Appeals from the Superior Court of the District of Columbia (Hon. H. Carl Moultrie I, Trial Judge) (Hon. Cheryl M. Long, Motions Judge)
Before Wagner, Chief Judge, Terry, Associate Judge, and Pryor,
The opinion of the court was delivered by: Per Curiam
Following a trial by jury, appellant Keith Yancey was convicted of first-degree burglary while armed and first-degree felony murder while armed. Appellant's later motion for collateral relief pursuant to D.C. Code § 23-110 (1996 Repl.) was denied following a hearing before Judge Cheryl M. Long. In this consolidated appeal from his convictions and the denial of the post-trial motion, appellant raises a number of contentions, most of which are related to the preparation and performance of his trial counsel, who took over his case shortly before trial after appellant's earlier retained counsel was suspended from the practice of law, and who was granted a brief continuance to prepare for trial. Upon consideration of the arguments advanced, we affirm.
Appellant and his co-defendant John Lyles were charged with first- degree burglary while armed, *fn1 attempted robbery while armed, *fn2 first-degree felony murder while armed, *fn3 and perjury *fn4 in April 1985. These charges related to the murder of Robert Wiant, a Capitol Hill real estate agent, who was stabbed to death in his home on June 20, 1984. Appellant retained W. Edward Thompson to represent him.
Mr. Thompson entered his appearance as retained counsel for defendant in May 1985. The trial date was set for September 25, 1985, before Chief Judge H. Carl Moultrie I. Mr. Thompson worked on the case, filing with the court, among other things, a motion to suppress appellant's videotaped statement, in which appellant admitted some involvement in the crime, *fn5 and which appellant claimed had been obtained by the police through physical and mental coercion. Several days before the first scheduled trial date, the government requested a continuance because an essential prosecution witness was unavailable due to a medical emergency. Judge Moultrie granted that motion and continued the trial to November 21, 1985. In October 1985, Mr. Thompson was suspended from the practice of law for a period of three months, commencing on October 27, 1985. Attorney Adgie O'Bryant entered an appearance for appellant on November 18, 1985, and filed a request for a continuance. Among the reasons listed by Mr. O'Bryant in requesting the continuance were that he was "unavailable for trial on November 21, 1985," and that "[t]he defendant requests additional time for his new counsel to prepare his defense."
At a hearing held on November 20, 1985, Mr. O'Bryant elaborated on his reasons for requesting a continuance, explaining that he had not spoken to any of the witnesses and was "totally not prepared to go to trial to try a murder case in two days." Over objections by Mr. O'Bryant that he needed more time to prepare, Judge Moultrie granted appellant a three-day continuance, explaining that the case was not complex, and November 25th was the only day the case could fit into the court's calendar. Judge Moultrie assisted Mr. O'Bryant in having his other matters continued so he could devote himself solely to preparing for appellant's trial, and ordered him to be in court to try the case on Monday, November 25, 1985.
On November 25th, Mr. O'Bryant appeared in court with his own attorney, Melvin Marshall. Mr. Marshall spoke on behalf of Mr. O'Bryant, explaining that there were witnesses to whom Mr. O'Bryant had not spoken and physical evidence that Mr. O'Bryant had not had an opportunity to see, and that therefore Mr. O'Bryant felt that he was "constitutionally ineffective" at that time. Judge Moultrie, who had previously explained to Mr. O'Bryant that the trial would go forward, stated:
Well, ineffective depends on what transpires, sir. He may rise to the occasion. He's a good lawyer.
Later that day, appellant addressed Judge Moultrie, explaining that he did not feel the trial would be fair because Mr. O'Bryant only had a few days to prepare. Judge Moultrie explained to appellant that the matter of the continuance had already been decided and resumed hearing motions. The trial concluded on December 2, 1985, when a jury found appellant guilty of first-degree murder while armed and first-degree burglary while armed. He was sentenced in January 1986 and resentenced in April 1986. Appellant filed a timely notice of appeal.
In August 1988, appellant filed a motion seeking to vacate his convictions, alleging ineffective assistance of counsel. His primary contention was that Mr. O'Bryant was ineffective at trial due to the lack of time he was permitted to prepare for the case. Appellant's direct appeal was held in abeyance pending resolution of his collateral attack.
Because Judge Moultrie by then was deceased, appellant's motion came before the Honorable Cheryl Long. Following a five-day hearing, which consisted of the testimony of witnesses and representations from counsel, Judge Long issued a sixty-four page memorandum opinion and order denying appellant's claim for relief. In that order, Judge Long reviewed the pretrial investigation, pretrial motion hearing, and trial performance of Mr. O'Bryant in great detail. She found that appellant had failed to show any constitutional deficiency on the part of his trial counsel, and that even if he had succeeded in doing so, the deficiency would not have prejudiced appellant, given the strength of the government's case and the poor credibility of ...