Yancey v. US

• Decision Date: 15 June 2000
• Docket Number: No. 94-CO-1420., No. 86-CF-696
• Citation: 755 A.2d 421
• Parties: Keith W. YANCEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

755 A.2d 421

Keith W. YANCEY, Appellant, v. UNITED STATES, Appellee.

Nos. 86-CF-696, 94-CO-1420.

District of Columbia Court of Appeals.

Argued April 9, 1998.

Decided June 15, 2000.

Marion E. Baurley, Washington, DC, appointed by this court, for appellant.

Karen L. Melnik, Assistant United States Attorney, for appellee. Mary Lou Leary, United States Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown, and Carmen R. Kelley, Assistant United States Attorneys, were on the brief for appellee.

Before WAGNER, Chief Judge, TERRY, Associate Judge, and PRYOR, Senior Judge.

PER CURIAM:

Following a trial by jury, appellant Keith Yancey was convicted of first-degree burglary while armed and first-degree felony murder while armed. Appellant's later motion for collateral relief pursuant to D.C.Code § 23-110 (1996 Repl.) was denied following a hearing before Judge Cheryl M. Long. In this consolidated appeal from his convictions and the denial of the post-trial motion, appellant raises a number of contentions, most of which are related to the preparation and performance of his trial counsel, who took over his case shortly before trial after appellant's earlier retained counsel was suspended from the practice of law, and who was granted a brief continuance to prepare for trial. Upon consideration of the arguments advanced, we affirm.

I. Facts

Appellant and his codefendant John Lyles were charged with first-degree burglary while armed,¹ attempted robbery while armed,² first-degree felony murder while armed,³ and perjury⁴ in April 1985. These charges related to the murder of Robert Wiant, a Capitol Hill real estate agent, who was stabbed to death in his home on June 20, 1984. Appellant retained W. Edward Thompson to represent him.

Mr. Thompson entered his appearance as retained counsel for defendant in May 1985. The trial date was set for September 25, 1985, before Chief Judge H. Carl Moultrie I. Mr. Thompson worked on the case, filing with the court, among other things, a motion to suppress appellant's videotaped statement, in which appellant admitted some involvement in the crime,⁵ and which appellant claimed had been obtained by the police through physical and mental coercion. Several days before the first scheduled trial date, the government requested a continuance because an essential prosecution witness was unavailable due to a medical emergency. Judge Moultrie granted that motion and continued the trial to November 21, 1985. In October 1985, Mr. Thompson was suspended from the practice of law for a period of three months, commencing on October 27, 1985. Attorney Adgie O'Bryant entered an appearance for appellant on November 18, 1985, and filed a request for a continuance. Among the reasons listed by Mr. O'Bryant in requesting the continuance were that he was "unavailable for trial on November 21, 1985," and that "[t]he defendant requests additional time for his new counsel to prepare his defense."

At a hearing held on November 20, 1985, Mr. O'Bryant elaborated on his reasons for requesting a continuance, explaining that he had not spoken to any of the witnesses and was "totally not prepared to go to trial to try a murder case in two days." Over objections by Mr. O'Bryant that he needed more time to prepare, Judge Moultrie granted appellant a three-day continuance, explaining that the case was not complex, and November 25th was the only day the case could fit into the court's calendar. Judge Moultrie assisted Mr. O'Bryant in having his other matters continued so he could devote himself solely to preparing for appellant's trial, and ordered him to be in court to try the case on Monday, November 25, 1985.

On November 25th, Mr. O'Bryant appeared in court with his own attorney, Melvin Marshall. Mr. Marshall spoke on behalf of Mr. O'Bryant, explaining that there were witnesses to whom Mr. O'Bryant had not spoken and physical evidence that Mr. O'Bryant had not had an opportunity to see, and that therefore Mr. O'Bryant felt that he was "constitutionally ineffective" at that time. Judge Moultrie, who had previously explained to Mr. O'Bryant that the trial would go forward, stated:

Well, ineffective depends on what transpires, sir. He may rise to the occasion. He's a good lawyer.

Later that day, appellant addressed Judge Moultrie, explaining that he did not feel the trial would be fair because Mr. O'Bryant only had a few days to prepare. Judge Moultrie explained to appellant that the matter of the continuance had already been decided and resumed hearing motions. The trial concluded on December 2, 1985, when a jury found appellant guilty of first-degree murder while armed and first-degree burglary while armed. He was sentenced in January 1986 and resentenced in April 1986. Appellant filed a timely notice of appeal.

