Wingate v. US

• Citation: 669 A.2d 1275
• Decision Date: 29 December 1995
• Docket Number: 94-CO-241.,No. 91-CF-123,91-CF-123
• Parties: Joseph D. WINGATE, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

669 A.2d 1275

Joseph D. WINGATE, Appellant, v. UNITED STATES, Appellee.

Nos. 91-CF-123, 94-CO-241.

District of Columbia Court of Appeals.

Argued April 11, 1995.

Decided December 29, 1995.

W. Gary Kohlman, Washington, DC, with whom Richard T. Brown was on the brief, for appellant.

Mary D. Rodriguez, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, Abby J. Stavitsky, James F. Rutherford and Carolyn K. Kolben, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN and SCHWELB, Associate Judges.

STEADMAN, Associate Judge:

After a jury trial, appellant was convicted of assault with a dangerous weapon, D.C.Code § 22-502, and related offenses¹ stemming from a fracas involving appellant's estranged wife and her friend, William Morton. Appellant filed a post-trial motion under D.C.Code § 23-110 collaterally attacking his conviction. He asserted that the trial court conducted an inadequate Monroe-Farrell² inquiry into his pretrial complaints about counsel. He further asserted that his trial counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He now appeals the denial of that § 23-110 motion. Finding no error, we affirm.

I.

A.

The theory presented by the government at trial was that on October 25, 1989, appellant, a corrections officer, had left his post guarding a prisoner at Georgetown University hospital and had gone to his wife's apartment³ at approximately 3:00 a.m. The complainants, Ms. Wingate and Morton, said that appellant entered his wife's apartment with a pass key⁴ and refused to leave when she told him to; while his wife was calling the police, appellant entered the bedroom where Morton was in bed, pointed a gun at Morton, and struck Morton on the back of his head and on his jaw with the gun, then left the bedroom, punched his wife in the jaw, and left the apartment before the police arrived.

In support of its position that appellant had committed the assault at 3:00 a.m., the government presented testimony from appellant's co-worker, Officer Brian Jones, who said that appellant was missing from his post at the hospital for about an hour and a half on October 25; Jones testified that appellant's absence had taken place sometime after Jones returned from his meal break, which he began at 1:00 a.m., and that Jones had submitted a memo to his superiors on October 26 detailing this incident.

Ms. Wingate also testified about a further incident that occurred later the same morning. She said that she left her apartment at 8:30 or 9:00 to file a complaint at the Citizen Complaint Center, and returned to find her bedroom window broken; someone had entered and broken up her furniture, smashed her china and crystal, strewn her clothes around the apartment and poured liquid or cleaning material on them, shattered her mirrors, broken the sink and toilet bowl, damaged her stereo, and taken a fox fur coat and hat and several hundred dollars.

Appellant's defense to the assault charges⁵ was that he had assaulted Morton in self-defense, and had not used a gun. He denied striking his wife. Appellant claimed that the incident had happened around 10:00 or 10:30, before he had gone to work at Georgetown Hospital (and therefore before his gun had been issued to him).⁶ Appellant said that he had come home and found his wife in bed with Morton, a man who had assaulted him on an earlier occasion⁷; appellant said that Morton came at him in a threatening way and he defended himself by striking Morton with a slapstick. Appellant said that after he left the apartment, he went to work on his 12:00 a.m. to 7:00 a.m. shift guarding a prisoner at Georgetown Hospital, that he was issued a gun when he went on duty, and that he remained at his post the entire time and therefore could not have committed an armed assault on Morton at 3:00 a.m.

Appellant's defense to the burglary charge, see note 1, supra, was that he was still living in the apartment with Ms. Wingate, and therefore had a right to be there; he said that he went to the apartment that evening to retrieve forms for filing for reduction in child support that he wanted to work on while he was on duty. Appellant admitted returning to the apartment the next day, ostensibly to move his property out, and when asked by an officer whether he had broken anything in the apartment, he had replied,

Yes, I sure did.... You come home and find your wife in bed with somebody what are you going to do? Yes, I trashed some things in there. I just broke some glasses, mirror, and some other things ... I turned the table over, the dresser over, anything standing, I turned over. Anything that was standing ... I threw a fire extinguisher into the bathroom and it hit the sink and toilet. It broke them.

