October 16, 1990
ABDUS-SHAHID M.S. ALI A/K/A JAMES C. LONG, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; Hon. Fred B. Ugast, Motions Judge; Hon. Nicholas S. Nunzio, Trial Judge
Ferren, Belson and Steadman, Associate Judges.
The opinion of the court was delivered by: Belson
Appellant Abdus-Shahid M.S. Ali challenges his conviction for first-degree murder while armed in violation of D.C. Code §§ 22-240, -3202 (1989) on numerous grounds. His principal contentions are that the trial court erred in that it permitted appellant to represent himself at trial, admitted irrelevant testimony concerning a shotgun unconnected with the crime as well as photographs of that shotgun, gave inadequate jury instructions, and denied appellant's motions for new trial. *fn1 We reject each ground for reversal, and affirm.
Appellant was previously convicted of first-degree murder in 1964, and served a sentence of 20 years. *fn2 Approximately one year after his release, appellant committed the murder charged in this case. Following a trial by jury, appellant was convicted of first-degree murder while armed for the February 3, 1985 murder of Dwayne *fn3 Lovells, this time receiving a sentence of 20 years to life in prison. Lovells owed appellant a debt for which Lovells paid with his life after suffering a blast at short range from a sawed-off shotgun. The government's theory at trial was that the victim owed appellant a debt for drugs appellant gave to the victim to turn over quickly for a profit to finance appellant's plan to open a health food store. Appellant testified that he loaned the victim $500 to pay bills and that the victim repaid all but $50. Dwayne Lovells died with $40.00 in his wallet.
Appellant did not commit this murder unassisted; his cousin Vanessa Conway set up appellant's meeting with his victim Lovells -- ostensibly to enable Conway to purchase drugs from Lovells -- and appellant's friend Marshall Manning drove Manning's blue pick-up truck from which appellant emerged to talk with Lovells before pulling the sawed-off shotgun from his coat to shoot him to death near the corner of 12th and Franklin Streets, N.E., in the District of Columbia. Conway and Manning, among others, testified against appellant at trial.
The government's evidence demonstrated that following the shooting appellant got out of Manning's truck near Conway's apartment with a bag, and asked Conway to take the bag to his friend Larry Cannon in exchange for $500 worth of pure cocaine. Conway testified that appellant did not want her to carry the bag and that appellant carried it from her apartment and put it into the trunk of his car which Conway drove to Larry Cannon's. The rest of appellant's evening was spent first with his parents, then at his cousin Vanessa's residence until 5 a.m. the next day. *fn4 Once appellant learned on February 5, 1985 that there was a warrant for his arrest for the murder of Lovells, he fled to nearby Virginia with Mary Dickens and her son. There he was apprehended by police on March 13, 1985.
A jury found appellant guilty of first-degree murder while armed on March 12, 1986. *fn5 Appellant was sentenced to 20 years to life in prison on April 22, 1986. Appellant noted his direct appeal on April 30, 1986 (No. 86-733). Appellant's pro se motion for a new trial *fn6 dated May 7, 1986 was denied by Judge Nunzio on July 25, 1986 as untimely. Appellant failed to note his appeal from this order because he apparently did not receive a copy of the order while in prison as he had been moved from one facility to another. On July 29, 1987, appellant filed a second motion for new trial, incorporating a motion to appoint appellate counsel as counsel on the motion and a motion for authorization for investigative services, and also filed a motion to vacate and re-enter the July 25, 1986 order to enable appellant to note his appeal through his appointed counsel. Judge Nunzio denied the July 29, 1987 motion for new trial, but vacated and re-entered his July 25, 1986 order on January 17, 1989. *fn7 Appellant then noted timely appeals of the denials of the May 7, 1986 and July 29, 1987 motions for new trial (No. 89-90). These three appeals were consolidated for consideration by this court.
