Appeals from the Superior Court of the District of Columbia No. F-5244-96. Hon. Noel A. Kramer, Trial Judge.
The opinion of the court was delivered by: Duncan-peters, Associate Judge, Superior Court
Before SCHWELB and GLICKMAN, Associate Judges, and DUNCAN-PETERS, Associate Judge of the Superior Court of the District of Columbia.*fn1
On November 25, 1996, Anthony W. Metts was convicted by a jury of one count each of assault with a dangerous weapon,*fn2 aggravated assault while armed,*fn3 possession of a firearm during a crime of violence,*fn4 and carrying a pistol without a license.*fn5 On January 22, 1997, Mr. Metts was sentenced to two 8-to-24-year terms, a 5-to-15-year term, and a 31/2 -to-10 year term, all to be served concurrently. In a pro se motion to the trial court dated April 17, 1998, Mr. Metts alleged ineffective assistance of trial counsel and requested a hearing under District of Columbia Code § 23-110.*fn6 A new attorney appointed by the trial court subsequently filed a supplement to that motion, and an amendment to the supplement.*fn7 In two separate Orders, the trial court denied Mr. Metts's § 23-110 motion. The second Order was issued only after several extensions of time were granted to permit Mr. Metts time to submit affidavits in support of his motion. Mr. Metts appeals his four convictions along with the trial court's denial of his § 23-110 motion. For the reasons that follow, we affirm.
At Mr. Metts's trial, the prosecution presented evidence that on April 11, 1996, Lawrence Baylor and Billy Morton entered Mr. Metts's place of work, "Big Man's Barbershop." At the time, Mr. Baylor was romantically involved with Mr. Metts's ex-wife, Natalie Bolling. When Mr. Baylor and Mr. Metts began to argue about what Mr. Baylor regarded as Mr. Metts's harassment of Ms. Bolling, the owner of the barbershop told them to leave. Mr. Baylor then exited the shop. Mr. Metts walked to the back of the shop, retrieved his jacket, and then exited as well.*fn8 Mr. Morton followed Mr. Metts onto the sidewalk outside.
Once outside, Mr. Baylor and Mr. Metts continued to argue, with Mr. Baylor telling Mr. Metts to stop harassing Ms. Bolling, and Mr. Metts responding that Mr. Baylor could not tell Mr. Metts what to do. Mr. Metts pulled a handgun out of his jacket and fired one round into Mr. Baylor's stomach. After being shot, Mr. Baylor ran behind a car, and Mr. Metts fired another shot, which passed through a window but did not hit Mr. Baylor. Although wounded, Mr. Baylor ran down the middle of the street, jumped on the hood of a passing car, and was carried from the scene. As Mr. Baylor ran down the street, Mr. Metts fired two more shots, neither of which hit Mr. Baylor. After Mr. Baylor left the area on the hood of the passing car, Mr. Metts drove away in a separate car.
In support of its contention that Mr. Metts shot Mr. Baylor, the government presented the testimony of the following witnesses: (1) Ms. Bolling, who testified that Mr. Metts had threatened and harassed her after their relationship soured, and that "he wasn't willing to accept the fact that I was with someone else"; (2) Mr. Morton, who was standing "knee close" to Mr. Metts and Mr. Baylor when Mr. Metts pulled a pistol from his jacket and shot Mr. Baylor in the abdomen; (3) Mr. Baylor, who was standing three to four feet away from Mr. Metts when Mr. Metts shot him; (4) Cornell Hill, Sr., who was standing in front of his house, situated "approximately a hundred, 150 feet" from Big Man's Barber Shop, when he observed the shooting, wrote down the license plate number of the car in which the shooter drove away from the scene, and provided this tag number to the police;*fn9 (5) Cornell Hill, Jr., Mr. Hill, Sr.'s son, who also was outside the Hill residence, and saw "the barber reach in the waist and pull something out and shoot the heavy set guy, Mr. Baylor";*fn10 (6) Tyrone Hill, the brother of Cornell Hill, Sr., who heard shots on the day in question and, from the vantage point of the Hill residence, observed Mr. Metts chasing after Mr. Baylor with "his arm or hand extended like he had something in it"; and (7) John Belmar, a friend of the Hill family, who, also from the vantage point of the Hill residence, observed Mr. Metts shooting a heavyset man, then chasing him down the street.*fn11
Mr. Metts testified at trial that he did not have a handgun in his possession on April 11, 1996, and that after he stepped out of the barbershop Mr. Baylor instructed Mr. Morton to shoot Mr. Metts.*fn12 Upon hearing this, he pushed Mr. Baylor and ran away. As he ran, he heard one gunshot.
