Before Wagner, Chief Judge, and Steadman, Associate Judge, and
Newman, Senior Judge.
The opinion of the court was delivered by: Wagner, Chief Judge
Appeals from the Superior Court of the District of Columbia (Hon. Evelyn E.C. Queen, Trial Judge)
Appellant, Johnny L. Edwards, was convicted of second-degree murder of his infant daughter, Beyound JX. Edwards ("Tweety Bird" or "Bird") (D.C. Code § 22-2403) (1996 Repl.); assault with a dangerous weapon (hot liquid) of the infant's twin sister, Beyound SY. Edwards, ("Sparky") (D.C. Code § 22-502) (1996 Repl.); and two counts of cruelty to children involving each child (D.C. Code § 22- 901) (1996 Repl.). Appellant argues for reversal on the following grounds: (1) ineffective assistance of counsel for failing to produce evidence supportive of the representations he made in opening statement and failing to investigate adequately the mental illness of the children's mother, Stacy Edwards; (2) instructional error; (3) admission into evidence of prejudicial photographs; (4) improper argument by the prosecutor; and (5) sentencing error. We conclude that appellant failed to establish prejudice on his ineffectiveness claim that would justify relief under D.C. Code § 23-110 (1996 Repl.). We find no reversible error on appellant's remaining claims, and, therefore affirm.
Joyce Edwards, one of appellant's teen-aged daughters, testified at trial that on October 24, 1990, appellant noticed that his eighteen- month-old twin daughters had what looked to be mosquito bites on their legs and directed her and her sister, Jenine, *fn1 to go to the store and purchase bleach, peroxide and rubbing alcohol. When they returned with the items, appellant directed Joyce and his wife, Stacy Edwards, "to get the tin tub and draw some water." She said that they complied and that appellant poured the bleach, peroxide and alcohol into the water. According to Joyce's testimony, her father had one of the babies and asked her to get the other one, and they put them in the tub. Joyce testified that Bird "looked like she wanted to get out of the water." She said that Tweety Bird whined and reached her hands in the air. She testified that appellant told her to "cap it" and hit her gently on the head with an empty plastic Coke bottle.
Jenine Edwards testified that she tested the water and told appellant that it was too hot for the babies, but he placed them in the water anyway. She further testified that her sister, Joyce, assisted her further in placing the twins in the water. She testified explicitly that her mother did not put the children in the water. She provided the following description of the incident:
ever[y] time she would cry my father would hit her on her head with a plastic coco [sic] cola bottle and say, cap it, Bird, cap it, Sparky. And Bird would raise her hand like this, she said -- in a way she couldn't talk but she said don't do that. And my father laughed and hit her again.
Jenine testified that her father took Sparky out after thirty minutes, and he took Bird out after thirty-five minutes. She described the skin around Sparky's vaginal area as pink, and she said that Bird's vagina and leg were bleeding. According to Jenine, appellant then sprinkled salt and baking soda on Bird's vagina area and put a diaper on her. She said that Bird was gasping for air and "wasn't breathing right." Jenine further testified that later that evening when she changed Bird's diaper, the pamper stuck to her. *fn2
Joyce Edwards testified about Bird's condition before Bird was hospitalized. She testified that on Friday, October 26, 1990, Bird had a fever, could not move, and her skin was burned. She testified that she was trying to feed Bird, and the child closed her eyes and stopped breathing. Joyce ran to a neighbor's house and called for an ambulance, which transported Bird to the hospital. Bird was taken to Greater Southeast Hospital where she was resuscitated. Thereafter, Bird was taken to the emergency room at Children's Hospital.
While at the hospital, Herbert Boyd, a consultant in child protection cases at Children's Hospital, interviewed appellant. Mr. Boyd testified that in discussing the events which brought the child to the hospital, appellant informed him that he was treating Bird for a rash by submerging her in "not that hot" water. Appellant further informed Mr. Boyd that he had used the same tub the previous night and that there might have been some residual bleach in it. When Mr. Boyd asked whether appellant had noticed anything that would indicate that Bird was burned, appellant stated that "there were some blisters" and that the day after the bath he patted Bird down and "some of her skin came off." Appellant also told Mr. Boyd that Bird appeared to be lethargic and "a little tired looking but he did not observe or feel as if she was in any severe discomfort." When Boyd asked appellant whether he felt Bird needed medical attention, appellant responded that "he was going to treat it himself." *fn3 Boyd testified that he periodically updated appellant on the child's condition, which was deteriorating, and appellant never informed him that Sparky had also been placed in the chemical bath. Mr. Boyd further testified that appellant did not say that Stacy Edwards or his daughter, Joyce, had anything to do with the lethal bath.
Dr. Judson Randolph, Chief of Surgery and Director of the Burn Unit at Children's Hospital at the time of the incident, testified that Bird had "massive burns" covering approximately forty-percent of her body. *fn4 He opined that Bird's injuries were caused by scalding and that it was "[a]bsolutely unlikely" that an eighteen-month-old child would remain voluntarily in water sufficiently hot to cause third-degree burns. *fn5 Finally, Dr. Randolph testified that the addition of hydrogen peroxide, rubbing alcohol, bleach, and other detergents "[p]robably wouldn't make any difference."
Dr. Marie Loydie Pierre-Louis, Deputy Medical Examiner for the District of Columbia, an expert in the field of forensic pathology, testified similarly with respect to the condition of Bird's body prior to performing the autopsy. She testified that Bird never regained consciousness while at Children's Hospital. Dr. Pierre-Louis further testified that Bird's death was caused by "extensive chemical internal scalding, body burns, followed by repair multi-system failure in [coma] ." *fn6
The jury found appellant guilty as charged, and he noted an appeal. While the appeal was pending, appellant, through appointed counsel, filed a motion to vacate his conviction alleging ineffectiveness of trial counsel pursuant to D.C. Code § 23-110, and this court stayed the direct appeal pending resolution of the motion. In the § 23-110 motion, appellant argued that his trial counsel was constitutionally defective in that he
1) inadequately investigated other possible defense theories by electing the "Stacy did it" defense with no evidentiary support while ignoring the defense of "accident" or "lack of intent" for which evidence did exist; 2) failed to conduct a reasonable investigation before selecting and going forward with the "Stacy did it" defense; and 3) failed to produce evidence promised in the opening statement which evidenced deficient performance by trial counsel prejudicing the defendant.
After a hearing and briefing, the trial court denied the motion, concluding that appellant had not demonstrated either deficient performance or prejudice. Appellant filed a timely notice of appeal (No. 97-CO-1583), which was consolidated with the direct appeal. Subsequently, appellant filed a pro se motion to vacate his enhanced sentence. The trial ...