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March 19, 1998



Before Steadman, Reid and GRAAE[fn*], Associate Judges. [fn*] Sitting by designation pursuant to D.C.Code § 11-707(a) (1995).

The opinion of the court was delivered by: Reid, Associate Judge:

After a jury trial, appellant James Courtney was convicted of one count of first degree burglary while armed, in violation of D.C.Code §§ 22-1801(a), -3202 (1996); two counts of possession of a firearm during a crime of violence, in violation of D.C.Code § 22-3204(b); and one count of assault with a dangerous weapon, in violation of § 22-502. *fn1 Courtney contends on appeal that, under the Sixth Amendment to the Constitution of the United States, he was denied effective assistance of counsel, and that the trial court erred in failing to hold an evidentiary hearing on this matter. We affirm.


Courtney's convictions arose out of disputes with persons living in the 1600 block of W Street, S.E. At the time, Courtney's girlfriend resided with her cousin at 1645 W Street, in apartment number 302, located across the hall from apartment number 303 where complainant Patricia Johnson lived with her one year-old son.

On January 26, 1994, Courtney's girlfriend went to Johnson's apartment to look for Courtney. Without permission, she walked through Johnson's apartment and refused to leave upon demand. Later, on the same day, when another person visited Johnson's apartment, Courtney and his girlfriend were in the hallway. As Johnson stood in her doorway, hostile words were spoken by Courtney's girlfriend. Johnson, who thought Courtney's girlfriend was ready to fight her, eventually called her cousin, Ava Navarro, and asked her to come and take her (Johnson's) son out [708 A2d Page 1010]

of the apartment. Navarro lived in the same housing complex, at 1641 W Street.

When Navarro arrived at Johnson's apartment, she began to dress Johnson's son. While Navarro was still dressing the boy, Courtney kicked the apartment door open and entered with a handgun. His girlfriend followed him in. Courtney cocked the weapon and pointed it at Navarro and Johnson's son. He asked whether Navarro and Johnson were planning "to jump" his girlfriend. Johnson said that neither of them intended to harm his girlfriend and that Navarro was there to pick up Johnson's child. Courtney's girlfriend then grabbed Courtney's arm and told him to leave the apartment because she thought Johnson and Navarro were about to call the police.

Several days later, on February 4, 1994, Johnson and two friends — Tracy Stoutamire and Lisa Hill, were in Navarro's apartment. They looked out of an apartment window to watch the police make a drug arrest. While they were watching the arrest, Courtney's girlfriend approached the window and said she "better not catch [any of the women] outside by [themselves]." Later that same day, Courtney's girlfriend and others pushed their way into Navarro's apartment. The girlfriend eventually began to hit Stoutamire, and a fight ensued. Courtney's girlfriend pummeled Stoutamire in the head, chest and back. Soon Stoutamire lapsed into unconsciousness. She was covered with blood, and eventually was taken to the hospital. *fn2

On August 19, 1996, approximately two years after he was sentenced to prison, Courtney filed a motion to vacate his conviction pursuant to D.C.Code § 23-110, on the ground that he received ineffective assistance of trial counsel, in violation of his Sixth Amendment constitutional right to counsel. Aside from conclusory allegations regarding his trial counsel's failure to file unspecified motions, or to interview or call unnamed exculpatory witnesses, Courtney claimed that his counsel was sleeping during trial, and failed to properly examine and cross-examine witnesses, or to make proper objections. In his affidavit accompanying his § 23-110 motion, Courtney stated:

[My trial counsel] slept through a portion of my case and since he was asleep, he was unable to properly object to improper questions or to cross-examine witnesses.

No specific examples of his trial counsel's alleged sleeping incidents, or lack of objections or cross-examination were included in the affidavit. Courtney's girlfriend also presented an affidavit in his behalf. Whereas Courtney maintained that his counsel "slept through a portion of [his] case," Courtney's girlfriend stated he "slept through a major portion of the trial."

In denying Courtney's motion to vacate his conviction under § 23-110, the trial court said, in part:

Having presided over the trial, the court can state from its own observations that defendant's attorney did not sleep through any significant portions of the trial, ...

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