II. D.C. Code § 23-110 Motion*fn13
In his pro se Motion to Vacate Sentence and Set Aside Conviction, filed with the trial court, Mr. Metts argued that his trial counsel was ineffective because he: (1) neglected to request that the trial Court instruct the jury not to discuss the case during breaks; (2) failed to inform Mr. Metts about a plea offer; (3) failed to interview and/or call parole officer Michael Johnson as a witness; (4) failed to interview and/or call Shirley Burnett as a witness; (5) failed to call Anthony Pryor as a witness;*fn14 (6) failed to move with sufficient zeal for a mistrial after Ms. Bolling, while testifying, made reference to Mr. Metts having been in prison; and (7) failed to present available and favorable character testimony on Mr. Metts's behalf at trial. Mr. Metts attached written statements from Raymond Reid, Rashida Bell, and Phyllis Metts to the supplement to his motion. In an amendment to the supplement, Mr. Metts asserted that, in addition to presenting the above-named witnesses at a D.C. Code § 23-110 evidentiary hearing, he would show that his trial counsel's poor health prejudiced his defense. In her November 15, 2001 Order, the trial judge denied most of Mr. Metts's claims, but granted him additional time to obtain affidavits from potential witnesses he had named in support of his request for a § 23-110 hearing on his ineffective assistance of counsel claim. In an Order dated July 10, 2003, the trial judge denied Mr. Metts's § 23-110 motion, on grounds that, despite four extensions of time and the appointment of a "Court Certified Investigator," Mr. Metts had produced only one affidavit from his five prospective witnesses, which affidavit did not support his claim, and presented no "other credible evidence" warranting a hearing.
On appeal, Mr. Metts argues that the trial court erred: (1) by refusing to declare a mistrial, and by giving the jury an inadequate curative instruction, after Ms. Bolling stated during her testimony that Mr. Metts had been in prison; and (2) by declining to hold the requested evidentiary hearing and denying Mr. Metts's § 23-110 motion.
III. Motion for Mistrial and Curative Instruction
Mr. Metts requested a mistrial after Ms. Bolling gave the following testimony at trial:
Q: And why did you believe that it wasn't so much about your daughter but more about you and Mr. Metts?
A: Basically because of the statements that he made. That particular day when -- of the first visitation, the mutual consent to visitation with my daughter, after all of that had taken place and I had eventually -- he had eventually dropped my daughter off later on that evening, he told [sic] on the phone that he was going to make me pay for having him to stay in prison as long as he did.*fn15
After conferring with counsel at the bench, the trial judge denied defense counsel's request for a mistrial, and instead gave the following curative instruction to the jury:
THE COURT: Ladies and gentlemen, in the course of Ms. Bolling's testimony just now she made some reference to Mr. Metts' being in prison. I have absolutely no idea what she is talking about.
But I want to say to you, ladies and gentlemen, that that bears absolutely no relationship to any of the issues that are before you in this case.
And so I'm going to instruct you whatever it was to simply put it out of your mind.
"[W]e will reverse the trial court's denial of a motion for a mistrial only if it appears irrational, unreasonable, or so extreme that failure to reverse would result in a miscarriage of justice." Coleman v. United States, 779 A.2d 297, 302 (D.C. 2001) (citation and internal quotation marks omitted). Factors to be considered in assessing the degree of prejudice suffered by Mr. Metts as a result of Ms. Bolling's remark include "the gravity of [her inappropriate disclosure], the relative ...