Appeal from the Superior Court of the District of Columbia (F-10744-95). (Hon. Mary Ellen Abrecht, Trial Judge).
Before Terry, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appellant Gilfredo Lopez ("Lopez") appeals the trial court's denial, following a hearing on remand, of his motion pursuant to D.C. Code § 23-110 (2001) to vacate and set aside his convictions for second-degree murder while armed,*fn1 assault with intent to kill while armed,*fn2 possession of a firearm during a crime of violence or dangerous offense,*fn3 and carrying a pistol without a license.*fn4 Specifically, Lopez contends that his trial attorney rendered ineffective assistance because he failed to interview and call as trial witnesses two individuals whose testimony, he argues, had a reasonable probability of altering the outcome of the trial.*fn5 Finding no merit to Lopez's claim of ineffective assistance of counsel, we affirm.
On December 23, 1995, a group of individuals, including Gilfredo Lopez and Ruben Flores ("the decedent"), were involved in an altercation at the Tracks nightclub and told to leave the premises. As Lopez drove away in a white Honda Civic,*fn6 the decedent and his cousin, Carlos Flores ("Flores"), chased after him in a Toyota Forerunner. During the brief chase, the decedent rolled down the passenger side window and threw beer bottles at the Honda. Although Lopez allegedly fired a "warning shot," the Flores cousins continued to pursue him. The chase ended soon after it began, with both vehicles coming to a stop a few blocks away from the nightclub. Flores testified that he stepped out of the Forerunner, walked about five feet toward Lopez's car, and heard the decedent yell at him to get back into the truck. Next, Flores testified that Lopez raised his hand out the driver-side window and fired a shot that hit, but did not penetrate, the Forerunner's windshield. According to Flores, Lopez then got out of the Honda and fired more shots at the Toyota Forerunner. As Lopez approached, still firing shots, Flores rushed back inside the Forerunner to avoid being hit. One of the bullets hit the side of the Forerunner near the engine; another broke the passenger door window, spreading glass all over the passenger seat. The decedent was fatally injured when one of the bullets passed through the upper portion of his left arm and became lodged in his right lung. According to the medical examiner who testified on behalf of the government, the decedent had been shot from about five feet away. Although he could not describe the decedent's exact position when he was shot, Flores testified that the decedent had never exited the Forerunner.
Once Flores realized that his cousin had been shot, he began driving around in search of help. After alerting the police to what had happened, Flores followed the officers as they pursued Lopez's Honda. Flores stopped his vehicle four blocks away from the scene of the shooting, in the 100 block of M Street where the police had apprehended Lopez. There, the decedent was removed from the Forerunner, and a firefighter administered CPR until the paramedic and ambulance arrived to take him to the hospital.
Although Lopez admitted to shooting and killing the decedent, he maintained that the shooting was in self-defense. At trial, he testified that he recognized the Flores cousins from the earlier fight at Tracks and believed they were chasing him in retaliation for that altercation. Lopez explained that he was afraid when the cousins continued pursuing his vehicle even after he fired a warning shot. Lopez testified that he was forced to stop his car behind stalled traffic and felt that he had to take some defensive action against his pursuers. When he saw the Toyota Forerunner's passenger and driver-side doors open, Lopez believed the cousins were coming after him. Lopez testified at trial, "I got out of my car. I seen [sic] both Carlos and Ruben's doors open. . . . At the time I was in fear. I didn't know whether they were hurting me. So I grabbed my gun with both hands and I fired at the windshield, first shot." Lopez allegedly fired these shots "to scare them off." He testified that when Flores returned to his car, he did not know whether Flores was fleeing the gunfire or retrieving a weapon of his own. In response, Lopez "fired and fired." Lopez claimed that he fired at the passenger side door only when he saw it open and the decedent "was making an intent to come out." Lopez further testified that he "didn't see [the decedent] come out all the way," that he never saw the decedent's hands or body, and that the decedent was "half inside and half outside" when the bullet hit him. Lopez testified that he never meant to shoot the decedent. Rather, he shot at the passenger door in the hopes of scaring the Flores cousins away.