On appeal appellant argues first that he was not fully apprised of the dangers and disadvantages of representing himself in this complex case and thus did not make a knowing and voluntary waiver of his right to counsel. Although the court made inquiries of appellant before granting the waiver, appellant asserts that they were merely a "litany of questions and answers" that failed to get to the substance of the dire consequences to which appellant exposed himself by his choice to represent himself, and did not amount to the requisite "searching inquiry." Appellant's involvement in his previous murder trial, together with his independent reading of opinions in murder cases, did not constitute, in appellant's present view, sufficient experience in litigation to permit him to represent himself adequately. Thus, appellant contends, the court erred when it permitted him to represent himself at trial.
The government responds that appellant's decision to participate actively in his own defense was made knowingly and intelligently, and that the quality of his decision was ensured by the trial court's searching inquiry of appellant. The government posits that the inquiry to which appellant responded was more thorough than the inquiry made of the appellant in Abney v. United States, 464 A.2d 106 (D.C. 1983), and approved by us in that opinion. It goes on to argue that even if this court finds that the trial court did not conduct an adequate inquiry, circumstantial evidence supports the Conclusion that appellant's decision to play a role in his own representation was nevertheless knowing and voluntary, accompanied as it was by initial Discussions with counsel and the continuing availability of standby counsel. Finally, according to the government, appellant's technical legal skills were not relevant to the trial court's assessment of appellant's ability to represent himself and the court's determination that the waiver was knowingly and intelligently made.
A constitutional right to conduct one's own defense is implied in the Sixth Amendment. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The Supreme Court in Faretta cautioned, however:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S. Ct. 316, 92 L. Ed. 309 (1948) (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S., at 279.
422 U.S. at 835.
This court in Hsu v. United States, 392 A.2d 972 (D.C. 1978) quoted the "script" fashioned by Justice Black which is to be followed by trial Judges when they undertake to ensure that a defendant's waiver of his Sixth Amendment right to the assistance of counsel is knowing and intelligent:
To be valid such waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A Judge can make certain that an accused's professed waiver of counsel is understandably and wisely made only from a penetrating and comprehensive examination of all the circumstances. . . .
Id. at 983 (quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 92 L. Ed. 309 (1948) (plurality opinion)). Although reversal is not mandatory if the script is not followed, "absent virtually the complete inquiry prescribed by Justice Black, the appellate courts cannot uphold the finding of a valid waiver unless the inquiry of record is buttressed by a compelling case of circumstantial evidence that the pro se defendant knew what he or she was doing." Hsu, supra, at 983.
Our review of the trial transcript demonstrates that Judge Nunzio fully examined appellant concerning his decision to participate in his own representation as required by the case law. The trial court noted initially that:
The key issue would be, gentlemen, Mr. Ali representing himself. I have no problem with it. We have to go through a dissertation of questions, Mr. Ali. I have in the past and it has been my policy not to choose one or the other, to question and deny you to represent yourself or alternatively to be satisfied with it and say that you are it and you are not entitled to any other counsel.
The trial Judge then stated that the hybrid procedure that had proven successful for him in the past was to have the defendant be lead counsel, but to have the assistance of an attorney as a back-up. Then, the court stated, "I think that we can do the same thing here if I am satisfied that you can handle it yourself. Okay? Mr. Ali: Yes, sir. THE COURT: All right. Because if indeed that's what you want, I will give it to you. You cite the case and the government cites the case . . . . that it calls for a questioning." *fn8
Subsequent to the trial court's examination of appellant under Faretta, Von Moltke and their progeny, the court returned to questions concerning the procedural aspects of the trial, such as opening statements and examination of witnesses. Then, after discussing how appellant and Mr. Hillegas would handle the trial, the trial court stated that, "I am satisfied that you understand everything. And I think that we have satisfied the Abney case, that you have a penetrating knowledge and a comprehensive distinctive understanding of the circumstances of about what we are into and namely, a first degree murder trial and representing yourself."
