Appeals from the Superior Court of the District of Columbia. (F-6550-90). (Hon. A. Franklin Burgess, Jr., Trial Judge).
Before Terry and Glickman, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge
Argued September 14, 2004
This case requires us to rule for the first time on an appeal from the trial court's application of the Innocence Protection Act (IPA). D.C. Code § 22-4131 (2004 Supp.). In 1994, this court affirmed on direct appeal Recco Bouknight's conviction of three counts of first-degree (felony) murder while armed,*fn1 and five other related offenses.*fn2 Bouknight now appeals the trial court's orders rejecting two collateral attacks upon those convictions. Bouknight claimed, under D.C. Code § 23-110 (2001), that his trial counsel had been ineffective, particularly in that he had prevented him from participating in his own defense. Bouknight also requested relief under the IPA. The trial court denied appellant's § 23-110 claim, and ruled that Bouknight had not made a sufficient showing to warrant relief under the IPA. We affirm.
Recco Bouknight was acquainted with the murder victim, Lloyd Thomas, and Thomas's friend, Angela Mercer, from having sold them drugs in return for money and sexual acts. Mercer testified that a short while after she and Thomas had conversed with Bouknight and others on the street, Bouknight came to Mercer's door and asked who was with her in her apartment and whether the guest had any money. Mercer let Bouknight into her apartment, but asked that he not do anything to her guest, Thomas. While she and Bouknight talked in the kitchen, Thomas went into the bedroom. Bouknight then walked to the apartment door and admitted three friends who had also been conversing with Mercer and Thomas on the street. Mercer thought she saw one of the friends hand a gun to Bouknight and shouted a warning to Thomas. Bouknight entered the bedroom and was pointing a gun at Thomas by the time Mercer got there. Thomas said "what's up" and reached into his coat pocket, whereupon Bouknight shot Thomas through the jaw and neck, fatally striking his carotid artery. According to other witnesses, someone later threw Thomas' body out the window.
Several months later, the police arrested Bouknight. He waived his Miranda rights and gave a written confession, which essentially paralleled Mercer's account of the killings. He added that Thomas had tried to buy drugs from him and his friends when they conversed on the street shortly before the shooting, and that when Bouknight's aunt then told him that Thomas had a lot of money, he got a gun from one of his friends, Steven Davis, went to Mercer's apartment with Jamal Jones, and Irving (Tom) Bolden, asked Thomas where the money was, and shot him when Thomas reached for his pocket.
At trial, Bouknight took the stand, testified that he was not present at Mercer's apartment at the time of the shooting, and explained that instead he was visiting a girl, Lee Lee, who lived in a different part of the same building. He denied that he had confessed, and stated that a detective had handed him a typed statement and told him he could leave if he signed it, and so he signed it without even reading it. The jury disbelieved Bouknight's testimony and convicted him on all counts. We affirmed on direct appeal. Bouknight, supra.
Five years later, in 1999, Bouknight filed a motion pursuant to D.C. Code § 23-110 (2001) seeking to have his conviction set aside, primarily on the basis that his trial counsel had been ineffective. The judge who had tried the case held a hearing on the motion. In support of the motion Bouknight testified to a third account of the killing which contrasted sharply with his confession (that he shot Thomas) and his trial testimony (that he was not present at the shooting). Bouknight stated for the first time that he was present at the shooting, that he had just had sexual relations with Thomas, and that it was Steven Davis who had entered the apartment and shot Thomas despite Bouknight's efforts to stop him. Bouknight also testified that his trial attorney, Mark Rochon, repeatedly failed to allow Bouknight to tell him what really happened and continued to advise him to use the alibi defense to which he then testified at trial. At the hearing, Bouknight acknowledged that, before he had retained Rochon, he had told his court-appointed trial counsel that he had killed Thomas, but he testified that he was not satisfied with her efforts to secure a good plea bargain. He also testified that, initially, he had been so afraid of Steven Davis that he did not tell Rochon, who had replaced his court-appointed counsel, that Davis had killed Thomas. However, Bouknight asserted, when he heard a month or two before trial that Steven Davis had died, he overcame his fear, and told Rochon a week or so before the trial that the deceased Davis was the killer.
