Watson v. United States, No. 83-996.

Docket NºNo. 83-996.
Citation508 A.2d 75
Case DateApril 08, 1986
CourtCourt of Appeals of Columbia District

Page 75

508 A.2d 75
Curtis L. WATSON, Appellant,
v.
UNITED STATES, Appellee.
No. 83-996.
No. 83-1136.
No. 83-1150.
District of Columbia Court of Appeals.
Argued March 13, 1985.
Decided April 8, 1986.

Page 76

Mark S. Carlin, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on brief, for appellant.

Thomas J. Tourish, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Judith Hetherton, Wendy Bebie, and Harry R. Benner, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEBEKER and MACK, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge.


These consolidated appeals have two facets. First, we have for consideration a test on the issue of ineffectiveness of counsel while on appeal. Secondly, we review a challenge to separate orders of the Superior Court dealing with the issue of ineffectiveness of trial counsel and denying collateral relief from prior judgments of conviction. We deny the motion to recall our mandate, which raises the claim of ineffective counsel on appeal, and we affirm the judgments.

I

To understand this case, a review of its procedural history is helpful. Appellant was indicted in 1976 on several charges related to two separate incidents occurring at 1926 Quincy Street, N.E.: the May 30, 1976 assault on Richard Knight and the June 6, 1976 shootings of Cynthia Durham and Robert Swearinger. The matters came to trial in 1977, but a mistrial was soon declared because several jurors had been exposed to publicity surrounding the murder of Timothy Reeves, which had also taken place at the Quincy Street premises.

Appellant was later indicted for the Reeves' murder and a related weapons charge. The trial court subsequently granted the government's motion to consolidate

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this indictment with the earlier indictment covering the 1976 assaults.1 Following a jury trial, appellant was convicted on counts contained in both indictments, viz., first-degree murder while armed, D.C.Code §§ 22-2401, -3202 (1981), carrying a pistol without a license, id. § 22-3204, two counts of first-degree burglary while armed, id. §§ 22-1801(a), -3202, assault with a dangerous weapon, id. § 22-502, and two counts of assault with intent to kill while armed, id. §§ 22-501, -3202.2 Following the denial of his motion for a new trial, appellant was sentenced to an aggregate term of thirty years to life imprisonment.

On appeal, appellant's convictions were affirmed. Watson v. United States, Nos. 13796, 13815, Memorandum Opinion and Judgment (D.C. Nov. 5, 1979) (unpublished). As grounds for reversal, he had assigned three errors: (1) the trial court had prejudiced his case by interrupting defense counsel and commenting on counsel's performance; (2) the court improperly consolidated the indictment charging first-degree murder with the indictment containing the charges related to the 1976 assaults; and (3) the court failed to grant a judgment of acquittal on the first-degree murder charge despite insufficient evidence of premeditation. This court rejected each contention.

On the issue of consolidation, appellant had maintained on appeal that the assaults and the murder were not sufficiently connected to warrant a joint trial. In our decision, we concluded that consolidation of the indictments for a single trial did not rise to the level of plain error, as would have been necessary for reversal because counsel did not object to the consolidation either before or during trial. See Watts v. United States, 362 A.2d 706, 708-09 (D.C. 1976) (en banc). In our opinion, we noted that prior to trial, counsel did object to joinder of the cases against appellant and Joan Swearinger. We also noted that in appellant's motion for a new trial it was argued that consolidation of the indictments had been improper. We held that "the argument is sufficiently strong for consolidation . . . that the trial court did not commit plain error by failing, absent objection, to sever the murder and assault charges." Watson, supra, Memorandum Opinion and Judgment at 7 (citations omitted).3

