Appeals from the Superior Court of the District of Columbia (F-4418-96) (Hon. Evelyn E.C. Queen, Trial Judge)
Before Ruiz and Washington, Associate Judges, and Ferren, Senior
The opinion of the court was delivered by: Per Curiam
On November 4, 1996, a jury found appellant Howard E. Haley guilty of aggravated assault while armed against his girlfriend Paulette Scott. See D.C. Code §§ 22-504.1, -3202 (1996). Haley noted his direct appeal on February 4, 1997. On March 31, 1998, Haley filed a "Motion Pursuant to D.C. Code § 23-110 for Relief from Sentence and Motion for a New Trial Pursuant to [Superior Court] Criminal Rule 33 with Hearing Request." *fn2 See D.C. Code § 23-110 (1996); Super. Ct. Crim. R. 33. Without an evidentiary hearing, the trial judge denied both the § 23-110 and the Rule 33 motions. Haley's appeal from that determination was consolidated with his direct appeal.
On appeal, Haley argues that (1) the trial court abused its discretion by restricting his trial counsel's closing argument impermissibly; (2) the trial court erred in concluding that the government had presented evidence sufficient to establish a prior conviction which would have permitted the government to impeach him with a prior murder conviction had he testified; (3) the trial court abused its discretion by denying his Rule 33 motion based on newly discovered evidence; and (4) the trial court abused its discretion by denying his § 23-110 motion. We reject the first three claims of error but remand for an evidentiary hearing on the ineffective assistance of counsel claim in Haley's § 23-110 motion.
At the time of the operative events, Ms. Scott shared an apartment with her seventy-two-year-old father, Paul Scott. At trial, Mr. Scott testified that he was in the apartment the night in 1996 when his daughter was injured. That night, he saw his daughter come home with a man he referred to as "Howard" and enter her bedroom with him. According to Mr. Scott, when the couple left the bedroom together some time later, his daughter was holding her stomach and there was blood on the floor. She then left the apartment, telling him that she was going to the hospital. According to Mr. Scott, "Howard" followed her out the door.
The record indicates that Mr. Scott testified at first that the person with his daughter on the night of her stabbing was named Harold; however, he later indicated that the man's actual name was Howard. Mr. Scott also testified that prior to trial he had selected appellant's photograph from an array shown to him nearly six months after the incident. While at one point Mr. Scott revealed that he was not sure whether the person whose photograph he selected was with his daughter the night she got hurt, he later stated that the person in the picture he chose looked like "the Howard that was with [his] daughter." During cross-examination, Mr. Scott testified that he thought the picture depicted the "right man." In response to defense counsel's question whether Howard was in the courtroom, Mr. Scott stated, "I don't know." *fn3 On redirect, Mr. Scott revealed that he had seen Howard "a couple of times," and that his daughter had only dated one boyfriend named "Howard."
A neighbor of the Scotts testified that she was awakened by the sound of a woman calling for help outside her window on the night of the incident. The neighbor could see the woman lying on the ground, and called the police. Responding to the call, Officer Michael Terrell found Ms. Scott lying face down on the ground next to a pool of blood. Although Ms. Scott was in and out of consciousness, she told Officer Terrell that she had been stabbed by her boyfriend, Howard Haley. Officer Terrell and Detective John T. Turman subsequently followed a trail of blood that led from where Ms. Scott was lying to her bedroom in the apartment she shared with her father. Detective Turman testified that when he visited Ms. Scott in the hospital the day after the incident, Ms. Scott once again identified appellant as the perpetrator. No weapon was ever recovered.
Ms. Scott testified that before the stabbing, she and appellant were celebrating Haley's birthday in her bedroom. The celebration included drinking and drug use. Ms. Scott later testified that she was in the middle of a "binge" which had started a few days before she was injured. At some point they started to argue. Ms. Scott then left her apartment and went to a friend's house nearby. Appellant found Ms. Scott at her friend's house and, according to Ms. Scott, was "kind of angry, but . . . not as angry as he could have been." Ms. Scott testified that soon thereafter, she and Haley returned to her apartment and continued their drug and alcohol use. Ms. Scott further testified that Haley left the bedroom for approximately twenty minutes at one point and that, during Haley's absence, a man named "Lover" entered her bedroom and "smok[ed]" some drugs. According to Ms. Scott, she and Lover "had a little argument because [she] didn't want to go to bed with him." At some point later, Ms. Scott was stabbed. At trial, she testified that she did not remember the specific events surrounding her stabbing, and thus, could not be certain who had stabbed her. Ms. Scott also revealed that she had talked with appellant between the day of the incident and the trial.
