Thornton v. United States
| Decision Date | 19 May 1976 |
| Docket Number | No. 7840.,7840. |
| Parties | Gilbert F. THORNTON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Jerry C. Straus, Washington, D. C., with whom Edward M. Fogarty, Washington, D. C., was on the briefs, both appointed by this court, for appellant.
Justin D. Simon, Asst. U.S. Atty., Washington, D. C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, James F. McMullin, and John T. Kotelly, Asst. U.S. Attys., Washington, D. C., were on the brief, for appellee.
Before KELLY, GALLAGHER and HARRIS, Associate Judges.
Appellant was convicted of felony murder, D.C.Code 1973, § 22-2401, armed robbery, id. §§ 22-2901 and 22-3202, and assault with a dangerous weapon, id. § 22-502. He contends that he was deprived of his constitutional right to effective assistance of counsel, and he was denied due process of law through an impermissibly suggestive out-of-court identification. We affirm.
The convictions arose out of an incident in the Fox and Hounds Lounge and its kitchen, which was shared by the adjacent Trio Restaurant. Shortly before 5:00 p. m. on March 6, 1973, Richard Mara, bartender-manager of the Fox and Hounds, entered the kitchen. Stephen Hart, the cook for the Trio, was working there. Mara, who had just cashed a check, stopped to chat with Hart on his return to the Fox and Hounds. Mara was "sort of counting some money".
Two men entered the nearly empty lounge.1 One of them, later identified by Hart as appellant, went into the kitchen carrying a sawed-off shotgun. The other, armed with a pistol, remained in the lounge.
Appellant, seeing Mara counting his money, demanded that he "hand it over". As appellant reached to take the money, the shotgun discharged, hitting the wall. Both Hart and Mara then tried to gain control of the gun. During the struggle, appellant struck Mara on the head with the shotgun, causing a wound which bled profusely. As the three men emerged from the kitchen into the lounge, entangled in struggle, appellant called to his accomplice to "shoot". Hart, unaware to that point of the presence of anyone else, turned. The man with a handgun approached and fired, striking Hart in the left arm. As Hart fled back toward the kitchen, he heard a second shot. Hart later testified that the second attacker shot Mara.
The two armed men fled the Fox and Hounds. The first police officer on the scene called for an ambulance and broadcast a radio run for the robbery and shooting. Officers Robert Stewart and John Burnett monitored that radio run. Meanwhile, a city trash collector was working in an alley near the Fox and Hounds. He saw two men run down the alley, throwing something into a barrel as they went by, which he found to be a sawed-off shotgun, still smoking. The trash collector approached Officer Burnett, handed him the shotgun, and described the two men. The descriptions were relayed to Officer Stewart, and he and his partner began a search of the vicinity.
Less than four blocks from the shooting, Officer Stewart, in casual clothes and an unmarked car, saw appellant. He was walking slowly and hesitantly, looking about, and breathing hard. The officer drove past appellant, maintaining observation in his rearview mirror. A marked police car came into the area, whereupon appellant left the sidewalk and entered a church courtyard. He lay down behind a row of bushes and attempted to cover himself with leaves. Officer Stewart stopped the car and, with his partner, approached appellant. The officers frisked appellant and questioned him briefly. Seeing a fresh blood stain on appellant's pants, the officers checked his leg for wounds. Finding none, they handcuffed him and turned him over to other officers.
Appellant was taken to the Fox and Hounds for identification purposes. By that time, Hart and Mara had been taken to a hospital, where Mara died from his bullet wound. Appellant was asked to accompany the police to the hospital. Once there, he was viewed and immediately identified by Hart. At the time of the confrontation appellant was not in handcuffs, but was wearing his bloodstained trousers.
Appellant's case was scheduled for trial on Monday, September 10. The government voluntarily supplied defense counsel with its Jencks Act material in advance. On the Friday evening before trial, defense counsel visited appellant at the jail, taking the Jencks material with him. Until that time, as later characterized by defense counsel, appellant's version of the incident was predicated on the contention that he had gone to the Fox and Hounds "for the purpose of gaining back money that he paid for a component set." Faced with the government's evidence, however, appellant decided to alter his story totally, switching to an alibi theory.
