Appeals from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)
Before Rogers, Chief Judge, Schwelb, Associate Judge, and Kern, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Senior Judge Kern.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge:
Willie C. (Stink) Byrd was found guilty by a jury of possession of PCP and marijuana with the intent to distribute each of these controlled substances. D.C. Code § 33-541 (a)(1) (1989). Byrd filed a motion for a new trial pursuant to D.C. Code § 23-110 (1988), arguing that his trial counsel had been constitutionally ineffective. Byrd's motion was based primarily on his attorney's failure to call two exculpatory witnesses (who had testified favorably to Byrd at the preliminary hearing) and to interview several others. After a hearing at which the essential facts were stipulated, the trial Judge denied the motion, concluding that trial counsel's performance "fell below the standard of effectiveness," but that Byrd had failed to show prejudice. See Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052,80 L.Ed.2d 674 (1984).
Byrd has appealed separately from his conviction, No. 89-CF-159, and from the denial of his motion for a new trial, No. 90-CO-772. The two appeals have been consolidated. We are unpersuaded by Byrd's contention on his direct appeal that an evidentiary ruling by the Judge constituted reversible error. See note 4, (infra). We find merit, however, in Byrd's claim that he was denied the effective assistance of counsel. Concluding that Byrd has made a sufficient showing both of deficient performance and of prejudice, we vacate his convictions and order a new trial.
This is another "drop-see" case in which drugs worth a great deal of money were left on a street in a "high crime" and "high drug" area of Washington, D.C. The prosecution maintained that Byrd possessed the drugs in order to sell them. The defense claimed that Byrd had nothing to do with the contraband.
The principal government witness, Investigator Edward Howard of the Metropolitan Police Department, testified at trial that on August 8, 1987, he was operating an unmarked police car in the 5700 block of Ames Street in northeast Washington, D.C. He saw a man, later identified as appellant Byrd, come out of an alley which the police had under observation. According to Investigator Howard, Byrd, with whom Howard was not previously acquainted, recognized the unmarked car as a police vehicle, *fn1 immediately threw down a brown paper bag, and walked speedily away into a second alley. Investigator Howard recovered the brown bag, which was found to contain thirty-three packets of PCP mixed with marijuana. Byrd was promptly apprehended by other officers, one of whom testified that Byrd was carrying $304.00 in currency on his person. *fn2
Byrd's defense consisted almost entirely of his own testimony. *fn3 He denied having possessed any drugs or having carried or discarded a brown bag. He stated that he did not recognize the unmarked police car and that he had not fled to avoid the police. He insisted, on the contrary, that he had run because he wanted to reach an ice cream truck at the other end of the alley before its imminent departure. Byrd was impeached with convictions of armed robbery, assault with a dangerous weapon, unlawful possession of marijuana, and shoplifting. His counsel called no exculpatory witnesses. The jury convicted Byrd of both charges, and he appealed his convictions to this court. *fn4
THE POST-CONVICTION HEARING
In his post-conviction motion for a new trial pursuant to D.C. Code § 23-110 (1988), Byrd claimed that his trial counsel had been ineffective in that he failed to offer as defense witnesses Nathaniel Kirk and Kenneth Rogers, who had testified at the preliminary hearing that Byrd had not committed the offense. Byrd also alleged that defense counsel failed even to interview two other potential witnesses, Deirdre Johnson and John Deadwyler, whose written statements were attached to the motion.
At the hearing on the motion, Byrd had not been brought in from Lorton, but his counsel waived his presence. The parties also learned that Byrd's trial counsel, who was to have been called as a witness by the prosecution, had retired from the practice of law, and was unable to testify because he was living abroad. The hearing was further simplified when the parties stipulated that for the purposes of the hearing, the court could treat the testimony of Kirk and Rogers at the preliminary hearing as the testimony which they would have given at trial. *fn5 The parties also stipulated that Ms. Johnson and Deadwyler would have testified in conformity with their written statements.
At the preliminary hearing, both Kirk and Rogers had testified that they were sitting on Ms. Johnson's porch and had witnessed the events which preceded Byrd's arrest from a distance which Kirk estimated as approximately thirty feet. Kirk, who described Byrd as a friend but not a close friend, stated that he recognized the "jumpout squad" because he had seen the officers' unmarked police car before. He testified, in pertinent part, as follows:
Q. Sir, what was Mr. Byrd doing other than walking when you first saw him this second time?
A. Wasn't doing anything but walking, just walking.
Q. Mr. Byrd was in front during the whole time you saw him or just part of the time?
A. The whole time I saw him.
Q. Okay. Was Mr. Byrd carrying anything?
Q. Did Mr. Byrd leave with anything?
Q. The first time you saw Mr. Byrd that day was he ...