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Gamble v. United States

June 15, 2006

DYRELL GAMBLE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia (F-5298-00, F-7642-98) (Hon. Russell F. Canan, Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Argued February 3, 2005

Before REID and GLICKMAN, Associate Judges, and TERRY, Senior Judge.*fn1

Appellant Gamble was convicted of first-degree murder while armed, possession of a firearm during a crime of violence ("PFCV"), and two counts of carrying a pistol without a license ("CPWL").*fn2 On appeal he makes several assignments of error. He contends that the trial court violated the Monroe-Farrell doctrine*fn3 by failing to take adequate precautions before trial to ensure the effective assistance of counsel. Second, he argues that his pre-trial motion to suppress evidence was wrongfully denied. Appellant also makes several claims of plain error based on various evidentiary rulings by the trial court: admitting alleged hearsay statements at the suppression hearing, permitting a witness to testify about appellant's prior possession of a gun, and preventing a defense witness from testifying that a government witness was a police informant (to show that the government witness was biased). Finally, appellant contends that the court erred in denying his motion to vacate sentence under D.C. Code § 23-110 (2001), based on a claim of ineffective assistance of counsel. We reject all of these contentions and affirm both the judgments of conviction and the denial of the § 23-110 motion.

I.

A. The Government's Evidence

One day in early October 1998, Edward McCoy handed appellant Gamble ten "ziplock dime bags" of crack cocaine to hold for him temporarily because McCoy had plans to "see a female" and did not wish to be found with drugs in his possession in case of a police stop. McCoy testified that he "thought [he] could trust" Gamble, but when McCoy returned about an hour later to retrieve the drugs, Gamble was gone.

Several days later, Davinia Simmons, a friend of both Mr. Gamble and Kareem Holland (the eventual murder victim), was standing at the corner of 10th and N Streets, N.W., when Gamble walked over to her and, referring to Holland, said that he was "going to kill that [man]." When she asked why, Gamble's expletive-laced reply mentioned that Holland kept "harassing him . . . about [the] drugs" he had received from McCoy.

A couple of days later, Edward McCoy and William Childs heard Holland tell Gamble that he had to pay for the unreturned drugs.*fn4 Ms. Simmons also saw Holland "pushing [Gamble] up the street." Later, when she asked Mr. Gamble why he was "letting that [man] push you like that," Gamble replied, "Don't worry about it. I got this." He went on to explain that he allowed Holland to push him only because he did not have his gun with him at the time.

In the early morning hours of October 20, at about 3:00 a.m., McCoy and Holland were walking along N Street near 11th Street when a car pulled up, and Gamble got out. McCoy confronted Gamble and told him to "stop dodging and ducking" and to repay him for the bags of cocaine. Gamble replied that he did not know McCoy was going to be "out here." McCoy and Holland then walked away, but Gamble followed behind them. As they approached an intersection, McCoy heard a shot. Quickly he turned around and saw Gamble, holding a silver pistol with a black handle in his right hand, standing over Holland, who was lying on the ground.*fn5 McCoy watched as Gamble walked away, concealing the pistol behind a bottle of beer that he was holding in his left hand.

A deputy medical examiner later testified that Holland died within "a couple of minutes" after being shot, and that the cause of his death was a gunshot wound to the head.

The next day, October 21, McCoy went to see Ms. Simmons and told her that Holland had been shot. On October 22 she encountered Mr. Gamble on the street and asked why he "wasn't at the Greyhound or the Dulles Airport." Gamble responded, "I'm not worried about [those men]," and opened his coat to reveal two pistols, one of which was silver. On October 23 William Childs ran into Mr. Gamble and asked him, "What's up?" Gamble replied, "I got my man." Childs testified that Gamble appeared proud of killing Holland.

That same day, Ms. Simmons was walking in the neighborhood when she saw "some guys" who were "talking about killing" Mr. Gamble. Ms. Simmons decided to go to the police and tell them what she knew. She spoke with Detective Bret Smith, who was in charge of the investigation, and explained that her motive in identifying Gamble as Holland's killer was to keep Gamble from being killed.

