Appeals from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge
Rogers, Chief Judge, Steadman, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Per Curiam
Appellant Gillis was convicted of eleven counts of assault with a deadly weapon and one count of carrying a pistol without a license. In this consolidated appeal, Gillis contends that the trial court erred in giving an aiding and abetting instruction and in summarily denying his motion under D.C. Code § 23-110 (1989 Repl.). In his collateral appeal, Gillis contends that he was denied effective assistance of counsel because his trial counsel failed to exclude certain incriminating evidence and failed to develop an available defense. We affirm in part, reverse in part, and remand the case to the trial court for a hearing on the § 23-110 motion.
Testimony given at trial related that appellant, along with some of his friends, attended a dance at the Masonic Temple in the District of Columbia. At that dance, a confrontation arose between a friend of Gillis and another person. Witnesses testified that after the dance, the confrontation resumed and culminated with Gillis and friends shooting the other person and several bystanders.
Appellant first argues that the trial court erred in giving an aiding and abetting instruction over defense counsel's objection. A defendant may be convicted as an aider and abettor if the evidence shows that someone committed the offense charged and the defendant knowingly aided in its commission in some way. See Wright v. United States, 508 A.2d 915, 918 (D.C. 1986). Evidence at trial showed that appellant acted in concert with others during the shooting. There was testimony that he participated in the confrontation during the dance and in the ensuing shooting. The instruction permitted the jury to find Gillis guilty whether he was personally responsible for shooting each victim or whether Gillis was acting with others in carrying out the shooting. See Head v. United States, 451 A.2d 615, 626 (D.C. 1982). We find no error.
Second, appellant contends that the trial court erred in summarily denying his motion alleging ineffective assistance of counsel. As the trial Judge correctly noted, there is a presumption in favor of holding a hearing on § 23-110 motions, and any question regarding the appropriateness of a hearing should be resolved in favor of holding a hearing. See Gibson v. United States, 388 A.2d 1214, 1216 (D.C. 1978). The Judge also correctly noted that an ineffective assistance of counsel claim requires a hearing when that claim involves facts not contained in the record. Ellerbe v. United States, 545 A.2d 1197, 1198-99 (D.C.), cert. denied, 488 U.S. 868, 109 S. Ct. 174, 102 L. Ed. 2d 144 (1988); Hockman v. United States, 517 A.2d 44 (D.C. 1986). In this case, however, the Judge declined to hold a hearing because he thought he could resolve the claim on the basis of the existing record. In so doing, the court erred.
When presenting an ineffective assistance of counsel claim, the claimant has the burden of establishing two factors. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the claimant must show that his trial counsel's performance was deficient, unreasonable under prevailing professional norms. Id. at 688. Second, the claimant must show that sufficient prejudice resulted "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Appellant cites two "errors" on the part of his trial counsel. First, appellant contends that his trial counsel failed to prevent the admission of marginally relevant evidence relating to bullets recovered from appellant's home pursuant to a search warrant. We find this argument meritless.
Second, appellant contends that his trial counsel failed to present evidence that appellant was in the custody of security guards at the time of the shooting. At sentencing, trial counsel stated that the original complaint against appellant was dismissed at the preliminary hearing because security guards, who were present at the dance, testified that Gillis was in their custody at the time of the shooting. *fn1 Understandably perplexed by this revelation at sentencing, the trial Judge inquired as to why this evidence was not presented at trial. In response to the trial Judge, trial counsel explained that:
Well, there was reasons that it was not presented at trial. . . . There are reasons why the defense chose not to present any evidence at all.
Based upon this statement alone, the trial court concluded that the trial counsel's "decision" was a matter of trial strategy. Citing case law holding that there is a strong presumption that counsel's conduct was reasonable and sound trial strategy, see Strickland v. Washington, supra, 466 U.S. at 689, the trial court decided that the record conclusively showed no deficiency.
While it is true that trial counsel's strategy enjoys a presumption of reasonableness, there is no evidence in the record showing that trial counsel declined to pursue a potential defense for some strategic reason. The presumption of reasonableness exists to remove the "distorting effects of hindsight." Id. However, the trial court cannot presume that when counsel states that he had some "reasons" for a decision, that his "reasons," whatever they may have been, were sound. To conclude otherwise would nullify the meaningful review of an ineffective assistance of counsel claim. The record is devoid of any meaningful explanation ...