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Frederick v. United States

December 3, 1999


Before Schwelb, Ruiz, and Reid, Associate Judges.

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

Appeals from the Superior Court of the District of Columbia

(Hon. José M. López, Trial Judge)

Argued October 7, 1999

Fred L. Frederick was convicted by a jury of first degree murder while armed (FDMWA), D.C. Code §§ 22-2401, - 3202 (1996), and carrying a pistol without a license (CPWOL), D.C. Code § 22-3204 (a). Frederick subsequently filed a motion pursuant to D.C. Code § 23-110 to vacate his conviction, alleging that his representation at trial by his attorney was constitutionally inadequate. See Strickland v. Washington, 466 U.S. 668 (1984). Following an evidentiary hearing, the trial Judge, Honorable José M. López, *fn1 denied Frederick's motion in an exhaustive thirty-six-page written order.

In these consolidated appeals from his convictions and from the denial of post-trial relief, Frederick asserts that trial counsel made a substantial number of serious errors and omissions in the preparation and presentation of Frederick's defense, and that the result of the trial was thereby rendered unreliable. We find it necessary to address in detail only one of Frederick's contentions, namely, that his counsel was constitutionally ineffective in that he failed inexcusably to take the necessary steps to secure the testimony of Eric Winters, an eyewitness to the murder who had testified unequivocally at a prior proceeding that Frederick was not involved in the crime. *fn2 We conclude as a matter of law that, with respect to this specific issue, Frederick has demonstrated both "defective performance" and "prejudice" as required by Strickland. Accordingly, we reverse.



A. Factual background. *fn3

These appeals arise out of a murder which occurred more than a decade ago. On March 3, 1989, Lonnie Hart was found dead of gunshot wounds on a street in northwest Washington, D.C. His body was riddled with bullets. At the time of his death, Hart was seventeen years old.

The police investigated the homicide and discovered two alleged eyewitnesses, Eric Winters and Ken Richards. Winters was sixteen years of age at the time of the murder, while Richards was a year older. Winters and Richards implicated Michael Smith in Hart's death. A warrant for Smith's arrest was issued on March 25, 1989, and Smith was taken into custody two weeks later. Smith told the police that Frederick was the principal in the murder, and Frederick was arrested on July 27, 1989 pursuant to a warrant.

On December 20, 1989, almost nine months after Smith's arrest, a grand jury returned an indictment charging both Smith and Frederick with FDMWA and Frederick with CPWOL. Frederick filed a motion for severance of defendants, and on June 25, 1990, the cases against Smith and Frederick were severed. Because Smith's testimony would be needed for a successful prosecution of Frederick, the government brought Smith to trial first.

B. The trial of Michael Smith.

Smith's trial began on July 5, 1990. The government relied primarily on a somewhat inculpatory statement which Smith had provided to the police and on the testimony of Eric Winters and Ken Richards. Winters and Richards both testified that they knew Michael Smith, Fred Frederick, and Lonnie Hart. Each of them claimed to have had an unobstructed view of Hart's murder. Both Winters and Richards identified Smith as one of two men involved in the killing.

Eric Winters testified that Fred Frederick, whom he knew well, and whom he saw "about three times a week . . . going over [to] his girl friend['s] house," was not the second man involved in the murder:

Q: Now, was the man who got out of the back seat of that car and walked around and shot Lonnie, according to what you saw, Fred Frederick?

A: No.

Q: Are you positive of that?

A: Yes.

Q: You tell us you're sure that the man you saw choke Lonnie was Mike, correct?

A: Yes.

Q: Now, you also tell us that you're sure that the man who shot Lonnie was not Fred?

A: It wasn't Fred, because I know how Fred look[s].

Q: Are you just as sure of both of those things?

A: Yes.[ *fn4 ]

Events prior to and during Smith's trial persuaded the police, the prosecutor, the Judge, and the jury that Winters was a credible and impressive witness. Detective Herman Johnson of the Metropolitan Police Department, who investigated Hart's murder, testified that he had credited Winters and Richards whenever there had been a conflict between either man's account and the account given by Smith. During argument before the court, the prosecutor referred favorably to "the demeanor and the forthrightness and certitude of this witness [Winters] on the witness stand."

Judge Greene also had occasion to comment on Winters' credibility:

[T]hat kind of common sense was evident throughout Mr. [Winters]' testimony . . . . I don't find the reliability of his observations at all suspect in this case. And, indeed, if I were the fact-finder, I would give him substantial credence.

Finally, the jurors evidently believed Winters' testimony, for they found Smith guilty of second degree murder while armed.

C. Frederick's first trial.

Frederick's first trial, with Judge Shellie F. Bowers presiding, began on February 26, 1992, more than two and one half years after Frederick's arrest. The principal witnesses against Frederick were Michael Smith, Sam Perkins, and Smith's girlfriend, Katrina Terrell.

Smith, who had entered into a "cooperation agreement" with the government to testify truthfully in exchange for a recommendation that his sentence be reduced by half, told the jury that Frederick was determined to kill Hart because Hart had beaten up and taken $1,000 worth of drugs from Perkins, a fourteen-year-old boy who allegedly worked for Frederick's drug selling operation. According to Smith, someone had told Frederick on the night of the murder that Hart could be found near University Place in northwest Washington. Frederick stated that he intended to kill Hart, and he told Smith to drive to University Place and to stop in an adjoining alley. When he spotted Hart, Frederick, who was armed with a pistol, left the car in pursuit of his intended victim. Smith testified that he then ...

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