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which [could] lead. . . to an apparently unjust verdict.'" Johnson v. United States, 585 A.2d 766, 771 (D.C.1991) (quoting McKee v. Harris, 649 F.2d 927, 931 (2d cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982)). Therefore, we conclude that defense counsel "was prepared `within the range of competence demanded of attorneys in criminal cases.'" Nelson, supra, 601 A.2d at 592 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). In addition, we are satisfied that the trial court did not abuse its discretion in conducting its inquiry into Thomas's complaint, since Thomas was questioned on the record about his complaint, and defense counsel provided details for the trial judge. Id.
Thomas argues that the trial court committed plain error in permitting Detective Cook to testify that Mr. Roberts did not appear to be under the influence of alcohol, because the government did not provide "[a]n adequate foundation for [the Detective's] lay opinion." In Harris v. District of Columbia, 601 A.2d 21 (D.C.1991) we held that "lay witness [] testi[mony] as to whether a person is under the influence of alcohol" id. at 25 n. 5, is admissible as long as a foundation has been established showing that "the witness ha[d] a reasonable degree of experience in observing persons who are under the influence of [alcohol]." Id. at 25. However, we further held that in situations "where that matter has not been explored, such a foundation has been assumed to exist." Id. at 25 n. 5 (quoting Durant v. United States, 551 A.2d 1318, 1324 (D.C.1988)).
In the instant case, it is clear that the predicate or foundation for Detective Cook's lay testimony was "not [] explored," id., at trial because, as Thomas concedes, defense counsel failed to pose any objection to Detective Cook's testimony concerning his belief that Mr. Roberts was not intoxicated. Under these circumstances, "such a foundation [is] assumed to exist," id., and "alcohol intoxication is considered to be a matter of common knowledge," Durant, supra, 551 A.2d at 1324. Moreover, as the trial court concluded, Detective Cook's testimony enabled the jury "[to] determine for itself Mr. Robert's level of impairment." Therefore, we see no error, let alone plain error. Brawner v. United States, 745 A.2d 354, 357 (D.C. 2000).
Thomas maintains that the "trial court committed plain error by permitting the prosecutor to": 1) "admit extrinsic evidence of prior convictions [] that [] he did not deny"; and 2) "argue in closing and rebuttal that [he] had lied." In addition, he contends that the trial court erred by permitting the government to conduct an improper cross examination of him, with regard to his prior convictions. "`Under the plain error standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Brawner, supra, 745 A.2d at 357 (quoting Coates v. United States, 705 A.2d 1100, 1104 (D.C.1...
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