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01/28/91 GARY M. SYKES v. UNITED STATES

January 28, 1991

GARY M. SYKES, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Annice McBryde Wagner, Trial Judge

Belson and Schwelb, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Schwelb

Following a jury trial, Gary M. Sykes was convicted of distribution of heroin and possession of heroin. *fn1 D.C. Code § 33-541 (a)(1) (1988). Sykes filed a post-trial motion to vacate, set aside or correct his sentence pursuant to D.C. Code § 23-110(1989). The trial Judge denied the motion without a hearing. In these consolidated appeals from the judgment of conviction and the post-trial order, he argues that he was denied the effective assistance of counsel at trial and that the trial Judge should have held a hearing on his § 23-110 motion. We affirm.

I

The evidence against Sykes consisted essentially of the testimony of Metropolitan Police Department Officers Gerald Awkard, Victor Graves, and Joseph M. Zovak. Officer Awkard testified that on November 13, 1986, while operating undercover, he approached a corner known for narcotics activity and asked if "anybody had anything." According to Officer Awkard, Sykes responded: "Come on. I've got it." The two men walked to a small "airway" between some apartment buildings. Officer Awkard testified that Sykes asked him whether he was a police officer; Awkard responded that he was not. Sykes then handed Officer Awkard a small plastic bag containing white powder, which was later determined to contain a usable amount of heroin. Officer Awkard handed Sykes twenty-five dollars in prerecorded funds. The prerecorded bills were never recovered.

Officer Awkard then returned to his car and broadcast a look-out for Sykes based on his physical description and clothing. Meanwhile, Officer Graves, who had observed Officer Awkard meet with Sykes, but who had not seen the alleged transaction between the two, watched Sykes exchange something with a woman who was wearing a green dress. Shortly thereafter, this woman left the scene with another man.

Within minutes, the arrest team arrived in an unmarked car and, true to its nickname, *fn2 "jumped out" of the vehicle to apprehend the suspect. Officer Zovak, a member of the team, approached Sykes and observed him drop an object in the grass. Officer Zovak immediately retrieved the object, which consisted of three plastic packets containing what later proved to be heroin in a usable amount. It was these three packets that led to the PWID charge against Sykes and his ultimate conviction of simple possession of heroin.

Sykes testified in his own defense. He stated that Officer Awkard had indeed solicited him for drugs. He claimed that he had responded "in a disrespectful manner" because he knew Officer Awkard was the same police officer to whom he had sold cocaine four months earlier. The prior sale had resulted in his arrest and, following his plea of guilty, in a probationary sentence from a Superior Court Judge. According to Sykes, a woman named Audrey Smith was standing with him at the time. Sykes told Ms. Smith that Awkard was a police officer, but Ms. Smith nevertheless proceeded to sell drugs to Officer Awkard. Sykes denied that he was the seller, that he possessed any heroin, or that he threw packets of it to the ground. He claimed that he had been falsely charged in retaliation for "blowing" the officer's "cover."

II

In his post-trial motion, which was filed on his behalf by his present counsel, Sykes' principal contention was that his trial attorney was ineffective because he failed to interview Ms. Smith or to call her as a witness. *fn3 Sykes swore in an accompanying affidavit that he had provided his trial counsel with Ms. Smith's name and address in advance of trial, and that Ms. Smith

would have been able to corroborate my testimony, and establish my innocence of the charges against me. Her testimony would have refuted the police officer's testimony that I sold him drugs, which I did not.

Sykes further stated that the trial attorney told him that no one would believe Ms. Smith's testimony and that "having her testify would not help my case."

The trial Judge issued a written order denying the motion without a hearing. Relying on Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Judge noted that it was incumbent upon Sykes to establish both deficient performance on the part of his counsel and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. She held that Sykes had failed to sustain his burden on either issue.

With respect to the deficient performance prong, the Judge noted that whether to call a witness for the defense is a tactical decision which is to be ...


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