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August 14, 1992


Appeals from the Superior Court of the District of Columbia; (Hon. Reggie B. Walton, Trial Judge); (Hon. Harold L. Cushenberry, Jr., Motions Judge); (Hon. Robert A. Shuker, Sentencing Judge)

Before Ferren and Wagner, Associate Judges, and Kern, Senior Judge. Opinion by the court per curiam. Opinion by Senior Judge Kern, in which Associate Judge Wagner concurs. Opinion by Associate Judge Ferren, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: On February 6, 1989, appellant was convicted by a jury of first degree burglary, D.C. Code § 22-1801 (a) (1989 & 1991 Suppl.), assault with a dangerous weapon, iron, id. at § 22-502, malicious disfigurement while armed, id. at §§ 22-506, -3202, and rape while armed, id. at §§ 22-2801, -3202. After he filed a timely notice of appeal, appellant filed a motion for a new trial under D.C. Code § 23-110 (1989) claiming ineffective assistance of counsel and newly discovered evidence. Following a hearing, the trial court denied most of appellant's collateral claims. *fn1

Appellant now asserts the following claims on consolidated appeal: (1) the trial court erred in denying his § 23-110 motion for a new trial based on his claim of ineffective assistance of counsel; (2) appellant did not knowingly waive his constitutional right to testify at trial; (3) the evidence presented at trial was insufficient to support a conviction for burglary; (4) the evidence was insufficient to support a conviction for armed rape; (5) the trial court abused its discretion in admitting a photograph of complainant's injury; (6) the trial court abused its discretion by examining the complainant and the government's medical expert; (7) the trial court erred when it failed to declare a mistrial or provide a curative instruction after the prosecutor commented on appellant's theory of the case during rebuttal argument; and (8) the trial court abused its discretion when it imposed a sentence based on inadequate information and unfounded assumptions.

We unanimously affirm with respect to seven of the questions presented for the reasons set forth hereafter. *fn2 As to the contention that the evidence was insufficient to support the burglary conviction, a majority of the court rejects appellant's contention and concludes that the evidence presented was sufficient for the reasons set forth in Judge Kern's opinion following the per curiam opinion. Judge Ferren's Dissent on this issue is contained in his opinion.


Between 1982 and 1987, appellant and the complaining witness, Nicolle Townes, engaged in what might best be described as an up-and-down romance, punctuated by frequent arguments and fighting. Ms. Townes testified that she attempted to break up with appellant during December 1987 and January 1988. On January 27, 1988, appellant called Townes and asked to see her. She agreed to see him at her house the next day. Sometime around 1:30 a.m. on January 28, 1988, appellant telephoned Townes, but her mother, Antonia DaSilva, who lived with her, answered the phone and hung up. DaSilva testified that appellant then called over and over and that each time she hung up on him. About a half hour later, DaSilva heard appellant knocking on their front door and calling out Townes' name. Both DaSilva and Townes ignored appellant, and he soon left. After, DaSilva heard another knock on the door and looked out the window and saw appellant's van. Appellant returned to his van and blew his horn for "quite awhile" before leaving again.

Around 8:30 a.m., after DaSilva had left for work and while Townes was ironing in her bedroom, appellant returned again and knocked on the front door, called out Townes' name, and, when no one answered, entered the house. There was no evidence of forced entry, but there was evidence that appellant knew a pane of glass was missing from a door on the ground floor of the house. Appellant walked up the stairs and into Townes' bedroom. According to Townes, she crouched down in her doorless closet. After appellant entered the room and saw her, he hugged and kissed her once and told her that he missed her. The two then began to argue about where she recently had been. After the argument intensified, Townes told appellant to leave. He refused, struck her, picked up the hot iron off of the ironing board and, according to Townes, "put it on stomach and breasts." Appellant returned the iron to the ironing board as Townes ran downstairs to the front door in an attempt to escape. Appellant somehow prevented her from leaving, and Townes then ran to the basement in an effort to flee through the basement door, but appellant stopped her again. Appellant told her to go upstairs, take off her pants, and lie down on her bed. In great pain from the burn, Townes complied, fearing appellant might hurt her again. Appellant then had sexual intercourse with her.

Over the next several hours, Townes tried once to hide from appellant in her mother's room, a friend of her mother's knocked on the front door but left when no one answered, and at some point appellant fell asleep lying in bed with Townes. Townes did not attempt to escape while appellant was asleep. When appellant woke up, Townes made him a sandwich at his request, then the two left the house together around 5:00 p.m. Once outside, Townes fled screaming and crying to the home of a neighbor, Juanita Rose. Townes told Rose that appellant had burned and raped her and showed Rose her terrible burn. Townes called her mother, who immediately left work to come to take her home. Sometime later, DaSilva called the police and an ambulance. The Washington Hospital Center admitted Townes at about 9:00 that night, and she stayed there for five days.

