Appeal from the Superior Court of the District of Columbia. (Hon. Reggie B. Walton, Trial Judge).
Before Terry and Schwelb, Associate Judges, and Cushenberry, Associate Judge of the Superior Court of the District of Columbia.*
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Wydell E. Chase was convicted by a jury of assault with a dangerous weapon (ADW), *fn1 possession of a firearm during a crime of violence (PFCV), *fn2 and carrying a pistol without a license (CPWOL). *fn3 The convictions arose out of the shooting and wounding of Anthony Thomas. At trial, Chase admitted that he shot Thomas, but claimed to have been acting in self-defense. The evidence showed that both Chase and Thomas were involved in the drug trade and, although their versions differed as to the events that led up to the shooting, *fn4 the two men evidently quarrelled over an unpaid drug debt.
On appeal, Chase's principal contention is that he was denied a fair trial as a result of the trial Judge's statement that he was considering referral to Bar Counsel of certain conduct by Chase's attorney during the course of the trial. Chase now maintains that the Judge's reaction was unwarranted and denied him the right to conflict-free counsel by chilling his attorney's zealous advocacy of Chase's cause. We affirm.
During the presentation of the defense case, Chase testified with professed certainty, both on direct examination and cross-examination, that a prosecution witness named Cassandra Hursey had not been present at the time of the shooting. Rather, he insisted, a woman named Carla Johnson (whose appearance is quite different from Ms. Hursey's) was there with her baby.
Following a luncheon recess, Chase's attorney returned to the subject of Ms. Johnson on redirect examination. Chase now testified that he believed that Ms. Johnson had been present, but that he was not sure. The prosecutor proposed on recross-examination to interrogate Chase with respect to whether he had learned over the lunch recess that Ms. Johnson was in the courthouse and ready to contradict his initial version, and had adjusted his prior testimony in light of that information. Chase's attorney objected, stating: "Your Honor, the only way that he would have learned that would have been through me, because I saw Carla Johnson. That's the attorney-client privilege, and we won't waive that, your Honor."
After conducting some legal research, the Judge overruled the objection and authorized the prosecutor's proposed questioning on recross-examination. Chase responded by quickly contradicting himself. At first, he denied that he had learned over the lunch break that Carla Johnson was outside and waiting to testify. Immediately thereafter, however, Chase asserted that it was his codefendant's counsel, *fn5 and not his own attorney, who had told him that Ms. Johnson was "out there."
These events occurred on Friday, December 18, 1992. On that day, the parties completed the presentation of their evidence; Ms. Johnson testified as a rebuttal witness for the prosecution. Subsequently, on the following Monday, the Judge expressed his concern about the comment which had been made to him on the previous Friday by Chase's attorney. He indicated that if Chase could be believed - and the Judge expressed reservations on that score - then Chase's attorney had made an incorrect representation to the court when she asserted that a privileged communication from her was the only possible means by which Chase could have learned that Ms. Johnson was available to testify. The Judge indicated that he was attempting to determine whether he had an obligation to report the matter to Bar Counsel. The Judge stated that he was not questioning counsel's integrity, and he made it clear that he recognized a defense attorney's obligation to apprise her client regarding the anticipated testimony of potential rebuttal witnesses, and that he was concerned only with regard to the representation to the court. The Judge offered Chase's counsel an opportunity to respond, but she declined: "Your Honor, I'm not going to be able to say anything now."
Counsel then presented their closing arguments. A review of Chase's attorney's argument reveals that it was presented both competently and vigorously. Chase was acquitted of the most serious charge against him -- assault with intent to kill while armed *fn6 -- but convicted of the lesser-included offense of ADW, and also of related weapons offenses.
Following the verdict, Chase's attorney filed a motion to withdraw as counsel, alleging that Chase had expressed dissatisfaction with her performance. She made no claim in her motion that her representation had been inhibited in any way by the Judge's remarks regarding a possible referral to Bar Counsel. The Judge granted the motion to withdraw, and he appointed a different attorney to appear on Chase's behalf at sentencing. A third attorney is representing Chase on this appeal.
The accused in a criminal case has a constitutional right to the effective assistance of counsel. Jackson v. United States, 623 A.2d 571, 585 (D.C.), cert. denied, 126 L. Ed. 2d 607, 114 S. Ct. 649 (1993). To ensure the full enjoyment of that right, it is essential that the defense attorney be free of any conflict of interest which might dilute her loyalty to her client. Id. Chase contends, in essence, that as a result of the Judge's remarks about a possible referral to Bar Counsel, his attorney was inhibited from continuing her vigorous advocacy on his behalf. He suggests that his attorney may have apprehended that further zealous representation would make such a referral for possible disciplinary action more probable. We find no support in the record for Chase's claim.
Even after his trial counsel was replaced, Chase made no claim in the trial court that the attorney's advocacy on his behalf had been impaired in any way as a result of the Judge's warning. Specifically, he did not file a collateral attack on his conviction pursuant to D.C. Code § 23-110 (1989), and thus failed to avail himself of a logical avenue for presenting the testimony of his trial counsel -- the one person who could testify first-hand as to whether her representation of Chase had been chilled, as Chase now alleges. Our assessment ...