Appeals from the Superior Court of the District of Columbia (F1924-89) (F1925-89) (Hon. Reggie B. Walton, Trial Judge)
Before Wagner, Chief Judge, and Terry and Washington, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
In these consolidated appeals, appellant, Wei Hua Wu, appeals from three orders of the trial court denying his motions to vacate sentence and judgment filed pursuant to D.C. Code § 23-110 (2001), including one motion filed jointly with appellant, Hung Yui Yee, who also appeals from the order denying their joint motion. Finding no error in the trial court's rulings, we affirm.
Factual and Procedural Background
Both appellants were convicted in a joint trial of six counts of armed robbery of six different victims. Appellant Yee was also convicted of one count of possession of an unregistered firearm. Yee's convictions were affirmed on appeal in an unpublished Memorandum Opinion and Judgment on May 23, 1991. Wu's convictions were affirmed in an unpublished opinion on September 10, 1991. Their convictions arose out of a robbery at the Yenching Palace Restaurant on Connecticut Avenue in the District of Columbia. Several employees at the restaurant identified Wu and Yee as the robbers. Yee's contentions on direct appeal were that the trial court erred in: (1) denying a motion for mistrial after a government witness referred to his police identification number during cross-examination; (2) refusing to allow defense evidence to establish his motive for possessing the robbery weapon at the time of his arrest; and (3) imposing a mandatory minimum sentence under D.C. Code § 22-3202 (1989) *fn1 because the evidence was insufficient to support a finding that the gun used in the robbery was operable. In his direct appeal, Wu contended that the trial court erred in: (1) allowing "other crimes" evidence; and (2) denying a mistrial when a witness made reference to a police identification number. Both appellants filed post-trial motions, which we recount separately, except for their joint motion.
A. Yee's Separate Post-Trial Motions
After his convictions were affirmed, Yee filed, through counsel, a motion for re-sentencing under the Youth Rehabilitation Act (D.C. Code § 24-803 (1981)), *fn2 or alternatively for reduction of sentence with a recommendation that he serve his sentence in a federal facility. In a letter to the court seeking reduction of sentence, Yee admitted committing the crimes and attempted to explain that the reason was because he "got into trouble." He identified a third person, who was not caught, as the instigator and the driver of the car that night. He expressed his remorse for committing the crimes. The trial court denied the requests for reduction or modification of sentence.
In a letter to the court received on August 16, 1995, Yee requested a complete copy of the files and record in the case, without cost. He explained that now that he has learned some English, he is of the opinion that he was "denied effective assistance of counsel by virtue of the false and incorrect translation of my native language . . . ." He explained further that although both he and his translator at trial are of Chinese origin, their dialects are different, which "created a flaw in the actual and correct translation of the trial proceedings and the related activities." *fn3 The trial court granted Yee's motion to proceed in forma pauperis, but denied without prejudice his request for transcripts because Yee had provided only speculative and conclusory statements concerning his need for the transcripts.
In response to the court's order, Yee filed a second motion for transcripts. In that motion, he explained that he is of Chinese origin and not knowledgeable in the laws and rules of the District of Columbia or the United States. He also contended that his attorney failed to explain adequately the laws and rules during his trial and that he needed the transcripts for any collateral attack. The court denied the motion because Yee failed to show a particularized need for the transcripts. Yee did not appeal from these orders.
B. Wu's Separate Post-Trial Motions
Following conviction, Wu's counsel filed on his behalf a Motion to Reconsider Sentence under Super. Ct. Crim. R. 35(b). Wu requested a Youth Rehabilitation Act study and sentencing under that Act. He stated that he did not dispute the seriousness of the offense or that incarceration was warranted. The court denied the motion, explaining that Wu was 22 years of age at the time of conviction, and therefore, ineligible for treatment under the Youth Rehabilitation Act. Further, the court concluded that Wu's claims of rehabilitation and good prison behavior were more appropriate for consideration by the Board of Parole and that reduction of sentence was not warranted otherwise.
In March 1993, Wu filed a Motion for New Trial, which was resubmitted with leave of the court on April 26, 1993 to allow for the filing of signed affidavits in support of the motion. Wu claimed in this motion, filed pursuant to D.C. Code § 23-110, that trial counsel was ineffective in failing: (1) to call alibi witnesses, Gee Lee, Mon Suey Lee and Lung Chi Kin, to testify; (2) to file a motion to suppress pre-trial identifications; and (3) to file a notice of alibi. Wu filed an affidavit stating that he did not understand English, that he told his trial counsel that he was innocent, and that he was with the alibi witnesses on the night of the robbery. Mark Kuang filed an affidavit stating that the proffered witnesses had so informed him and that he had informed Wu's trial counsel. Mon Suey Lee and Gee Lee filed affidavits stating that they had been with Wu all evening from 5:00 p.m. on February 7, 1989 at 611 H Street, N.W. *fn4 Wu's appellate counsel for his direct appeal also filed an affidavit stating that he had left messages ...