Appeal from the Superior Court of the District of Columbia (No. F-8593-85) (Hon. Herbert B. Dixon, Jr., Motions Judge).
The opinion of the court was delivered by: Steadman, Senior Judge
Before GLICKMAN and KRAMER, Associate Judges, and STEADMAN, Senior Judge.
Concurring opinion by Associate Judge KRAMER at p. 44.
Appellant Michael Jones was convicted in a jury trial of a number of charges relating to two rapes which occurred in the same Washington, D.C. neighborhood in the Spring of 1985. More than fifteen years later, a motions judge denied, without a hearing, the latest in a series of motions filed by appellant in which he alleged, pursuant to D.C. Code § 23-110 (2001), that his trial counsel's failure to interview and call at trial two critical alibi witnesses constituted ineffective assistance of counsel. Appellant argues that the motions judge erred in denying a hearing on his § 23-110 motion. We conclude that the motions judge acted prematurely in denying the motion.
On December 18, 1985, a grand jury indicted appellant on twenty-six charges arising from the rapes of three women, whom we identify as AA, LL, and NN. For the incident involving AA, appellant was charged with one count each of armed robbery,*fn1 kidnaping while armed,*fn2 sodomy,*fn3 and rape while armed.*fn4 For the incident involving LL, appellant was charged with one count each of destroying property,*fn5 armed robbery, rape while armed, assault with intent to kill while armed,*fn6 first degree theft,*fn7 and unauthorized use of a motor vehicle;*fn8 and two counts of first degree burglary while armed.*fn9 Finally, for the incident involving NN, appellant was charged with one count each of destroying property, armed robbery, rape while armed, and first degree theft; two counts of first degree burglary while armed; and three counts of kidnaping while armed.*fn10 Appellant's trial commenced on February 18, 1986 before the Honorable Robert M. Scott. Attorney Jeffrey Lewis represented appellant.
At trial, AA testified that on January 23, 1985, at approximately 10:00 p.m., she arrived at an apartment building in the 1600 block of Harvard Street, N.W., where she was staying with friends. After AA unlocked the front door and entered the building, a stranger followed her inside and onto an elevator. When the elevator doors closed, the stranger produced a knife and demanded money and her watch. He then led her to an empty room in the building's basement where he forced her to perform an oral sex act and have sexual intercourse with him. Later, when describing the assault to a police officer, AA stated that her assailant asked her if she "had ever had sex with a black man."
At trial, AA testified that she observed her assailant for approximately a minute as she stood outside the apartment building, and got "a good look" at him at that time. She further stated that the elevator in which he drew the knife was well-lit, and that a light was on in the room in which she was assaulted. According to AA, she was also able to observe her assailant as he led her from the elevator to the empty room.
AA described her assailant to the police as a 24- to 30-year-old African American male who stood between 5'4" and 5'8" tall and weighed between 150 and 160 pounds. She stated that her assailant was not circumcised. At trial, the prosecutor read into evidence a stipulation by the defense that appellant was not circumcised.
Detective Vivian Coleman of the District of Columbia Metropolitan Police Department ("MPD") testified that on February 2, 1985, AA viewed a photo spread which did not include appellant's photo. Although AA identified a man in one of the photographs as her assailant, Detective Coleman learned that the man was incarcerated at the time of the assault.
AA attended lineups on March 6, 1985 and November 5, 1985. Although she did not identify any of the individuals in the first lineup as her assailant,*fn11 she picked appellant out of the second lineup. At trial, AA made an in-court identification of appellant.
LL testified thatshe attended a wine tasting on March 14, 1985.*fn12 At approximately 10 p.m., she returned to her home on the 2600 block of Klingle Road. LL's husband was out of town on business. Shortly after LL arrived home, an intruder smashed open a plate glass window with a rock and entered LL's bedroom. When LL screamed, the intruder placed his hand over LL's mouth and ordered her to stop. He then turned her around, so that she faced away from him, placed a knife to her throat and ordered her not to look at him.*fn13
The intruder asked if anyone else was in the house. LL lied, claiming that her husband was home. The intruder dragged LL from room to room to verify that they were alone. While in the kitchen, he picked up a large meat cleaver, which he held to LL's throat. He subsequently rummaged through LL's purse and dresser drawers, looking for items of value.
The intruder brought LL into the living room, where he ordered her to disrobe. LL complied. The intruder bound her wrists with her stockings and blindfolded her with her blouse. After asking her "if she had ever been fucked by a black man," he forced her to engage in sexual intercourse. When the assault was finished, LL's assailant asked for the location of her car keys, then strangled LL with a stereo cord until she lost consciousness. When LL regained consciousness approximately ten minutes later, she heard a car engine starting up. She later discovered that her car was missing.*fn14
LL testified that she had the opportunity to observe her assailant's face for eight to ten seconds when he first entered her bedroom. She further stated that twice, as her assailant dragged her through the house, she looked up and observed his profile for up to five seconds. According to LL, all of the occasions on which she observed her assailant occurred in well-lit rooms.