Bouknight claimed that he testified at trial to a false alibi account because his counsel advised him to stay with his alibi defense on the theory that, if he testified to his new account, the jury would think that he was "trying to put the weight on Steve" since Steven Davis was dead. In addition, Bouknight cited his initial fear of Davis and his "youthful personal shame and embarrassment for his homosexual tendencies and acts" as explanations for his inconsistent defense theories.
Rochon testified at the § 23-110 hearing that he had been engaged in criminal defense work commencing in 1983, serving first for seven years with the Public Defender Service and thereafter with a private firm. He could recall some matters concerning the trial held eleven years before the hearing, but not certain specifics. He recalled that he had spoken often with Bouknight, and, although he may have cut Bouknight off at times, he "felt quite comfortable that [he] knew everything that he was either able to or willing to tell me about."*fn3
Rochon was unable to recall specifically if Bouknight's version of the events in question had shifted over time, nor was he able to recall whether Bouknight had ever told him that he was present at the scene of the murder, or claimed that someone else had committed the murder. Rochon was not specifically asked whether he advised Bouknight to stay with his fake alibi story -- probably because of the testimony just summarized.
Bouknight accompanied his § 23-110 motion with the statements of Jamal Jones and Eric Boyce. Jones stated that he had been present at the scene, and corroborated Bouknight's new version of the killing. Boyce stated only that Davis, whom he had feared, had told him to say Bouknight had committed the crime, and that Thomas had owed Davis some money.
The trial judge denied the § 23-110 motion for several stated reasons, the most important of which was that Bouknight had shown himself to be a liar, by his own account lying to the police and to the jury at trial. The judge also noted the implausibility of Bouknight's claim that his counsel repeatedly cut off his efforts to tell him that Davis had shot Thomas. In particular, the judge noted that Bouknight's further assertion that counsel told him that it would look like he was trying to "put the weight" on the deceased Davis if he testified at trial that Davis was the killer contradicted his present claim that counsel never let him tell him about that account. In deciding not to credit Bouknight's § 23-110 testimony, the judge also noted Bouknight's obvious self-interest in the outcome. In light of his ruling that Bouknight had failed to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the judge did not consider the issue of prejudice.
During the § 23-110 proceeding, Bouknight's 23-110 counsel, who is also his counsel on this appeal, filed a motion seeking a new trial under the Innocence Protection Act. In the motion, Bouknight incorporated the allegations he had made in his § 23-110 motion, as well as the accompanying affidavits.
The judge denied the government's oral motion to dismiss the IPA motion, and appointed Bouknight's § 23-110 counsel to represent him for the purpose of replying to the government's anticipated response to the IPA motion. After reviewing the parties' written submissions, the judge denied the IPA motion without holding another hearing, ruling that Bouknight had not met the "new evidence" requirement and other requirements of the IPA and, alternatively, that Bouknight's testimony and affidavit were not credible given the number of times he had contradicted himself about the facts.
Bouknight's challenge to the trial court's denial of his § 23-110 motion does not require extended discussion. We review with deference the trial court's rulings regarding claims of ineffective assistance of counsel. Bowman v. United States, 652 A.2d 64, 73 (D.C. 1994); Curry v. United States, 498 A.2d 534, 540 (D.C. 1985); Alston v. United States, 838 A.2d 320, 324 (D.C. 2003). Insofar as such rulings rest upon findings of fact, we will not reverse the trial court's determinations if they are supported by evidence in the record. Id. See D.C. Code § 17-305 (a) (2001). The determination of credibility is for the finder of fact, and is entitled to substantial deference. Byrd v. United States, 614 A.2d 25, 30 (D.C. 1992).
The trial court's determination that appellant's testimony is unworthy of belief is amply supported by the record. Not only did the trial judge review a record that set forth Bouknight's three conflicting versions of Thomas's murder, he also observed Bouknight's testimony at both the trial and the § 23-110 hearing, and carefully considered Bouknight's self contradictions, the implausibility of his account of discussions with counsel, and his interest in the outcome of the case. The judge then concluded that Bouknight had not established ineffectiveness of counsel. We affirm that ruling.
Bouknight's appeal of the trial court's denial of the IPA motion merits more discussion, as this is the first appeal that ...