Appeals from the Superior Court of the District of Columbia. (F-420-97). (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Terry, Associate Judge
Argued September 23, 2004
Before TERRY, WAGNER,*fn1 and REID, Associate Judges.
Appellant was convicted of assault with a dangerous weapon and two related firearms offenses. On appeal he contends that a bullet and a pistol were erroneously admitted into evidence, arguing that they were irrelevant and that their probative value was outweighed by their prejudicial impact. He also challenges, on two grounds, the trial court's denial of his motion to vacate sentence under D.C. Code § 23-110 (2001). We affirm both the judgment of conviction and the denial of the § 23-110 motion.
A. The Government's Evidence
At approximately 4:00 p.m. on November 13, 1996, Joseph Funnyre borrowed his mother's van to drive his friend Timothy Musgrove to a day care center in an apartment complex in the 1500 block of F Street, N.E. Earlier that afternoon, Musgrove had asked Funnyre to give him a ride to pick up his son, and Funnyre agreed to drive Musgrove and wait for him.
Funnyre parked across the street across from the day care center and waited in the van as Musgrove went inside. When he looked in his rearview and side mirrors, Funnyre testified, he noticed three men standing nearby who were closely watching him as he sat there. He recognized all three - Mustafa Brown, Xavier Gray, and appellant Momolu Stewart - both by face and by name because they were neighborhood acquaintances he had known for several years; in particular, he knew appellant because they had attended grade school together. After a few moments, the three men slowly took up different positions around the van. Mr. Gray stood in front of the apartment complex, directly across the street from where Funnyre was parked, and "just stared" into the van. Mr. Brown walked past the van on the passenger side, continuing along F Street. At the corner he joined up with appellant, and after a brief conversation, they turned and walked back together toward the van.
Funnyre stated that when Gray and appellant were "about two car lengths" from the van, appellant suddenly reached into his waistband and pulled out a "shiny automatic" silver pistol. Funnyre immediately ducked, then started the van and sped away. As Funnyre fled, appellant ran between two parked cars into the street in front of him and shot at the van. Afterwards, Funnyre noticed a bullet hole on the right side of the front bumper. Although the entire incident lasted only a few seconds, Funnyre did not recall seeing anyone other than appellant pull a gun. Funnyre also testified that appellant was wearing a green coat.
Mr. Funnyre drove immediately to his mother's house. Feeling "upset" and "kind of shocked," he did not report the shooting to the police because he feared that his mother would worry if the police came to her home. However, about half an hour later, Mr. Funnyre went to Mr. Musgrove's house and told him what had happened. That night, at approximately 10:30 p.m., after his mother had gone to bed, Funnyre drove the van to the Fifth District police station and gave a statement to Investigator Aris Paredes.
The testimony of Timothy Musgrove largely corroborated Mr. Funnyre's version of events. Musgrove said that Funnyre drove him to the day care center in his mother's van and parked it there, but he had disappeared by the time that Musgrove came out of the center with his son. After waiting for a few minutes, Musgrove and his son got a ride home from one of the teachers at the center. Within five or ten minutes after they arrived home, Funnyre knocked on his door. Musgrove described Funnyre as "nervous" and "scared," hurrying into the house as soon as Mr. Musgrove opened the door and pacing back and forth throughout their conversation. After Funnyre told Musgrove that "Momolu shot at me," Musgrove encouraged him to call the police. After about an hour, Funnyre left to return home.
At the police station, Investigator Paredes interviewed Funnyre about the shooting, prepared a written report, and performed a cursory inspection of the van in the station's parking lot. Paredes' testimony confirmed that Funnyre had identified Gray, Brown, and appellant Stewart as the three men involved, specifically naming Stewart as the shooter, and had described the silver handgun used in the shooting. Two weeks later, on November 27, Funnyre positively identified appellant from an array of photographs that Investigator Paredes showed him.
Officer William Hyatt, an evidence technician, examined the van at Investigator Paredes' request. Hyatt testified that at approximately 10:00 or 10:30 p.m. on November 13 he took photographs of the van, the bullet hole in the front bumper, and a spent, nickel-plated 9-millimeter bullet which he recovered from "under the hood" on the vehicle's passenger side. The bullet was resting on the platform on which the windshield washer fluid reservoir was located.*fn2 Officer Hyatt also commented that nickel-plated bullets are "not . . . very popular." No fingerprints were recovered from the bullet, and neither Hyatt nor Paredes canvassed the F Street area where the shooting occurred.*fn3
The parties stipulated that on January 16, 1997, pursuant to a warrant, the police searched a Pontiac that was used "in another incident" in which appellant was a suspect. During this search, the police recovered from the vehicle's trunk a "silver 9-millimeter semi-automatic pistol" and a "certificate in the name of Momolu Stewart issued by the Social Services Division of the Superior Court." The stipulation also included the fact that the Pontiac was registered to "an associate of Mr. Stewart's."*fn4
Another evidence technician, Officer Joseph Anderson, who was involved in the search of the Pontiac, testified that he photographed the handgun, which was in plain view after the car's trunk was opened. No photographs were taken of the framed certificate, however, because Officer Anderson had to "dig" through the trunk and disturbed the certificate before discovering it. Moreover, appellant's name did not have any evidentiary significance to Officer Anderson at that time.
