Appeals from the Superior Court of the District of Columbia; (Hon. Bruce D. Beaudin, Trial Judge)
Before Ferren, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant contests the denial without a hearing of his motion under D.C. Code § 23-110 (1989) alleging ineffective assistance of his trial counsel. We conclude that affidavits supporting the motion signed by a co-defendant who claimed readiness to exculpate appellant at trial -- affidavits given to defense counsel before trial -- raised issues of fact that require a hearing on appellant's ineffective assistance claim. We therefore reverse the denial of the motion and remand for a hearing.
Appellant and co-defendant Anthony Straite were jointly charged with one count of distribution of cocaine (D.C. Code § 33-541 (a)(1) (1988)). Straite pleaded guilty to the charged count on October 23, 1990. Appellant proceeded to trial before a jury on February 13, 1991, and was found guilty as charged. The government's evidence revealed that appellant and Straite had been standing together in a block of Shepard Street, N.W., on October 11, 1989, when they were approached by undercover police officer Walton, who told them he wanted a "twenty" worth of cocaine. Walton gave appellant twenty dollars in prerecorded police funds, and in return Straite gave Walton a green ziplock bag containing cocaine. Walton left the scene and radioed descriptions of the defendants, who had separated, to an arrest team. Both defendants were detained and brought to a location where Walton identified them as the sellers. Although Straite had twenty-one dollars on his person when searched, the pre-recorded money was not recovered.
Approximately six months after he was sentenced, *fn1 appellant filed a motion to vacate sentence pursuant to D.C. Code § 23-110, alleging that his trial attorney rendered ineffective assistance of counsel in two respects. First, appellant alleged by his own affidavit that, while appellant's case was pending, co-defendant Straite had given appellant's attorney affidavits stating that Straite was responsible for the drug sale in question, that appellant was not involved in the sale, and that Straite was willing to testify in appellant's behalf. Appellant asserted that, even though Straite had pleaded guilty and been sentenced before appellant's trial, appellant's attorney had "never contacted him again, did not subpoena him for trial, and did not call him as a witness on my behalf."
Appellant also alleged that his attorney had failed to conduct an investigation in support of appellant's testimony at trial. Specifically, appellant had testified that just before he was detained by the arrest team in this case, another police officer had stopped him and asked if he was carrying a weapon or drug paraphernalia, then (after checking appellant's driver's license) was about to let him go when the arresting officer in this case came by and ordered appellant held for an identification by Officer Walton. Appellant alleged in his motion that his trial counsel had "failed to take sufficient steps to locate the officer with whom I was speaking just prior to the arrest, who would have corroborated that I was not involved in the drug transaction." *fn2
In its written response to appellant's motion, the government acknowledged that sometime before appellant's trial, he had given his attorney two affidavits dated March 13 and March 26, 1990, bearing "what purported to be Anthony Straite's signature," and that these affidavits, while "somewhat cryptic, . . . might conceivably be construed as exonerating the defendant of any involvement in the charged cocaine distribution." The government attached these affidavits to its opposition. Also accompanying the opposition was a signed and sworn affidavit by appellant's trial counsel, in which he conceded that he had received from appellant the two affidavits "purporting to bear [Straite's] signature," but explained at length why he had attached little significance to them, had not found it appropriate to interview Straite, and had "declined to call as a witness at Mr. Hollis' trial." Among these reasons was the fact that, before appellant gave counsel Straite's affidavits, counsel had learned from Straite's attorney that appellant "had threatened to kill Mr. Straite if he did not sign some affidavits." *fn3 Counsel further explained in the affidavit that, although appellant had given him a general description before trial of the police officer who had stopped him "and run a computer check on him just prior to his arrest," a private investigator employed by counsel "was unable to locate any officer who fit the description given by Mr. Hollis and was in the pertinent area at the time of Mr. Hollis' arrest."
