June 12, 1995
LOUIA A. MCKENZIE, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia. (Hon. Truman A. Morrison III, Motions Judge). (Hon. Zinora M. Mitchell-Rankin, Trial Judge).
Before Terry and Steadman, Associate Judges, and Taylor,* Associate Judge of the Superior Court of the District of Columbia.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: Appellant McKenzie was convicted of armed robbery and related offenses at a bench trial at which a coparticipant in the charged events, Ronald C. Jenkins, was a principal government witness. *fn1 On appeal, McKenzie argues: 1) the trial court made an inadequate inquiry into his pretrial complaint about his appointed counsel, and 2) in its determination of Jenkins's credibility, the trial court improperly took into account a statement made by Jenkins at the time of his arrest, which was referred to at trial but not introduced into evidence in full text. We affirm.
On August 8, 1991, while awaiting trial, appellant sent a letter to the trial court complaining about his attorney, Melvin Dildine. *fn2 Under our case law, such a complaint triggered what is commonly referred to as a "Monroe-Farrell" inquiry. See Monroe v. United States, 389 A.2d 811, 820-21 (D.C.), cert. denied, 439 U.S. 1006, 58 L. Ed. 2d 683, 99 S. Ct. 621 (1978) (when a defendant makes a pre-trial challenge to the effectiveness of counsel, the court must at that time conduct an on-the-record inquiry sufficient to determine the truth and scope of the defendant's allegations); Farrell v. United States, 391 A.2d 755, 760-62 (D.C. 1978). Accordingly, at a hearing on October 7, 1991, the following interchange occurred between the motions Judge, the Honorable Truman A. Morrison III, and McKenzie:
THE COURT: Good morning, Mr. McKenzie. You wrote to Judge King, I've taken over Judge King's cases, you wrote to Judge King earlier this summer and wrote him a letter -- asking him if he could give another lawyer. Is that still your request in this case?
DEFENDANT MCKENZIE: Well, since then, things have -- better. So, I'll stick -- see what -- how things turn out.
THE COURT: Well --
DEFENDANT MCKENZIE: I've got to make that decision, right now?
THE COURT: Well, you don't have to make it right now, but you can't wait until we get close to the trial. In other words, we have to have this -- it's a co-defendant case. And, so --
DEFENDANT MCKENZIE: I understand.
THE COURT: If you have any complaints, you have make them in the next week or two. -- but for now you want to keep Mr. Dildine? Okay.
No further complaints of any kind were made by McKenzie to the court about his counsel *fn3 until, following Mr. Dildine's death, successor counsel filed a post-verdict motion for a new trial, *fn4 alleging an inadequate Monroe-Farrell inquiry into his pretrial claim of dissatisfaction with counsel and also alleging ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). After a two-day hearing, the Honorable Zinora Mitchell-Rankin, who had also been the Judge at the bench trial, denied the motion with respect to both assertions. *fn5
We agree that given the response of McKenzie at the pretrial hearing and the absence of any subsequent complaint, no further Monroe-Farrell inquiry was required at that hearing or subsequently. Judge Morrison, who engaged in first-hand inquiry with McKenzie, could fairly construe the exchange as an indication that McKenzie was at that point satisfied with his counsel. *fn6 When a defendant makes complaints that might trigger a full Monroe-Farrell inquiry, but later tells the court that he is now satisfied with his counsel or no longer desires new counsel, the court need not continue further into the matter. See Robinson v. United States, 565 A.2d 964, 969 (D.C. 1989) (holding that court did not err in failing to conduct Monroe-Farrell inquiry, where appellant had made many requests for new attorney but when court asked appellant to state the basis for desire for a new attorney, "appellant himself concluded that he was ready and willing to go forward with his present attorney"); Gordon v. United States, 582 A.2d 944, 946 (D.C. 1990) (judge did not err in failing to ask questions of defense counsel when, after Judge addressed appellant's problems and questions, appellant said she wanted to go to trial and would keep her defense attorney; "appellant's complaints provided no basis for the Judge to inquire further into the attorney-client relationship or about defense counsel's preparation for trial"). McKenzie both by his letter and his pro se motion had shown that he was not hesitant to register dissatisfaction with counsel and knew how to do so. *fn7
The scope of a Monroe-Farrell inquiry is left to the sound discretion of the trial court. Garrett v. United States, 642 A.2d 1312, 1314 n.1 (D.C. 1994). This is not a case where the Monroe-Farrell inquiry itself may have been flawed or inadequate, but rather a case where defendant's representations dictated that a further Monroe-Farrell inquiry was no longer mandated. We are satisfied that the trial court here did all that was required in the circumstances and appropriately halted the inquiry in light of the response of McKenzie.
At the bench trial, evidence was introduced without objection that upon his arrest, coparticipant Jenkins made a statement to the police which identified McKenzie as one of the accomplices in the crime and contained a "fairly lengthy" account about what happened. However, the statement itself or other specific information about its contents was not introduced.
In closing argument to the trial court, the prosecutor argued that the post-arrest identification, along with the fact that Jenkins made a detailed statement, corroborated Jenkins's story at trial and rebutted any claim of recent fabrication. The court in rendering its opinion set forth the many reasons why it credited Jenkins's testimony, including an observation that while the specific contents of the statement were not in evidence, "this Court, I believe, can make a reasonable inference that had there been any inconsistencies of any import, that they would have been raised in connection with Mr. Jenkins' testimony and they were not." Appellant never interposed any objection to the argument by the prosecutor or the observation by the trial court, either at the time or in his motion for a new trial. *fn8 Accordingly, we review for plain error; that is, an error "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts v. United States, 449 A.2d 308, 314 (D.C. 1982).
Appellant relies on Reichert v. United States, 123 U.S. App. D.C. 294, 297-298, 359 F.2d 278 (1966), and Johnson v. United States, 121 U.S. App. D.C. 19, 21-22, 347 F.2d 803 (1965), in which reversible prejudice was found in prosecutorial argument based on alleged but unproven prior consistent statements by witnesses, and which cautioned that pretrial statements furnished under the Jencks Act should be delivered outside the presence of the jury to avoid any unwarranted reliance by a jury on a presumed prior consistent statement. *fn9 However, in those cases, even the very fact of the existence of the statement, much less its general content, had not been formally put into evidence. Therefore, the statement should not have been considered in any way.
Here, to the contrary, the existence of the statement and its content insofar as it included an identification of McKenzie and a "fairly lengthy" account of the incident were in evidence, without objection, and indeed certain contents of the statement had been used by defense counsel to try to impeach Jenkins about the amount he had drunk on the day of the crime. *fn10 The statement itself could clearly have been used by defense counsel to impeach Jenkins had it contained other impeaching material, Martin v. United States, 452 A.2d 360, 363 (D.C. 1982), and, as counsel acknowledged at oral argument, appellant presumably had a copy of the statement under the Jencks requirement. See Super. Ct. Crim. R. 26.2. This was a bench trial in which the trial court may be presumed not to make improper use of evidence. Johnson v. United States, 636 A.2d 978, 981 (D.C. 1994). In any event, the observation with respect to the prior statement was only one of a number of grounds given for crediting Jenkins's testimony. The trial court found appellant's contrary testimony to be "completely incredible." In sum, given the totality of the circumstances, we fail to see how the trial court committed plain error, if error at all, in making the common-sense observation that it did.