Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Steadman, Schwelb, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Bruce was indicted by a grand jury for assault on a police officer with a dangerous weapon (APO), *fn1 assault with a dangerous weapon (ADW), *fn2 and possession of a firearm during the commission of a crime of violence (PFCV). *fn3 He was originally alleged to have committed these offenses by shooting at Corporal Joe Bruce Walker of the Prince Georges County Police Department with a pistol. *fn4 The prosecution committed itself to this version of events in a sworn statement filed at presentment, in police testimony at the preliminary hearing, and to some extent in testimony before the grand jury.
Before trial, the FBI tested the pistol to determine if it had been fired and conducted nitric acid "swab" tests of Bruce's hands to determine the presence or absence of gunpowder residue. In addition, the police attempted to test-fire the pistol. These tests disclosed that the pistol was inoperable and had not been fired, and that Bruce had not fired the weapon. *fn5 Accordingly, the prosecution abandoned its shooting theory. Instead, the government claimed at trial that Bruce had assaulted Walker by pointing an inoperable pistol at him.
In spite of this change in the government's theory, testimony was introduced through prosecution witnesses, without effective objection by Bruce's attorney, to the effect that Bruce did fire at corporal Walker; one witness even stated that she saw the muzzle flash. Bruce's attorney failed to introduce scientific evidence to establish that Bruce had never fired the weapon. Bruce was ultimately acquitted of APO and PFCV, but the jury found him guilty of ADW.
Bruce filed a notice of appeal, and his present attorney was appointed to represent him on appeal. The new attorney then filed a collateral attack on Bruce's conviction pursuant to D.C. code § 23-110 (1989), alleging ineffective assistance of trial counsel. The trial Judge denied the motion without a hearing. She described the decision by Bruce's trial attorney not to impeach prosecution witnesses with their prior accounts as a "tactical" one.
Bruce now appeals both from his conviction and from the Judge's order denying his § 23-110 motion without a hearing. He makes numerous contentions, most of which we find to be unpersuasive. We hold, however, that Bruce was entitled to an evidentiary hearing with respect to the question whether his trial attorney was constitutionally ineffective in dealing with the changes in the government's version of events. Accordingly, we remand for a hearing on Bruce's § 23-110 motion.
During the early morning hours of July 21, 1989, Corporal Walker monitored a transmission over the Prince Georges County police radio describing a man with a gun. *fn6 Walker, who was in uniform, arrived in the area and observed a man who matched the broadcast description, and who was later identified as Bruce. Bruce began to run, and Corporal Walker drove his police car, in reverse, parallel to Bruce's escape route. According to Walker's trial testimony, Bruce pulled a handgun from his waist and pointed it at Walker. Walker ducked and fired two shots at Bruce. The bullets missed and Bruce made his escape. A K-9 officer arrived on the scene with his police dog, Prince 35. The dog soon located Bruce hiding in the bushes.
On July 21, 1989, in a sworn statement which the prosecutor presented to the court in order to establish probable cause to detain Bruce, *fn7 Detective Timothy A. Doughty, who had come to the crime scene and interviewed Corporal Walker, related that
witnesses stated that the suspect fired one shot at the officer and he fired two shots in return from his service weapon.
A hearing commissioner imposed a $50,000 surety bond.
On August 3, 1989, Detective Doughty testified at the preliminary hearing that he had interviewed Corporal Walker on the scene. Doughty related that Walker had observed a chromeplated pistol in the suspect's hand and that "the suspect fired one shot at the officer. The officer returned two shots from his service revolver." Bruce was later apprehended and "positively identified by the Prince Georges County officer as being the suspect who fired at him." According to Detective Doughty, the officer who recovered Bruce's pistol sniffed it and detected the smell of cordite. This indicated that the weapon had in fact been fired. Detective Doughty disclosed that swab tests had been administered to Bruce to determine whether he had fired the pistol, but that the results of these tests had not yet come in from the FBI laboratory. Viewing the strength of the case as "not the best," the Commissioner nevertheless found probable cause:
We've got a positive ID by someone who is fired at that this was the man that fired at him and that there was pursuit of this individual. We have testimony that somebody did smell cordite . . . .
Detective Doughty also testified before the grand jury. He stated that Bruce was "positively identified about 22 minutes after the offense by Corporal Walker as the individual who had fired the shots at him." When Doughty was asked whether it was "conclusively determined" that Bruce had shot at Walker, he responded as follows:
No, we have sort of conflicting statements from the witness. We have two witnesses who heard three shots, police officer who heard two shots. On the scene, Corporal Walker told me he was not fired at. On his police tape . . . apparently he had advised the dispatcher that he had been fired at. And then we have three other eye witnesses who say that the individual did fire one shot at the police cruiser.
Detective Doughty also told the grand jury that the pistol which Bruce had thrown to the ground had been test-fired, and that it proved to be inoperable because the firing pin and spring were missing. He explained that the weapon had been recovered in two pieces after Bruce disposed of it, and that "the recovering officer didn't notice or wasn't familiar enough with this type of weapon to realize that the firing pin was missing, and so he didn't make any effort to find it." Detective Doughty thus implied that although the weapon was inoperable after the police recovered it, it may previously have been capable of firing.
Detective Doughty acknowledged before the grand jury, under oath, that Corporal Walker had admitted on the scene that Bruce had not shot at him. Nevertheless, Doughty related unequivocally, both in his affidavit at presentment and in his testimony at the preliminary hearing, that Bruce had fired at Walker. Doughty did not disclose, either at presentment or at the preliminary hearing, Walker's earlier representation that Bruce did not fire at Walker.
Trial in this case was originally scheduled for December 14, 1989. On December 12, 1989, the prosecutor moved for a continuance because the FBI analysis of the pistol and of the acid swabs obtained from Bruce's hands had not yet been completed. Although Bruce, who had been unable to post bond, and who therefore remained incarcerated, apparently demurred, defense counsel agreed to the requested continuance, which the Judge granted "in the interest of the defense as well as the government."
By the time the case came to trial on March 2, 1990, the FBI analysis had been completed. The tests evidently revealed, as we have indicated, see note 5, (supra) , that the pistol had not been fired and that Bruce had not fired the weapon. The prosecutor reported to the Judge that "we're not alleging that the gun was fired at the officer." *fn8 She represented in her opening statement that Bruce had pointed the pistol at Corporal Walker, and that Walker "thought the defendant was going to fire right at his face." The prosecutor scrupulously adhered to this position in all of her statements throughout the trial. She also revealed to the jury in her opening statement that the pistol was not operable.
Not all of the testimony of the prosecution witnesses, however, conformed to the government's new theory. Corporal Walker testified that as he (Bruce) was running away, Bruce pointed his pistol at Walker. On cross-examination, Walker elaborated:
Q. All right. Did you think you were being shot at?
Q. And was your perception such that you made any sort of radio broadcast to the extent that a shot was fired at you?
A. I made a radio broadcast that shots were fired. I did not say who were they fired at. I said shots were fired, sir.
Q. Right. And did you at any time say that you ...