Before Reid and Glickman, Associate Judges and Mack, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia Hon. Colleen Kollar-Kotelly, Trial Judge Hon. Russell F. Canan, Motion Judge
Birchard Leftridge was tried along with a co-defendant on charges of armed robbery, related weapons offenses, and receiving stolen property. The government presented evidence that the two defendants used a stolen car as the "staging area" for an armed robbery that was interrupted in medias res by the police. Leftridge was convicted, however, only of receiving stolen property (the car), in violation of D.C. Code § 22-3832 (1996), recodified as § 22-3232 (2001). *fn1 Leftridge moved pursuant to D.C. Code § 23-110 (2001) to vacate his conviction on grounds of ineffective assistance of counsel. Judge Canan denied that motion after an evidentiary hearing. Leftridge then moved for a new trial, which Judge Canan also denied.
In this consolidated appeal, Leftridge contends that his trial counsel pursued a defective strategy in his effort to discredit the evidence that Leftridge knowingly possessed stolen property, and therefore was constitutionally ineffective. We reject this contention. We agree with Judge Canan that Leftridge's counsel made a reasonable choice under the circumstances. That the defense strategy had a potential drawback, or that an alternative strategy might reasonably have been selected, does not mean that counsel's performance was constitutionally deficient.
Leftridge also contends that he is entitled to a new trial in light of newly discovered evidence, and because his prosecutor failed to inform the trial court that a government witness had testified falsely. We reject these arguments too. The requirements for granting a new trial based on newly discovered evidence have not been met. Nor did the prosecutor knowingly permit false testimony to be presented or to go uncorrected.
At the time of his arrest, Leftridge was in the driver's seat of a parked car that had been stolen the previous week. The disputed issue at trial on the receiving stolen property charge was whether Leftridge knew or had reason to believe that the car he thus occupied was stolen. *fn2 To prove that Leftridge possessed the requisite guilty knowledge, the government relied heavily on the testimony of the arresting officer, Tommy Barnes. *fn3 Officer Barnes testified that after he placed Leftridge in custody, he removed a set of keys from the ignition of the car. He put the keys on the roof of the car and asked the owner of the vehicle, who was also on the scene, whether the keys were his. *fn4 Observing this activity, Leftridge banged on the window of the police transport car in which he was sitting and called out "those are my keys. You can't give him my keys." Officer Barnes then examined the keys and saw that they were not car keys, but appeared to be house keys.
The theory of the prosecution, as argued at trial, was that Leftridge must have put his house key in the ignition, where it obviously did not belong, for purposes of deception, and that this act of deception implied that he knew that the car was stolen.
To combat this implication of guilty knowledge (in a case in which his client elected not to testify), defense counsel sought to discredit Officer Barnes' testimony that he found Leftridge's house keys in the ignition. If the keys were not in the ignition, there was no act of deception on the part of Leftridge, and hence no inference of guilty knowledge to be drawn. Accordingly, defense counsel cross-examined Officer Barnes about what he did with the keys. By means of a leading question, counsel drew the admission from Officer Barnes that he "gave those keys back to Mr. Leftridge." *fn5 The theory of the defense, urged in closing argument to the jury, was that if Officer Barnes had really discovered Leftridge's house keys in the ignition of a stolen car, he would have seized those keys as evidence. He would not have returned the keys, counsel argued, to the very person found in unlawful possession of the vehicle. Pressing the point, counsel asked the jury to conclude that "there were never any keys in the ignition."
The keys that Officer Barnes retrieved were not produced at trial. No one explained or commented on their absence. As both sides had learned in preparing for trial, however, the keys were missing. Leftridge did not have them. Exactly when and how the keys were lost has never been determined, though there is no evidence of bad faith. At the hearing on Leftridge's motion to vacate his conviction, Officer Barnes testified that he placed the keys on the roof of the car after Leftridge said they were his. He said that "when one of the officers took his property off the car where the keys was, [he] assumed that the keys went" to Leftridge's prisoner's property envelope along with his other personal effects. Officer Barnes never saw the keys again. When he testified at trial that he "gave" the keys back to Leftridge, he meant simply that he left the keys to go with the rest of Leftridge's personal property.
Following the arrest and prior to trial, defense investigators retrieved the property envelope in order to recover Leftridge's possessions, including the keys. The keys were not there. Nor were the keys listed on the prisoner's property receipt form that was prepared in connection with Leftridge's arrest.
The prosecutor testified at the post-conviction hearing that he too had inquired about the keys, which he wanted to use as evidence against Leftridge at his trial. He was told by Officer Barnes that the keys were treated as prisoner's property, but, he said, he "never learned to my satisfaction . . . whether for sure or not the keys had made it into the prisoner property envelope." For his part, defense counsel likewise did not know how the keys were lost. In his testimony at the hearing he stated that the fact that the keys were not in the envelope did not mean to him that they were ...