Townes spoke to the police at the hospital but did not tell them she had been raped because she was not sure "if it was considered rape" since she and appellant had been "going together." Dr. Marion Jordan, director of the Hospital's burn unit, treated Townes and later testified for the government at trial. According to Dr. Jordan, Townes received superficial to moderate second degree burns over a V-shaped area extending across the left breast down almost to the navel and up on to the right breast. The burn was extremely painful and left a permanent scar.


Appellant claims the trial court erred in refusing to rule that his defense counsel had provided ineffective assistance by failing to investigate and present favorable medical evidence, failing to understand the necessary evidentiary foundation for presenting a theory of self-defense, and failing to advise appellant fully concerning his right to testify. Before evaluating these claims, we briefly recount the relevant events at trial and the evidence at the § 23-110 hearing where burn specialist Dr. Carlos Silva, appellant's trial counsel, and appellant testified.

Before trial, defense counsel consulted a D.C. General Hospital intern or surgeon who was not a burn specialist about the nature of Townes' burn. Counsel, however, did not show the physician one of the many available photographs of the burn. At trial, defense counsel used medical records to cross-examine the government's medical expert, Dr. Jordan, but did not present a medical expert of his own. At the § 23-110 hearing, appellant argued that defense counsel had been deficient in failing to discover and present favorable medical evidence at trial. Dr. Silva testified for appellant at the hearing. He agreed in large part with the testimony of the government's expert at trial, Dr. Jordan, regarding the severity of Townes' burn and other technical details. Based on his review of the medical record and photographs of the burn, however, Dr. Silva concluded that the most likely cause of the burn was water or steam and not direct contact between the iron and Townes' skin. Although Townes testified at trial that appellant had placed the iron on her skin, Dr. Jordan was never asked to confirm that her burn was consistent with such direct contact.

In an effort at trial to establish self-defense, defense counsel attempted to present two witnesses with knowledge of Townes' aggressive nature and past violent acts. During the examination of the first witness (appellant's cousin), however, the government objected because there was no evidence appellant knew about Townes' purported aggressiveness or bad acts. The court sustained the objection, ruling that bolstering evidence from witnesses to prior acts of Townes was not admissible for lack of evidence from which appellant properly might raise the inference of self-defense: defense counsel had failed to draw out such a possibility in cross-examining Townes, and appellant had not yet testified to such a claim.

After the court sustained the government's objection, defense counsel asked for a recess to consult with appellant. According to defense counsel's testimony at the § 23-110 hearing, during the half-hour recess counsel informed appellant that he would have to testify in order to establish a claim of self-defense. Appellant replied that he did not want to testify, did not believe the jury would credit his testimony over Townes' testimony, and worried he could not withstand the prosecutor's questioning. After the recess, defense counsel informed the Judge that "after consultation with Mr. Johnson, he has decided that we will not (be) calling any further witnesses." The court then informed defense counsel that it would instruct the jury to disregard the testimony of the last defense witness and that defense counsel could not be allowed to argue accident or mistake in his closing argument because of the lack of a factual predicate.

After the § 23-110 hearing, the trial court found appellant's trial counsel deficient in only one respect: failing to ascertain for sure, before proceeding with the defense case, whether appellant would testify. The court also found, however, that appellant had been aware that if he failed to testify at the trial, this failure would be fatal to his self-defense claim. The trial court concluded that under the totality of circumstances, "this deficient performance did not affect the reliability of the verdict." Among those circumstances were the following. The court found incredible both appellant's account of what happened on the day of the offenses and his report of what occurred during the trial recess. Because any defense appellant might have raised to the rape charge (such as consent) or to the assault while armed and malicious disfigurement charges (such as self-defense or accident) would have required appellant's testimony, *fn3 and because the court found that appellant was not a credible witness, the court concluded that any deficiencies of defense counsel were necessarily harmless since there was no "'reasonable probability that absent errors the fact finder would have had a reasonable doubt respecting [appellant's] guilt.'" (Memorandum Opinion, February 12, 1991, at 1617 (quoting White v. United States, 484 A.2d 553, 558 (D.C. 1984) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We agree.

It is established in this jurisdiction that "the finding of ineffective assistance of counsel is a mixed question of law and fact . . . and upon review, we will not reverse the trial court's findings of fact if they are supported by evidence in the record." Curry v. United States, 498 A.2d 534, 540 (D.C. 1985) (citations omitted). Keeping in mind the trial court's role in credibility findings, and after reviewing the trial record and the § 23-110 hearing transcript, we conclude that the findings in the trial court's lengthy and detailed memorandum are sufficiently supported by evidence in the record. Furthermore, although "we owe no deference [to the trial court] on the ultimate question of law," id., we agree that appellant has not carried his burden "that affirmatively prove prejudice." Strickland, supra, 466 U.S. at 693.