Having reviewed the trial transcript, we conclude that the trial court complied with the requirements of our case law under Hsu, supra, by asking the full range of questions suggested by Justice Black in Von Moltke, supra. See also Abney v. United States, 464 A.2d 106, 107 (D.C. 1983); Fowler v. United States, 411 A.2d 618, 623 (D.C.), cert. denied, 446 U.S. 985, 100 S. Ct. 2967, 64 L. Ed. 2d 841 (1980). Using these questions and answers, Judge Nunzio made a full inquiry before reaching his determination that the appellant knowingly and voluntarily waived his Sixth Amendment right to counsel in order to assert his right to self-representation to the extent appellant was asserting it. *fn9 Appellant's present argument that he lacked the technical trial expertise to conduct his defense also fails because such "technical legal knowledge" is not a legal prerequisite to a defendant's assertion to his constitutional right to self-representation. See Faretta, supra, 422 U.S. at 836; Hsu, supra, 392 A.2d at 984. Accordingly, we uphold the trial court's finding of a valid waiver. *fn10
We turn next to appellant's challenge to the admission into evidence of descriptions and photographs of a shotgun that was not clearly shown to have been used in the killing, and of some accompanying shells. The sawed-off shotgun that killed Lovells was apparently never recovered by the government. In order to prove that appellant had possession of the type of shotgun that was used in the murder, the government successfully offered for admission into evidence photographs of a sawed-off shotgun and shotgun shells that witness Mary Dickens identified at the police station as being similar to those she saw in appellant's possession in early January, 1985. Appellant asserts that Dickens' testimony and the photographs were erroneously admitted into evidence. He urges that this evidence was highly prejudicial and should have been excluded, or, in any event, should have been the subject of a Drew hearing. *fn11 We disagree.
The government contends that the evidence concerning the sawed-off shotgun that was in appellant's possession prior to the murder was properly admitted because, under some circumstances at least, evidence of an appellant's possession of a gun before the commission of a crime cannot be considered evidence of other crimes under Drew. The government argues that there was a clear connection between the gun that Dickens saw in appellant's possession before Lovells' murder and the sawed-off shotgun that killed Lovells. The government introduced the testimony of Dickens and the photographs of a sawed-off shotgun from the police arsenal to demonstrate the type of weapon seen in appellant's possession and then placed in a duffel bag a few weeks prior to the murder. *fn12 This tied in with testimony that appellant was seen on the night of the murder with a similar bag that may have contained the murder weapon. Because the evidence was relevant, states the government, it was within the trial court's discretion to permit its admission into evidence.
Entirely apart from Drew considerations, appellant argues that the evidence concerning the earlier possession of a sawed-off shotgun, and in particular the photographs, was not factually linked to the crime charged, and thus was in effect irrelevant. Appellant relies in part on Burleson v. United States, 306 A.2d 659 (D.C. 1973) to argue that there was no connection between the gun Dickens saw in appellant's possession prior to the murder, and the police photographs of the gun and ammunition that Dickens identified as being similar to those she saw in appellant's possession in early January, 1985. Burleson, however, is distinguishable because in that case there was virtually no evidence connecting appellant to the .38 caliber revolver found under the passenger seat of his brother's car five hours after the assault and more than twelve blocks from the scene of the crime. In the instant case, there unquestionably was evidence connecting appellant with a sawed-off shotgun on both occasions in question. A few weeks before the murder Dickens saw appellant with a sawed-off shotgun and ammunition in the home they shared. On the night of the murder, a similar red shotgun shell was found at the murder scene. A witness identified appellant as the person who killed Lovells with a shotgun. Appellant had placed the gun that Dickens saw in a bag, and was seen carrying a similar bag the night of the murder. Dickens was able to identify the type of gun and ammunition from the police arsenal. Thus, the connection in this case between appellant and the gun Dickens saw does not rest upon unwarranted inference as did the defendant's relationship to the gun that figured in Burleson. As the court in Burleson noted:
Real or visual evidence, like any other evidence, is admissible if it has some evidentiary value on some issue in the case, but it is not admissible if it is incapable of affording a reasonable inference as to a matter in dispute. The evidence must have some connection with the defendant or the crime with which he is charged, and should not be admitted if the connection is too remote or conjectural.
