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Oliver v. United States

September 11, 2003

CHARLES OLIVER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (M-5409-00) (Hon. Anita Josey-Herring, Trial Judge)

Before Terry and Farrell, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Submitted April 3, 2003

Appellant was convicted of simple assault after a non-jury trial. On appeal he contends that the trial court erred in denying the request of his court-appointed counsel for leave to withdraw from the case, made on the morning of trial, and that his counsel was ineffective for failing to call more than one witness (appellant himself) to testify for the defense. We affirm.

I.

During the evening of May 6, 2000, eighteen-year-old Yunxu Chen and his older brother *fn1 were making deliveries for their father's carry-out restaurant. Mr. Chen testified that after one delivery his brother, who was driving, struck appellant's car while trying to back out of a parking space. After the two cars collided, appellant got out of his car, came over to Yunxu Chen, who was sitting in the front passenger seat, and punched him in the head. Mr. Chen's brother promptly called his mother and younger sister at home and told them what had happened, and the sister called the police.

Metropolitan Police Officer Daniel Traver arrived at the scene within minutes, and Mr. Chen told him he had been struck by appellant. Officer Traver testified that he saw swelling and blood on the side of Chen's face as well as an abrasion and a cut on appellant's left index finger. Officer Paul Newsham, who arrived a few moments later, also testified that Mr. Chen's face was swollen and bleeding and that appellant had a cut on his hand. Appellant was thereupon arrested and taken to the police station.

Testifying in his own defense, appellant stated that after the two cars collided, Mr. Chen got out of his car and started towards him while flailing his arms and speaking loudly in a foreign language. Appellant said that he thought Mr. Chen was upset and felt it necessary to defend himself by punching him in the forehead.

The trial court found appellant guilty, expressly crediting the testimony of Mr. Chen and the two officers. The court specifically discredited appellant's testimony that Mr. Chen behaved aggressively and that appellant had to act in self-defense.

II.

Just before the trial began, the following conversation took place between the court and counsel:

MR. WINGERTER [defense counsel]: Your Honor, we have a problem with the following. He, Mr. Oliver, is diversion eligible. Unfortunately, only when we talked about discovery did I realize that he's diversion eligible.

THE COURT: I'm not going to continue the case for that reason. Is there any other reason?

MR. WINGERTER: No, actually his supervisors told him that he couldn't do ...


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