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Sothern v. United States

August 03, 2000

MICHAEL L. SOTHERN, APPELLANT
V.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)

Before Terry and Ruiz, Associate Judges, and King, Senior Judge.*fn1

Argued March 5, 1998

Opinion for the court by Associate Judge Terry.

Dissenting opinion by Associate Judge Ruiz at p. --.

Terry, Associate Judge: Following a four-day jury trial, appellant was convicted of one count of kidnapping, two counts of rape, three counts of sodomy, and one count of assault with intent to commit sodomy. Several months after he was sentenced, he filed in the trial court a motion to vacate his sentence under D.C. Code § 23-110 (1996), asserting that his trial counsel had rendered ineffective assistance. The trial court denied that motion without a hearing, and appellant noted an appeal from that ruling, which we consolidated with his earlier appeal from the conviction. Before us appellant's main contention is that the court erred in rejecting his claim of ineffective assistance of counsel and that it should, at the very least, have held a hearing on his motion; secondarily, he argues that the court erred during the trial in refusing to allow him to cross-examine the complaining witness about her recent arrest in order to show bias. We affirm both the judgment of conviction and the denial of the § 23-110 motion.

I.

Briefly summarized, the government's evidence showed that the complainant, S.C., a twenty-five-year-old drug user, went up to the doorway of a house on 14th Street, N.W., where appellant Sothern was standing, and asked him if he could sell her $10 worth of crack cocaine.*fn2 Almost immediately, the door opened, and Major Lee Mattison came out of the house. Mattison pulled S.C. toward him, while Sothern assisted by pushing her inside. S.C. was then taken to the basement, where for the next three hours she was subjected to numerous sexual assaults by the two men.*fn3 Finally, she was allowed to use the bathroom, and when she came out of the bathroom, she asked Sothern if she could leave. Sothern gave her back her clothes and escorted her upstairs and out the front door.

Although she was in considerable pain, she managed to flag down a passing police car. The officer to whom she told her story summoned an ambulance and also radioed for assistance from the Sex Offense Branch. A few minutes later, a detective arrived and took a statement from S.C. in which she described her assailants and said that one of them was named Mike. She was then taken to a hospital and examined by a physician. Three days later she identified Sothern from an array of photographs.

Then, approximately three weeks after the crime, S.C. saw Sothern on the street and immediately ran to a parked police car, where she told the officers inside that she had been raped "and the person that raped me is across the street leaning on the fence." By that time Sothern had disappeared, so she got into the car and began to ride around with the officers, looking for him. After a few moments, S.C. saw Sothern standing on a corner talking with Mattison, and she exclaimed, "Oh, my God, that's the other person that raped me also." The two officers jumped out of the car and arrested both men. A later search of the basement of the 14th Street house yielded corroborative physical evidence that a sexual assault like that described by S.C. had taken place, though there was no physical evidence linking Sothern with that assault. The government did establish, however, that Sothern lived in the house and that he had access to the basement, even though his room was on the second floor.

At the beginning of the defense case, Sothern's counsel told the court that he wanted to call Mattison as a witness, but that Mattison refused to testify. After the court explained to Mattison that he no longer had a Fifth Amendment privilege because he had already pleaded guilty and been sentenced, he testified that S.C. had had consensual sex with both Sothern and himself.*fn4 Sothern then testified, however, that S.C. had voluntarily had sex with Mattison as payment for $50 worth of crack cocaine, and that he (Sothern) was not involved in any sexual activity with S.C.

II.

Sothern's § 23-110 motion, supported by his own affidavit, raised four claims of ineffective assistance of counsel. The government filed an opposition accompanied by affidavits from Sothern's trial counsel and from the prosecutor. The court, after considering all of these documents, denied the motion without a hearing in a ten-page order which considered and rejected each of appellant's claims. We are in substantial agreement with that order and with the court's reasoning. Under Strickland v. Washington, 466 U.S. 668 (1984), a convicted defendant claiming ineffective assistance of counsel must make a two-part showing: first, that counsel's performance was deficient, and second, "that the deficient performance prejudiced the defense." Id. at 687. We agree with the trial court that Sothern's motion failed to meet the Strickland test, and that he was therefore not entitled to relief or even to a hearing.

Sothern's principal assertion was that counsel had been ineffective in calling Mattison as a witness (even though Sothern knew well in advance that counsel planned to do so). The court concluded:

It is noteworthy that if the jury had credited Mr. Mattison's version of events (namely, that the entire encounter was consensual), defendant likely would have been acquitted on all charges. This ...


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