Appeal from the Superior Court of the District of Columbia (DEL-1636-04) (Hon. Linda D. Turner, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and FISHER, Associate Judges and SCHWELB, Senior Judge.*fn1
This is one of two related cases which we decide today. The other case is In re T.H., No. 04-FS-1332. Appellants in both cases are brothers and juveniles who were adjudicated on charges of unauthorized use of a vehicle ("UUV") and receiving stolen property ("RSP"). We reverse R.K.S.' convictions on the ground that he was denied his constitutional due process right, as well as his statutory right and his entitlement under the Superior Court's Family Division - Juvenile Branch rules, to the effective assistance of counsel. However, we remand R.K.S.' case to the trial court for a new trial on the UUV and the RSP charges*fn2
On July 15, 2004, the Office of the Attorney General, District of Columbia, filed a petition in the Family Division -- Juvenile Branch of the Superior Court of the District of Columbia -- alleging that R.K.S., then fourteen years of age, "on or about July 14, 2004, within the District of Columbia, took, used, operated, or removed, a motor vehicle, and did operate or drive that motor vehicle for his own profit, use or purpose, without the consent of Heidi Fick, the owner of that motor vehicle, in violation of D.C. Code, 2001 Ed. § 22-3215." A second charge alleged that "on or about July 14, 2004, . . . [R.K.S.] received, possessed, and obtained control of property of value of $250.00 or more, consisting of an automobile which belonged to Heidi Fick, and which had been stolen with the intent to deprive Heidi Fick or another of the right to the property or the benefit of the property, in violation of D.C. Code . . . § 22-3232 (a) and (c)(1)." The same charges were filed against T.H., R.K.S.' then seventeen-year-old brother.
At trial, beginning on August 19, 2004, the government presented testimony by four witnesses: the owner of the automobile involved in the charges against T.H. and R.K.S., a Maryland State trooper, and two detectives from the Charles County, Maryland Sheriff's office. Ms. Fick, a resident of La Plata, Maryland and the owner of a beige 1997 Toyota Camry, left work on the morning of July 14, 2004, and returned to her home around 11:30 a.m. to pick up her infant son. She dismissed the babysitter, placed her car key on the kitchen counter and proceeded upstairs. When she returned to the kitchen area, her car key was not there and the car was not in the parking lot. Thinking that her husband might have "taken the car for some reason," she called him. He instructed her to call the police. As a result of a call from a Maryland State trooper later in the day, Ms. Fick went to Forestville, Maryland where she identified her car. Her key was in the ignition, but she had given no one, including
T.H. and R.K.S., permission to take or use her Camry.
David Darnell Thomas, a Maryland State trooper, received information on July 14, 2004, that he should be "on the lookout for [a] Toyota Camry, gray in color -- grayish-green." When he saw the vehicle, Trooper Thomas activated his emergency lights and the vehicle moved to the side of the road and stopped. His superiors advised him to wait for backup before exiting his police car. Before backup arrived, the Camry took off, and Trooper Thomas pursued it along Route 5. He observed two rear seat passengers "looking back at [him]" repeatedly during the "15 to 17 mile" chase. Trooper Thomas followed the Camry into the Southeast quadrant of the District of Columbia. When the vehicle hit a curb and crashed into the sidewalk, it came to a halt. Four persons exited and ran in different directions. Trooper Thomas pursued and apprehended one of the rear passengers whom he identified in court as R.K.S. Another law enforcement officer caught T.H. as he ran from the scene of the crash. Trooper Thomas identified T.H. when he was returned to the scene of the crash in a patrol car. He also made an in-court identification of T.H. as one of the other passengers in the Camry. Trooper Thomas was "one hundred percent sure" of his identification of R.K.S. and T.H. He identified the vehicle which he stopped by the VIN number and the license plate, both of which matched the Camry taken from the parking area outside of Ms. Fick's residence. In cross-examining Trooper Thomas, counsel for T.H. sought to show that T.H. had not been driving the Camry. Counsel for R.K.S. did not cross-examine Trooper Thomas.
Upon learning that "[t]wo persons were apprehended in a stolen vehicle . . . believe[d] [to be] related to [a] burglary and homicide [in Maryland]," Timothy Miner, a detective in the Charles County Sheriff's office, traveled to the District of Columbia to interview R.K.S. at the Metropolitan Police Department's ("MPD") Seventh District station.*fn3 He was asked to assist Detective John Richard Elliott, who was also employed by the Charles County Sheriff's office. Detective Miner went into the room where R.K.S. was seated; one of R.K.S.' hands "was handcuffed to the wall." Detective Miner read R.K.S. his rights "from a card [he] [kept] in his wallet." He then took a statement from R.K.S. over a two-hour period, which was read at trial and introduced into evidence.*fn4 The statement implicated
R.K.S. in the taking of the Camry and the chase into the District.
