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08/14/92 WILLIAM H. MCFADDEN v. UNITED STATES

August 14, 1992

WILLIAM H. MCFADDEN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Wagner, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM:

Appellant William McFadden appeals his convictions by a jury on the grounds that the trial Judge erred by failing to conduct a pretrial inquiry as required by Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006,99 S.Ct. 621,58 L.Ed.2d 683 (1978), and that he was denied the effective assistance of counsel at trial. *fn1 We reverse. *fn2

I

On December 20, 1986, appellant and Romone Gabriel, the co-defendant, were arrested while driving in a stolen Volkswagen in Northeast Washington, D.C. Gabriel was driving and appellant was in the back seat. Appellant had his hands on top of a tall grey bag, which contained gold jewelry, personal papers, credit cards, and a wide assortment of other personal property that had been stolen on December 19 and December 20, 1986. Some of the jewelry was found in the clothes pockets of appellant and Gabriel. Gabriel was also wearing a stolen dark brown leather jacket.

The defense was alibi. Appellant's father, William H. McFadden, Sr., testified that before appellant's arrest appellant had been working for him, constructing a restaurant in a building at 4th Street and Florida Avenue, Northwest, and that he had seen his son at work on the mornings of December 19 and 20, 1986. On cross-examination Mr. McFadden admitted that although appellant was at work "most of the time" on December 19, he was uncertain how long appellant was at work on December 20.

The co-defendant, Romone Gabriel, called four witnesses. His mother testified that her son was home sick from 1:30 a.m. on December 18, 1986, until the evening of December 20. That evening appellant came to her home driving a Volkswagen, which he had claimed belonged to a friend. Gabriel and appellant gave Gabriel's mother a ride to a party, dropping her off just before midnight. Gloria Pearson, the ex-girlfriend of Gabriel's brother, testified that she saw appellant driving a grey Volkswagen on December 19, 1986, but admitted on cross-examination that she had a "special relationship" with the Gabriel family, and that she had known them for about two years. Two other witnesses, including Gabriel's sister, provided corroborating testimony.

In rebuttal, Corporal Vance McDonald of the D.C. Department of Corrections testified that the visitor's log at the Lorton Reformatory indicated that on Saturday, December 20, 1986, between 8:30 and 11:45 a.m., appellant and Gabriel had visited inmates at Lorton. McDonald's testimony thus contradicted the testimony of appellant's father and Gabriel's mother and sister. *fn3

Appellant's pro se motion "For New Trial Pursuant to Ineffective Assistance of Counsel, Title 23, Section 110 of the D.C. Code," was denied following evidentiary hearings. *fn4

II

A.

Pursuant to the rule established in Shepard v. United States, 533 A.2d 1278, 1286 (D.C. 1987), this court consolidated appellant's direct and collateral appeals. Preliminarily, therefore, we must address a question of first impression: should this court review both issues or defer consideration of the Strickland *fn5 issue until the Monroe-Farrell issue has been resolved? When a Monroe-Farrell *fn6 claim of pretrial ineffective assistance of counsel, alleged on direct appeal, is joined with a Strickland claim of ineffective assistance of counsel at trial, alleged on collateral attack under D.C. Code § 23-110, we conclude for several reasons that this court should rule on the Monroe-Farrell claim (direct appeal) before reaching the Strickland claim (collateral attack). Therefore, if there is a basis for a Monroe-Farrell reversal or remand, this court will not reach the Strickland claim. See Pierce v. United States, 402 A.2d 1237, 1238 n.2 (D.C. 1979). If this court remands under Monroe-Farrell, and the case comes back on appeal, the court will then dispose of the Monroe-Farrell issue, assisted by the trial court's findings, before reaching the Strickland claim (if necessary).

Any other approach allowing consideration of a Strickland issue before resolving a Monroe-Farrell issue could result, in some cases, in a Strickland affirmance on collateral attack mooting out the Monroe-Farrell inquiry on direct appeal. Although conceivably this court could review Strickland claims first, thereby accepting -- even encouraging -- the mooting of Monroe-Farrell claims if, as it happened, the defendant received ineffective assistance at trial, to do so would undermine our mandate to carefully and seriously ...


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