Appeal from the Superior Court of the District of Columbia (F-6369-94) (Hon. Susan R. Winfield, Trial Judge)
Before Schwelb and Glickman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor, Senior Judge
Submitted October 9, 2003
At the conclusion of a jury trial, appellant and two co-defendants were convicted of offenses stemming from the killing of one person and assault upon another. *fn1 Although there is a direct appeal from those convictions now pending before this court, appellant, in the present appeal, challenges the denial of collateral relief, D.C. Code § 23-110 (1981), by the trial judge. He asserts that he was denied his constitutional entitlement to effective assistance of counsel because his trial counsel was acquainted with a prosecution witness, thereby impairing her representation of him. Being unpersuaded by this contention, we affirm.
In June 1994 appellant, Donnell Porter, and Norvelle Nelson arranged to meet Mamodou Mbaye and Modibo Hylton at the Kennedy Playground in Northwest, Washington in order to purchase marijuana. Upon arriving, appellant approached the two men alone and asked about the marijuana before leaving to get Nelson and Porter. When the three men returned, they each drew a gun and began searching Mbaye, taking his marijuana, and Hylton, taking his pager. Appellant ordered the two m en onto the ground; before they could lay down, Nelson hit Mbaye with his gun, knocking him to the ground and then sat on him.
Hylton had put his hands in the air, heard a gunshot and looked up to see appellant pointing a gun at him. When he stepped to his side he w as met by Porter, whose weapon was pointed at his head. Appellant then fired his weapon, grazing Hylton's face. Hylton took cover under a nearby picnic bench, where he was shot again - this time by Porter - the bullet entering his left shoulder. Hylton, attempting to get out from under the picnic table, saw Mbaye on the ground, not moving and apparently shot in the head. He attempted to move Mbaye, but experiencing a great deal of pain in his shoulder, lay down on the ground, and passed out of consciousness. The attack resulted in the death of Mbaye and serious injury of Hylton. Appellant, Porter, and Nelson fled the scene on foot but were later identified by Hylton and arrested.
During the course of the trial, appellant's counsel made the court aware of a relationship she shared with a potential government witness. The witness was Patrick Hylton, father of Modibo Hylton, the complaining witness. Counsel stated that she knew the father as a result of belonging to some of the same organizations and attendance at activities related to the groups. Upon learning of the circumstances, the trial judge conducted an inquiry of counsel, including the following:
THE COURT: Are you fully prepared to cross-examine the witness on the witness stand?
[COUNSEL]: Yes, I am, I'm fully prepared to cross-examine any witness that the government presents.
THE COURT: Including the son of somebody you've met socially?
[COUNSEL]: Yes, Your Honor, but I want to put this on the record for the re cord and in the p resence of my client.
THE COURT: Do you have reason to believe that you have a conflict of interest between fully and zealously advocating on behalf of your client and whatever social contact you had with [t]his witness's father?
[COUNSEL]: No, Your Honor, my first and foremost commitment is to my client, an ...