Appeals from the Superior Court of the District of Columbia (F6215-99). (Hon. Neal E. Kravitz, Trial Judge).
The opinion of the court was delivered by: Wagner, Associate Judge
Before: TERRY, FARRELL and WAGNER,*fn1 Associate Judges.
Appellant, Michael C. Butler, appeals from an order of the trial court denying his post-conviction petition for a writ of error coram nobis. Appellant argues that the trial court erred in denying his motion without a hearing and that relief was warranted because he was denied effective assistance of counsel based on trial counsel's failure to seek a mistrial after the prosecutor improperly commented on his failure to testify. We hold that the trial court did not err in concluding that appellant failed to meet his burden of establishing entitlement to the extraordinary coram nobis remedy. Further, we conclude that even applying the standard for ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984), appellant failed to establish prejudice warranting reversal. Therefore, we affirm.
A. Evidence Related to the Charges
Appellant and his co-defendant, Larry McKinney, were charged by indictment with second-degree burglary, second-degree theft and destruction of property. At trial, the government presented evidence showing that appellant and McKinney broke into a house at 3504 Texas Avenue, S.E., in Washington, D.C. and stole property of the owner, James Baxter, and Lawrence Bivens, who also lived there. James Hrobowski, who lived across the street from Baxter and Bivens, testified that on August 25, 1999, he observed from his window two men get out of a car, walk slowly down the street while looking at Baxter's house, and then go up the front steps of the house. Hrobowski testified that appellant and McKinney knocked at the front door, and after no one answered, they walked around the left side of the house. Moments later, Hrobowski heard "a banging noise like they were kicking something or hitting something with a heavy object," coming from the right side of the house, and he called the police at 911. About five minutes later, the police arrived with their siren and emergency lights activated. Hrobowski testified that as the officers approached, he saw appellant and McKinney come out of the front door of 3504 Texas Avenue, S.E., and walk down a first set of steps.
The officers saw appellant and McKinney, who matched the description of the suspects reported in the radio dispatch the police had received in response to the 911 call, coming down the steps of the Baxter home. McKinney was carrying a "weed whacker," and appellant was carrying a bunch of grapes and a frozen container of Bacardi Breezer. The officers questioned both men about their reason for being at the house. One of the officers then walked to the back of the house, where he observed the rear patio door partially open and the side window broken out. After speaking with Hrobowski, the officers placed appellant and McKinney under arrest. In a search incident to the arrest, the police officers found on McKinney, among other items, a wristwatch and a pair of cuff links.
Baxter testified that he had secured his home before leaving that morning. When he returned, he found shattered glass from a broken window in the patio room at the rear of the first floor, several rooms in disarray, and markings on the "refrigerator and cabinet doors" in the kitchen. He also testified that coins, a watch, and a pair of cuff links were missing from his upstairs bedroom. Baxter also testified that grapes that he had purchased recently were missing from the refrigerator.
Bivens testified that when he returned home from work, he found the house in disarray, including a broken window in the patio room. He testified that items were missing from his bedroom, including cash, a watch, and two cancelled credit cards. Bivens testified that a weed whacker had been moved from its customary place, and he found a bunch of grapes that had been in the refrigerator on the retaining wall in front of the house along with a "Bacardi drink" that previously had been in the freezer. Both Baxter and Bivens testified that they had not given anyone permission to enter their home.
Appellant did not testify at trial. He called as a witness Officer Henry Smallwood, one of the officers who came to the scene of the burglary. Officer Smallwood testified that he saw a pizza box on a table in the dining area on the first floor of the house containing a cold pizza, apparently just removed from the freezer. Defense counsel argued in closing that someone other than appellant and McKinney had burglarized the house earlier the same day and had left the pizza box behind.
B. The Prosecutor's Closing Argument and the Instructions
In closing argument, the prosecutor stated:
Now, in this particular case, this young man who is on trial here, the [d]efendant is exercising his right of not testifying. That's perfectly permissible under our system. It's a right we all have. Since we ...