U.S. v. Moore
| Citation | 180 U.S.App.D.C. 227,554 F.2d 1086 |
| Decision Date | 06 December 1976 |
| Docket Number | No. 75-1484,75-1484 |
| Parties | UNITED STATES of America v. John MOORE, Jr., Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Before BAZELON, Chief Judge, and ROBINSON * and ROBB, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
Appellant was convicted of possession of a controlled substance with intent to distribute. 1 On appeal, he claims that the search which uncovered the narcotics was illegal, that the evidence of possession was insufficient, and that his attorney's failure to file a pretrial motion to suppress the physical evidence denied him the effective assistance of counsel.
Although not raised by the parties, the sentencing transcript revealed allegations of a sexual relationship between an important government witness and appellant's wife. Accordingly, the parties were asked to submit supplemental briefs addressing, inter alia, "the bearing, if any, these allegations may have on the issues of ineffectiveness of counsel and the sufficiency of the evidence of possession." In response, the government conceded that the allegations "raise questions which . . . can be satisfactorily resolved only by further proceedings in the trial court." 2 In a previously reported opinion, we elucidated the matters to be considered on remand for the guidance of the district court. 3
Pursuant to our directive and the new trial motion filed by appellant, a hearing was held by the trial court on April 21, 1976, at the conclusion of which the court found that trial counsel was neither ineffective in connection with the allegations of Mrs. Moore's illicit affair, nor in failing to file a motion to suppress. 4 Accordingly, appellant's motion for a new trial was denied.
The record has been returned to us, and we find no reason to disturb the district court's judgment. Because we also find the other contentions advanced by appellant on appeal to be without merit, we affirm the conviction.
Appellant argues that the narcotics were seized illegally and should have been suppressed. The pertinent facts may be summarized briefly. Appellant was arrested on August 8, 1974, for driving without a permit by a police officer who, only two days before, 5 had stopped appellant to find that he had no valid driver's permit. 6 The officer testified that as he and his partner approached appellant's car, appellant "bent over in a manner going down towards the right hand leg and I suspected about a weapon (sic)." 7 Consequently, after ordering appellant out of the car and placing him under arrest, the officer immediately inspected the area where appellant had been reaching and found a bag containing a substantial amount of heroin.
The government argues that such a search incident to a lawful arrest of an area within the suspect's control from which he might obtain a weapon is controlled by United States v. Green. 8 Finding the facts here even more persuasive than those in Green, we conclude that the narcotics were lawfully seized. 9
Given the fact that the arresting officer had stopped appellant just two days before, at which time appellant had no valid driver's permit, there can be no dispute that there was probable cause to detain appellant, and to arrest him when he failed to present a valid permit. As in Green, the officer testified that he saw the defendant bend over as if to place something under the seat. This testimony was specifically accepted as credible by the district court which found that as a result of the officer's observations, he "feared, and had reason to fear, that there might be a weapon" under the seat. 10 Appellant's argument that there was no reasonable basis for the officer's fear seems especially disingenuous in light of his arrest by the same officer, only two days before, for carrying a dangerous weapon. 11
Appellant makes much of the fact that the search was conducted only after he was told to get out of the car. In Green, the defendant was also outside when the officers conducted a limited protective search of his vehicle. Moreover, the officers here allowed appellant's companion to get back into the car and drive away, making an inspection of the driver's seat area for a concealed weapon all the more reasonable. 12
In United States v. DeCoster (DeCoster I), 13 we held that "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." 14 DeCoster I contemplates a three step inquiry to determine whether a violation of one of the duties specified therein warrants reversing a conviction for ineffective assistance: "did counsel violate one of the articulated duties; was the violation 'substantial'; and was the substantial violation 'prejudicial.' " 15 The inquiry here leads us to conclude that appellant's conviction should not be reversed.
( a) We held in DeCoster I 16 that a defendant is denied the effective assistance of counsel "when counsel's choices are uninformed because of inadequate preparation(.)" 17 But this court does not sit to "second guess strategic and tactical choices" 18 which are clearly the product of an informed judgment based on adequate preparation and investigation unless they are manifestly unreasonable. 19 The record of the remand proceedings demonstrates that counsel made an informed decision not to file a pretrial motion to suppress the drugs, a judgment which we cannot say was outside "the range of competence demanded by attorneys in criminal cases." 20
After reviewing the facts with respect to appellant's arrest and the subsequent search, trial counsel explained that in his estimation "the motion would have been frivolous, by virtue of the officer's ability to apprise the Court that having stopped this man only 48 hours (before), that he had found a loaded weapon in the automobile, and that this gesture on his part was sufficient to establish a reasonable apprehension of danger." 21 Although counsel could not recall the details, he represented that the decision was also motivated by a desire not to put the arresting officer on notice of a certain element of evidence. 22
Counsel testified that although he felt familiar with the applicable law, search and seizure being one of his "fortes," 23 he did research the question with respect to this particular case. 24 He further stated that he had consulted with his client, explaining fully his view. Counsel reported that appellant "listened to what I had to say, . . . gave me his viewpoints and finally we reached a mutual agreement that there would be no sense in filing the motion." 25
In a separate case involving appellant, counsel had filed a motion to suppress a weapon, and in the instant case, a motion to suppress certain of appellant's statements. This is but further support for the district court's conclusion, with which we agree, that trial counsel made a conscientious and deliberate "decision here that under the circumstances and the case law, and the factual situation that existed, that this was not a case in which to file a motion to suppress the tangible evidence." 26
(b) Counsel's actions in connection with Mrs. Moore's alleged involvement with Detective Stewart were explored in great detail at the hearing on remand. Although Stewart testified on the first day of trial, no one mentioned anything then about this alleged liaison. It was only after Detective Stewart had been called for rebuttal testimony, on the last day of the trial, that appellant's family came forth, claiming that they recognized Stewart as Mrs. Moore's paramour. 27 The information concerning this alleged relationship was relayed to trial counsel by appellant's mother and his two uncles, Forrest and Edwin Kelly.
The testimony given at the remand hearing by appellant's mother was contradictory in many respects, especially with respect to whether she ever saw Detective Stewart and appellant's wife together. Forrest Kelly reported that he only had a fleeting glance of the two together. Although Edwin Kelly testified that he had spent "a lot of time" with Stewart, the district court observed that Kelly "couldn't remember much" by way of details, and thus "discredited" his testimony. 28 These findings are fully supported by the record.
Trial counsel explained that immediately upon receiving this information, he telephoned Mrs. Moore: 29
And so I thought that I would go and speak with her. That perhaps I could encourage her, if it was true, to come and relate that information. And then when I spoke with her I explained to her the necessity for the information, how important it was, what stage of the trial we were in, what it was we would need the testimony to impeach, what Officer Stewart had maintained to be the fact, what we thought it would destroy.
Therefore, if it was true, I urged her to come forth and tell it. She at that time related to me that it was not true, it was out of the question that she had had any relationship with Officer Stewart. She had not gone around with him.
She advised me, also, that (appellant's family) . . . had attempted to get her to perjure herself. They had told her they wanted her to say that.
And she said if she was called down to testify that is what she would represent. 30
Counsel reported that in view of this response, he thought it would have been "the kiss of death" to put Mrs. Moore on the stand. 31 He further recollected considering it unwise to put Mrs. Moore in a position where he would have to attack her credibility in front of the jury. 32
Counsel also explained that he believed that any effort to prove the alleged romance in court would be hampered by "evidentiary requirements." 33 He stated that he was referring to "the rule which would make me bound by my witness' testimony, as well as the rule barring the use of extrinsic evidence to impeach a...
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