According to R.K.S.' statement, earlier on the morning that the Camry was taken, R.K.S., who resided in the District, and his brother, T.H., also a District resident, were picked up in the District by M. and a friend of M., in a blue Nissan van which belonged to M.'s sister. R.K.S. and T.H. "had called [M. and his friend]." R.K.S. expressed reluctance to go with the other boys to Charles County, but M. told him, "shut up, stop acting like a little b***h before I slap you." They drove to Charles County and met M.'s friend who was in a white van, with no windows. R.K.S. had been instructed to sit in the car and watch out for M.*fn5 M. told R.K.S., "I'm going to get my bike." When a truck arrived, the van drove off. The blue van proceeded down the street, and eventually crashed. M. said he was going to get a bike, but "[h]e came down the path with the Camry. He said get in. The car isn't stolen. The keys are in the car." M. drove away and was "going over the speed limit" when they saw a police car. R.K.S. told M. to pull over, and eventually he did, but "he pulled back out." R.K.S. maintained that he did not steal anything, that he faked being a lookout "so he wouldn't have to fight [M.]." R.K.S. said that it was his first trip to Charles County.*fn6
Prior to cross-examining Detective Miner, counsel for T.H. "request[ed] Jencks [material] [Jencks Act, 18 U.S.C. § 3500] with respect to this officer." The Assistant Attorney General ("AAG") stated that he had received no other material from Detective Miner, and that he did not take any notes when he spoke with Detective Miner prior to trial. When counsel for T.H. asked several questions designed to determine the existence of Jencks material, the trial judge expressed doubt as to whether the Charles County officers were subject to the Jencks Act. Counsel for T.H. also explored the nature of the interactions between the District's MPD and the Charles County Sheriff's office, and whether notes were taken. Detective Miner indicated that he had placed information he obtained from the District's police officers, as well as personal notes he had made, in a notebook which he had not turned over to the District. When asked whether Detective Miner knew that R.K.S. was fourteen-years-old when he interviewed him, Detective Miner replied, "Yes." He did not give R.K.S. a card to sign showing that he understood his rights and wanted to waive them. No District officer was in the room when R.K.S. was interviewed, and the interview was not recorded.
Counsel for R.K.S. did not immediately cross-examine Detective Miner, that is, on August 19, 2004, since she took the position that she was not participating in the proceeding. She cross-examined the detective on August 23, 2004, however, when he returned for that purpose, after the trial court admonished her for not providing representation for R.K.S. During the cross-examination by R.K.S.' counsel, Detective Miner traced his movements and actions from the time he was asked to assist Detective Elliott in the District to the conclusion of the statement made by R.K.S. He spoke with R.K.S.' mother by telephone after the interview. R.K.S. cried at times during the interview but did not appear to be frightened. Detective Miner informed R.K.S. that the Camry had been stolen, and that there had been a motor vehicular death, but on redirect examination, Detective Miner agreed that R.K.S. said "someone stole the car." Counsel for R.K.S. also confirmed that R.K.S. was given no water, or anything to drink while he was being interviewed. Detective Miner and Detective Elliott conferred in the hall during their respective interviews with R.K.S. and T.H. to "shar[e] information." Detective Miner acknowledged that R.K.S. informed him that an older person in the stolen Camry had told him "to stop acting like a b***h" when he said he wanted to go home; and that if that person got caught he was "going to f**k [R.K.S.] up." Furthermore, Detective Miner agreed that R.K.S. was not at the scene where the motor vehicular death occurred.
Detective Elliott journeyed to the District on July 14, 2004, because of a report that two individuals had been detained who were believed to have been involved in a burglary in Pomfret, Maryland. He interviewed T.H. at the Seventh District police station. He read T.H. his rights, which T.H. waived, and then took his statement. The statement was admitted into evidence, as the admission of a party opponent, over the objection of T.H.'s counsel, and the rights card also was admitted. According to the statement, T.H. indicated that he had been in a blue van with his brother, R.K.S., and "two other boys" whom he knew to be from his neighborhood. They drove to a house where they met a white van, which had been stolen. When asked why they "were . . . at the house with two vans," T.H. replied: "I was there because I was at the right place at the wrong time." The vans "were there to try and steal something from the people that lived there . . . . They were trying to steal dirt bikes." When they saw a truck pull up, they drove away and then crashed. They walked around for two or three hours, and his "buddy found a car." His buddy, "D.", had a key to a silver Toyota, and he got into the car. He did not know how his buddy got the key.
