Before Wagner, Chief Judge, Farrell, Associate Judge, and King, Senior Judge. *fn*
The opinion of the court was delivered by: Senior Judge King.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia
(Hon. Harold L. Cushenberry, Jr., Trial Judge)
Dissenting opinion by Chief Judge Wagner at p. ___.
King, Senior Judge: Gregory Bennett appeals the trial court's denial of his motion to withdraw his guilty plea to second degree murder while armed, in violation of D.C. Code § 22-2403 (1981), which was filed before sentencing. On appeal, Bennett claims the trial court abused its discretion in denying the motion to withdraw his guilty plea where Bennett's medical condition at the time of the plea precluded his entering the plea in a knowing and voluntary manner and where he had consistently asserted his innocence of the charges against him. Concluding that the trial Judge did not abuse discretion in denying the motion to withdraw, we affirm.
Bennett entered his guilty plea on February 7, 1995, before Judge Harold L. Cushenberry, Jr. The case had been scheduled for trial the day before, *fn1 however, trial did not begin because of the unavailability of a defense witness. The trial court did consider pre-trial motions, during the course of which the possibility of a guilty plea was discussed. *fn2 However, when asked by the trial Judge what he had decided with respect to the plea agreement, Bennett cried and said, "I don't know nothing about that case." He also said, "I'm not trying to plead guilty to nothing." *fn3 Later that day, government counsel stated that the plea offer was good until 10:00 a.m. the next morning, when it would be withdrawn.
The next morning, after the trial court determined that the trial would have to be continued due to the unavailability of the defense witness, who was hospitalized, Bennett's counsel ("plea attorney" or "plea counsel") stated that he "believe[d] [his client was] prepared to accept the plea offer." The trial court then conducted the proceeding resulting in the acceptance of a guilty plea.
The government proffered that on September 8, 1993, at approximately 4:30 a.m., a group of three people which included the murder victim, Sean Gleason, went to an apartment building in Southeast Washington for the purpose of purchasing crack cocaine. They spoke with Tony Fairwell, the occupant of an apartment in the building, who told them he would take them to someone he knew who could provide them with what they were seeking to buy. Meanwhile, three acquaintances of Fairwell, one of whom was Bennett, decided to rob the prospective buyers after they returned with Fairwell from making their purchase.
Bennett and his two companions, Lewis Curtis and Ricky Walker, confronted the three buyers outside the apartment building. One of the three in Bennett's group was armed with a loaded and operable handgun and the government proffered that some of the evidence tended to show that Bennett had the gun, while other evidence tended to show that Walker had the gun. *fn4 Bennett, Curtis, and Walker permitted Fairwell to proceed into the apartment building and told the other three to hand over any money or drugs they had. After the victims denied having money or drugs, Gleason was shot in the head. He fell to the ground and all the others fled the scene; Gleason died as a result of the bullet wound. Walker and Curtis subsequently were apprehended, pleaded guilty to offenses arising out of the incident, and agreed to testify against Bennett.
Following the government's proffer and the trial Judge's recitation of the elements of second degree murder while armed and the government's burden of proof, the trial Judge asked Bennett, "Is the government's statement correct?" Under oath, Bennett replied, "Yes, sir." The Judge then asked, "Mr. Bennett, how do you wish to plead to the charge of murder in the second degree while armed? Are you guilty or not guilty?" Still under oath, Bennett answered, "I'm guilty."
Bennett's answers to the questions asked by the trial Judge to determine whether Bennett understood the consequences of his plea were brief but responsive. *fn5 However, when the trial Judge asked Bennett if he had had enough time to think about his decision to plead guilty, Bennett said, "No, sir." When pressed on the point, Bennett stated, "I haven't had enough time to really think about this, the plea bargain." Because the prosecution had indicated that the plea offer would be withdrawn if no plea was entered that day, the trial Judge reminded Bennett that he had to make the decision at that time. Bennett responded, "The only thing I want to say, it's hard to say if it's -- in one day to let me know if I want to go to trial or not, because I only had one day to decide this. So it's hard to tell -- to say if I can go to trial or not because -- ." The trial Judge again indicated that the government offer would be withdrawn, stating, "It's either today or it's never." Bennett then said he admitted his guilt. *fn6
HEARING ON MOTION TO WITHDRAW GUILTY PLEA
On March 7, 1995, Bennett, through his attorney, filed a motion to withdraw the guilty plea and on June 30 and July 14, 1995, Judge Cushenberry conducted a hearing on the motion. Bennett testified that he did not shoot Gleason, that he was not present at the scene of the murder, that he was unfamiliar with the area where the murder occurred, that he did not know Lewis Curtis at all, and that he didn't know Ricky Walker but had "seen him before." In addition, he related that he had asked his plea attorney's investigator to show him pictures of the place where the murder occurred because he was unfamiliar with that specific location. *fn7
Bennett also testified to a history of frequent epileptic seizures since 1987. After suffering a seizure, Bennett claimed, he would lose his memory for "about five or six hours." He stated that in the days following a seizure he feels "[r]eal groggy and kind of out of it. You can't really remember a lot and then you be like worried and confused about a lot of things." *fn8 He testified that his medication also affected his mental functioning. "The phenobarbital have you lose your speech, it have you like a lapse and have you forgetting a lot."
Bennett said that he had consistently told his lawyer he did not want to plead guilty. "[E]very time he came to see me I always told him I'm not taking the plea in this case." He testified that he told his lawyer the same thing the evening of Monday, February 6, 1995, when counsel asked him if he wanted to plead guilty, and again the next morning. He believed he would be going to trial when he went to court on Monday, February 6, and again on Tuesday morning. He also said that he had expressed dissatisfaction with his lawyer through several letters to the court because he felt the lawyer was not working in his best interest and only wanted Bennett to plead guilty so he could get the case over with.
Bennett claimed he did "not really" remember pleading guilty. He testified that two days before pleading guilty, on February 5, 1995, he suffered a "really bad" seizure and did not get himself together until four or five days later. He stated that when his lawyer "asked [him] about the plea," he didn't know what he was saying and just "said okay" without realizing what he was agreeing to. He said that he "didn't really understand the questions" the Judge asked him, even though he "said yeah, I understand the plea." He also testified that he signed the jury trial waiver form because he believed it was "for a jury." *fn9
Bennett asserted that later on the day that the plea was entered, he called his attorney and told "an investigator or somebody" at his attorney's office that he wanted to withdraw his plea. He also claimed he asked his sister to contact his attorney to request that his plea be withdrawn, since Bennett was having trouble reaching his attorney. Bennett did not again speak with his attorney until March 2, 1995, when the lawyer visited him at the prison facility in Lorton, Virginia, and Bennett told the attorney he wanted to take his "plea back" because he was innocent.
Bennett's father testified that his son began having seizures when he was nine years old and that the seizures had become progressively worse as Bennett got older. The father testified that when Bennett has a seizure, he goes "into a shake," blacks out and is "dizzy," "druggy," and "not himself" for up to a week following the seizure. Bennett's father suggested that his son's intelligence had been affected by repeated injury to his head resulting from falls which occurred during seizures. The father further speculated that his son's mental problems were also a result of over-medication received in prison.
On cross-examination, Bennett's father testified that it was readily apparent to him and to others when his son had recently suffered a seizure. Following a seizure, Bennett would stand "with his head down" or "look sick." Also, "[s]ometimes you'll call him and he don't answer right away." In addition, the father related that "[s]ometimes he say yes when he should say no." The father ...