Appeals from the Superior Court of the District of Columbia (F-181-79) (Hon. Nan R. Shuker, Trial Judge)
Before Schwelb and Washington, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Per Curiam
Opinion by Senior Judge KING at p. 2.
Concurring opinion by Associate Judge SCHWELB at p. 20.
Dissenting opinion by Associate Judge WASHINGTON at p. 22.
In these consolidated appeals, Sherman W. Dobson contends that the trial court erred in denying his requests for relief in two separate motions filed pursuant to D.C. Code § 23-110. In No. 00-CO-243, the motion was denied after a hearing on December 19, 1999, and in No. 01-CO-319, the motion was denied without a hearing on February 2, 2001.
The facts underlying each appeal are set forth in the opinion filed by Senior Judge King. In No. 00-CO-243, Judge Schwelb has filed a concurring opinion and Judge Washington has filed a dissenting opinion.
The judgment in both appeals is affirmed. With respect to No. 00-CO-319, Judge Schwelb and Judge Washington join in Parts I-C and II-B of Senior Judge King's opinion. That case is remanded for resentencing on the charge of carrying a pistol without a license (CPWL). *fn1
KING, Senior Judge: Sherman W. Dobson was convicted of armed robbery, in violation of D.C. Code §§ 22-2901, -3202 (currently at D.C. Code §§ 22-2801, -4502 (2001)), and CPWL, in violation of D.C. Code § 22-3204 (currently at D.C. Code § 22-4504 (2001)). These convictions were affirmed on direct appeal. See Dobson v. United States, 449 A.2d 1082 (D.C. 1982) (Dobson I), cert. denied, 464 U.S. 831 (1983). Subsequently, Dobson filed two motions, pursuant to D.C. Code § 23-110, contending in both that his trial counsel was constitutionally ineffective. Dobson appeals the denial on December 19, 1999 - after a hearing - of the first § 23-110 motion (No. 00- CO-243), and the denial on February 2, 2001 - without a hearing - of the second § 23-110 motion (No. 01-CO-319).
On October 15, 1980, Dobson was convicted by a jury of armed robbery and CPWL, offenses committed on June 6, 1978, when Dobson and his accomplice, James Harris, *fn2 robbed Edward Sawyer at gun point. The government's case depended almost entirely upon the eyewitness identification testimony of Sawyer, a Howard University police officer. Dobson was sentenced to fifteen years to life on the armed robbery charge, and to a consecutive sentence of ten years on the CPWL charge. On direct appeal, Dobson's convictions were affirmed, but the case was remanded for imposition of a minimum sentence on the CPWL conviction. See Dobson I, 449 A.2d at 1087. In March 1983, the trial court resentenced Dobson to forty months to ten years on the CPWL charge, consecutive to the fifteen years to life sentence for armed robbery.
On March 24, 1993, nearly eleven years after the affirmance by this court of his convictions, Dobson filed a pro se motion under § 23-110 (first 23-110 motion), arguing that his trial counsel had been constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984). On January 25, 1994, Dobson supplemented that motion to include the claim made here, i.e., that his trial counsel was ineffective because he did not present alibi witnesses after he had told the jury that he would present that defense. Concluding that Dobson was not prejudiced by any of the claimed deficiencies in his attorney's performance, the trial court denied the motion without a hearing. On appeal, this court reversed and remanded the case, holding that a hearing on the motion was required, because "[t]he [trial] judge failed altogether to address Dobson's most plausible claim, namely, that counsel's promise of an alibi in his opening statement, combined with his subsequent failure to present available alibi testimony, substantially prejudiced Dobson's defense." Dobson v. United States, 711 A.2d 78, 84-85 (D.C. 1998) (Dobson II). The court directed that the hearing on the first 23-110 motion was "to address only Dobson's claim that his attorney was ineffective by promising in his opening statement to present alibi witnesses and by the failure to keep his promise." *fn3 Id. at 85 n.14.
B. Hearing on the first 23-110 motion
After the remand, the trial court conducted an evidentiary hearing on the first 23-110 motion, receiving testimony on June 16, November 12, and December 16, 1999. The only issue before the court was whether Dobson's trial counsel was constitutionally ineffective for promising an alibi defense in the opening statement and then deciding not to present the alibi testimony at trial. Both Dobson and his trial counsel, Andrew Lipps, testified.
Lipps testified *fn4 that a few weeks before trial, Dobson advised Lipps how to contact three potential alibi witnesses. Lipps also testified that he had discussed with Dobson the possibility of putting on an alibi defense before he received the letter. *fn5 Lipps told the trial court that he "was prepared as of the morning of the trial to present an alibi defense," an assertion supported by the existence of subpoenas issued for all three alibi witnesses. The alibi witnesses in question were Jean Harris, the mother of Dobson's child; Dr. Eric B. Dobson, a physician who is Dobson's brother; and Steve Cole, Jean Harris's cousin. According to Lipps, these witnesses were credible because he "wouldn't proffer even in an opening statement an alibi defense if [he] thought the witnesses weren't worthy of being put on." The witnesses were expected to testify that they and Dobson were in Baltimore, Maryland, at a party on the night of the robbery.
Lipps acknowledged that during opening statement he told the jury he would be presenting an alibi defense and during jury selection he introduced the three witnesses expected to support the alibi. In addition, an October 31, 1980, post-trial memorandum prepared by Lipps for the Public Defender Service appellate section, outlined possible issues on appeal, including a reference to the alibi mentioned in his opening statement. *fn6 Lipps explained why he informed the jury in the opening statement about the alibi and the alibi witnesses:
It is a tactical decision in every case whether to announce a defense in opening statement at the outset or to reserve the opening statement until the beginning of the defense case. I have handled the practice in - depending on the case, in different ways.
In this case, it seemed to me it was useful to introduce the alibi defense and important to introduce the alibi defense at the outset for the following reasons. First, as I mentioned earlier, a jury will often form opinions of a case early on. And to simply have them listen to the entire case without any knowledge of what sort of defense was to come puts you behind the 8-ball.
In this case, it seems to me I would have known, from talking to the three witnesses, that they were three presentable witnesses, certainly, particularly Mr. Dobson's brother who was then, I gather from my written notes, in medical school.
And third, unlike some cases where it is hard to have a precise knowledge of what the government's case is going to look like, in this case we had an extensive pretrial identification hearing. And so I thought at the time, at least according to my reconstruction, that I knew well what the government's chief identification witness was going to testify. And, therefore, felt ...