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December 29, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)

Before Schwelb and Wagner, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Following a jury trial, appellant, Daniel W. Kinard, was found guilty of first-degree felony murder while armed (D.C. Code §§ 2401-3202 (1993 Supp.)), second-degree murder while armed (D.C. Code §§ 22-2401, -3202 (1993 Supp.)), *fn1 robbery while armed (D.C. Code §§ 22-1901, -3202 (1989 & 1993 Supp.)), attempted robbery while armed (D.C. Code §§ 22-2903, -3202 (1989 & 1993 Supp.)), carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a) (1993 Supp.)), and possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3204 (b) (1993 Supp.)). Prior to sentencing, Kinard filed a motion for new trial pursuant to Super. Ct. Crim. R. 33 based on a claim of ineffective assistance of counsel. As the principal basis for the claim, Kinard asserted that his attorney elicited testimony from him at trial which resulted in the introduction of otherwise inadmissible other crimes evidence. He also argued that the court's refusal to grant a mistrial after his lead counsel was hospitalized deprived him of his Sixth Amendment right to counsel by forcing him to proceed with one attorney who was allegedly "constructively" absent at times, and two others who were physically absent during a part of the trial. After an evidentiary hearing, the trial court denied the motion, concluding that Kinard had failed to show prejudice under the standard set out in Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The trial court also rejected Kinard's arguments that the circumstances presented fell within the standard for cases involving the "absence of counsel" where prejudice can be presumed. See id. at 692. On appeal Kinard challenges each of these rulings. We affirm the trial court's rulings; however, we remand with instructions to vacate one of appellant's two murder convictions. *fn2


A. The Trials

Kinard and a co-defendant, Shawn Blair, were indicted for armed first-degree felony murder, one count of first-degree murder while armed, four counts of armed robbery, three counts of possession of a firearm during a crime of violence, and one count each of armed assault with intent to rob, attempted robbery while armed, and carrying a pistol without a license. These charges arose out of three separate criminal incidents, all of which occurred on July 21, 1989 between 7:00 p.m. and 10:00 p.m. One of the victims, Daniel Hotz, was fatally shot during the final robbery that night. The trial court granted Kinard's unopposed motion to sever for trial the crimes arising out of the Hotz robbery and murder. The first trial for the crimes against Hotz resulted in a mistrial after Blair testified that he and Kinard decided to rob Hotz and another victim, Paula Zimmerman, "because that's all we was doing during that night."

At the second trial, the evidence disclosed that Kinard and Blair were friends and neighbors. They lived less than a block from Daniel Hotz' home at 209 Eleventh Street, N.E. Just prior to the robbery and murder, Kinard and Blair were sitting on a stoop across the street from Hotz' house. When Hotz drove up with Zimmerman and got out of the car, Kinard said, "Let's go rob the two people in the car." Kinard approached Hotz, and Blair approached Zimmerman. Each man was brandishing a weapon as they demanded the victims' wallets. Hotz resisted, and Kinard shot him twice. Zimmerman threw her wallet to the ground. Kinard announced that it was over and ran behind Hotz' car. Zimmerman saw Hotz grab his side, moan, and fall to the ground as she ran toward his house. Blair picked up Zimmerman's wallet and ran through an alley toward the back of his house where he expected to meet Kinard.

About four minutes after the incident, the two men met in the alley behind Blair's house and split the proceeds of the robbery. Kinard bragged to his accomplice about the killing. Kinard threw Zimmerman's wallet, which contained her credit cards and identification, onto the roof of the house next to Blair's. The wallet was found there two months later and turned over to the police. Blair's fifteen-year-old neighbor, Charles Kelly, testified that he saw Blair and Kinard in the alley about fifteen minutes before hearing emergency vehicles responding to the crime scene. Kelly said that he was making noises like a police siren and that Kinard warned him to be quiet. Blair testified that the encounter with Kelly occurred after the murder.

