Tillery v. United States

• Decision Date: 10 September 1980
• Docket Number: No. 13444.,No. 79-654.,13444.,79-654.
• Citation: 419 A.2d 970
• Parties: Paul TILLERY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 970

419 A.2d 970

Paul TILLERY, Appellant, v. UNITED STATES, Appellee.

No. 13444.

No. 79-654.

District of Columbia Court of Appeals.

Argued February 12, 1980.

Decided September 10, 1980.

Justin D. Simon, Washington, D. C., appointed by the court, for appellant.

William J. Bowman, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry and Timothy J. Reardon, III, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before KELLY, NEBEKER and FERREN, Associate Judges.

KELLY, Associate Judge:

Appellant was convicted by a jury of first-degree murder, D. C. Code 1973, §§ 22-2401, -3202, and carrying a pistol without a license, D. C. Code 1973, § 22-3204. On appeal he argues that the trial judge erred in denying his motion for a new trial¹ based upon the ineffective assistance of his trial counsel² We agree, reverse his convictions, and remand the case for a new trial.

The facts underlying appellant's murder conviction may be stated very briefly. On August 16, 1976, appellant entered the office of his girlfriend, Brenda Jones, and shot her three times.³ Hearing the shots, two nearby workers ran to Ms. Jones' office and found appellant, standing motionless and erect, his outstretched hand pointing a gun at Ms. Jones' desk. When the workers went to call the police, appellant left the building unnoticed, got into his car with his brother (who knew nothing about the shooting), and drove silently to the Southwest Freeway. There, his car was stopped by officers from the Federal Protective Service and appellant was arrested.

Appellant's only defense at trial was insanity. The defense theory, presented almost exclusively through lay witnesses, was that appellant, who had undergone a personality change since returning from the Army in 1969, experienced a severe psychiatric deterioration in the weeks preceding the offense and was completely under the control of delusional forces at the time of the shooting.

The sole expert witness for the defense, Dr. Di Di Bailey, testified that she examined appellant in February and May of 1977 and found him to be experiencing delusions and hallucinations on both occasions. She concluded that appellant was suffering from a mental disease at the time of the offense and that the offense was the "product" of his disease.⁴

On rebuttal, the government's only expert witness was Dr. James L. Evans, who testified that he examined appellant in April and May of 1977 and found that, although appellant may have suffered from a psychotic illness at some point in 1976 or 1977, he appeared to be recovering and was not suffering from an illness at the time of the examination. He concluded, however, that the offense was not the "product" of any illness appellant suffered in the past.⁵

After appellant was convicted and an appeal was noted to this court, appellate counsel filed a motion for a new trial pursuant to Super.Ct.Cr.R. 33, basing the motion on newly discovered evidence and ineffective assistance of trial counsel. In support of his claim of newly discovered evidence, appellant included: (1) evidence that, during part of the period between Dr. Bailey's first examination of appellant and Dr. Evans' examinations, appellant was hospitalized at D. C. General Hospital's Ugast Center and was administered daily 600 milligrams of thorazine, "a psychoactive drug which is used for the purpose of ameliorating the symptomatology of certain forms of psychosis, including schizophrenia;"⁶ (2) the opinion of Dr. Steven Steury, the psychiatrist who examined appellant upon his admission to the Center and supervised his medication, that appellant was a paranoid schizophrenic; and (3) Dr. Evans' affidavit stating that he had never been comfortable with his diagnosis of appellant and that, if questioned under the proper legal insanity standard,⁷ he would testify that appellant was possibly not criminally responsible for the offense.⁸

In support of his ineffective assistance of counsel claim, appellant argued that his trial counsel's gross incompetence blotted out the essence of his insanity defense. He contended there, as on appeal, that counsel failed to: (1) prepare appellant's only expert witness adequately; (2) obtain information available to him from appellant's medical files at the Ugast Center (specifically the evidence of medication and the reports of two doctors whose diagnoses cast doubts on Dr. Evans' testimony and bolstered the defense theory); and (3) present the insanity defense properly (e. g., by using the Durham test of insanity when that test had been explicitly rejected and replaced more than one year before appellant's trial by this court's opinion of Bethea v. United States, D.C.App., 365 A.2d 64 (1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977)).