Regarding the trial court's denial of a judgment of acquittal, appellant had argued that the government's evidence was not sufficient to support his first-degree murder conviction. More specifically, he had contended that proof of premeditation was lacking. We disagreed, however, finding "facts ample to permit a reasonable jury to find guilt beyond a reasonable doubt." Watson, supra, Memorandum Opinion and Judgment at 7 (citations omitted). This court thereby concluded that the evidence was sufficient for guilt as a matter of law. And, on the specific question of premeditation, we concluded that there was sufficient circumstantial evidence to permit

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the jury to "infer premeditation from the surrounding facts and circumstances." Id. at 8 (citations omitted).4

Shortly before this court had decided appellant's direct appeal, he collaterally attacked his convictions by filing, pro se, a motion to vacate his sentence pursuant to D.C.Code § 23-110 (1981).5 By his motion, appellant sought relief primarily on the basis of ineffective assistance of trial counsel. The trial court subsequently appointed the Public Defender Service to represent appellant in the proceedings and the Public Defender then filed a comprehensive § 23-110 motion. In addition to challenging the effectiveness of trial counsel, on grounds raised in appellant's pro se motion as well as additional grounds, the latter motion (the § 23-110 motion prepared by the Public Defender) prayed for vacation of the judgments on the ground that appellant had been denied effective assistance on his direct appeal. During an evidentiary hearing on the matter in February 1982,6 the trial court ruled on the authority of Streater v. United States, 429 A.2d 173, 174 (D.C. 1980) (per curiam), appeal dismissed and cert. denied, 451 U.S. 902, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981), that it had no jurisdiction to consider a claim concerning the adequacy of counsel on appeal. However, the court did hear testimony on the claim that appellant had been denied effective trial counsel and, after taking the case under advisement, ruled in August 1983 that it was without merit. Appellant then filed separate notices of appeal from this ruling: one in the assault cases (Appeal No. 83-1150) and one in the murder case (Appeal No. 83-996).

Later that month, appellant sought relief from his convictions by a different collateral procedure. Pursuant to D.C.Code § 16-1901 (1981), appellant, acting pro se,7 filed a petition in the Superior Court for a writ of habeas corpus alleging that he was denied effective assistance of counsel at the pretrial hearing at which the court consolidated for trial the separate indictments. Appellant maintained that his court-appointed counsel was not present at the pretrial hearing, which he characterized as a "most critical stage of the proceedings," and that therefore he was being held in violation of the Constitution. See id. § 16-1901(a). The trial court ruled otherwise, however, and denied appellant's habeas corpus petition, concluding that it would not consider those matters which arose from cases already reviewed by this court. Appellant then filed a notice of appeal from this decision (Appeal No. 83-1136).

Several months later, appellant filed a motion in this court to recall the mandate affirming his convictions on direct appeal (Appeal Nos. 13796 and 13815).8 Appellant requested that we "either remand for resentencing or permit the out-of-time filing" of a brief which he claims should have been filed in his direct appeal. To this end, appellant argues in his motion to recall the mandate that he had been denied the effective assistance of his retained appellate counsel. He principally faults appellate counsel for failing to point out to this court the prejudicial impact that consolidation of

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the indictments had on his trial. In this respect, appellant contends that

[i]f this court had been informed of the manner in which the government had used the evidence of the assaults at . . . [his] trial, it could not have found that the evidence of the assaults and the murder was "simple and distinct" or that appellant was not prejudiced by their joinder.

It is further argued that appellate counsel was ineffective in that he failed to challenge on appeal the sufficiency of evidence from an identity standpoint, i.e., that appellant was the person who murdered Timothy Reeves. Thus, appellant asserts that to this day he has been denied "meaningful review" of his convictions.

