Appeals from the Superior Court of the District of Columbia; (Hon. Donald S. Smith, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Terry, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant Gray was convicted in 1984 of first-degree murder while armed *fn1 and noted an appeal from his conviction (No. 84-CF-593). In 1988, while that appeal was pending, he filed a motion under D.C. Code § 23-110 (1989) to vacate his sentence and grant a new trial, asserting that his original trial counsel had been ineffective in failing to investigate the statements of certain potential witnesses and to present certain testimony. The trial court denied the motion without a hearing. Gray's appeal from that denial (No. 90-CO-1409) was consolidated with the appeal from the conviction. We hold that the claim of ineffective assistance was sufficient to require a hearing on the § 23-110 motion; hence we remand this case to the trial court with directions to conduct one. *fn2
On October 16, 1982, appellant Gray met two friends, Tony Farrar and Anthony Chandler, at a 7-11 convenience store in Northeast Washington. The three men made plans to commit a robbery and agreed upon the role that each would play in the crime. Farrar agreed to serve as the lookout for the robbery.
Later that day, at approximately 3:00 p.m., Ira Ellis stopped for a moment in front of his apartment building at 4611 Quarles Street, N.E., to talk with his neighbor, David Dixon. After a brief conversation, Ellis went inside. About a minute later Dixon heard gunfire inside the building and then saw two men running away. Immediately thereafter Ellis was found in the hallway of the apartment building, dying from a fatal gunshot wound.
At trial the government presented three principal witnesses. Michelle Bates testified that at about 3:00 p.m. she was with her friend Butch when she saw Gray, Farrar, and Chandler walking through an alley toward Quarles Street. Minutes later she saw Farrar again, standing in front of 4611 Quarles Street. Shortly thereafter, Bates said, she heard a loud noise "like a gunshot," and she and Butch immediately began to run away. As she turned the corner, someone ran past her, but she did not see who it was because she "wasn't really paying attention."
Nathaniel Broadie, who had seen Gray with a pistol earlier that day, *fn3 testified that at about 3:00 p.m. he saw Gray remove his beige jacket, wrap a pistol in it, and drop both items in a trash can. Underneath the beige jacket, Broadie said, Gray was wearing a burgundy coat which Broadie had previously seen on Farrar. After discarding the pistol and jacket, Gray sat beside Broadie and another man named Luke while the police and ambulances arrived. *fn4
Farrar also testified at trial, after having pleaded guilty to a lesser charge arising from his involvement in these events. Be admitted that he, Gray, and Chandler had met on October 16, but he said he had not participated in, nor was aware of, any criminal activity afoot at that time. After Farrar left the witness stand, the court noted that Farrar had been an "evasive witness" and that his testimony differed from previous statements.
Defense counsel did not call any witnesses or offer any other evidence. Be limited his defense to cross-examination of the government's witnesses.
In assessing claims of ineffective assistance of counsel, we have the benefit of clear guidance from the Supreme Court:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). *fn5 In making the two-part showing required by Strickland, the movant in a § 23-110 proceeding who claims ineffective assistance must demonstrate, first, that counsel's performance at trial was deficient. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. Second, the movant must establish that counsel's deficient performance prejudiced the defense; i.e., the defendant must show that there is ...