Officer Timothy Curtis, a firearms expert, was the government's final witness. He identified the recovered handgun as a Lorcin 9-millimeter Luger semi-automatic pistol. From his examination of the gun and the bullet recovered from the van, Curtis concluded that the gun and the bullet shared the "same general rifling characteristics," indicating that the pistol was capable of having fired the bullet, although other pistols could also have fired it.
Appellant did not testify, but he called two witnesses in his defense: Gloria Smith, his mother, and Clement Stokes, a private investigator hired by his former trial counsel. Mrs. Smith corroborated that appellant had once possessed a "boot camp" certificate of completion. On cross-examination, she acknowledged that the framed certificate, once displayed in her living room, was missing and that someone, possibly appellant, must have removed it. Mrs. Smith also testified that appellant did not own a green coat like the one that Mr. Funnyre said he saw appellant wearing during the shooting. However, she conceded that her son did not live with her for part of 1996, including the day of the shooting, and that he therefore might have owned clothing that was unfamiliar to her.
Mr. Stokes testified that he canvassed the 1500 and 1600 blocks of F Street, N.E., interviewed persons to learn if anyone knew anything about the shooting, and took photographs of the surrounding area. Stokes described F Street between 15th and 16th Streets as a "very narrow" one-way street with cars parked along both sides. He therefore concluded that a person leaving the sidewalk and walking into the street could not avoid being struck by a vehicle driving down F Street.
While the appeal from his conviction was pending, appellant (represented by new counsel) filed a motion to vacate his sentence under D.C. Code § 23-110, asserting that his trial counsel had rendered ineffective assistance in several respects. He alleged that his attorney had failed to take preventive action to bar admission of the evidence about the pistol and the bullet; failed to interview potential witnesses, including in particular a woman - identified only as "Versace" - with whom appellant claimed to have had a conversation on the day of the shooting; failed to cross-examine the government's witnesses effectively; agreed to a stipulation that was highly prejudicial without requesting a cautionary instruction; and generally undertook little or no pre-trial investigation.
After the government filed an opposition and appellant filed a reply, the court issued an order rejecting several parts of appellant's claim of ineffective assistance. The court denied those portions of the § 23-110 motion based upon defense counsel's failure (1) to interview "Versace," the unidentified woman (finding this assertion "vague and conclusory"),*fn5 (2) to object to the admission of the recovered bullet and pistol (noting that the trial transcript showed that counsel "did, in fact, object to the admission of the firearm and the bullet"),*fn6 and (3) to object to the stipulation about the discovery of the pistol in Kareem McCraney's car (because the decision not to object was "trial counsel's reasonable trial strategy" and because appellant had "failed to establish prejudice with respect to the admission of the firearm and the bullet"). The court then scheduled a hearing to consider the remainder of appellant's motion.
The first witness at the hearing was Leonard Birdsong, appellant's trial counsel. Mr. Birdsong had succeeded another attorney, Richard Gilbert, who originally represented appellant. At the outset of his testimony, Mr. Birdsong adopted an earlier affidavit which had been filed along with the government's opposition to the § 23-110 motion, in lieu of testifying to its contents. That affidavit stated in part:
During my conversations with Mr. Stewart, he told me that he didn't do it but that Funnyre was saying that it was him. Allegedly Funnyre was afraid of Mr. Stewart and wanted him off the street because of the rivalry between their two groups. Supposedly Funnyre's group had killed Mr. Stewart's best friend Chip. I could find no support for any of this through my investigation. My investigator attempted to locate Mr. Funnyre but was unsuccessful.
Mr. Birdsong testified that, during one of their initial meetings, appellant supplied the names of Mustafa Brown, Robert Craig, "Versace," and "Darren" as possible witnesses. On another occasion, appellant suggested that Mustafa Brown and Xavier Gray be called to testify, telling Mr. Birdsong that "they will say whatever you want them to say." Mr. Birdsong, understanding this statement to mean that appellant "wanted me to get them to perjure themselves," decided that it might be in appellant's best interest not to talk to Brown and Gray, because otherwise they "might be treading very close to perjury." He acknowledged that he did not put on the stand any alibi witnesses, explaining that he did not ...