Id. at 661 (emphasis added). The evidence at issue here satisfies this standard of admissibility. Any uncertainty that the gun seen by Dickens was the same gun that appellant used to kill Lovells would go to the weight of the evidence rather than its admissibility. See id. at 661.
We turn next to appellant's argument that admission of the evidence concerning appellant's previous possession of a sawed-off shotgun violated the principles of Drew, supra. The government meets this argument at the threshold with the contention that as a matter of law appellant's possession of a sawed-off shotgun on the prior occasions testified to does not fall within Drew. The government cites Jones v. United States, 477 A.2d 231, 237-38 (D.C. 1984) for the proposition that appellant's gun possession prior to the crime is admissible without regard to Drew. The gun in Jones, however, was a pistol, not a sawed-off shotgun like the gun at issue in the instant case. In Jones we stated that "possession of a gun, without more, is not wrongful conduct." Id. at 237 (citing Fornah v. United States, 460 A.2d 556, 562 (D.C. 1983)). The guns at issue in Fornah, however, were .38 and .45 caliber revolvers (pistols). The court in Fornah noted that properly registered pistols may be kept on the owner's premises. Fornah, supra, at 562 n.6. A sawed-off shotgun, however, differs from such guns because it is illegal to possess such a weapon in the District of Columbia. D.C. Code § 22-3214 (a) (1989).
Because possession of a sawed-off shotgun is different from possession of a pistol in that mere possession of a sawed-off shotgun constitutes a violation in the law, this court must reject the government's threshold argument and analyze the prosecutor's use of the evidence under Drew v. United States, supra.
It is well-settled that evidence of prior bad acts which are criminal in nature, and independent of the crime charged, is inadmissible to prove that a criminal defendant is a person of bad character, and on the occasion charged acted in conformity with his criminal character. Evidence of other wrongful acts is admissible, however, if it is relevant to and probative of one or more of the following issues: (1) motive, (2) intent, (3) absence of mistake or accident, (4) common scheme or plan, or (5) identity.
Jones v. United States, 477 A.2d at 237 (citations omitted) (emphasis added).
As we have seen, the evidence concerning a prior bad act of appellant of having such a weapon is inherently "criminal in nature." See D.C. Code § 22-3214 (a) (1989). The question under Drew and its progeny then becomes whether the prior possession by appellant of the sawed-off shotgun is "independent of the crime charged." Tending to support appellant's argument is the fact that unlike the situation in Jones where Jones' prior pistol possession was connected with his prior threats against the murder victim, Dickens' reported viewing of a sawed-off shotgun in appellant's possession occurred several weeks before appellant's use of the weapon against the victim. On that earlier occasion, Dickens asked appellant to remove the gun from the home because she feared for the safety of her child. Dickens testified that appellant put the gun in a duffel bag and then placed it in the trunk of his car in early January, 1985, approximately one month before the murder of Lovells on February 3, 1985. Thus, the circumstances under which Dickens saw appellant with the shotgun appear at first blush to be unconnected with the murder of Lovells.
On the other hand, there was other testimony which supports an inference that the murder weapon was the sawed-off shotgun Dickens saw in appellant's duffel bag. *fn13 Vanessa Conway testified that appellant told her on February 3, 1985, that he kept a sawed-off shotgun in his trunk. Conway further testified that appellant retrieved the duffel bag from the trunk of his car after his meeting with Manning in Manning's residence shortly before the shooting. He also told her on February 3, 1985, that he planned to shoot Lovells.
Manning testified that appellant brought the bag with him in the pick-up truck on February 3, 1985, and that it sat on the floor of the truck during the shooting. When appellant emerged from the pick-up truck near Vanessa Conway's apartment after the shooting, he had the bag with him.