A. Lopez's § 23-110 Motion
Following his convictions at trial, Lopez filed a § 23-110 motion alleging that trial counsel was constitutionally deficient because he failed to call at trial two exculpatory eyewitnesses, Nelson Reyes ("Reyes") and Miguel Sandoval ("Sandoval"), along with expert witness Hal Franklin Sharpe ("Sharpe").*fn7 According to Lopez, these witnesses would have offered testimony to support his theory of self-defense by corroborating his claim that the decedent was coming out of the car at him when he fired the fatal shot. Reyes and Sandoval were acquaintances of Lopez who happened to be driving behind the decedent's Forerunner at the time of the shooting. Reyes' affidavit indicated that during the chase, he saw the passenger in the Toyota truck throw beer bottles at the Honda. When the cars stopped, Mr. Reyes "observed [Mr.] Lopez exit the Honda, at the same time that both the driver and passenger [that is the decedent, Mr. Ruben Flores] in the Toyota were exiting that car." He "recall[ed] specifically that the passenger in the Toyota had opened his door and was getting out of the car." He added: "It appeared that the occupants of the Toyota were getting out to fight with the occupants of the Honda, in that both occupants opened their doors quickly and forcefully immediately after the Toyota had come to a stop."
Lopez v. United States ("Lopez I"), 801 A.2d 39, 44 (D.C. 2002) (alterations in original). Sandoval similarly stated in his affidavit that after the cars stopped, he "witnessed the passenger of the [Forerunner] open his door and get out very quickly, as if he were about to get into a fight." Id. In addition to the two eyewitnesses, Lopez claimed that trial counsel erred in failing to call expert witness Sharpe, "a specialist in the scientific investigation of alleged homicides." Id. at 45. Sharpe had been hired by Lopez's former attorney Heather Shaner to provide expert testimony at trial. Lopez's subsequent trial counsel, however, decided not to use Sharpe as a witness. Sharpe's affidavit indicated that, had he been called at trial, he "would have testified, to a reasonable degree of scientific certainty, that the decedent/passenger of the Toyota Forerunner was not seated in that vehicle at the time he was shot." Id. at 45 (emphasis in original).
Trial counsel Terrence O'Connor ("O'Connor") submitted an affidavit of his own, explaining his reasons for not calling these three witnesses. O'Connor explained that he did not call Reyes as a witness because, although he saw both the passenger and driver side doors open, Reyes "did not see anyone get out." Id. at 43. O'Connor believed this would contradict Lopez's claim that the passenger exited the car. With respect to Sandoval, O'Connor averred that he decided not to put him on the stand because Sandoval had a criminal record and would have testified, contrary to Reyes, that the passenger door of the Toyota did not open.*fn8 In addition, O'Connor was wary of "'using friends and family as witnesses' because they could 'damage' the case." Id. at 44. Finally, O'Connor's affidavit stated that he did not call Sharpe because "his proposed testimony that 'the passenger had gotten out of the car' would conflict with that of Mr. Reyes and Mr. Sandoval." Id. at 45.
Crediting trial counsel's justification for not calling these witnesses, the trial court denied Lopez's § 23-110 motion without holding a hearing. On appeal from that decision, we concluded that the trial court's failure to hold a hearing was error. Id. at 46. We said that the affidavits of both eyewitnesses, if true, corroborated Lopez's claim that the decedent was in the process of exiting the Toyota when Lopez fired his shots at the car. Id. at 45-46. Moreover, we found that Sharpe's affidavit "would have established that Ruben Flores could not have been seated in the Toyota truck when he was fatally wounded." Id. If true, these affidavits tended to refute the testimony of key government witnesses, including the decedent's cousin, who claimed that the decedent had never left his seat. Ultimately, we concluded, "[t]here is a reasonable probability that the testimony of Mr. Reyes, Mr. Sandoval[,] and Mr. Sharpe, if consistent with their affidavits and believed by reasonable ...