Appeals from the Superior Court of the District of Columbia (Nos. F-8637-98, F-8639-98) (Hon. Noel Anketell Kramer, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and KING, Senior Judge.
A jury convicted appellant Toussell Van Kuhn of two counts of armed robbery and possession of a firearm during a crime of violence. Kuhn's co-defendant, appellant Darnell Smith, was convicted of one count of armed robbery.*fn1 In their direct appeals, each appellant contends that the trial court should have severed their trials or granted them separate new trials because their defenses were irreconcilable. The direct appeals have been consolidated with two collateral appeals: (1) that of Smith from the denial of his motion to set aside his conviction on the basis of ineffective assistance of counsel, and (2) that of Kuhn from the denial of his post-trial motion to unseal the transcript of an ex parte bench conference in which his co-defendant Smith discussed his unhappiness with his trial counsel's direction of his defense.
The foremost issue presented in these consolidated appeals is whether Smith's trial counsel was constitutionally ineffective because he chose, over Smith's objection, to argue a theory of defense different from that to which Smith testified. In agreement with the trial court, we conclude that Smith's counsel was not ineffective, for after he consulted with his client, the choice of defense strategy was committed to counsel's professional judgment even if Smith did not consent to it, and the strategy he pursued in his closing argument was an objectively reasonable and permissible one.
As we also conclude that appellants' defenses were not irreconcilable, and that Kuhn has not shown a bona fide need for the transcript he sought, we affirm both appellants' convictions.
According to the government's evidence at trial, Elton Blaize and Tansy Philbert, a young couple who had come to the District of Columbia from the Virgin Islands to participate in the Job Corps, were robbed on the street in broad daylight while they were visiting a fellow Job Corps student named Cynthia Knott. The robbery occurred while Knott had left Blaize and Philbert alone momentarily and gone across the street in order to speak with one of her neighbors. Appellant Kuhn appeared, grabbed Blaize from behind, held a gun to his temple, and pulled him back into an alley. After obtaining $150 in cash from Blaize's wallet, Kuhn ordered Philbert to hand over her money, too. At this point, Blaize and Philbert testified, appellant Smith ran up to Philbert and seconded Kuhn's demand for her money. Philbert also relinquished $150 to the robbers.
Meanwhile, across the street, Knott became aware of her friends' plight. Knott testified at trial that she saw Kuhn rob Blaize at gunpoint. It appeared to Knott that Kuhn was accompanied by a man she knew named Isaac Mitchell.*fn2 Knott also observed Smith, but in contrast to her friends' account, she testified that Smith remained about fifteen feet away from Kuhn and did not approach Blaize or Philbert. "Shocked" by what was occurring, Knott started across the street, yelling that Blaize and Philbert were her friends. She caught up with them after the robbery as they were running away, and the trio called the police.
After the police arrived, Knott directed them to where she thought the robbers had fled. Before long, they spotted Kuhn, Smith and Mitchell, who were standing together on the street. The three men were caught and arrested after a brief chase. The police recovered a total of $236 from their possession and a small packet of marijuana from Smith. No gun was found.
Appellants presented a different version of events. They admitted encountering Blaize and Philbert, but as forecast in their attorneys' opening statements, appellants denied that the encounter resulted in robbery. Rather, Smith and Kuhn each testified, they happened to be walking down the street (accompanied by Mitchell) when Blaize, whom they did not know, appeared and signaled to Kuhn that he wanted to buy some marijuana. Smith offered to sell Blaize a dime bag that he happened to have hidden in his sock, but Blaize wanted a full ounce. Kuhn said that he could obtain an ounce of marijuana from a dealer he knew, and Blaize allegedly gave Kuhn $120 to buy it and bring it back to him. Kuhn, Smith and Mitchell left to carry out this commercial errand. However, appellants testified, before they were able to find the dealer, they were stopped by the police.
Appellants' theory apparently was that Blaize, Philbert and Knott, believing that appellants had absconded, concocted the story of a robbery in order to have them arrested so that Blaize could recover the money he naively had entrusted to Kuhn. In his closing argument, however, Smith's counsel, Ronald Horton, did not argue this "drug deal gone bad" theory. Although Horton began by asking the jury to credit his client's testimony, he chose not to dwell on the particulars of what Smith had said:
Mr. Darnell Smith took the witness stand, I submit to you, and he credibly told you what happened that night. He was not involved in a robbery, any kind of an armed robbery. He didn't come into the possession of any money by the two complainants. I ask you to credit his testimony. I will not talk any more about his testimony, because the burden is on the government. And we want to focus on the government's evidence, and the reasons why there are problems, reasons to doubt Mr. Smith's guilt.
After stressing that Smith did not participate in robbing Blaize ("The government's theory is that that was done by the co-defendant Mr. Kuhn"), Horton turned to "the more difficult question, . . . the alleged armed robbery of Ms. Tansy Philbert." That charge rested on the inculpatory testimony of Blaize and Philbert. Citing inconsistencies in their statements and other doubt-engendering discrepancies in the government's case,*fn3 Horton emphasized, ...