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11/29/93 THEODORE JUNIOR v. UNITED STATES

November 29, 1993

THEODORE JUNIOR, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Shellie F. Bowers, Trial Judge)

Before Rogers, Chief Justice, and Ferren, Associate Judge, and Belson, Senior Judge. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : In these consolidated appeals, appellant Theodore Junior appeals from his conviction of distribution of cocaine, D.C. Code § 33-541 (a)(1) (Repl. 1989), and the denial of his motion to vacate his conviction and sentence, pursuant to D.C. Code § 23-110. In both appeals he contends that he was denied the effective assistance of trial counsel, and that the trial Judge erred in denying his motion without a hearing because, he maintains, trial counsel was ineffective in failing to file a motion to suppress identification testimony and physical evidence obtained in a warrantless entry in violation of the Fourth Amendment. The government responds that the trial Judge properly denied appellant's motion to vacate the judgment as a successive motion, and, alternatively, that if there was error, a remand for an evidentiary hearing is required.

We hold that under the plain language of § 23-110 (e), appellant's § 23-110 motion was not a successive motion. We further hold, however, that the trial Judge erred in denying appellant's § 23-110 motion without a hearing on the ground that appellant lacked standing to raise Fourth Amendment claims because he was not an overnight guest at the home where he was arrested. Accordingly, we reverse the summary denial of the § 23-110 motion, and we remand the case for an evidentiary hearing on the motion; the direct appeal is stayed.

I.

Trial Evidence. The government's evidence at trial showed that an undercover drug buy took place around 7:00 p.m. on April 7, 1987, at the Turleys' home at 3211 15th Place, S.E., between undercover police officer Renee Davis and two persons whom she identified at a show-up as appellant Theodore Junior and a Ms. Simpson. According to Officer Davis, Ms. Simpson had asked Officer Davis if she wished to purchase drugs. When Officer Davis said she did, Ms. Simpson led her to a house at 3211 15th Place, S.E., where appellant was standing in front of the open door. According to Officer Davis, appellant asked Ms. Simpson "Do you know her?," and Ms. Simpson assured appellant that Officer Davis was all right, that she had been there before. Upon learning the cost, Officer Davis gave fifty dollars in pre-recorded money to Ms. Simpson. *fn1 Ms. Simpson then stepped inside the doorway with appellant and they "exchanged words." Ms. Simpson turned her back to Officer Davis and gave some or all of the money to appellant. Appellant then went upstairs and a few moments later returned with a small plastic bag containing a white powder, which he gave to Ms. Simpson who, in turn, gave it to Officer Davis. *fn2 Officer Davis left the area and broadcast a lookout for appellant; Officer Davis' partner saw Ms. Simpson as Officer Davis was returning to the car, and he broadcast a description.

Officer Buckley responded to the broadcast directing the police to 3211 15th Place, S.E., knocked on the front door, which was open about six inches, and announced, "police." *fn3 He looked up the stairway and saw a woman fitting Ms. Simpson's broadcast description; he went up the stairs and took her to Officer Buss, who was standing in the first floor living room. Officer Buckley then immediately went upstairs and saw a man fitting appellant's description, stopped him, advised him why he was being stopped, and walked him downstairs to Officer Buss. Later, out on the sidewalk, the police advised appellant and Ms. Simpson that they had been positively identified -- by Officer Davis who had driven by -- and both were searched by the police. The police found in appellant's left front pants pocket forty dollars in pre-recorded funds (two ten dollar bills and one twenty) and an additional $280.

