Before Rogers, Chief Judge, and Steadman and Schwelb, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Stanford N. Webster was convicted by a jury of unlawful distribution of cocaine, in violation of D.C. Code § 33-541 (a) (1988). With the assistance of a new attorney, he filed a motion for a new trial pursuant to D.C. Code § 23-110 (1989), alleging ineffective assistance of trial counsel. The trial Judge denied the motion without a hearing. In these consolidated appeals from his conviction and from the order denying his § 23-110 motion, he renews his claim of ineffective assistance. Assuming without deciding that his trial attorney's performance, primarily in attempting to present a misidentification defense, was constitutionally deficient -- the first prong of the now familiar test enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) -- Webster has failed to demonstrate that he was prejudiced as that term is used in Strickland's "second prong." Accordingly, we affirm.
Officer Michael Quander, a four-year veteran of the Metropolitan Police Department, testified at trial that on December 6, 1989, at about 1:00 a.m., he purchased a packet of what proved to be cocaine from two men, one of whom was later identified as Webster. According to Quander, Webster approached him at Tenth and I Streets, N.E., a corner which is located in a neighborhood known for drug sales. Quander asked Webster if he was "working." Apparently understanding Quander's inquiry to relate to drugs, Webster approached a second man, to whom we will refer as the "holder," *fn1 and spoke with him briefly. Officer Quander noticed that Webster had a foreign accent.
Quander testified that the holder than produced a pack of Kool cigarettes and extracted from it a safety pin with several ziplock bags containing an off-white substance. The holder then handed one of the bags to Webster, who took it to Officer Quander. Quander gave Webster a twenty-dollar bill, the serial number of which he had previously recorded. The entire transaction lasted approximately one minute. Officer Quander stated that he was no more than three feet from Webster while the purchase was being effected. He also asserted that his observation was aided by the presence in the area of high-intensity street lights.
Officer Quander left the scene and broadcast descriptions of the two suspects to the "arrest team." He described the man who first contacted him as being a black male, 5'7" tall, approximately 180 pounds, medium to dark complexion, with facial hair, a "Jherri-curl style haircut," *fn2 who was wearing a black leather jacket with fur around the collar and a pair of black pants with burgundy and gray stripes. Officer Quander also testified that it was his practice to focus on a seller's facial features.
Initially, when the members of the arrest team arrived on the scene, they were unable to locate either suspect. Fifteen minutes after the broadcast, however, Officer Kirk Delpo observed a man matching the broadcast description of the "juggler" at the corner of Tenth and K Streets, a block north of the site of the buy. Officer Delpo detained the man and informed Officer Quander by radio that he had done so. Officer Quander drove by at a slow rate of speed in an unmarked police vehicle and positively identified the detained man as the person who had led him to the holder and who had handed him (Quander) the cocaine. The officers then arrested the suspect, who turned out to be Stanford Webster. Webster had no drugs or money in his possession. The holder in the alleged transaction was never apprehended.
Testifying on his own behalf, Webster denied that he had participated in a drug sale. He stated that he had spent the evening at a rooming house at 912 Ninth Street, N.E., the home of the mother of one of his friends. *fn3 Webster testified that he left the rooming house shortly after midnight *fn4 to retrieve a ring which he had borrowed from Mary Young, one of the women who was in the group at the boarding house. Ms. Young apparently wanted the ring returned to her because a male friend had noticed that she was not wearing it. Webster walked first to his own house at 1225 Linden Street, N.E. (where, he said, the ring was located, but where a fuse had blown, so that he was unable to look for the ring) and then to 623 Twelfth Street, N.E., the residence of a former girlfriend who, however, was not at home. *fn5 Webster then walked back towards the rooming house but, on the basis of a professed "religious belief" that he should not retrace his steps, *fn6 he proceeded north on Tenth Street to K Street, rather than turning west on I Street, the latter being the shortest route to the boarding house on what, as Webster conceded, was a cold December night.
In the area of Tenth and K Streets, Webster observed what he recognized as an unmarked police car. Nevertheless, he "decided that I'm still going to walk. Why be nervous over something I had not done?" Shortly thereafter, he was arrested by Officer Delpo.
Webster acknowledged that, at the time of his arrest, he was wearing a black leather coat with fur around the collar and that he matched the broadcast description in a number of respects. He also testified that he was from Panama and that he spoke with an accent. He claimed, however, that twenty-five percent of the residents of his immediate neighborhood speak with an accent "a little" similar to his own.
Several residents of the rooming house confirmed that Webster was at that location until some time after midnight. They also testified that he had a good reputation in the community for telling the truth. One of the witnesses, Mary Young, confirmed that she had lent Webster a ring, but disclaimed any sense of urgency about its return; Webster, on the other hand, testified that he left because Ms. Young needed the ring that night. No witness provided a alibi for Webster for 1:00 a.m., the approximate time of the sale.
Following closing argument and the court's instructions, the jury returned a verdict of guilty as charged. Represented by new counsel, Webster collaterally attacked his conviction pursuant to D.C. Code § 23-110 (1989). On January 13, 1992, the trial Judge denied the motion without a hearing "for the reasons stated in the government's opposition." Webster's timely appeals from his conviction and from the order denying his § 23-110 motion were consolidated by this court.
THE CONTENTIONS OF THE PARTIES
Webster's principal contention in his § 23-110 motion and on appeal is that his trial counsel failed to present any coherent misidentification defense. He claims that his attorney did not outline or identify such a defense in his opening statement, in his cross-examination of Officer Quander, or in his closing argument. He points out that his counsel did not request a jury instruction on misidentification, nor did he attempt to explain to the jury the infirmities of eyewitness identification, either generally or in the circumstances of the present case, in which, according to Webster, Quander's opportunity to view not one suspect but two was very brief, and the situation, like any night-time undercover buy, was extremely stressful. Webster also complains that his trial counsel failed to focus on the prosecution's obligation to prove Webster's guilt beyond a reasonable doubt. *fn7 At the very least, says Webster, the trial Judge should have held a hearing to determine whether counsel's allegedly deficient actions and omissions were the result of inexperience or incompetence, rather than tactical decisions gone awry.
The government responds that trial counsel's performance was not deficient and that, in any event, Webster has not shown it to be reasonably probable that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694. According to the government, portions of counsel's opening statement, *fn8 cross-examination, *fn9 and closing argument *fn10 demonstrate that he did articulate a defense of innocent presence and misidentification, albeit somewhat obliquely. With respect to counsel's failure to request an identification instruction, the government argues that if the applicable "redbook" instruction had been given, the jury's attention would have been directed to a number of issues, most of which would have redounded significantly to the advantage of the prosecution. *fn11 Finally, the government argues that the Judge did not abuse his discretion, see Sykes v. United States, 585 A.2d 1335, 1340 (D.C. 1991), in declining to hold a hearing, because it was evident from the trial record that ...