Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Status Judge), (Hon. H. Carl Moultrie I, Trial Judge), (Hon. Robert M. Scott, Motions Judge)
Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge : These four consolidated appeals arise from the murder and robbery of Arthur Gluckman on January 6, 1984. Appellant was convicted by a jury of first-degree premeditated murder while armed, D.C. Code §§ 22-2402, -3202 (Repl. 1989), kidnapping, id. § 22-2101, robbery, id. § 22-2901, unauthorized use of a vehicle, id. § 22-3815, second-degree burglary, id. § 22-1801(b), and second-degree theft, id. § 22-3811, -3812(b). He appeals from his convictions on the grounds that there was insufficient evidence and improper prosecutorial closing argument; he also contends that some of his convictions merge. In addition, he appeals from the denial of his motion for reduction of sentence on the grounds that the motions Judge abused his discretion. We find these contentions unpersuasive.
Appellant filed two post-trial motions: a motion for dismissal of the indictment or for a new trial under Super. Ct. Crim. R. 33, on the grounds of newly discovered evidence and Brady *fn1 violations, and a supplementary motion to vacate his convictions and for a new trial, pursuant to D.C. Code § 23-110 (Repl. 1989), because of the trial court's failure to hold a Monroe-Farrell *fn2 hearing, ineffective assistance of counsel at trial and sentencing, violations of the Jencks Act, *fn3 additional Brady violations, and newly discovered evidence. Both motions were denied. Among appellant's contentions on appeal are that he should be granted a new trial because of the failure to hold hearings on his ineffective assistance of counsel claims. We agree that hearings should have been held on appellant's Sixth Amendment claims, but we find no merit to his other contentions.
Accordingly, we remand the case to the trial court to conduct a Monroe-Farrell hearing to determine whether, viewed pretrial, appellant was denied the effective assistance of counsel. If the court so concludes, then the trial court shall vacate appellant's convictions and grant a new trial. If the trial court concludes that appellant was not denied his pretrial right to the effective assistance of counsel, the trial court shall make appropriate findings of fact sufficient for appellate review, in the event appellant should appeal. Thereafter, the court shall hold a hearing on appellant's post-conviction claim that he was denied the effective assistance of counsel and make appropriate findings of fact, unless the court concludes appellant's Sixth Amendment right to counsel was violated and a new trial is required.
Appellant Leon K. Matthews, then aged fifteen, and two adults, Gary Hill and Dale Givens, were arrested for the murder of Arthur Gluckman, the unauthorized use of his automobile, and the burglary of his home. Ten months before appellant's trial, Hill and Givens entered pre-indictment pleas and were sentenced. *fn4 Hill, a convicted felon, was the government's key witness at the trial; Dale Givens did not testify.
According to Hill's trial testimony, he and Givens hit Arthur Gluckman over the head on January 6, 1984, while he was getting into his car. They forced Mr. Gluckman into the front seat and robbed him. Givens bound and gagged him with rope and a handkerchief and pushed him into the back seat. When Mr. Gluckman protested, Givens hit him over the head several times with a flashlight, causing Mr. Gluckman to lose consciousness for five to ten minutes. Hill and Givens then drove around the city, stopping briefly at Givens' sister's house (Irene Givens), and they later got high on PCP. When Givens *fn5 asked Hill if he wanted to burglarize Mr. Gluckman's home, and Hill said no, Givens said he was going to get appellant. Givens then drove the car back towards his sister's home, looking for appellant, and called to appellant when he saw appellant walking on the street.
When appellant walked over to the car, according to Hill, appellant looked down at the bound and gagged Mr. Gluckman and said "What the F was this?" Hill testified that Givens said not to worry and asked appellant if he wanted to rob the Gluckman home with him. Appellant climbed into the back seat of the car and put his feet on top of Mr. Gluckman, who was laid out in the well of the back seat. Hill and Givens, who were getting high on PCP and marijuana, began to drink liquor; appellant did not drink alcohol, although he did use drugs.