Appellant's defense was that he had loaned money to Ms. Simpson, and that on the night in question she had given him sixty dollars to keep him from disposing of her ring, which appellant was holding as collateral for the loan. He denied ever giving Ms. Simpson drugs. He explained that he had been the legal guardian of Tommy Turley, the retarded son of the owner of the house, for three years, and that he came daily to the Turley home to feed the son. He was at the Turley house that day in response to Tommy's telephone call. According to appellant, he had become thirsty while preparing Tommy's food and, around 6:30 p.m., he had gone to get ice from a house three doors down. Upon returning he had seen Officer Davis looking into the Turley house where there were a lot of people. *fn4 Ms. Simpson, who lived across the street from the Turley house, called out to appellant that she wanted to see him, and he told her to come to the Turley house. Appellant told the, elder Turley, who was sitting outside his house, that a policewoman was looking inside his house, and the elder Turley responded that nothing was happening inside. Appellant then went inside the Turley house. Five or ten minutes later Ms. Simpson came in, and she followed appellant upstairs. She left when appellant refused to take her personal check to hold her ring, but she returned within a minute or two and gave him sixty dollars (two twenties and two tens). *fn5 When appellant let Ms. Simpson out, he saw Officer Davis outside. According to appellant, Ms. Simpson returned to the Turley house a third time that evening, and about ten minutes after she had returned, trying once again to get appellant to cash a check for her, the police entered the house. At that point, appellant was standing in the doorway of an upstairs bedroom. Appellant claimed that the front door had been closed. *fn6

James Turley, Tommy's father, corroborated much of appellant's testimony. *fn7 Mr. Turley testified that on the day in question appellant had been at the house to fix food for Tommy. He explained that appellant, who did not live at the Turley house, came to visit the elder Turley as well as to take care of his son. He also explained that Ms. Simpson was in and out of the house that day, and that there were also other friends of the elder Turley in the house that day. Tommy's sister, Byrnie Turley, also provided corroborating testimony, confirming that appellant was Tommy's guardian and that Ms. Simpson had been in and out of the house that day.

Appellant's wife testified that appellant had given her a birthstone ring just before the summer of 1987, and that Ms. Simpson claimed it was hers. Appellant had told Ms. Simpson that she could have the ring if she paid for it.

Presentence motion for a new trial. The jury returned a guilty verdict on June 20, 1988. On July 9, 1988, appellant wrote the trial Judge a letter complaining about his trial counsel's performance and asking the Judge to take this into account at sentencing or to grant a new trial. *fn8 Before sentencing, newly appointed counsel for appellant filed, on December 1, 1988, a motion for a new trial. In the motion, appellant contended that his trial counsel had been ineffective because he had failed to investigate, locate, interview, prepare and subpoena either government or defense alibi witnesses, and because his performance at trial, particularly his opening statement, cross-examination and closing statement, had been deficient.

At the hearing on the presentence motion, however, trial counsel testified, on cross-examination, that he had not filed a motion to suppress the money found on appellant because "I didn't think the motion to suppress would lie and I don't file motions to suppress as a discovery method." When asked why he did not think the motion would "lie," trial counsel responded, "I didn't think it would lie, that's my professional opinion." Pressed for a further explanation, trial counsel stated, "Given the scenario that had been laid out to me by the prosecutor and the police, by the police files, [and based on what his client had told him had happened], it appeared that the search was legal." Although admitting that the defense at trial was misidentification, trial counsel nevertheless testified that he did not believe that there was a basis for thinking that a motion to suppress would have been successful in view of his understanding of the conduct of the police.

During argument on the motion, appellant's new counsel argued that trial counsel was deficient for failing to file a motion to suppress the identification testimony and the forty dollars in pre-recorded funds found on appellant at the time of his arrest. New counsel referred to the fact that appellant had given trial counsel information which showed that there was a basis for the motion, and that trial counsel had failed to give any legal reasons for not filing it. When the trial Judge inquired about the theory underlying a suppression motion, new counsel responded only that he was not claiming that the motion would have been granted but that it should have been filed. The trial Judge observed that if an attorney thinks a motion has little chance of being granted, "if it bordered on the frivolous, maybe then he doesn't have an obligation to file it." Observing that trial counsel was confronted with a denial by his client of involvement in an alleged drug sale to an undercover officer, the trial Judge suggested that in order to pursue a suppression motion, trial counsel would have to risk having appellant's suppression testimony used as impeachment against him at trial. *fn9 When new counsel protested that he thought trial counsel had an obligation to file a suppression motion when his client denied involvement and saw the woman in the house where appellant was arrested, the Judge responded that trial counsel had to make some tactical decisions.

Thereafter, the trial Judge denied the presentence motion for a new trial without specifically mentioning trial counsel's failure to file a motion to suppress. *fn10 The Judge sentenced appellant on December 8, 1988, ...


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