In August 1988, appellant filed a motion seeking to vacate his convictions, alleging ineffective assistance of counsel. His primary contention was that Mr. O'Bryant was ineffective at trial due to the lack of time he was permitted to prepare for the case. Appellant's direct appeal was held in abeyance pending resolution of his collateral attack. Because Judge Moultrie by then was deceased, appellant's motion came before the Honorable Cheryl Long. Following a five-day hearing, which consisted of the testimony of witnesses and representations from counsel, Judge Long issued a sixty-four page memorandum opinion and order denying appellant's claim for relief. In that order, Judge Long reviewed the pretrial investigation, pretrial motion hearing, and trial performance of Mr. O'Bryant in great detail. She found that appellant had failed to show any constitutional deficiency on the part of his trial counsel, and that even if he had succeeded in doing so, the deficiency would not have prejudiced appellant, given the strength of the government's case and the poor credibility of appellant and appellant's potential witnesses.⁶ Appellant filed a second notice of appeal, this one from the denial of his motion, and the two appeals were consolidated in this court.

II. The Right to Choose Counsel

Appellant contends the trial court violated his right to choose his own counsel by ruling that Mr. O'Bryant, with whom appellant now claims he had not established an attorney-client relationship prior to the continuance hearing on November 20, 1985, must try the case. A defendant has a constitutionally protected right to choose his own counsel, arising out of both the Sixth Amendment right to counsel and notions of due process under the Fifth Amendment. Such right includes "a fair opportunity to secure counsel of his own choice." Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958) (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)) (other citations omitted). The Supreme Court held in Powell that "the failure of the trial court to give [defendants] a reasonable time and opportunity to secure counsel was a clear denial of due process." 287 U.S. at 71, 53 S.Ct. 55. This right is not absolute, however, and "`cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.'" Lee v. United States, 98 U.S.App.D.C. 272, 274, 235 F.2d 219, 221 (1956) (quoting Smith v. United States, 53 App.D.C. 53, 55, 288 F. 259, 261 (1923)). The right may be balanced against other factors by the trial court in order to prevent the administration of justice from being impeded. Douglas v. United States, 488 A.2d 121, 143 (D.C.1985) (citation omitted).

We are not persuaded that the record factually supports appellant's claim that the trial court deprived him of his right to retain counsel of his choice. Thompson was unavailable to practice law and would continue to be unavailable for nearly three months. Furthermore, appellant's claim that he did not know who Mr. O'Bryant was, and that he had not established an attorney-client relationship with Mr. O'Bryant, though expressed by appellant at the § 23-110 hearing, are noticeably absent from the record of the continuance hearing before Judge Moultrie. Mr. O'Bryant entered his appearance as appellant's counsel, and nothing in the record of that hearing suggests that this appearance was only for the purpose of requesting a continuance "for Mr. Thompson," as appellant now claims. In appellant's original motion for a continuance, Mr. O'Bryant expressed that "Mr. Thompson can no longer represent the defendant," and that "defendant requests to have a fair opportunity and reasonable time to employ counsel of his choosing to wit attorney Adgie O'Bryant, Jr." At the time of the continuance hearing, therefore, it appeared that appellant had chosen Mr. O'Bryant to represent him.⁷ Judge Moultrie did not violate appellant's right to counsel of his choice by ruling that he go to trial with an attorney who appeared to be of his choosing. Following the hearing on appellant's § 23-110 motion, the trial court found that Mr. O'Bryant had indicated that he would take the case if financial arrangements could be made, and his prior, counsel Mr. Thompson, informed O'Bryant that appellant's family would make those arrangements. The trial court further found that Mr. O'Bryant sought a continuance "specifically for the purpose of affording the Yancey family and Mr. Thompson more time to make firm financial arrangements for hiring Mr. O'Bryant."⁸ Appellant had spoken to Mr. O'Bryant before he entered his appearance. Thus, it appears that appellant had in fact chosen Mr. O'Bryant as Mr. Thompson's successor, with only the financial arrangements to be resolved. The record of the continuance hearings and the § 23-110 hearing support the conclusion that appellant had in fact chosen Mr. O'Bryant as his counsel, although counsel sought more time to finalize financial arrangements and to prepare for trial. Under these circumstances, we...