Counsel for both T.H. and R.K.S. cross-examined Detective Elliott. Counsel for T.H. focused on the administration of rights, the interaction between the Maryland and the District officers both before and during the interview of T.H., the procedure followed in taking T.H.'s statement, and the substance of that statement. During the interview, T.H. "appeared to be tired," and had "small tears in his eyes" at one point. Counsel for R.K.S. established that Detective Elliott was in the interview room "for a short period of time" -- "[a]pproximately three minutes" -- while Detective Miner was interviewing R.K.S., in order to "see what information was being obtained," and "to see if it was different or the same" as that given by T.H. He noticed at that time that R.K.S. "was upset" and "seemed to be remorseful." He was also crying "at some points," and "looked fatigued, wore out, maybe. Tired, possibly."
Neither R.K.S. nor T.H. presented any testimonial evidence. R.K.S. introduced one exhibit showing "basic information about [his] . . . parents, [and] the time they were notified [about his arrest]." T.H. did not introduce any exhibits, but made a motion for judgment of acquittal on the charges of "UUV passenger and receiving stolen property." R.K.S. joined the motion, which the trial court denied.
In adjudicating both R.K.S. and T.H. as delinquent, based on the charges against them, the trial court stated in full:
Well, the Court has reviewed the evidence in the case, and of course, the Court has looked at each respondent separately. The Court has considered the behavior and the demeanor of the witnesses on the witness stand, the arguments of counsel, and has specifically reviewed Jury Instruction 2.48, Statements of a Defendant, Substantive Evidence.
After a careful review of these things, the Court is satisfied that the Government has demonstrated each and every element of the offenses of UUV passenger and receiving stolen property. The Court believes that the evidence demonstrates beyond a reasonable doubt that both [R.K.S.] and [T.H.] had actual knowledge of the car . . . stolen -- depicted in Government's Exhibit Number 1.
But specifically with [T.H.], the Court does infer from the totality of the circumstances as well as his statement that his buddy found the car, and [T.H.'s] actions as described by the state trooper during the trooper's testimony that [T.H.] had actual knowledge that the car was stolen.
With respect to [R.K.S.], the Court looks to his actual statement given at the time of his arrest that he knew the car was stolen. So for those reasons, the Court will adjudicate both respondents involved [as] to each offense.
Ineffective Assistance of Counsel R.K.S. contends that he was denied the effective assistance of counsel when his counsel "'declined' to bring her skill and knowledge to her client's aid for most of the trial." He claims that the trial court "created one financial conflict of interest (the obligation to pay for cross[-]examination) and denied counsel's motion to withdraw." In addition, he maintains that his counsel "had other conflicts of interest with her client." Specifically, his counsel "had a pecuniary interest, identified by the court, of potential civil liability to her client and she had a professional interest in protecting her career given the court's finding that her actions were unethical and subject to referrals to Bar Counsel and a court Order to Show Cause." Furthermore, R.K.S. asserts that "he was compelled to proceed [to trial] although his counsel was unprepared."
The District states that "[t]his [c]court should not hear R.K.S.' claim of ineffective assistance of counsel in this direct appeal where there was no collateral attack in the trial court pursuant to . . . Super. Ct. Juv. R. 33."*fn7 The District relies on our decision in In re E.G.C., 373 A.2d 903, 905 (D.C. 1977), but that decision does not support the District's position; and nothing in the plain words of Rule 33 requires a respondent to file a motion for a new factfinding hearing or for a new trial in order to raise a claim of ineffective assistance of counsel, as the District claims.*fn8 Nevertheless, as we have stated previously, "in the overwhelming majority of cases, it is inappropriate to raise the issue of ineffective assistance of counsel on direct appeal. Attempts to do so are rarely if ever successful." Johnson v. United States, 883 A.2d 135, 145 (D.C. 2005) (quoting Simpson v. United States, 576 A.2d 1336, 1338-1339 (D.C. 1990) (internal quotation marks and other citation omitted)). We explained the rationale for this general requirement in Mack v. United States, 570 A.2d 777 (D.C. 1990):
If [appellant] had filed a motion pursuant to [D.C. Code] § 23-110, then the [AAG] would have had the opportunity to call [appellant's] counsel as a witness in support of his contention that counsel made a reasonable tactical choice [with respect to her strategy]. The government ought not to be deprived of this opportunity simply because [appellant] has elected to rely solely on the trial record. We should not decide the question of ineffective assistance of counsel on the basis of incomplete information because the [appellant] has elected to ground his motion on a truncated record, when the [AAG] has had no opportunity to submit evidence that defense counsel's decisions were based on tactical considerations.