This brings us to the issues at hand.9 The upshot is we now have pending before us for decision (1) appellant's motion to recall the mandate, which is predicated on the assertion that appellate counsel on direct appeal was ineffective because he failed (a) to effectively argue that it was reversible error by the trial court to consolidate the indictments for trial or fail to sever the cases when the prejudice of joinder became apparent, and (b) to raise the sufficiency of evidence issue on the first-degree murder conviction (from the standpoint of identity); (2) appellant's direct appeals from orders denying his various requests for collateral relief (§ 23-110 motions and habeas corpus petition) which, together, are premised on the claim that appellant's trial counsel was ineffective principally because he failed to (a) oppose consolidation of the indictments against appellant, (b) move for a severance or a mistrial when it became apparent that consolidation was prejudicial, (c) object to the government's use of "highly prejudicial other crimes evidence," and (d) adequately prepare for appellant's trial by, for example, not obtaining hospital records showing that a key government witness was intoxicated on the night of the 1976 shootings.

II

Appellant's motion to recall the mandate is...

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15 practice notes
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...on his previous direct appeal from his conviction. It was heard previously before a division of this court, (Watson v. United States, 508 A.2d 75 (D.C.), reh'g granted, judgment vacated, 514 A.2d 800 (D.C. 1986)), and when the court decided to hear the case en banc, the opinion of the heari......
  • Amin v. State, No. 87-289
    • United States
    • United States State Supreme Court of Wyoming
    • May 19, 1989
    ...process which may be used is a motion to recall mandate as attacking appellate counsel performance. Watson v. United States, 508 A.2d 75, reh'g granted and judgment vacated 514 A.2d 800 (1986), reh'g 536 A.2d 1056 (D.C.App.1987), cert. denied 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (......
  • Cutbirth v. State, No. 86-53
    • United States
    • United States State Supreme Court of Wyoming
    • March 11, 1988
    ...and furthermore, the deficient performance prejudiced the appellant. Cutbirth urges us to adopt the test found in Watson v. United States, 508 A.2d 75 (D.C.App.1986). Watson v. United States, supra, was vacated by Watson v. United States, 514 A.2d 800 (D.C.App.1986), and the case then was h......
  • Fireison v. Pearson, No. 84-157.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 22, 1987
    ...Fed. at 829; Greater Boston Television Corp. v. FCC, supra, 149 U.S.App. D.C. at 332, 463 F.2d at 278; see also Watson v. United States, 508 A.2d 75, 81, en banc reh'g granted and vacated en bane mem., 514 A.2d 800, argued en banc Nov. 6, 1986 (D.C. 1986); Bell v. Westinghouse Electric Corp......
  • Request a trial to view additional results
15 cases
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...on his previous direct appeal from his conviction. It was heard previously before a division of this court, (Watson v. United States, 508 A.2d 75 (D.C.), reh'g granted, judgment vacated, 514 A.2d 800 (D.C. 1986)), and when the court decided to hear the case en banc, the opinion of the heari......
  • Amin v. State, No. 87-289
    • United States
    • United States State Supreme Court of Wyoming
    • May 19, 1989
    ...process which may be used is a motion to recall mandate as attacking appellate counsel performance. Watson v. United States, 508 A.2d 75, reh'g granted and judgment vacated 514 A.2d 800 (1986), reh'g 536 A.2d 1056 (D.C.App.1987), cert. denied 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (......
  • Cutbirth v. State, No. 86-53
    • United States
    • United States State Supreme Court of Wyoming
    • March 11, 1988
    ...and furthermore, the deficient performance prejudiced the appellant. Cutbirth urges us to adopt the test found in Watson v. United States, 508 A.2d 75 (D.C.App.1986). Watson v. United States, supra, was vacated by Watson v. United States, 514 A.2d 800 (D.C.App.1986), and the case then was h......
  • Fireison v. Pearson, No. 84-157.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 22, 1987
    ...Fed. at 829; Greater Boston Television Corp. v. FCC, supra, 149 U.S.App. D.C. at 332, 463 F.2d at 278; see also Watson v. United States, 508 A.2d 75, 81, en banc reh'g granted and vacated en bane mem., 514 A.2d 800, argued en banc Nov. 6, 1986 (D.C. 1986); Bell v. Westinghouse Electric Corp......
  • Request a trial to view additional results

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