The trial Judge denied the motion to vacate sentence without a hearing. In doing so the Judge applied the twofold standard for measuring a claim of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). *fn4 First, the Judge concluded on the basis of the "uncontradicted affidavit filed by [appellant's] trial counsel" that counsel's decision not to call Straite as a witness had been "a reasonable tactical judgment" evincing no constitutional deficiency under Strickland's first prong. In addition, appellant had "failed to establish the required prejudice" under Srickland's second prong, because the Judge was "aware of no credible evidence proffered by claiming that he will exonerate ." The Judge did not dispute that Straite's affidavits on their face appeared to exonerate appellant of involvement in the sale. *fn5 Instead, the Judge pointed to trial counsel's affidavit stating that Straite, in his guilty plea proceeding, had agreed with the government's proffer of facts implicating appellant; and the Judge also agreed with counsel's assertion that testimony by Straite would have opened up "a potential Pandora's Box of questioning" by the prosecutor about the death threats mentioned in counsel's affidavit.
Finally, the Judge found -- again on the strength of trial counsel's affidavit -- that counsel had made reasonable efforts to locate the police officer in question and that, in any case, appellant had "not attempted to state beyond mere speculation that this officer [if located] would exonerate him."
D.C. Code § 23-110 (c) provides that "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief," the Judge must grant a "prompt hearing thereon." We have said more than once that, where the court is faced with a claim of ineffective assistance of counsel, the quoted language creates a presumption that a hearing should be held, Bruce v. United States, 617 A.2d 986, 995 (D.C. 1992); Sykes v. United States, 585 A.2d 1335, 1339 (D.C. 1991), especially where the allegations of ineffectiveness relate to facts outside the trial record. Id. At the same time, we recognize the superior vantage point of the trial Judge from which "to determine whether there is any appreciable possibility that a hearing could establish either constitutionally defective representation or prejudice to the defendant in the Strickland sense." Id. at 1340.
In this case, the trial Judge erred as a matter of law in concluding that there was no "appreciable possibility" that a hearing could establish a Sixth Amendment violation. In so holding, we do not refer to appellant's claim that trial counsel failed to make reasonable efforts to locate the police officer who, according to appellant, had stopped him for unrelated reasons shortly before his arrest. Even if counsel had done nothing to attempt to corroborate this testimony, appellant offered no reason in his motion -- and provides none on appeal -- why testimony by that officer (assuming he had been located) would have created "a reasonable probability that . . . the result of the would have been different." Strickland, 466 U.S. at 694. Appellant asserts in his brief (echoing his contention below) merely that the "officer would have been able to provide testimony which would have corroborated [appellant's] version of events and undercut the testimony of the government's primary witness, Officer Walton." A vague and conclusory allegation of prejudice such as this is insufficient to require a hearing under § 23-110. Wright v. United States, 608 A.2d 763, 766 (D.C. 1992) (citing cases).
Quite another matter, however, is appellant's claim that counsel failed adequately to investigate co-defendant Straite's willingness to exonerate appellant. Appellant's affidavit, which in turn was supported by Straite's affidavits expressing readiness to testify and exculpate appellant, created significant issues as to whether appellant's trial counsel had reasonably investigated potential exculpatory testimony. Counsel's responsive affidavit explained why he had not interviewed Straite and had concluded that a decision to call Straite to the stand would be both fruitless and potentially hazardous to appellant. However, we have previously made clear that competing affidavits of this kind are not a permissible basis for rejecting a claim of ineffective assistance without a hearing. In Johnson v. United States, 385 A.2d 742 (D.C. 1978), the defendant made several claims of ineffective assistance of counsel supported by affidavits; the government replied with affidavits of its own. We held that a hearing was necessary on the defendant's claims, and expressly refused to "consider the government's affidavits which, in many respects, contradicted appellant's assertions of ineffectiveness." Id. at 744. Similarly, in Samuels v. United States, 435 A.2d 392, 395 (D.C. 1981) (per curiam), where the dispute was whether the ...