Vanessa Conway testified that appellant then called Larry Cannon, told him he accomplished what he set out to do and asked Conway to take the bag over to Cannon but not to look inside or touch the bag. *fn14 Conway also testified that when appellant returned to her apartment he showed her a red shotgun shell. An expended red shotgun shell was found by police at the scene of the murder.
The testimony just summarized, together with eyewitness testimony that the murder was committed by appellant with a sawed-off shotgun and that he was in possession of a similar bag the night of the murder, sufficiently connect the sawed-off shotgun to appellant to make the prior sawed-off shotgun possession relevant to the Lovells murder and thus not an independent crime. *fn15 This evidence, consisting of Dickens' testimony and the photographs of a sawed-off shotgun and shells, was not evidence of other crimes or bad acts and subject to Drew. Rather, these items constituted evidence of the crime charged.
Appellant's counsel informed this court at oral argument that in his view the trial court's failure to give an accomplice instruction sua sponte constituted plain error. As this ground was not addressed in his initial appellate brief, and he had not yet researched it, counsel requested and, without objection by the government, was granted leave to file a supplemental brief on this issue. He has done so, and the government has submitted a supplementary brief in response.
Appellant argues that the trial court committed plain error in failing to give an accomplice or other cautionary instruction *fn16 sua sponte to counteract the allegedly uncorroborated testimony of Vanessa Conway and Marshall Manning placing appellant at the scene of the murder. *fn17 The government contends that the trial court's failure to give the accomplice instruction sua sponte did not jeopardize the fairness and integrity of the trial because the testimony of witnesses Manning and Conway was corroborated in many important respects by the testimony of other witnesses, because the jury was given the court's instruction on general factors affecting credibility, and because of the strength of the government's evidence of appellant's guilt.
It has long been noted in our case law that "the better practice" is for the trial court to instruct the jury sua sponte concerning accomplice testimony when appropriate, and that failure to so instruct when requested may be reversible error. Price v. United States, 531 A.2d 984, 986 (D.C. 1987) ("usual practice"); Fields v. United States, 396 A.2d 522, 526 (D.C. 1978) ("better practice"). See Freed v. United States 49 App. D.C. 392, 266 F. 1012 (1920). Failure to request such an instruction at trial, however, places a significant burden on appellant "of showing that the instructions as given 'were so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Fields, supra, at 525 (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)). It is our view that appellant has failed to meet that burden here.
Although the jury was not instructed in accordance with Instruction No. 2.22, it was nevertheless made aware through cross-examination and argument of the motives of the accomplice witnesses for testifying against appellant. (Conway's plea bargain agreement was an exhibit); (Manning gave testimony that he was afraid he would be charged as an accessory). See Price v. United States, supra, 531 A.2d at 987 (jury's full awareness of plea agreement significant to court's decision not to require jury instruction on immunized witness testimony); United States v. Herron, 185 U.S. App. D.C. 403, 408, 567 F.2d 510, 515 (1977) (witness's "exact interest" before the jury through her testimony). In addition, the trial court provided the usual instruction to the jury concerning the evaluation of the credibility of witnesses. *fn18 A review of the trial transcript indicates that some of Conway's and Manning's testimony was corroborated by non-accomplice witnesses and some was not. As to the extent of corroboration necessary to bolster the inherently suspect testimony of accomplice witnesses, our cases have not required complete or interlocking corroboration. Instead, corroboration of significant portions of the testimony of accomplices has been deemed sufficient to avoid a determination of plain error in failing to give an accomplice instruction sua sponte. Price, supra, 531 A.2d at 986 ("testimony was not uncorroborated and, in fact, it was buttressed at various points by the testimony of the other witnesses."). See also United States v. Herron, supra, 185 U.S. App. D.C. at 408, 567 F.2d at 515 ("principal features" of accomplice testimony were corroborated); United States v. Leonard, 161 U.S. App. D.C. 36, 41, 494 F.2d 955, 960 (1974) ("nonaccomplice testimony corroborated the accomplice testimony to a significant extent against Leonard, and to a lesser extent against Sarvis"; no "exceptional circumstances" warranted finding of plain error in trial court's failure to give accomplice instruction sua sponte given the circumstances). Many details of the events on the evening of February 3, 1985 were corroborated by witnesses other than Conway and Manning, including appellant. *fn19 It must be acknowledged that the testimony of Conway and Manning helped to solidify and tie together the various pieces of circumstantial evidence against appellant; but, this is not a bar to a determination that there was no plain error. See Price, supra, 531 A.2d at 986.