Hill testified that at some point Givens decided to kill Mr. Gluckman. According to Hill, Givens wrapped a second rope around Mr. Gluckman's neck and began to choke him. Hill testified that appellant kicked Mr. Gluckman while he was being strangled, and only stopped "stomping on" him when Givens tied the rope to the front seat headrest, pulled up on the headrest twice, and killed Mr. Gluckman. *fn6
The three men then drove Mr. Gluckman's car to his apartment. Hill testified that Givens and appellant used the keys taken from Mr. Gluckman's pockets to enter the apartment while he (Hill) acted as a lookout. Givens and appellant reemerged about half an hour later with three plastic garbage bags and a brown leather bag; appellant was carrying two of the plastic bags. The three men took the items to Irene Givens' house and divided them up. According to Hill, appellant took a watch and a "whole bunch of change," and then left. *fn7
The government also presented evidence that appellant talked about the murder with three people. Bruce Chase, age 21 and a friend of all three defendants, testified that in January, 1984, while at Givens' house, appellant showed him Mr. Gluckman's driver's license and told him "that was the man they robbed." According to Chase, appellant said, "he dead, I know he dead." Givens told appellant to be quiet. Sylvester Givens, age 23 and Dale Givens' brother, testified that on January 8, 1984, while at his sister Irene Givens' apartment, appellant told "how they killed the man," without saying whether or not he was in the car at the time, but admitting he was in a parking lot where it happened and at some point had been in the back of the car. Sylvester Givens admitted that he had cashed the pennies that were in the jar taken from Mr. Gluckman's home, and after having his memory refreshed with his grand jury testimony, Sylvester recalled that he had told the grand jury that appellant had said that the man had said, "don't kill him, you know, let him go, he won't tell anybody." Givens' sister Irene Givens, age 25, testified that appellant had told her that he had driven around with Dale Givens and Hill and was in the back seat and had seen something in the back seat, but he did not say what it was.
Appellant did not present any witnesses. The jury found appellant guilty as charged, except that appellant was convicted of second-degree theft instead of first-degree theft. Following trial counsel's statement on appellant's behalf, the trial Judge sentenced appellant as an adult to a total of 30 years and four months to life. *fn8
Following the denial of a motion for a reduction of sentence on March 18, 1987, by Judge Scott, who was substituted for the deceased trial Judge, appellant filed, on September 18, 1987, a motion to dismiss the indictment or for a new trial on the grounds of newly discovered evidence and Brady violations by the prosecutor relating to Hill. *fn9 Appellant also filed, on April 18, 1988, a supplementary motion to vacate his convictions and for a new trial, pursuant to D.C. Code § 23-110, on the grounds of the failure of the trial court to hold a Monroe-Farrell hearing, ineffective assistance of trial counsel, violations of the Jencks Act, additional Brady violations and newly discovered evidence. *fn10 In the motion appellant identified as "the most significant of [trial counsel's] many failures" the fact that "there is no indication that [trial counsel] interviewed any government witnesses prior to trial, including the two codefendants, who were clearly known to [trial counsel], and who no longer retained Fifth Amendment rights against self-incrimination at the time of [appellant's] trial." He cited Johnson v. United States, 413 A.2d 499, 503 (D.C. 1980), and other cases, including Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for the proposition that defense counsel has a "duty to conduct an independent investigation of the facts and circumstances" of the case. Nevertheless, on January 5, 1990, the motions Judge denied most of appellant's claims without a hearing, including his claim of ineffective assistance of counsel. The motions Judge did hold an evidentiary hearing with respect to Hill's recantation, Givens' statement, and alleged Brady violations. Appellant testified at the hearing and also presented testimony by Givens and Hill.
At the motions hearing, Givens testified that appellant had not strangled Mr. Gluckman, and that appellant did not enter the car until after Mr. Gluckman was dead. Givens also claimed that before appellant's trial he had told Detective Kilcullen that appellant had not been involved with the killing, although he had been a lookout for the burglary. *fn11 Hill recanted his trial testimony and testified that appellant had not been present during the killing, did not kick Mr. Gluckman, did not participate in the burglary, and did not indicate whether he noticed Mr. Gluckman when he got into the back seat of the car. *fn12 Appellant testified that he was not present at the killing, but did act as a lookout for the burglary, and that he had told his trial counsel many times that he had not seen Hill or Givens strangle Mr. Gluckman. *fn13
The motions Judge denied the remainder of the post-trial motions on October 10, 1991. He found Hills recantation and testimony "highly incredible" and credited the government's witnesses' testimony. *fn14 He also ruled that Givens' statement was not newly discovered since Givens had told appellant prior to his trial that Givens knew appellant was innocent; alternatively, treating Givens' statement as newly discovered evidence, the Judge found Givens' statement and hearing testimony "untrue and unreliable." The Judge also found no Brady violations and rejected appellant's contention that his videotaped statement was involuntary, finding appellant "wholly lacking in credibility and his testimony rife with misrepresentations."
In the motion to vacate his convictions and for a new trial, appellant maintained that the trial court, specifically, the status Judge, erred in not conducting a Monroe-Farrell inquiry. At a pre-indictment plea hearing on July 5, 1984, before the status Judge, appellant indicated that he wished to have another attorney: *fn15
DEFENSE COUNSEL: He is requesting another attorney.
THE COURT: What is he talking about?
: I don't like him. I don't want him to be my ...