Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Frederick D. Dorsey, Trial Judge)
Following a non-jury trial, appellant Johnson was convicted of possession of marijuana, in violation of D.C. Code § 33-541 (d) (1998). On appeal he contends that the trial court failed to conduct an adequate inquiry into his mid-trial claim of ineffective assistance of counsel and committed reversible error when it granted a blanket Fifth Amendment privilege to Quentin Mims, the sole defense witness in the case. We find no error and accordingly affirm.
On February 19, 1997, two Metropolitan Police officers approached a car parked behind a house in the 500 block of Hobart Place, N.W. *fn1 Appellant Johnson was in the driver's seat, and Quentin Mims was in the front passenger seat. A third man, not further identified, was in the back seat. As Officer Charles Woodard approached the car, he detected the smell of marijuana and saw a "blunt" *fn2 and a box of four ziplock bags containing a substance which appeared to be marijuana in the console between the two front seats. When confronted, Johnson told the officer that both the marijuana and the car belonged to him.
At trial, defense counsel offered evidence *fn3 showing that Mims had exclusive control of the automobile for over two hours prior to the arrest, and that Johnson had just gotten into the car when the police arrived. This evidence, counsel argued, would demonstrate that any one of the three people who were found in the car could have had control of the marijuana that was also found there. The court rejected this defense, however, on the ground that Johnson could have possessed the drugs jointly and severally with either or both of the other two occupants. Taking into account Johnson's proximity to the marijuana and his statement acknowledging that the marijuana was his, the court found him guilty as charged.
After the government concluded its case in chief, defense counsel made a motion for judgment of acquittal, which was denied. The court then instructed counsel to begin presenting his defense. Johnson interrupted, saying, "Whoa, whoa, whoa. I want to address this court because something ain't right . . . ." Further inquiry revealed that Johnson was dissatisfied with the quality of the legal representation he was receiving. The court had been alerted to this possibility a few minutes earlier (shortly after the "Whoa, whoa" outburst) when defense counsel related that, until the day of trial, Johnson had thought he was being charged with possession with intent to distribute rather than simple possession.
The prosecutor, citing Scott v. United States, 619 A.2d 917 (D.C. 1993), suggested that the court apply the two-part test of Strickland v. Washington, 466 U.S. 688 (1984), in addressing Johnson's mid-trial claim of ineffective assistance of counsel. The court initially declared that it would not hear any arguments about ineffectiveness because Johnson had failed to raise the issue before the trial began.
As for the government's suggestion to follow Strickland, the court concluded:
I think that Scott simply indicates the appellate standard for ineffective assistance of counsel when it is raised mid-trial and that, as Scott says, once the jury is sworn - and in this case once a witness is sworn - there is no more issue, period. And I believe that the appropriate course is . . . to complete the trial and, based on the outcome of the trial, the defendant may assert whatever rights he believes are appropriate with respect to ineffective assistance of counsel.
After further discussion, however, the court decided to inquire further into Johnson's claim of ineffective assistance. That inquiry, much of which was conducted ex parte in the adjacent jury room with the prosecutor absent, revealed that between Johnson's arraignment on February 20 and his trial on June 12, the only contact between Johnson and his appointed counsel consisted of a telephone call on the night before the trial began. According to Johnson, he did not even know the offense with which he had been charged until the start of the trial. He also complained that his counsel had made no effort to secure witnesses to testify on his behalf. The only reason that Mr. Mims was available to testify on the day of trial was that when Mims had gone to visit Johnson at his house earlier that morning, Johnson's mother had told him that her son was in court. Johnson also said he had told his attorney about two other witnesses who could testify that he was inside the house ...