In sum, because much of the testimony of Vanessa Conway and Marshall Manning was corroborated by other witnesses, including the testimony of appellant himself, because the motives of Conway and Marshall in testifying were made clear to the jury, and because the jury was correctly instructed on the general considerations that apply to credibility determinations, we hold that appellant has failed to demonstrate plain error in the trial court's failure to give the accomplice jury instruction sua sponte.
Appellant argues that he should have been granted a hearing to present his ineffective assistance of counsel claim under D.C. Code § 23-110 (1989). *fn20 This court has held that a hearing need not be granted if "the motion, files, or other records contain data which belie a prisoner's claim, and such contradiction is not susceptible of reasonable explanation." Pettaway v. United States, 390 A.2d 981, 983 (D.C. 1978). Accord, McClurkin v. United States, 472 A.2d 1348, 1352-53 (D.C.), cert. denied, 469 U.S. 838, 105 S. Ct. 136, 83 L. Ed. 2d 76 (1984).
In determining whether the trial court correctly decided whether it was required to grant a hearing, we must as a preliminary matter consider whether an appellant who has knowingly and intelligently waived his right to counsel may present a claim for ineffective assistance of counsel. The Supreme Court, in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), established that a defendant has the constitutional right to self-representation when he has made a knowing and intelligent waiver of his right to counsel. Id. at 819. Were this a case where the appellant had been solely responsible for his own defense, it is obvious that no claim of ineffective assistance of counsel could lie. *fn21 A defendant who knowingly and intelligently waives his right to assistance of counsel and therefore serves as his own counsel, can have no basis for such a claim. Id. at 834 n.46; Hsu, supra, 392 A.2d at 980 n.7, appeal after remand, 439 A.2d 469 (D.C. 1981). Frequently, however, as happened in this case, a defendant receives the assistance of attorneys whom courts have called "standby" counsel, "co-counsel," "back-up counsel," or "advisory" counsel. The Supreme Court has held that while a defendant does not have a constitutional right to such "hybrid" representation, the trial court may permit this arrangement in its own discretion. McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). See also Griffin v. United States, supra, 447 A.2d at 778-79, cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983). If counsel participates, in a secondary position, his or her potential for ineffectiveness, though diminished by the defendant's primary role, is not completely eliminated. *fn22 Therefore, we hold that where the trial has been conducted with a hybrid arrangement for representation, the defendant may assert an ineffectiveness claim that challenges counsel's competency "within the limited scope of the duties assigned to or assumed by counsel," People v. Bloom, 48 Cal. 3d 1194, 1226, 774 P.2d 698, 718, 259 Cal. Rptr. 669, 689 (1989), cert. denied, Bloom v. California, 494 U.S. 1039, 110 S. Ct. 1503, 108 L. Ed. 2d 638 (1990).
A reviewing court must apply the two-part test of Strickland v. United States, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to any claim of ineffectiveness of counsel in such limited representation. Strickland requires a convicted defendant to demonstrate that the counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and that but for this ineffective representation, there is a reasonable probability that the outcome of the trial would have been more favorable to defendant.