Id.at 786 (footnote omitted).
Even though we generally require a separate motion to be filed in order to raise an ineffective assistance of counsel claim, we have recognized exceptions. For example, in Jeffrey v. United States, 892 A.2d 1122 (D.C. 2006), we declared: "While the appellant could not bring his § 23-110 claim in the Superior Court because he did not meet the custody requirement under the statute, this court is not precluded from reviewing the appellant's ineffective assistance claim as part of a direct appeal, so long as that review is confined to the record." Id. at 1126 (citing Mack, supra, 570 A.2d at 785-86). Here, based upon the record before us, it is undeniable that the issue of ineffective assistance of counsel was raised and addressed in the trial court. Indeed, both the trial judge and R.K.S.' mother expressed concern about his legal representation, and that issue overshadowed R.K.S.' trial for one full day. The record for that day and the following is replete with details regarding the representation issue. And the District makes no assertion on appeal that it was deprived of an opportunity to question R.K.S.' counsel about her trial tactics because no separate motion relating to ineffective assistance of counsel was filed. In the peculiar circumstances of this case, where the record contains extensive details about the actions of R.K.S.' counsel and her responses to the inquiries and warnings of the trial judge, calling defense counsel for the purpose of asking her to explain her actions and trial tactics was unnecessary. In short, the District was not prejudiced by the absence of a separate motion in the trial court alleging ineffective assistance of counsel. Therefore, we turn now to the merits of R.K.S.' ineffective assistance of counsel claim.
In its brief, the District contends that R.K.S. has not met the requirement of Strickland v. Washington, 466 U.S. 668 (1984), that he show that counsel's performance was "(1) deficient and (2) that the errors made by counsel were so serious that they deprived him of a fair trial." Strickland requires that an appellant "show (1) deficient performance by his trial counsel, and (2) prejudice traceable to his trial counsel's deficiencies." Zanders v. United States, 678 A.2d 556, 569 (D.C. 1996). This "burden is a heavy one because of a strong presumption that defense counsel has rendered reasonable professional assistance." Id. (citing Strickland, 466 U.S. at 689 (other citation omitted)). To satisfy the first Strickland prong, R.K.S. "must show that his 'counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.'" Zanders, 678 A.2d at 569 (quoting Strickland, 466 U.S. at 687) (other internal quotation marks omitted). And, "to prove prejudice [R.K.S.] 'must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Zanders, 678 A.2d at 569 (quoting Strickland, 466 U.S. at 694).
Juveniles subjected to criminal charges that may result in an adjudication of guilt and placement in an institution for a period of time have a due process right to counsel. See In re A.L.M., 631 A.2d 894, 898 (D.C. 1993) ("[J]uvenile respondents have a right to counsel based on the due process protection afforded by the Fifth Amendment [to the Constitution of the United States].") (citing In re Gault, 387 U.S. 1, 41 (1967)). As the Supreme Court declared in Gault, supra:
A proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him."
In re Gault, supra at 36 (footnotes omitted). Given the serious situation confronting the juvenile when he or she must answer to criminal charges, the Supreme Court held "that the assistance of counsel is essential . . . for the determination of delinquency, carrying with it the awesome prospect*fn9 of incarceration in a state institution until the juvenile reaches the age of 21." Id.at 36-37 (footnote omitted). In addition to a constitutional due process right to counsel, a juvenile in the District has a statutory right to counsel under D.C. Code § 16- 2394 (a) (2001).*fn10 And, by rule, the juvenile also is entitled to counsel. See Super. Ct. Juv. R. 44.
We begin with the factual context for our consideration of R.K.S.' argument that the trial court did not fulfill its obligation to ensure that he had the effective assistance of counsel. On Thursday, August 19, 2004, the first day of trial for R.K.S. and T. H., the trial court asked whether government and defense counsel were prepared for trial. Counsel for R.K.S. responded in the negative. When the trial court asked why she was not prepared to go forward, counsel stated, in part:
There are several reasons: First of all, Your Honor, I was presented initially with a discovery packet that did not indicate that there were pictures available that were . . . clearly related to this charge. The [AAG] handed me ...