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UNITED STATES v. MITCHELL

June 5, 1992

UNITED STATES OF AMERICA,
v.
MICHAEL MITCHELL, aka Mikey, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court is the defendant's Motion for a New Trial, based upon a claim of ineffective assistance of his trial counsel. The defendant was tried before this Court on November 25 and 26, 1991 on a two-count indictment charging him with distributing more than five grams of cocaine base, and with distributing the same within one thousand feet of a school. The jury convicted him of both counts. Before sentencing, the Court received a letter from the defendant in which he expressed dissatisfaction with the quality of the representation he received from his trial counsel. See Order filed February 6, 1992, Exhibit. The Court appointed the Federal Public Defender to enter its appearance and investigate the matter, and on March 12, 1992, the Court granted trial counsel's motion for leave to withdraw. Through the Federal Public Defender, the defendant subsequently filed the instant motion, and the Court held a hearing on the matter on May 18, 1992.

 After careful consideration of the submissions of the parties, the transcript of the trial and exhibits, the testimony of witnesses at the hearing, the arguments of counsel, and the entire record herein, the Court concludes that the defendant's motion must be denied. Even if there were deficiencies in trial counsel's performance, they did not prejudice the outcome of the defendant's case or deprive him of a fair trial.

 I. Background

 According to the testimony at trial, the defendant sold cocaine base to undercover police officer Cheryl Tillman within one thousand feet of Shaw Junior High School in the District of Columbia on April 12, 1990. The defendant was not arrested for the crime until August 24, 1991, over sixteen months later.

 The defendant retained trial counsel to replace court-appointed counsel on November 15, 1991, ten days before trial. *fn1" Prior counsel, David Smith, learned that the defendant intended to retain other counsel on November 19 and 20, 1992. Mr. Smith spoke with trial counsel by telephone on November 20, and agreed to meet him on November 22, 1991 to transfer the file to him. Trial counsel was unable to keep his appointment with Mr. Smith, so Mr. Smith had the file delivered to trial counsel at the Superior Court. Mr. Smith and his partner, Gregory English, were notified by the Court that they would be required to be prepared to try the case on November 25, 1991 on a contingency basis. Accordingly, Mr. English (who took over for Mr. Smith with the consent of the Court) prepared for trial and appeared on the morning of trial. On the morning of November 25, 1991, Mr. English and trial counsel discussed inconsistencies in the chemist's report of the examination of the drugs at issue. Upon representation from trial counsel that he was prepared for trial, the Court allowed prior counsel to withdraw and trial began.

 According to both trial counsel and the defendant, trial counsel met with the defendant twice at the District of Columbia jail and once in the courthouse lock-up before trial. Trial counsel estimates that in preparing the case he spent approximately one and one half hours meeting with the defendant. He also spoke with the government attorney handling the case and received documentation from him. He reviewed the discovery materials and discussed them with the defendant. He went to the scene of the incident and paced the distance from the scene to Shaw Junior High School, to ensure that the scene was within one thousand feet of a school, as charged in the indictment. Trial counsel reviewed the chemist's report of the drug analysis, and noted missing information. Based on conversations with his client, trial counsel believed that while the defendant had witnessed a narcotics sale, he had not participated in it. Trial counsel decided that his primary strategy would be to argue that this was a case of mistaken identity; that the defendant was not the person who sold the drugs to the undercover officer. As a "secondary" strategy, he would attack the chain of custody through discrepancies in the chemist's report.

 II. Analysis

 Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), there is a two-part test for determining whether there is a claim for ineffective assistance of counsel: (1) counsel's performance must be deficient, to the extent that he or she made errors so serious that counsel was not functioning as the "counsel" guaranteed under the 6th Amendment; (2) the deficient performance must have prejudiced the defense, such that it deprived the defendant of a fair trial, whose result is reliable. Id. at 687. The "ultimate focus" of the entire inquiry is the "fundamental fairness" of the trial, and whether there has been a breakdown of the adversarial process that renders the result unreliable. Id. at 696. If the defendant makes an insufficient showing on one part of the test, the court should deny the ineffective assistance claim without reaching the other part of the test. Id. at 697.

 To determine if counsel's performance was constitutionally deficient, the inquiry is whether counsel's assistance was reasonable considering all the circumstances. Conduct should be evaluated from counsel's perspective at the time and on the facts of the particular case. Id. at 689. A court must indulge a "strong presumption" that the conduct falls "within the wide range of reasonable professional assistance." Id. at 689. Strategic decisions "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. However, strategic choices after incomplete investigation are only reasonable to the extent reasonable professional judgment supports the limits on the investigation. Id.

 To determine whether counsel's actions prejudiced the defense, the inquiry is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 694.

 The defendant alleges essentially four major areas in which he contends that trial counsel's assistance was ineffective. His claims focus upon: (a) allegedly inadequate pretrial preparation and investigation; (b) failure to cross-examine the police officers as to certain matters; (c) failure to cross-examine the chemist and emphasize questions about the chain of custody of the drugs; (d) failure to object to certain aspects of the opinion testimony of Officer David Stroud. The Court shall address these arguments in turn.

 A. Pretrial Preparation and Investigation

 Failure to investigate and prepare the case can amount to ineffective assistance. "Only when reasonable investigation has been performed is counsel in a position to make informed tactical decisions. It is especially important that counsel adequately investigate the case in order that at the least he can provide minimally competent professional representation." U.S. v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). See also Osborn v. Shillinger, 861 F.2d 612, 627 (10th Cir. 1988) (inadequate preparation and failure to investigate other potential defenses ineffective assistance).

 The evidence reveals that trial counsel had three meetings with the defendant, had discussions with the Assistant United States Attorney handling the case, requested and received documentation, and reviewed the file and discovery materials for the case. Prior counsel, Mr. Smith, testified that a relatively small portion of his work in the case involved preparing for trial; most of his work involved pretrial matters such as negotiating with government counsel and litigating his client's bond status. He stated that the facts of the case were relatively simple, requiring little trial preparation.

 Under these circumstances, the Court finds that trial counsel's pretrial preparation and investigation were adequate, falling within the "wide range of reasonable professional assistance." See Strickland at 689. Trial counsel took over the case in its late stages, when trial preparation was the primary responsibility. As Mr. Mitchell's prior counsel acknowledged, the facts of the case were relatively simple, lessening the need for extensive pretrial preparation. Trial counsel demonstrated at the hearing that he has broad-ranging practical knowledge of the criminal justice system and its operation in the real world. Thus he has the ability to make tactical decisions more quickly and efficiently than other attorneys who may not have had his experience. While trial counsel might have done more to prepare his case, his ...


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