We proceed next to apply the Strickland test to the limited representation accepted by appellant. In light of the colloquy between appellant and judge Nunzio discussed above, we consider that appellant waived his Sixth Amendment right to counsel only to the extent that he took over his own defense. Thus, appellant entered into only a limited waiver of his Sixth Amendment right to counsel. From the beginning, appellant sought to take over only a portion of the role of defense counsel, principally the questioning of witnesses he considered "coerced." He so indicated in his written motion seeking "standby counsel" as well as in the Discussion at the time the trial court examined appellant in open court concerning his decision to represent himself. Appellant's Sixth Amendment right to the effective assistance of counsel attached before trial and was in full effect until the first day of trial when the trial court examined him concerning his waiver of his rights to counsel and to represent himself. Thereafter, the Sixth Amendment right to counsel still applied to the extent of standby counsel's substantial role at trial. To the extent that he participated, standby counsel's performance as counsel is to be measured under the standards enunciated in Strickland. To hold otherwise would deprive appellant of a Sixth Amendment right when it is evident from the trial transcript that he intended to rely substantially on standby counsel's participation in the trial. *fn23 We will bear in mind, however, in our examination of the record that Judge Nunzio and appellant reached a clear and express understanding that appellant would be "lead counsel," and that if there should arise any disagreement between appellant and appointed counsel, the Judge would look to appellant.
Appellant's primary claim of ineffectiveness is that Mr. Hillegas told appellant that the court would not permit certain alibi and impeachment witnesses to be called. Appellant specifically asserts that his standby trial counsel told him that the court would not permit him to call Faye Cannon, "Unice" Cannon, and Ms. Collens regarding a letter from the appellant to Conway which the prosecutor contended was an effort by appellant to tell Conway what to say at trial. If, as he now indicates, appellant wished to call those witnesses at trial, this is precisely the sort of thing he should have undertaken to do as "lead counsel," at least to the extent of making his wishes known to the trial Judge. Moreover, it is doubtful that this testimony about the letter would have had an appreciable impact on the trial. Appellant's further allegation that Faye Cannon would also have testified that Larry Cannon was never seen with a shotgun does not raise a serious issue, for such testimony would have added no exculpatory information to the record. The claim that Unice Cannon would have supported appellant's alibi because appellant called her from a gas station on the night of February 3, 1985 contradicts other testimony given by the defense at trial, *fn24 and would not have aided the defense case measurably. Appellant also averred that trial counsel told him that the trial court would not permit him to call "two landlords" and Ms. Teresa Conway (Vanessa Conway's daughter) whose testimony would have shown that Mary Dickens fabricated her testimony at trial. Again, appellant, as lead counsel, was in a position to raise this matter with the Judge. Moreover, appellant supplied no affidavits or other materials to give content to the vague assertion that these witnesses would testify to fabrication. *fn25
Appellant also claimed that Freddy Jackson should have been called as he would have testified that Manning had a motive to kill Lovells. As appellant concedes in his pro se filing, attempts to secure Jackson as a witness during trial were unsuccessful as the defense was unable to locate him. Appellant has not indicated how his counsel was ineffective in his efforts to locate this witness during trial. Finally, appellant argues that his standby counsel refused to question Larry Cannon on the government's efforts to get Cannon to affirm Vanessa Conway's testimony that she gave Cannon a shotgun from appellant, stating that the court would not permit it. Again, we see this decision as tactical in nature and not violative of Strickland. See Curry v. United States, 498 A.2d 534, 540 (D.C. 1985). We have examined appellant's remaining assertions of ineffective representation by counsel, and find them equally unpersuasive.
In sum, we conclude that although appellant may assert a claim for ineffective assistance of counsel rendered in the context of the hybrid co-counsel arrangement permitted by the trial court, appellant's ineffectiveness claim fails because the allegations pertaining to the conduct of appellant's standby counsel are vague and conclusory, *fn26 involve matters in the nature of tactical decisions, *fn27 and, in any event, were not so crucial as to have affected the outcome of the case. *fn28 Accordingly, we hold that the trial court correctly denied appellant's motion for a hearing. *fn29
For the above-stated reasons, appellant's conviction is