Several hours later, around 4:00 in the afternoon, Ms. Simmons saw Mr. Gamble walking along 11th Street, N.W. She entered a liquor store where she thought she might find a police officer. Inside the store she recognized off-duty Officer Ricky Hammett and approached him for help. Officer Hammett already knew about Holland's murder, so together he and Ms. Simmons drove around the neighborhood in the officer's car until they caught sight of Gamble. The officer promptly called for assistance, and additional officers soon arrived in a police car. Hammett and Officer Christopher Myhand then approached Gamble, who by then had entered a barber shop, and told him to place his hands on the wall. When Officer Myhand felt a pistol while patting him down, both officers together handcuffed him. Myhand then reached into Gamble's coat pocket and seized a .380 caliber pistol.

A police firearms expert testified that the recovered gun was test-fired and found to be operable, and that a bullet from the test-firing was a match to the bullet recovered from Holland's head.

B. The Defense Evidence

William Jenkins, who had been previously incarcerated with McCoy, testified that he once overheard McCoy tell another inmate that he was "high" on drugs on the night of the shooting "and he [didn't] really know what happened." Another inmate, James Parker, related a similar conversation with McCoy.*fn6

Two other defense witnesses gave testimony that called into question Ms. Simmons' credibility. One of these witnesses, Ronnie Coley, testified that he was near the scene of the crime, and that a few seconds after the shooting he saw a "real tall" man running away from the scene with a shiny object in his hand. Coley said he did not see Mr. Gamble running.

II.

Mr. Gamble was initially represented by appointed counsel from the Public Defender Service, who withdrew from the case on February 26, 1999. Sharon Styles Anderson entered her appearance as retained counsel a week later, on March 5. By letter dated December 22, 1999, investigator Joseph Aronstamn, originally retained by Ms. Anderson, informed Mr. Gamble that as of November 16 he had ceased all investigatory activities because of an overdue balance of approximately $3100. The letter stated that "many valuable defense witnesses who could potentially help in your case may be lost permanently." Mr. Aronstamn also said in the letter that he would not release signed statements or reveal the identities of six potentially exculpatory witnesses.

On February 4, 2000, just three weeks before what was then the scheduled trial date, Ms. Anderson filed a motion to withdraw as counsel. Despite "a number of continuances" that had already occurred, the court granted the motion. Kenneth Page then entered his appearance, and the trial date was continued into the fall.

After further continuances, the case finally went to trial in January 2001, and appellant was found guilty as charged. Sentencing was scheduled for March 8 but was later continued until May 18. Shortly before that date, Mr. Page was allowed to withdraw from the case because he had recently moved to New York. Another attorney was appointed to represent appellant at sentencing.*fn7

Appellant argues that the trial court failed to take the pre-trial precautions required by the Monroe and Farrell line of cases to prevent ineffective assistance. An obvious difficulty with this argument is the fact that appellant never made the pre-trial challenge necessary to trigger the court's obligation to conduct a Monroe-Farrell inquiry. But even if he had raised the issue in a timely manner, appellant was not prejudiced, because the trial court effectively granted the precise relief required by Monroe and Farrell - a searching inquiry and an opportunity to obtain new counsel - which appellant unequivocally rejected.

The standard for assessing a post-trial claim of ineffective assistance of counsel has been set forth in myriad cases in this and other courts, most notably Strickland v. Washington, 466 U.S. 668 (1984). However, when a defendant asserts a claim of ineffective assistance before the trial begins, traditional post-trial concerns are "absent, or certainly less compelling," Monroe, 389 A.2d at 819, and "different considerations prevail." Id. at 818. Nevertheless, a pre-trial complaint about counsel's performance triggers the court's "constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant's allegations." Id. at 820; see Farrell, 391 A.2d at 761 (finding error in denial of pre-trial motion for new counsel without conducting an inquiry). While the court must refrain ...


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