Although Zimmerman identified Blair and another person as her possible assailant, she failed to identify Kinard as the shooter when she viewed a line-up in which both Kinard and Blair stood less than a month after the crimes occurred. *fn3 During her trial testimony, Zimmerman explained that Kinard and another person in the line-up looked like the shooter, but she did not identify them because of her uncertainty and the fear of damaging her credibility with the police. *fn4 In March 1991, Zimmerman saw a photograph and videotape of the line-up during trial preparation, and she told the prosecutor she thought she could identify the shooter. She identified Kinard at that time, saying that she recognized him by his ears, his height, and thin build.

Carroll Bradshaw, one of Blair's neighbors, who had known Kinard for at least ten years, was sitting on his porch about a half block away from the crime scene when he heard what sounded like firecrackers and a woman's scream. Right after that, he saw Kinard, who was wearing "a dark outfit, like a sweatshirt with a hood on it," running up 11th Street toward C Street. *fn5 Anthony Brooks, another neighbor, heard an argument outside and shots fired, but he reached his front porch in time to see only Hotz lying in the street, one man running up 11th Street, and the leg of another individual disappearing into the alley.

According to Kinard's testimony, he was at home after 6:00 p.m. on the night of the offenses, and he went to meet his cousin after 9:00 p.m. at a school located at 13th Street and Constitution Avenue, N.E. During the ten-minute walk to the school, Kinard initially said he saw Blair and Kelly at the mouth of the alley behind Blair's house. He said he waited at the school for a while, and then walked back toward home after his cousin did not show up. According to Kinard, he then saw Blair and Blair's cousin, Henry James, robbing one of two strangers. Kinard testified that he saw a struggle and that he ran up 11th Street after hearing two shots fired. Thereafter, he said he went to Southeast with another cousin and remained there until 3:30 or 4:00 a.m.

On cross-examination, Kinard denied being with Blair at certain specified locations during the hours preceding the Hotz murder. Therefore, the prosecutor requested permission to introduce the testimony of the victims of the other robberies that night in order to impeach Kinard's testimony about his activities between 6:00 p.m. and 9:40 p.m., the nature of his relationship with Blair, and his testimony that he did not possess a gun that evening. *fn6 Outside of the presence of the jury, the government presented the testimony of five robbery victims who were complaining witnesses in Kinard's other cases. The court found by clear and convincing evidence that Kinard had committed each of the robberies which the government sought to use as impeachment evidence. Nevertheless, to avoid the introduction of other crimes evidence, the court restricted the admissible evidence to stipulations of the testimony of these witnesses that they had seen Kinard with Blair at three separate locations at various times that evening, conversing with persons whom they did not know. The court also ruled that it would admit a stipulation that two witnesses, other than Blair, had seen Kinard about 9:30 p.m. that night in possession of a hand gun. *fn7 The court also ruled that the evidence of Kinard's possession of the gun could be admitted as both impeachment and substantive evidence.

When cross-examination resumed, contrary to his earlier testimony, Kinard admitted that he and Blair were more than casual acquaintances. After initially denying it, Kinard also admitted that he was with Blair at 9:30 p.m. in the 1000 block of Massachusetts Avenue, N.E. and then in the 300 block of 8th Street, N.E. at 8:30 p.m. and that Henry James was not with them. However, Kinard testified that he was with James rather than Blair on 10th Street, S.E. at 7:05 p.m. Kinard also admitted that at each location he approached one or two people be did not know and left the area rapidly after a brief conversation with them. However, Kinard denied having a gun while with Blair on 11th Street where Hotz was murdered.

Kinard's lead counsel, Milton Lee, was hospitalized after the government had presented two rebuttal witnesses. The Director of the Public Defender Service (PDS), the agency which employed Lee at the time, entered an appearance on Kinard's behalf and twice requested a mistrial. Following a hearing on the competence of Kinard's second defense counsel, Deborah Harris, to proceed in Lee's absence, the court denied the motion. The court reasoned that although Harris represented that she was not focused on the testimony of some of the witnesses because of her other responsibilities during the trial, she was sufficiently absorbed in the proceeding to represent appellant competently. *fn8 The court observed that there is never a perfect situation where the lawyer can fully concentrate on every point. Since the Director of PDS was reluctant to proceed under the circumstances, the ...

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