Even if defense counsel was deficient in preparing for trial and in failing to anticipate the evidentiary foundation necessary to put forth various defenses, appellant must show "the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive of a fair trial, a trial whose result is reliable." Id. at 687. In an attempt to demonstrate prejudice, appellant points to defenses that would have been available but for defense counsel's deficiencies: accident, self-defense, mistake, and consent. The trial court found, however, that appellant chose not to testify despite the fact that his counsel had informed him that he would in effect be giving up his claim of self-defense. Thus, appellant cannot blame trial counsel for the loss of that defense. Further, we conclude that in order for defense counsel to have argued any of those defenses (including those incorporating Dr. Silva's expert testimony) in the circumstances of this case, appellant would first have had to take the stand. See note 3, (supra) . However, the trial court as factfinder found that appellant's testimony regarding the events of January 28, 1988 was unbelievable. Since these are findings we cannot dispute on the record before us, we must conclude that appellant has failed to show the required prejudice: how the assumed "affirmative defense likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52, 59,106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985); see McAdoo v. Unites States, 515 A.2d 412, 426-27 (D.C. 1986) (even though counsel may not have put forth strong defense and may have been deficient in preparation, such transgressions even taken together do not rise to level of prejudice amounting to deprivation of fair trial); Godfrey v. United States, 454 A.2d 293, 302-04 (D.C. 1982) (gross incompetence of defense counsel not enough to reverse appellant's conviction without showing that incompetence prevented substantial defense).


Appellant claims reversible error because he did not competently waive his fifth amendment right to testify. Under Johnson v. Zerbst, 304 U.S. 458,58 S.Ct. 1019,82 L.Ed. 1461 (1937), a criminal defendant must knowingly, voluntarily, and intelligently waive a fundamental right. The Supreme Court has made clear that the right of a criminal defendant to take the stand and testify in his or her own defense is one such fundamental right. Rock v. Arkansas, 483 U.S. 44, 49-52,107 S.Ct. 2704, 2707-09,97 L.Ed.2d 37 (1987); see Boyd v. United States, 586 A.2d 670, 672-74 (D.C. 1991). In Boyd we joined the vast majority of federal and state courts in holding that "the right to testify in a criminal trial is a fundamental and personal right which can only be waived by the defendant" and not by his or her counsel. Id. at 674. In this case, by appellant's own admission, he informed his counsel months before trial that he did not want to testify, a desire he reiterated to counsel during their recess conference at trial. There is no question, therefore, that appellant made a knowing and voluntary decision not to take the stand.

The crux of appellant's claim, however, is that defense counsel did not fully inform him of the consequences of appellant's decision and thus that any waiver failed the "intelligent" prong of the Zerbst test. Appellant argues that defense counsel did not realize until after his recess conference with appellant that appellant's failure to testify would have the effect of precluding not only a self-defense theory but also the alternative defenses of accident, mistake, and consent. Because of defense counsel's own ignorance of the consequences, appellant argues that counsel could not have provided the necessary legal advice for appellant to make a fully informed, intelligent waiver of his right to testify.

The trial court specifically found that appellant did understand that his failure to testify would be fatal to his self-defense claim. The court also credited defense counsel's testimony that he had explained to appellant that the case might boil down to a credibility contest between appellant and Townes. Furthermore, the record clearly shows that appellant appreciated the dangers attendant if he were to take the stand: he would not be successful in withstanding the prosecutor's cross-examination, and that he would not compare favorably with Townes in the eyes of the jury. See Kelly v. United States, 590 A.2d 1031, 1034-35 (D.C. 1991) (upholding trial court's denial of appellant's motion for new trial because evidence in record showed appellant understood his rights and was fully advised by counsel about consequences of testifying). Although defense counsel may have painted too optimistic of a picture for appellant regarding his chances in the absence of his testimony, we agree with the trial court that appellant understood his own limitations as a defense witness and the risks he posed to his own case. We cannot say, therefore, that appellant did not intelligently waive his right to testify.


We now turn to appellant's contentions that the trial court abused its discretion when it: (1) admitted into evidence photographs of the complainant's burns; (2) examined two witnesses; (3) failed to instruct the jury or declare a mistrial after the prosecutor commented in rebuttal on appellant's theory of the case; and (4) imposed sentence. We find no abuse of discretion.

A. The photographs

Appellant argues that the court abused its discretion in admitting photographs of the burn because their "inflammatory" nature outweighed any probative value. More specifically, appellant complains that the court erroneously admitted one photograph, Government Exhibit 2, which the court initially had ruled inadmissible. The question whether to admit photographs as demonstrative evidence is within the trial court's sound discretion. E.g., Rogers v. United States, 484 A.2d 277, 291 (D.C. 1984), cert denied, 469 U.S 1227, 105 S.Ct. 1223, 84 L.Ed.2d 363 (1985). The trial court has the duty to weigh the probative value of the photographs against any prejudicial effect they might ...

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