Before Farrell, Associate Judge, and Mack and Belson, Senior
The opinion of the court was delivered by: Belson, Senior Judge
Appeals from the Superior Court of the District of Columbia (Hon. Stephanie Duncan-Peters, Motions Judge) (Hon. Ann O'Regan Keary, Trial Judge)
(Submitted September 1, 1999 Decided April 13, 2000)
Steven Spencer appeals from his conviction by jury for possession of cocaine *fn1 and from the trial court's denial of his motion to vacate his conviction filed pursuant to D.C. Code § 23-110 (1997 Repl.). The trial court denied Spencer's § 23-110 motion on the ground that the court was without authority to entertain the motion because Spencer was no longer in custody and, additionally, on its merits. In these appeals Spencer contends: (1) he was denied his Sixth Amendment right to effective assistance of counsel; (2) the trial court erred in denying his § 23-110 motion without a hearing; and (3) the trial court erred in deeming that the defense was ready for trial. We need not rule on the question of the effect of appellant's custody status upon his ability to invoke § 23-110, as we uphold the trial court's alternative ruling, on the assumption that it could entertain the motion, that the motion was lacking in merit. We also reject appellant's argument that the trial court erred in requiring the case to go forward to trial.
The government adduced evidence that Metropolitan Police Department Officer Gavin Morrison observed an unknown individual who was standing outside a brown four-door Chevrolet take a ziplock bag out of his pocket and hand it to Eric Wilkins in exchange for money. Wilkins then entered the front passenger's side of the car while Tahjon Spencer ("Tahjon") entered the back seat. *fn2 Appellant was already in the driver's seat.
Officer Morrison drove Officers James Towne and Tonce Cutler in his unmarked police car up to the brown Chevrolet and all three exited the vehicle. While Officer Morrison attempted unsuccessfully to apprehend the individual who sold the ziplock bag, Officers Towne and Cutler removed appellant and Wilkins from the car.
Officer Towne asked appellant to put his hands on the vehicle. Officer Towne testified that appellant instead put his hands in his pocket, removed a ziplock bag, and dropped it on the ground. When appellant then put his hands on the car, he attempted to kick the bag under the car. Officer Towne handcuffed appellant and recovered the bag. The bag contained a white rock-like substance that tested positive for cocaine. In the meantime, Officer Cutler recovered drugs from Wilkins and Officer Morrison recovered marijuana from Tahjon.
Appellant did not testify in his own defense. Wilkins, testifying for appellant, stated that Tahjon, after "fumbling with something in the back seat" threw something out of the window when the police officers removed appellant and Wilkins from the front seat. Wilkins testified that he did not see appellant reach into his pockets. The jury found Spencer guilty as charged.
The nature of the appellant's arguments requires us to describe in some detail what happened when the case came on for trial. This matter was initially set for trial on December 1, 1992, and then continued to March 8, 1993. Defense counsel subpoenaed Tahjon, appellant's seventeen-year-old nephew, and Tahjon appeared on those prior occasions. The trial court was unable to hear the case at that time and the case was continued. On June 29, 1993, both parties initially represented to the court that they were ready to proceed to trial. Even though defense counsel announced that he was ready, he also told the court that he wished to call Tahjon, but Tahjon had not appeared and had apparently absconded from a drug program. Counsel could offer no substantial excuse for not having filed a motion for a continuance, and after much discussion the judge deemed the defense ready to proceed. Nonetheless, the court granted a one day continuance to allow the defense to locate Tahjon.
On June 30, 1993, defense counsel indicated that a defense investigator had located Tahjon on the previous day, but could not serve him with a subpoena due to the intervention of three possibly armed bodyguards. The investigator spoke from a distance, informing Tahjon of the court date, and Tahjon did not reply, but two of the three men surrounding him placed their hands in their pants is if they were reaching for weapons, which trial counsel took to mean that Tahjon "had no intentions of showing up."
The court asked counsel if he had information that could be provided to the Marshals Service on the whereabouts of Tahjon, and counsel responded that he did and would provide it to the marshals. The court issued a bench warrant to be executed forthwith. The court placed the case on the list of matters ready to be certified to other judges for trial, but granted a continuance until the next day in order to allow the marshals to execute the warrant. The case was again continued to July 1, 1993. Following certification to another judge and jury selection, the case was once more continued until the next day. After the government presented its case, defense counsel moved for a recess until July 6, 1993, which the court granted.
On July 6, 1993, the court heard testimony from Deputy Marshal William Penn. He testified concerning the considerable efforts made in an attempt to secure the attendance of Tahjon. Despite investigating several locations, the marshals had proven unable to locate Tahjon. The court concluded that reasonable efforts had been made to secure Tahjon's attendance, and that further delay would not increase the likelihood that he would appear. The defense then presented its case, ...