Williams v. United States, 8236.

• Decision Date: 09 June 1977
• Docket Number: No. 8236.,No. 9011.,8236.,9011.
• Citation: 374 A.2d 885
• Parties: Larry T. WILLIAMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

374 A.2d 885

Larry T. WILLIAMS, Appellant, v. UNITED STATES, Appellee.

No. 8236.

No. 9011.

District of Columbia Court of Appeals.

Argued May 1, 1975.

Decided June 9, 1977.

Jerrold Scoutt, Jr., Washington, D. C., appointed by the court, for appellant.

Donald L. Abrams, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and David M. Bullock, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY and YEAGLEY, Associate Judges, and REILLY, Chief Judge, Retired.

REILLY, Chief Judge, Retired:

These are appeals from (1) a conviction resulting in a sentence imposed under the Youth Corrections Act¹ after a jury verdict of guilty of armed robbery, and (2) from an order denying a motion for a new trial. Appellant challenges the conviction on the ground that he was deprived of effective assistance of counsel in his trial and that the court subsequently erred in failing to grant a new trial on the basis of newly discovered evidence presented in accordance with a motion pursuant to Super.Ct.Cr. R. 33.

The customary practice of this court under the Criminal Justice Act is to designate trial counsel to brief and argue the appeal — a policy adopted because the lawyer who participated in the trial knows the rulings to which objection was taken and is therefore in a better position than a newcomer to evaluate possible issues to be raised on appeal and to designate the record accordingly. An exception was made in this case, however.

Upon his appointment, appellant's current counsel after ordering complete transcript apparently concluded that it would be futile to assign as error any of the trial court's rulings. Instead, he filed a motion for a new trial on the ground of newly discovered evidence — representing primarily that defense counsel had been ineffective by failing to call certain witnesses who could have impeached one aspect of complainant's testimony and others who could have provided an alibi for appellant.

A brief summary of the trial transcript reveals that appellant's conviction of armed robbery rested entirely on the testimony of a young man from Peru,² employed as a bartender in a neighborhood restaurant in the 3100 block of Mt. Pleasant Street, N.W. One summer night he closed the bar about 1 A.M., and put the contents of the cash register — $159.00 — in his pocket to take to his employer with whom he lived. Before going home, however, he strolled over to 16th Street with a young woman, a patron of the restaurant, to call on a friend who lived in an apartment house on that street. Walking back later along 16th Street, the couple took a shortcut across a parking lot which led from 16th Street and Monroe Street to Park Road. As they were climbing over a low wall at the end of the lot, they were surprised by two men, one of whom brandished a gun in complainant's face, while the other went through his pockets, seized the $159.00, and also frisked the pockets and handbag of his companion, taking a dollar bill from her. The robbers then departed.

Immediately thereafter, complainant returned to the restaurant and reported the crime to the police, placing the time of the incident at approximately 3 A.M. Complainant testified that several weeks later he was eating in a Chinese restaurant at about 2 A.M., when three men entered. He recognized one of them (appellant) as the man who held the gun during the robbery. The latter came over to his table and complainant accused him of being one of the robbers. According to complainant, appellant replied, "Oh, yeah" and in response to a further question as to the type of handgun used, said it had been a .25.

Complainant waited until the trio left the restaurant, then rushed out, found two policemen on duty, and pointed out appellant to them. The officers stopped appellant and after verifying that the robbery had been officially reported took him into custody. From the witness stand, complainant identified appellant, who was sitting at a table in court with his original counsel, as the gunman and the same man he had talked to in the Chinese restaurant. The government then called the female victim of the robbery. She corroborated complainant's account of the holdup in relevant respects, except for that witness' recollection of the respective positions of the participants with relationship to the electric lamps which lighted the parking lot.³ She also told the jury that she had been shown a set of photographs by the police shortly after appellant's arrest and had picked out two as being similar to one of the robbers.

According to a police witness, one of these was a photograph of defendant. Nevertheless, the prosecutor never asked the woman in court if the defendant was one of the robbers. Then, calling another policeman to whom complainant had first reported the crime, the government rested. After denying a motion for acquittal, court adjourned until the next day — counsel having identified two men with him as witnesses who would testify for the defense, Witherspoon and Calhoun. When the court reconvened, however, counsel announced that he was not calling any witnesses and rested his case without putting them or the defendant on the stand.

In his summation to the jury, appellant's counsel argued forcefully that his client's identification as the gunman was subject to reasonable doubt, pointing out that the female victim did not identify him in court and was not positive even about his photograph, that the complainant's description of the location of the lights in the parking lot was admittedly inaccurate, thus revealing only a limited opportunity to observe the face of his assailant. He contended that because of his language handicap, complainant misunderstood many of the questions propounded to him as a witness and consequently might have misunderstood what appellant said when the latter was accused in their restaurant encounter of being one of the robbers, and that, in any event, his account of a stranger making damaging admissions to his professed victim was inherently improbable.

Counsel also emphasized that none of the government's evidence had placed appellant near the scene of the crime.⁴ Before the court charged the jury, he asked for and obtained an instruction admonishing the jury that defendant had a constitutional right to abstain from testifying and therefore no adverse inference should be drawn from his silence. See Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939).

From our review of the record, it appears to us that the government's case, resting as it did upon the uncorroborated testimony of one witness, fell short of overwhelming proof of guilt.⁵ One major weakness in the prosecution's position was its apparent inability to show — other than through complainant's testimony — that appellant, who lived several miles away, was in the neighborhood during the early morning hours when the crime occurred. Judicial notice may be taken of the fact that the parking lot where the crime took place is situated in a quiet residential area. As there are neither nightclubs nor commercial hotels in the immediate vicinity to attract late night visitors, the adjacent streets are virtually deserted after midnight. Hence, the failure of the government to show that appellant had social or employment connections which would have provided some motive for being close to the scene might well have created some doubt in the minds of the jurors.

Thus when the government rested, defense counsel — after his motion for acquittal was denied — was faced with the choice of either putting two alibi witnesses and possibly the defendant on the stand or resting his own case without testimony and arguing to the jury that the flaws in the prosecution's evidence created a reasonable doubt. He elected the latter course. As we shall see, the alternative choice was dangerous.

Despite the Supreme Court's holding in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which prevents trial judges and prosecutors from commenting adversely on the failure of a defendant to testify and the standard precautionary warning — given in this case — a defense lawyer, who advises his client not to take the stand, may be taking a considerable risk. As Mr. Justice Stewart in his dissenting opinion in Griffin pointed out (id. at 623, 85 S.Ct. at 1237):

The petitioner was not compelled to testify, and he did not do so. But whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind. . . .

This is apparently what happened when the jury deliberated this case. Whatever doubts were implanted in the minds of the jurors with respect to mistaken identification and the absence of any evidence linking the defendant to the locality were conceivably overcome by the failure of the defendant to deny in open court the accusations of the principal witness against him.

According to appellant's new counsel, this need not have happened had defense counsel bestirred himself to call witnesses who would have testified that (1) immediately before and during the time of the holdup the accused was attending a dance at a church, (2) no admissions of complicity in the robbery were made by him at the time he encountered complainant in...