Appeal from the Superior Court of the District of Columbia (F-11678-92) (Hon. Mary Ellen Abrecht, Trial Judge)
Before Terry, Farrell and Ruiz, Associate Judges
The opinion of the court was delivered by: Ruiz, Associate Judge
Following a jury trial, Ernest Joyner was convicted of assault with a dangerous weapon, *fn1 carrying a pistol without a license, *fn2 and one count of possession of a firearm during a crime of violence ("PFCV"). *fn3 Although a mistrial was declared after the jury could not reach agreement on two additional counts - first degree murder while armed *fn4 and a related PFCV count - a second jury convicted appellant of both of these charges in a subsequent trial. On appeal from the second trial, Joyner argues that the trial court improperly allowed the government to impeach a defense witness for bias with insufficient evidence, and further erred in denying his motion alleging ineffective assistance of counsel, filed pursuant to D.C. Code § 23-110 (2001), without a hearing on the issue of trial counsel's drug use and psychiatric treatment. We agree that the trial court erred in allowing bias questioning of a defense witness without a proper basis for such questions, but we conclude that this error was harmless in light of the overwhelming evidence of appellant's guilt. Additionally, we hold that the trial court did not abuse its discretion in denying his § 23-110 motion without a hearing because appellant has failed to allege prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984), and there is no indication that defense counsel was impaired during trial by any alleged drug use or psychiatric problems. *fn5
On the evening of October 16, 1992, at approximately 11:30 p.m., Tonya Johnson was shot five times and killed by a masked gunman in the vicinity of Yum's Carryout in the 1300 block of Wallach Place, N.W. Mario Manigan, a friend of appellant's, was wounded during the shooting by a stray bullet which lodged in his hip, and he was present at the scene of the crime when the police arrived. Several eyewitnesses observed the murder and identified the gunman as a black man with a light complexion, wearing a black mask which covered the lower half of his face. They also stated that he wore a long-sleeved black shirt and blue jeans, and carried a black revolver. All of the eyewitnesses saw the gunman run into an alley off of Wallach Place immediately after the shooting.
Two witnesses related their observations of Manigan's actions leading up to the shooting. Ronda Albert indicated that Manigan had been near a phone booth just prior to the shooting, looking down Wallach Place, and ran across the street toward Yum's Carryout moments before the shots were fired. Eyewitness Cyril Gibbs further testified that Manigan was walking back and forth, looking up the street and waiting to use the phone which Johnson was using just before she was shot and killed. When Johnson got off the phone and went into Yum's, Manigan used the phone until Johnson returned, at which point he waited a few moments before making a "mad dash across the street."
Nearby and just prior to the shooting, Officer Warren Alexander of the Metropolitan Police Department was sitting with Reserve Officer David Best in Best's car in the 1300 block of U Street, N.W., facing south with a view of Wallach Place. *fn6 At approximately 11:30 p.m., the officers heard five gunshots in succession from what they believed sounded like a large caliber weapon. Both exited the car, at which point they noticed a light-skinned black man slowing from a run to a brisk walk emerging from an alleyway that leads toward Wallach Place, stuffing a dark object down the front waistband of his pants. This man, later identified as appellant, repeatedly looked over his shoulder back down the alleyway toward Wallach Place. Officer Alexander announced himself as a police officer and ordered appellant to stop, whereupon appellant broke into a run eastbound on the south side of U Street. As Officers Alexander and Best began to chase appellant on foot on opposite sides of the street, appellant removed a gun from his waistband and turned to fire at Officer Best. Officer Alexander fired a single shot at appellant but missed.
As the chase continued, Officer Alexander used his radio to request assistance in apprehending appellant. A police car in the area responded, moving westbound on U Street towards 13th Street, forcing appellant to turn south onto 13th Street. Appellant crossed a grassy area as he changed direction, stumbled, and placed a gun and a mask on the ground before continuing to flee. Officer Best recovered the mask and gun, and the additional responding officers were able to catch appellant, handcuff him, and place him under arrest. *fn7 Five spent shell casings were found in the recovered weapon.
Shortly after appellant had been apprehended, a hysterical young woman approached Officer Alexander and informed him that someone had been shot. In response to his questioning, she indicated that she had seen the shooter, describing him as a "light-skinned" black man, and had seen him run through the alleyway off of Wallach Place. Officer Alexander did not obtain this woman's name or contact information.
Four witnesses testified for the defense. In response to testimony by government witnesses that the gunman fired the fatal shots with the weapon in his right hand, appellant's mother testified that appellant is left-handed. Timothy Butler testified that on the evening of the shooting he had gone to a movie at the Embassy Theater on Florida Avenue at 10:00 p.m. with Manigan, which ended a little after 11:00 p.m. He was walking home and was near the intersection of 14th Street and Wallach Place around 11:30 p.m. when he saw appellant at a phone booth talking on the phone. He then saw a "young guy" who was not appellant come from the south of 14th Street and begin shooting, but he did not see appellant after the shooting. Butler was impeached with two prior drug convictions, and admitted he was a friend of appellant. The government also called the general manager for the Cineplex Odeon theaters, which operated the Embassy Theater, as a rebuttal witness. He testified that the Embassy Theater was a single screen movie theater and that the showtimes on the night of October 16, 1992 were 7:15 p.m., 9:30 p.m., and midnight, with the 9:30 show ending at approximately 11:40 p.m.
A third defense witness, Tonnette Walker, stated that she was in the area of 14th Street and Wallach Place on the night of the shooting and saw the shooter, who she claimed was not appellant. She testified that she was the unidentified woman who had approached the police and tried to tell them what she knew, but that they informed her that they had "everything under control" and did not request her name or address. On cross-examination, Walker admitted that she did not know who the shooter was and that she did not see the shooting.
C. Testimony of Mario Manigan
Manigan, the fourth defense witness, testified that he and Butler were in the vicinity of 14th Street and Wallach Place on the night of the shooting looking for his cousin when he noticed appellant on the phone at a phone booth and waved to him. As Manigan waved, an individual came from Wallach Place and began shooting at Johnson. Manigan claimed the shooter was not appellant and stated that he turned to run but was shot.
On cross-examination, Manigan was impeached with a prior conviction for assault with a dangerous weapon, a handgun. The prosecutor then asked the following questions: Q: Now you indicated that as you were coming up the street that you waved to the defendant. Isn't it a ...