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07/10/92 DAVID F. BREWER v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


July 10, 1992

DAVID F. BREWER, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. H. Carl Moultrie I, Trial Judge); (Hon. John H. Suda, Motions Judge)

Before Ferren, Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Brewer was convicted by a jury of rape and of several related offenses, all committed against a woman who, according to Brewer, was a prostitute. This court affirmed his conviction. Brewer v. United States, 559 A.2d 317 (D.C. 1989) (Brewer I). Brewer then filed a motion for a new trial pursuant to D.C. Code § 23-110 (1989). He contended that his trial counsel was constitutionally ineffective.

The Judge who presided over Brewer's trial having died, the case was assigned to a different Judge, who held an evidentiary hearing at which Brewer and his trial counsel were among the witnesses. On March 28, 1991, the Judge issued a written opinion in which he denied the motion, holding that Brewer had failed to prove either deficient performance or prejudice. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Brewer now appeals from the denial of collateral relief. We affirm.

I

The substance of Brewer's claim of ineffectiveness is that, after the trial Judge denied his motion in limine for leave to introduce evidence that the complainant had a reputation as a prostitute and had engaged in sex for money with persons other than himself, his trial counsel failed to revisit with him a prior decision, concededly agreed to by both of them, that Brewer would not take the witness stand in his own defense. Brewer contends that he had consented to the strategy of not testifying (and thus avoiding impeachment before the jury with approximately twenty prior convictions) because he believed that evidence of the complainant's reputation and activities as a prostitute (which in his view supported his defense that his sexual activity with her was consensual) would be introduced before the jury. It was contemplated that this evidence would be presented in part through the testimony of Brewer's friend, Hassan Abdullah, whom Brewer had introduced to the complainant. Brewer testified that when he learned that introduction of this evidence would not be allowed, *fn1 he told his attorney that he wanted to take the stand. By this time, however, counsel had rested her case, and she told Brewer it was too late for him to testify.

At the motions hearing, the government, relied primarily on the testimony of Brewer's trial attorney. Explaining her strategy, counsel pointed out that the complaining witness and Abdullah, who had both testified for the prosecution, were vigorously cross-examined by the defense. She testified that as a result of the cross-examination, "there may have been some indication through [the complainant's] demeanor that she wasn't telling the truth." Trial counsel stated that although Abdullah denied in his direct testimony at Brewer's trial that Brewer had told him that the complainant might be available for sex for money, she (counsel) had impeached Abdullah with his grand jury testimony which was directly to the contrary. A prior inconsistent statement is not admissible for the truth of the matter asserted therein, but only to impeach the credibility of the witness, Brooks v. United States, 448 A.2d 253, 259 (D.C. 1982), and the jury was so instructed. See DISTRICT OF COLUMBIA JURY INSTRUCTIONS, No. 1.06A (3d ed. 1978). Brewer's trial counsel testified, however, that

it has . . . been my experience that jurors, even though they may be instructed that they are only to consider evidence in a certain way, will hear the evidence and will consider it in ways they want to consider it. So the information was out there and it was out there in the government's case. I thought that was helpful.

The motions Judge found, among other things, that trial counsel had advised Brewer not to testify because of his criminal record, and that Brewer had agreed to follow her advice. The Judge found that the denial of the motion in limine did not alter Brewer's record or its potential consequences if disclosed to the jury, and that Brewer's attorney believed that she had been able to communicate the substance of the defense's "prostitution" theory through cross-examination of prosecution witnesses. The Judge concluded that Brewer's attorney had fulfilled her professional obligations to her client both in relation to his right to testify and in discussing with him the issues which were the subject of the in limine motion.

II

In order to make out a case of constitutional ineffectiveness, Brewer must demonstrate both that his trial attorney's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). We confine our Discussion to the deficiency prong, which we view as dispositive. This part of the Strickland test requires a showing that "counsel made errors so serious that was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. "Judicial scrutiny of counsel's performance must be highly deferential," and every effort must be made to "eliminate the distorting effects of hindsight." *fn2 Id. at 689. Counsel is "strongly presumed to have rendered adequate assistance." Id. at 690.

There are, of course, limits:

While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.

United States ex rel Williams v. Twomey , 510 F.2d 634, 640 (7th Cir.) (Wyzanksi, J.), cert. denied, 423 U.S. 876, 46 L. Ed. 2d 109, 96 S. Ct. 148 (1975) (quoted in United States v. Cronic, 466 U.S. 648, 657, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984)). Nevertheless, the showing required of Brewer is a formidable one.

Brewer has explicitly conceded that, but for his lawyer's failure, after the denial of the motion in limine, to discuss with him once again the question whether he would testify, her performance was consistent with professional norms. *fn3 This concession, which is fully consistent with our reading of the record, is not dispositive, Cronic, supra, 466 U.S. at 657 n.20, but it is significant. In determining whether counsel's performance was deficient, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688 (emphasis added). In general, the constitutional adequacy of defense counsel's representation "must be viewed in light of total performance and not just on the basis of isolated acts," People v. Thomas, 215 Ill. App. 3d 751, 576 N.E.2d 37, 44 (Ill. App. 1991, 159 Ill. Dec. 368 ); see also House v. Balkcom, 725 F.2d 608, 615 (11th Cir.) cert. denied, 469 U.S. 829 (1984); State v. Tokman, 564 So. 2d 1339, 1343 (Miss. 1990); St. Peter v. State, 811 S.W.2d 729, 730 (Tex. App. 1991), although a claim of insufficiency may be grounded even on an isolated error of counsel if that error is so egregious and so prejudicial that it has brought about a breakdown in the adversarial process. Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); Cronic, supra, 466 U.S. at 657 n.20.

The question before us is therefore whether trial counsel's failure to revisit with Brewer the question whether he should testify was an error so egregious that the adversarial process was undermined -- i.e., whether an unarmed (i.e., effectively unrepresented) defendant was placed at the not so tender mercies of prosecutorial gladiators. Cronic, supra, 466 U.S. at 657. We are satisfied that no such deficiency was shown. Brewer had agreed with counsel that he should not take the stand, and this decision averted the disastrous potential of impeachment with an extensive criminal record. *fn4 Given the degree to which trial counsel succeeded in bringing out before the jury, at least indirectly, the complainant's alleged association with the exchange of sex for money, *fn5 it was surely not unreasonable for her to assume that the strategy would and should remain the same regardless of the denial of the motion in limine. While, in hindsight, a further consultation with Brewer following the denial of the motion in limine might perhaps have been preferable to simply staying on course, retrospective second-guessing is not a part of the Strickland test.

III

For the foregoing reasons, the order appealed from is hereby.

Affirmed. *fn6

There was thus no evidence that trial counsel had assured Brewer that the issue would be revisited if his defense witnesses were not allowed to testify.


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