The trial judge denied the motion on both grounds. He reasoned that, absent a showing that due diligence would not have resulted in the discovery of this evidence before trial, the motion could not be granted on the basis of newly discovered evidence.⁹ He also ruled that, although counsel could have prepared the case more thoroughly, his performance was not so grossly incompetent as to blot out the essence of appellant's defense. First, he credited trial counsel's testimony that he had spoken with Dr. Bailey for twenty minutes before trial and ten minutes during trial, characterizing these as "conversations . . . of substantial length." Second, he found that, even without the newly discovered medical evidence, counsel was able to discredit Dr. Evans' testimony.¹⁰ Finally, the judge found that counsel's use of the Durham standard was a tactical decision, made because Dr. Bailey had prepared her report in terms of "productivity," and counsel thought he could elicit more positive responses from her by using the Durham standard than he could by using the proper Bethea standard.

Appellant bears a concededly heavy burden in demonstrating that his trial counsel's ineptness deprived him of his Sixth Amendment right to the effective assistance of counsel. In order to prevail, he must show "`that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense.'" Angarano v. United States, D.C.App., 312 A.2d 295, 298 n. 5 (1973) (quoting Bruce v. United States, 126 U.S.App. D.C. 336, 339-40, 379 F.2d 113, 116-17 (1967)). We will not penalize mere errors of judgment, Woody v. United States, D.C. App., 369 A.2d 592 (1977), nor measure counsel's tactical decisions by their success at trial. Williams v. United States, D.C.App., 374 A.2d 885, 890 (1977). But if after applying a "totality of the circumstances" test, Oesby v. United States, D.C.App., 398 A.2d 1, 4 (1979), it clearly appears that counsel's performance resulted in prejudice to the appellant, reversal for a new trial is compelled. Id. at 8.

Our recent decision of Johnson v. United States, D.C.App., 413 A.2d 499 (1980), is helpful in evaluating appellant's claims. There, the appellant was charged with taking indecent liberties with and enticing a minor child. Ten days before trial, his trial counsel was told about a medical report that directly contradicted the complainant's story, but made no efforts to secure the report, to interview the doctor, or to ensure the doctor's presence at trial. In discussing the issue of gross incompetence, the first prong of the Angarano standard, we stated:

Trial counsel was grossly incompetent in his trial preparation by failing to investigate the favorable medical report, to seek to obtain a copy of the report, and to secure and present the testimony of [the doctor] himself. "Counsel has a duty to conduct an independent investigation of the facts and circumstances of a given case." Oesby v. United States, supra at 8 n. 14; see Von Moltke v. Gillies, 332 U.S. 708, 721 [, 68 S.Ct. 316, 322, 92 L.Ed. 309] (1948); Hampton v. United States, D.C. App., 340 A.2d 813, 817 (1975). Pretrial preparation is "susceptible to reasonably objective determinations," Monroe v. United States, D.C.App., 389 A.2d 811, 819 (1978), and the failure to investigate is one such objective violation of an attorney's duty to his client. See Monroe v. United States, supra at 821 ("`Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed " (quoting Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849 [, 89 S.Ct. 80, 21 L.Ed.2d 120] (1968)). Proper investigation is particularly crucial where the central issue is a question of credibility between the key government witness and the defendant. See Farrell v. United States, D.C.App., 391 A.2d 755, 761 & n. 2 (1978). [Johnson v. United States, supra at 503 (footnote omitted).]

We find that the preparation and presentation of appellant's insanity defense was similarly grossly incompetent. Appellant's counsel made the decision to present the defense on August 17, 1976, after his first conversation with appellant. Although appellant was hospitalized for treatment and evaluation from January 21, 1977 to February 24, 1977, counsel never attempted to secure the medical records or to investigate what happened to his client at the Center. Had he merely examined the records, he would have found that, from appellant's first day at the Center, and before Dr. Evans' examinations appellant was given a heavy daily dosage of the drug thorazine, which inhibits delusional ideas and hallucinations, and under the influence of which "[t]he sullen, sarcastic and antagonistic patient is less irritable and frequently becomes quiet, cooperative, and accessible." See United States v. Bennett, supra at 368, 460 F.2d at 876 (citing Kolb, Noyes' Modern Clinical Psychiatry 393 (7th ed. 1968)).¹¹...