Appeal from the Superior Court of the District of Columbia; (Hon. Eric H. Holder, Jr., Trial Judge)
Before Wagner,* King and Sullivan, Associate Judges.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: Appellant, Michael T. Garrett, appeals his conviction of first-degree burglary, D.C. Code § 22-1801 (a) (1989), second-degree theft, id. §§ 22-3811, -3812 (b), and misdemeanor destruction of property, id. § 22-403. He contends that (1) he was denied due process of law because the trial Judge failed sua sponte to recuse himself from presiding as the trier of fact in light of trial counsel's pretrial statements to the Court that she would have problems representing appellant if he testified, and (2) the evidence adduced at trial was insufficient to sustain a verdict of guilt beyond a reasonable doubt. We affirm.
On the evening of December 30, 1991, the Postell family was at their home in Northwest Washington, watching television. They heard the doorbell ring, but did not answer it because they did not recognize the man at the door. Within minutes of the doorbell ringing, they heard strange noises coming from their basement, and Mr. Postell called 911 and told the police that there was someone inside their basement. Mr. Postell discovered that the nails securing the basement window of his house had been pulled out of the wall, the plaster around the door was destroyed, the lock on the basement door was broken, and a small television was missing from the house.
The police responded to Mr. Postell's call and saw appellant, Garrett, on the back steps of the house next door to the Postell's. Appellant ran from the police. A police dog picked up a scent at the back steps of the neighboring house and tracked it to the Postell's neighbor's garage. The dog signaled toward the pick-up truck in the garage. Appellant was discovered lying inside the truck, covered with rags. The television set that had been taken from the Postell's house was about five feet away from the appellant. As appellant exited the garage with the police, he told Officer Rummel that he did not go into the house himself, but that he was with a friend who did.
After a bench trial, the trial Judge found appellant guilty of first-degree burglary, second-degree theft, and misdemeanor destruction of property.
Prior to the commencement of trial, appellant's trial counsel requested to speak with the trial Judge ex parte. *fn1 She made the following statement to the Judge:
As your Honor recalls, I'm Mr. Garrett's fourth attorney in this case. As far as I knew, we had prepared for trial when he had decided to go before you in a non-jury capacity. And as much as he had decided to take the stand, I told him if he had decided to take the stand there would be problems with me continuing his representation.
This morning, he informed me that he didn't know that today was the trial date although I had given it to him in writing. He's been making intimations tat maybe I haven't done my job towards him, and I feel very reluctant to go forward today thinking that maybe I'm just setting myself up for an ineffective claim.
At the Conclusion of counsel's statements, the trial Judge spoke at length with appellant to determine whether appellant understood the difference between a jury and bench trial, whether his waiver of his right to a jury trial was both knowing and voluntary, and whether appellant was satisfied with his attorney. The following colloquy took place:
: Part of the reason I elected to have Your Honor decide on the case because she felt it was in my best interest not to take the stand. And regardless of what anybody says in front of a jury, for you not to get your side of what's happening, it's just looks bad.
So it's not so much that I benefit to take the stand today, unless you feel it's necessary, it's just that I didn't want to have that appearance in front of the jury if I didn't take the stand in my defense. That's how I felt I should approach that.
[The Court]: Okay. Now do you understand that if you decided to go to trial in front of a jury and decided not to testify, the jury will be told not to hold that against you. If you want me to tell the ...