When the case was reached for trial, defense counsel requested a bench conference and moved to withdraw "for moral ethical reasons."2 When the court pressed for greater specificity, counsel stated:
[M]y client now decides he is going to state another and completely different story than what he told me before, which I know enough to be true. In presenting it to the Court in this case I feel that I would be violating the canons of ethics.
Having thus explained the basis for his ethical quandary, counsel felt that the trial judge had come to share his problem. He stated to the court:
It makes it doubly difficult because I have not explained — it would in no way impinge on Your Honor's integrity but it could well affect Your Honor's sentencing, that the testimony in this case is not true.
The court then said: "In essence, what you are suggesting is that you would be relieved and I certify the case to another judge?" Defense counsel responded: "Yes, Your Honor."
A recess was taken, following which the court imposed a novel solution. Without ruling upon defense counsel's motion for leave to withdraw, it certified the case to a second judge. However, the first judge already had instructed the second judge not to inquire into counsel's reasons for seeking to withdraw. When the case reached the second judge, defense counsel again requested permission to withdraw. The government objected, in part because the introduction of new counsel would have necessitated a continuance, and several of the 24 government witnesses who were present to testify had traveled a long way to do so. Being given no valid reason for granting leave to withdraw, the second judge denied the motion. The trial proceeded with defense counsel's ethical problem undiminished. Throughout, he adhered to the suggestion which had been made by the first judge to follow the recommendation of the relevant American Bar Association Standards.3
After denying the motion for leave to withdraw, the court considered a pretrial motion which had been filed pro se by appellant.4 In this motion, appellant sought dismissal of the indictment on the basis of an unduly suggestive identification. Defense counsel opined to the court that the motion as such was meritless, but said that if it were treated as a motion to suppress testimony related to the hospital identification it should be heard "out of an abundance of caution . . . to protect the rights of my client." The court heard testimony and argument on the circumstances of the hospital identification, and denied the motion.
The government presented its evidence, following which appellant remained determined to testify. Counsel advised the judge that appellant would be taking the stand against his advice and that he intended to ask appellant only to tell "his story". The following colloquy then occurred between appellant and his attorney:
Q. Now, on the afternoon of March 6th, 1973, would you tell the ladies and gentlemen of the jury exactly where you were?
A. The afternoon of March 6th?
Q. Yes. Tell them where you were and what you did.
A. I left the house about 3:00 o'clock, riding a bicycle. I was going downtown toward Georgetown. I got downtown to 16th and Massachusetts Avenue. I [was] stopped by a man who asked me for my bike. He wanted my bike. He pushed me off my bike and hit me in my nose. And after he hit me in my nose, he pulled me off my bike. I sat on the curb for a little while and my nose was bleeding.
Q. What happened after that?
A. I got up and walked up the street. And I was walking up the street, and that is when the police stopped me.
Whatever credibility such testimony had was shattered by the later introduction of appellant's prior inconsistent statements.5 Throughout, defense counsel followed the course delineated in ABA Standard 7.7(c). Closing argument was limited to a meticulous attack upon the government's evidence; counsel was silent as to defendant's alibi testimony.
Appellant bases his general claim of deprivation of effective assistance of counsel on both the actions of the trial court and the performance of his attorney.6 He first claims that the rulings surrounding trial counsel's motion to withdraw constitute reversible error. With the benefit of reflective hindsight (a luxury not enjoyed by the successive trial judges), we conclude that error was committed. However, we do not agree that reversal on this ground is required. The procedural flaws alone would not justify reversal; such a result would be mandated only if there had been a deprivation of appellant's right to counsel as a result of those flaws.
Two errors were committed in dealing with the motion7 The first judge erred in directing the second judge to refrain from inquiring into the grounds for the motion.8 The resolution of a motion affecting such a basic constitutional right, without any examination of the reasons therefor, is prima facie improper. When a question of the continued effective assistance of counsel is voiced, the court "then has a duty to inquire into [its] basis". Brown v. United States, 105 U.S.App.D.C....
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