Appellant's defense for the destruction of property charges was that he had caused only some of the damage, he had damaged joint property rather than Ms. Wingate's sole property, and Ms. Wingate had had someone else cause further destruction of the property and then had arranged items for the police photo. Appellant denied stealing the hat and coat and the money.

As rebuttal evidence to appellant's testimony that the assault had been at 10:00 p.m., the government presented testimony from one of the police officers who responded to Ms. Wingate's 911 call. The officer testified that they arrived at the apartment at 3:20 or 3:30 a.m., a few minutes after receiving the 911 call; he testified that Ms. Wingate was hysterical and Morton had a head wound that appeared fresh and was still bleeding.

The jury convicted appellant on four counts, and acquitted appellant on five counts. The trial court granted the defense motion for judgment of acquittal on an obstruction of justice charge at the end of the government's case. See note 6, supra.

B.

In 1992, appellant filed a motion to vacate judgment and grant a new trial under D.C.Code § 23-110⁸; he claimed both that the trial judge erred in failing to conduct a sufficient Monroe-Farrell inquiry in response to his pretrial complaints about his counsel, and that that same counsel provided ineffective assistance at trial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The motion was the subject of a hearing before Judge Stephen G. Milliken on October 25 and 26, 1993. The judge issued a 43-page order denying appellant's motion on February 15, 1994. Judge Milliken concluded that counsel's performance with respect to defendant's alibi was deficient under Strickland⁹, but found no prejudice. The court's finding of deficiency was based on counsel's failure to contact two potential alibi witnesses (a nurse who worked at Georgetown Hospital and a hospital security guard) until two weeks before trial, his failure to contact two other potential alibi witnesses (a corrections officer and a second nurse) until trial¹⁰, his delaying until the second day of trial to subpoena records (a hospital log book and records from the Department of Corrections) which defendant claimed would corroborate his alibi, and his failure to listen to the radio run or view police photographs of the crime scene before trial. However, Judge Milliken found that appellant's Strickland claim failed because appellant had not shown that he suffered the requisite prejudice. Appellant had failed to show that but for his counsel's failure to properly present his alibi defense, the result of the trial would have been different; appellant had an opportunity to present each of his defense theories, including his alibi defense, so that any additional evidence supporting his alibi would have been cumulative; the judge did not credit appellant's assertions as to what the witnesses, if contacted earlier, would have testified to at trial, because appellant did not have these witnesses testify at the § 23-110 hearing; and the evidence against appellant was strong.

Judge Milliken also made factual findings relating to what pretrial preparation had in fact been undertaken by counsel, as revealed during the course of the § 23-110 hearing. However, Judge Milliken refrained from making a legal ruling on the Monroe-Farrell issue, since he believed that our earlier cases indicated that only the appellate court should resolve the issue of whether a proper Monroe-Farrell inquiry had been made. Whatever the situation may be where the § 23-110 judge had also made the Monroe-Farrell inquiry and was thus reviewing his or her own decision, we do not fault Judge Milliken's decision not to rule on that legal issue here. We also think Judge Milliken acted quite properly in determining whether counsel was in fact sufficiently prepared for trial in the constitutional sense, the same inquiry that a trial court would make on remand where no Monroe-Farrell inquiry had been made at all. (Leon) Matthews v. United States, 629 A.2d 1185, 1193 (D.C.1991). If the judge in a § 23-110 motion hearing determined that trial counsel was in fact constitutionally prepared, the Monroe-Farrell issue would effectively disappear from the case, even if the inquiry actually made had been insufficient. (John) Matthews v. United States, 459 A.2d 1063, 1066 (D.C.1983).

II.

A.

Appellant's § 23-110 motion raised both a Monroe-Farrell claim and a Strickland claim. When a Monroe-Farrell claim is joined with a Strickland claim on collateral attack, this court first ensures that the Monroe-Farrell claim has been definitively resolved before dealing with the Strickland inquiry. McFadden v. United States, 614 A.2d 11 (D.C.1992). Hence, we turn first to that issue.

In Monroe, we first ruled that in this jurisdiction, "when a defendant makes a pretrial challenge to the effectiveness of counsel ... on the ground that counsel, due to lack of investigation, preparation, or other substantial reason, is not rendering...