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12/07/90 MELVIN DOE v. UNITED STATES

December 7, 1990

MELVIN DOE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Joseph M.F. Ryan, Jr., Trial Judge

Rogers, Chief Judge. Ferren, and Belson, Associate Judges. Opinion for the court by Associate Judge Belson. Separate opinion by Associate Judge Ferren, Concurring.

The opinion of the court was delivered by: Belson

Appellant Melvin Doe appeals his conviction for voluntary manslaughter while armed (D.C. Code §§ 22-2405, -3202 (1989 Repl.)) contending that the trial court erred in failing to instruct the jury, sua sponte, on causation, and that statements made in the prosecutor's closing argument to the effect that appellant was a "bad person" improperly prejudiced appellant. Appellant's direct appeal of his conviction has been consolidated with his appeals from the trial court's denials, without hearing, of his two post-trial motions under D.C. Code § 23-110 (1989 Repl.). Finding no merit in appellant's arguments, we affirm. Because appellant's counsel has raised questions with respect to the duties of counsel appointed by this court for direct criminal appeals to investigate possible claims of ineffective assistance of trial counsel, we will discuss those duties in the course of addressing appellant's arguments. See Shepard v. United States, 533 A.2d 1278 (D.C. 1987).

I.

On September 18, 1982, appellant Melvin Doe stabbed Leroy McCray with a knife at 208 Morgan Street, N.W., where appellant had rented a room from McCray. The stabbing followed an earlier altercation between the two men that stemmed from McCray's having locked appellant out of the house and blocked appellant's girlfriend's exit from appellant's bedroom. After the girlfriend, Ms. Betty Jean Poteat, had shaken the bedroom door open, she let appellant in the front door of the house. After appellant entered the house, he confronted McCray in McCray's bedroom. McCray then became angry and hit appellant with a spear-like object that made a small cut on appellant's left side. As McCray continued to pursue appellant with the "spear," appellant stabbed McCray four times with a butcher knife he had been carrying in his pocket. McCray required emergency surgery. Two days later, McCray, an alcoholic who was experiencing delirium tremens, suffered a cardiac arrest, experienced severe brain damage, and then lapsed into a coma. McCray never regained consciousness and died on May 2, 1983.

II.

Doe argues that the trial court improperly denied his ex parte motion for the appointment of counsel and for expert and investigative services. *fn1 Doe contends that these appointments were necessary in order to prepare adequately for a motion to vacate judgment and order a new trial under D.C. Code § 23-110 based on trial counsel's having been ineffective in that he failed to pursue the "complete defense" of lack of proof of causation of McCray's death. Moreover, Doe argues, "appointed appellate counsel must be appointed at the trial level as counsel for proposed new trial proceedings. . . .," The government responds by arguing that Doe's § 23-110 motion failed to demonstrate a sufficient basis for these appointments, and that the motion was properly denied without a hearing.

The Constitution does not require the appointment of counsel to pursue post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). Similarly, there is no statutory basis for an unqualified right to such appointment. Jenkins v. United States, 548 A.2d 102, 104 (D.C. 1988). See D.C. Code §§ 11-2601(3)(A) and 11-2602 (1989 Repl.). The decision whether to appoint counsel to pursue collateral relief is "entrusted to the sound discretion of the trial court." Jenkins, supra, at 105. The guiding standard is whether such an appointment is in the "interests of Justice." Id. *fn2

In order to demonstrate a need for the appointment of counsel, a petitioner usually must satisfy the same criteria that would entitle the petitioner to a hearing on the § 23-110 motion under Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978). A prisoner is not entitled to a hearing on a § 23-110 motion if the motion:

(1) is "'palpably incredible' (though not merely 'improbable')," or (2) "fails to state a claim," i.e., the assertions, even if true, would not entitle the prisoner to relief under § 23-110, or (3) is "'vague and conclusory,'" i.e., the "prisoner does not present a factual foundation in some detail."

Jenkins, supra, at 105 (quoting Pettaway, supra, at 984). Considering the nature of these standards for hearings, it is not surprising that few cases will require the appointment of counsel when no § 23-110 hearing is required under Pettaway. When a hearing is required, however, the appointment of counsel by the trial court is obligatory. Even when the matters advanced by a movant do not appear to require a hearing, the trial court has the discretion to appoint counsel to aid movant in marshalling and presenting a request for relief.

It is implicit that the trial court rejected Doe's motion because the "assertions, even if true, would not entitle the prisoner to relief under § 23-110." See Jenkins, supra, at 105. The trial court noted that there was enough evidence on causation for the jury to determine that appellant caused McCray's death. In addition, the trial court deemed trial counsel's decision not to pursue a causation defense to be a tactical choice, a finding that would preclude Doe from obtaining relief under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Doe, we should note, argued that he had acted in self defense. Having stated grounds that evinced the strong likelihood that Doe's claims would not succeed even if counsel were appointed, the trial court found no reason for granting Doe's ex parte § 23-110 motion for the appointment of counsel and expert and investigative services. *fn3

Doe's ex parte motion for the appointment of counsel and other services failed to state any specific grounds why expert or other investigative services would be necessary to delve further into the causation issue. As the trial court indicated, the cause of McCray's death was explored during trial. Doe's trial ...


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