To rebut Ms. Scott's testimony that she did not know who had stabbed her, the government introduced her earlier grand jury testimony, in which Ms. Scott had described the sequence of events surrounding her stabbing in some detail, including specifically that Haley had stabbed her with a ten-inch butcher knife in a fit of rage. At trial, Ms. Scott testified that she did not remember any of her prior grand jury testimony because she was under the influence of drugs and alcohol at the grand jury proceeding. She also stated that, at the time of the incident and her grand jury testimony, "[she] was saying what [she] felt, because [she] was mad at [appellant]" because he was going to leave her. *fn4
B. Ruling on Impeachable Convictions
Prior to trial, the government informed appellant that if he chose to testify in his defense, it intended to impeach his testimony with a 1974 murder conviction pursuant to D.C. Code § 14-305 (b) (1995) ("[F]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted . . . if the criminal offense (A) was punishable by death or imprisonment in excess of one year . . . ."). Because the prior murder conviction occurred in 1974, however, and because it appears that Haley had served his sentence and completed any related parole or probation more than ten years before trial, that conviction was too stale for admission in evidence under the ten-year limitation of § 14-305 (b)(2)(B). There is, however, an exception to this "stale conviction" preclusion. D.C. Code § 14-305 (b)(2)(B) allows evidence of a witness's convictions older than ten years when a parole, probation, or sentence attributable to another conviction of that witness has expired within the ten years prior to the witness's testimony. Glass v. United States, 395 A.2d 796, 808 (D.C. 1978). The government accordingly sought to introduce evidence that Haley had been convicted of assault in 1987, a conviction that could serve as a "link" permitting introduction of his twenty-two-year-old murder conviction.
Conceding that the murder conviction was valid, the defense disputed the existence of the 1987 assault conviction (which had been referenced in a Pretrial Services Agency printout on May 23, 1996 - the same date Haley's counsel entered his appearance - and which also had been referenced by the government in a Discovery Form completed by an Assistant United States Attorney on July 9, 1996 *fn5 ). In response to the defense's contention, the government presented the court with a certified copy of a warrant of arrest from the Alexandria General District Court. The trial court found this document to be insufficient, standing alone, to establish the 1987 assault conviction because it was ambiguous. The next day - October 29 - the court empaneled the jury, both parties gave opening statements, and the jury was excused for the day. Thereafter, a colloquy took place in which the court considered a National Crime Information Center (NCIC) report proffered by the government showing that Haley had been convicted of assault in Virginia in 1987. The court found a match between the warrant of arrest and the NCIC report with respect to the charge, the date, and the conviction. The court found the two documents sufficient to establish the existence of the 1987 conviction, and ruled that it would permit the requested impeachment if Haley chose to testify.
Testimony began on October 30. After the testimony of Detective Turman, the government indicated that it had no more witnesses for the day because the doctor who treated Ms. Scott would not be available until the next day. Out of the presence of the jury, the government offered a certified copy of the NCIC report produced the day before. The court reiterated its ruling from the previous day, noting that the three documents (the warrant of arrest, an NCIC report, and a certified NCIC report) matched in appellant's name, address, 1987 filing date, and case number. Haley's trial counsel stood on his argument that the government failed to prove the existence of the 1987 conviction. The jury was brought back to the courtroom, dismissed for the day, and the proceedings adjourned at approximately 3:05.
On October 31, the government presented testimony of the doctor and Ms. Scott. On November 1, the government completed the testimony of Ms. Scott and rested its case. Appellant elected not to testify at trial apparently as a result of the trial court's ruling that he could be impeached with the 1974 murder conviction. The defense indicated that it would present no witnesses and rested its case on November 1. While the defense did argue in colloquies throughout the trial that appellant had never been convicted of the purported assault charge, at no ...