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Forte v. United States

July 22, 2004

JAMES L. FORTE, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (F-378-97). (Hon. Michael L. Rankin, Trial Judge).

Before Terry and Steadman, Associate Judges, and Nebeker, Senior Judge.

Per curiam.

Argued September 10, 2003

Opinion by Associate Judge TERRY dissenting in part at p. 18.

After a jury trial, appellant, James Forte, was convicted of one count of robbery of a senior citizen.*fn2 While his appeal from that conviction was pending, appellant filed in the trial court a motion to vacate his conviction under D.C. Code § 23-110 (2001), asserting ineffective assistance of counsel. The court denied the motion without a hearing. Appellant's appeal from that denial was consolidated with his appeal from the conviction.

Before this court, appellant makes three arguments. First, he contends that the trial court erred in denying his motion to suppress a showup identification. Second, he claims that the trial court did not conduct a proper Monroe-Farrell*fn3 inquiry into his pre-trial claim of ineffective assistance of counsel. Finally, he maintains that the court erred in denying his § 23-110 motion without a hearing. We reject appellant's first contention and uphold the denial of his motion to suppress. We also hold the trial court conducted an adequate pre-trial inquiry under Monroe-Farrell and did not abuse its discretion in denying appellant's § 23-110 motion alleging ineffective assistance of counsel.

I.

A. The Robbery

Shortly after 8:30 p.m. on January 12, 1997, while working as a part-time security guard at the Days Inn motel on New York Avenue, N.E., Sergeant Brian Hubbard of the Metropolitan Police was told by a man who came into the motel lobby that his father was being "killed" just outside in the parking lot.*fn4 Hubbard immediately went out to investigate and found that Ralph McAvoy had just been robbed, but not killed. After speaking briefly with Mr. McAvoy, Sergeant Hubbard went back into the lobby and telephoned the police dispatcher to report what had happened. He also repeated the description of the robber that Michael McAvoy had given him and said that the robber had been last seen "running across New York Avenue toward the Master Host Inn," another nearby motel.

While Sergeant Hubbard was still on the phone, he was approached by Michael Daughtery, who had also had an encounter with the robber. Mr. Daughtery had been talking on a pay phone at a Mobil gas station next to the Days Inn when he was approached by a man who asked him for money. After turning him down, Mr. Daughtery saw the man go up to Mr. McAvoy, who was pumping gas into his car a short distance away. They had a brief conversation, and then the man got into Mr. McAvoy's car, which pulled out of the gas station and headed for the Days Inn. Then Mr. Daughtery heard "screaming," and when he looked toward the Days Inn, he saw the man jump out of Mr. McAvoy's car and run across New York Avenue toward the Master Host Inn.*fn5

Although Mr. Daughtery did not witness the actual robbery, he gave Sergeant Hubbard a description of the man he had seen, noting that he had been wearing "a brown leather snakeskin-type jacket . . . blue jeans and a black hat." Sergeant Hubbard relayed this description to the police dispatcher and then began to canvass the area with Mr. Daughtery.

About ten minutes later, Sergeant Hubbard stopped appellant near the intersection of New York and Montana Avenues. Appellant was the only person on New York Avenue, and Mr. Daughtery identified him as the man he had seen earlier. After patting him down for weapons, Sergeant Hubbard handcuffed appellant and brought him back to the Days Inn for a showup identification.

While Sergeant Hubbard was out looking for the robber, Officer William Hawkins had arrived at the Days Inn and begun to interview Mr. McAvoy. McAvoy told the officer that he had agreed to give a man a ride back to the Days Inn from a nearby gas station, and that the man robbed him when they reached the Days Inn. At that point, Sergeant Hubbard returned with appellant in custody. Officer Hawkins then asked Mr. McAvoy, "Is this the man that robbed you?" Mr. McAvoy responded, "Yes, that's - that's definitely him." Appellant was thereupon placed under arrest.*fn6

B. The Monroe-Farrell Letter

In May 1997, while the case was awaiting trial, appellant wrote a letter to the trial judge complaining about his lawyer, an attorney with the Public Defender Service. Appellant's letter stated:

My concern is that I have been in jail ever since January 13, 1997 and my lawyer . . . hasn't yet been to see me, nor has he given me any information concerning my case, and I've been on the back burner ever since. Nonetheless, I don't feel that he's handling his responsibility as a lawyer, and I would like to have him withdrawn from my case, your honor, I don't want to sit over here at this jail awaiting another (100) hundred days, I am asking you to either pull him up of [sic] his awareness, or remove him from my case. I certainly would like to have some one who's willing to show better concerns.

When the case came to trial almost two and a half months later, before jury selection began, the prosecutor brought appellant's letter to the court's attention. The following exchange ...


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