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November 8, 1991


On Motion Of Appellant To Recall The Mandate; Hon. Henry H. Kennedy, Trial Judge.

Newman,* Gallagher, and Belson,** Senior Judges. Opinion for the court by Senior Judge Newman. Concurring statement by Senior Judge Belson.

The opinion of the court was delivered by: Newman

To decide this motion, we must address

the issue of whether Griffin has been denied the effective assistance of counsel on his direct appeal. We find that the failure of Griffin's prior counsel on appeal to raise a double jeopardy issue on appeal makes a showing of "sufficient merit" on Griffin's claim of ineffective assistance with respect to the charge of obstructing Justice to warrant the recall of our mandate previously issued.

In so far as relevant to this appeal, the record shows the following events. In January 1985, Griffin was presented in the Superior Court on charges of burglary, assault with intent to kill while armed, and related offenses. He was released on personal recognizance pending trial. A condition of his release was that he stay away from the complaining witness. Subsequently, the trial court ordered Griffin to show cause why he should not be held in contempt of court for violating the stay away order by confronting the complaining witness at his residence, seeking to induce him to testify in a particular manner. A hearing was held before Judge Annice M. Wagner, and Griffin was found guilty of criminal contempt. He was sentenced to thirty days' imprisonment.

Two weeks later, the grand jury indicted Griffin on the four charges on which he had been presented, as well as a new charge of obstructing Justice. This count alleged:

On or about July 29, 1985, within the District of Columbia, Robert L. Griffin endeavored corruptly and by threats and force to influence, intimidate, and impede Santos Rodas in the discharge of his duties as a witness in the case of UNITED STATES v. ROBERT L. GRIFFIN, Criminal Case Number F-527-85, then pending in the Superior Court of the District of Columbia. (Obstructing Justice, in violation of D.C. Code § 22-722 (a)(1).)

Prior to trial, Griffin filed a written motion to dismiss the obstructing Justice count on the ground of double jeopardy. Specifically, he asserted that his conviction for contempt of court for his conduct toward the complaining witness barred his subsequent prosecution for obstructing Justice on the same facts. Judge Henry H. Kennedy denied this motion. Griffin was convicted on all counts charged, including obstructing Justice, for which he received a consecutive sentence.

On appeal, new counsel did not raise the obstructing Justice/contempt, double jeopardy issue and we did not consider it. After we entered a Memorandum Opinion and Judgment Order affirming the convictions *fn1 and issued the mandate, Griffin, through new counsel, *fn2 following the procedures set forth in Watson v. United States, 536 A.2d 1056 (D.C. 1987) (en banc), cert. denied, 486 U.S. 1010 (1988), seeks to vindicate his right to effective assistance of counsel on appeal protected by due process. See Evitts v. Lucey, 469 U.S. 387 (1985). Counsel filed a motion in this court for recall of the mandate, asserting ineffective assistance of appellate counsel. After this division heard oral argument on the motion, the full court decided to consolidate two other appeals raising similar double jeopardy issues and to rehear the consolidated cases en banc. This division deferred deciding this case pending the en banc decision. See United States v. Dixon, Nos. 88-1375, 89-449 (D.C. Oct. 31, 1991) (en banc).

"This court will pursue a claim of ineffective assistance of appellate counsel which has been found by the court to have sufficient merit by recalling the mandate and reopening the movant's appeal in order to fully explore and then decide whether there was ineffective assistance of counsel on the first appeal." Watson, supra, 536 A.2d at 1061 (emphasis in original). In determining whether a showing of "sufficient merit" has been made to recall the mandate, we must address two principal issues. One is whether the performance of counsel "'fell below an objective standard of reasonableness.'" Id at 1065 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Stated another way, we must address "whether counsel's conduct so undermined the proper functioning of the adversarial process that the [judicial proceedings] cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686. Our other inquiry addresses prejudice, i.e., it must be established that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Watson, supra, 536 A.2d at 1065 (quoting Strickland v. Washington, supra, 466 U.S. at 694). Both Strickland and Watson suggest that it is sometimes efficacious to address the prejudice prong first since without prejudice there can be no ineffective assistance. It is to the prejudice prong that we now turn.

On July 30, 1985, based on information reported that day by the United States, the trial court issued an Order to Show Cause, which in relevant part, reads:

Defendant, Robert Griffin, was released on personal recognizance in this case pending trial and was ordered to observe as one of the conditions of release that he stay away from the complaining witness. The government reported in open court that defendant violated said condition in that on the evening of July 29, 1985, defendant went to the apartment of the complaining witness and tried to persuade him to testify that he did not know who shot him. It is therefore, by the Court this 30th day of July, 1985,

ORDERED, that defendant, Robert Griffin, appear with counsel on August 2, 1985, at 2:00 p.m. to show cause why his release should not be revoked, why he should not be detained and prosecuted for contempt of court.

At the trial of the contempt charge on August 2, 1985, the United States called the complaining witness, Santos Rodas. Rodas testified that on July 29, 1985, Griffin came to his apartment and attempted to persuade Rodas to testify falsely in the pending case that Rodas did not know who shot him. Rodas further testified that Griffin stated that in return for such testimony there would be "big money" coming to Rodas after the trial and that Griffin would leave Rodas and his wife in peace thereafter.

In arguing that he should not be held in contempt, Christopher S. Howell, trial counsel for Griffin, apprised the court that based on the alleged conduct of July 29, 1985, which was the basis of the contempt proceeding, Griffin had been arrested and ...

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