Appeals from the Superior Court of the District of Columbia (F-1908-94) (Hon. Gladys Kessler, Trial Judge) (Hon. Henry H. Kennedy, Jr., Trial Judge) (Hon. Henry F. Greene, Motions Judge) (Hon. Patricia A. Wynn, Motions Judge)
Before Schwelb, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Jerome L. Arrington was convicted by a jury of one count each of kidnaping while armed, *fn1 armed robbery, *fn2 assault with intent to commit rape while armed, *fn3 and possession of a firearm during a crime of violence. *fn4 Arrington subsequently filed a number of post-trial motions, each of which was denied. Arrington noted timely appeals from his convictions and from the denial of two of his post-trial motions. We conclude that the denial of the two motions, especially when the two are considered together, requires reversal. We therefore vacate the orders denying the two motions and remand the case for further proceedings consistent with this opinion.
At Arrington's trial, the prosecution presented evidence that on the morning of February 27, 1994, Deon Moore and Tonya Gray had just returned to the apartment building in which Ms. Moore lived when they were approached by a man who was carrying a double-barreled shotgun. Using abusive language, the armed man forced the women into the basement, where the assailant was joined by a second man. The assailant demanded the women's money and took $190 from Ms. Moore, who had recently cashed a welfare check. The robber then ordered both women to pull down their pants; terrified, the women complied. The robber pulled out his penis, and Ms. Moore began to scream. The man shouted at Ms. Moore: "Bitch, you are gonna fuck me or you're gonna suck my dick." At this point the second man warned the robber that he (the confederate) would not permit the women to be raped. In response, the robber pointed the shotgun at the second man. Subsequently, however, the robber relented and let the women leave, warning them not to report what had occurred and telling them to forget his face.
After a brief delay, and at the direction of her social worker, Bernice Muskelly, Ms. Moore reported the incident to the police. She described her attacker as a short, dark-complexioned man with pink lips and a missing tooth. She reported that the robber's confederate had called the robber "Tyrone" or "Jerome." Ms. Moore indicated that she had seen her assailant in the neighborhood prior to the robbery, but she was not otherwise acquainted with him.
Three days after reporting the robbery to the police, Ms. Moore saw a man she believed to be the robber coming out of an apartment across from her own apartment. She immediately advised Ms. Muskelly, who telephoned the police, and officers promptly apprehended the suspect. Ms. Moore identified the suspect as her assailant. The man turned out to be Jerome L. Arrington, the appellant in this case.
Arrington did not take the stand at his trial, which was before Judge Gladys Kessler, and he presented no witnesses. *fn5 Arrington was convicted of all charges. He filed a timely notice of appeal, and his direct appeal (No. 97-CF-1219) remains pending and is presently before us.
Following his conviction, Arrington filed a number of post-trial motions attacking his trial and sentence. These motions included one filed on March 3, 1998, pursuant to D.C. Code § 23-110 (1981), in which Arrington asserted that his trial counsel was constitutionally ineffective because he failed to interview or call allegedly exculpatory witnesses. On February 28, 1999, following an evidentiary hearing at which Arrington was not present, the motion was denied by Judge Henry F. Greene in a written order. Arrington noted a timely appeal from this order (No. 99-CO-381).
On July 24, 2000, Arrington filed a pro se motion purportedly pursuant to D.C. Code § 23-110. In substance, however, Arrington sought a new trial on the basis of newly discovered evidence, and the government agrees that the motion should be treated as one pursuant to Super. Ct. Crim. R. 33. This motion was denied on December 22, 2000, by Judge Patricia A. Wynn in a written order. Arrington again noted a timely appeal (No. 01-CO-811). The three appeals were consolidated by order of this court and are now before us. *fn6
THE MOTION BASED ON THE ALLEGEDLY INEFFECTIVE ASSISTANCE OF COUNSEL
In his motion seeking a new trial on the basis of ineffective assistance of trial counsel, Arrington asserted that his attorney had failed to interview and call potential defense witnesses who would have contradicted Ms. Moore's testimony that Arrington was essentially a stranger to her. Arrington's motion was accompanied, inter alia, by affidavits by Andre Dudley, Norman Hendrickson, and Arrington himself. The gravamen of the motion was that counsel's failure to interview and call Dudley and Hendrickson left unchallenged an essential part of the prosecution's case, namely, that Ms. Moore was an innocent individual who was assaulted by and robbed by a stranger. If the jury could be persuaded that Arrington and Ms. Moore were crack-smoking associates and that Ms. Moore lied about this association, then, in Arrington's view, her credibility would be shattered.
According to his affidavit filed in support of Arrington's motion, Andre Dudley had been advised that Ms. Deon Moore had testified at Arrington's trial, and that she had claimed "that she had no prior acquaintance or association with Mr. Jerome Arrington." Dudley asserted in his affidavit, inter alia, that if Ms. Deon Moore had indeed so testified, she had "[c]ategorically lied under oath." Dudley stated that he, Ms. Deon Moore, and Mr. Jerome Arrington "often associated, and during that association used [c]ocaine for our personal enjoyment or habit." In other words, according ...