At trial, LL described her assailant as a black male, approximately twenty-four or twenty-five years old and about 5'8" to 5'10" tall.*fn15 She testified that he wore blue jeans, white sneakers, a dark blue jacket and a red cap.
LL attended two lineups. Although she did not see her assailant in the first lineup -- at which appellant was not present -- at the second lineup, she identified appellant as the man who raped her.
At trial, LL made an in-court identification of appellant. She testified that there was no doubt in her mind that appellant was her assailant.
NN testified that on April 22, 1985, at approximately 10:00 a.m., she was making a bed in her home on the 2700 block of Quebec Street, N.W. Her six-year-old son, her two-year-old daughter and her one-year-old daughter were with her in the room. NN turned around when she heard her one-year-old daughter scream. A stranger stood in the room holding a knife and a pipe. After telling NN that he would kill her if she made any noise, the intruder put the knife to NN's neck, grabbed the back of her collar and dragged her from room to room. He then ordered NN's children to shut themselves in the library.
The intruder took NN to a room she described as the television room, where he bound her hands behind her back with a pair of stockings and blindfolded her with a black t-shirt. He then forced NN to have sexual intercourse with him. When he was finished, NN's assailant instructed NN to wait forty minutes before calling the police, bragging that the police "wanted him badly" but would not catch him. At some point, he cut all of the telephone cords in the house and ransacked the house, taking various items of value.
NN testified that, on the morning of the assault, she had left a screen door at the side of the house latched but otherwise unlocked. She stated that no other doors were unlocked. Next to NN's basement door, investigating officers recovered a set of latent fingerprints from a window sill and a latent palm print from the frame of the same window's screen. It is not entirely clear from the printed record exactly where the basement door was in proximity to the door that NN said was unlocked.
On Sunday, April 28, 1985, NN received a phone call in which a voice she recognized as that of her assailant told her that she should not have called the police and threatened to kill her. The next day she received a second call in which the same voice said, "Today is Monday."
NN testified that when she first saw her assailant, it was "broad daylight" outside, and the daylight illuminated the room. She further maintained that she "got a good look at his face." She described her assailant to the police as a twenty-six-year-old African American male who stood 5'8" tall, had a slim build and wore jeans, a red baseball hat and white tennis shoes. She further stated that his face was darkly complected and clean shaven.
In describing her assailant at trial, NN repeated most of the details she had provided to the police, adding that she is 5'4", and that her attacker was "just a little bit taller" than she is.*fn16 In contrast to what she had told the police, however, she stated at trial that the man who attacked her had a "lighter brown complexion," little moles or pimples on his face and "a little hair right on his chin."
On November 5, 1985, NN attended a lineup at which she asserted that she did not see her assailant. At trial, she testified that she had actually recognized appellant in the lineup, but failed to identify him because she was frightened and felt as if she might pass out. NN called the police approximately two weeks after the lineup, informing them that she had felt ill on the day of the lineup. When she returned to the police station, she was shown a photograph of the November 5 lineup, from which she picked appellant as her assailant. At trial, NN made an in-court identification of appellant, asserting that she was certain that he was the man who raped her and that she "could never forget his face."
MPD Detective Lawrence Noyes testified that, in the Spring of 1985, as part of its investigation of the assaults on LL and NN, the police department had assigned a special detail to monitor the neighborhood in which the assaults occurred. Officers assigned to the area were on the lookout for a black male in his twenties, weighing approximately 160 pounds, standing between 5'10" and 6' tall and wearing blue jeans, white tennis shoes and a red baseball cap. At some time around 1 a.m. on April 28, 1985, Detective Noyes received a call from another officer claiming to have spotted a suspect who fit the lookout description and requesting back-up.*fn17
When Detective Noyes responded to the call, he saw appellant in an area approximately fifty yardsfrom LL's home and one block from NN's home. Appellant wore white tennis shoes. Although the officer who initially spotted appellant had stated that he wore a red baseball cap, appellant's head was now bare. Detective Noyes noticed, however, that appellant's hair was indented in a circular manner -- as if he had recently been wearing a hat -- and that a red baseball cap stuck out of his coat pocket. According to Detective Noyes, the cap bore a "Popeyes" logo.
With appellant's consent, the officers photographed appellant, and he was then released. Detective Patrick Shine subsequently obtained an inked set of appellant's palm prints and fingerprints.*fn18 The following day, when appellant's prints were compared to prints discovered at NN's residence, the two sets of prints were found to match.
Later that day, Detective Shine attempted to execute an arrest warrant at a Popeyes fast food restaurant in Southeast Washington, D.C., and at the home of appellant's mother, but was unsuccessful. Detective Shine stated that he subsequently learned that appellant had not been employed at "the Popeyes" since March 1985. He did not identify the person who informed him that appellant no longer worked there. Nor did he state whether appellant was said to have stopped working only at that Popeyes restaurant or at other Popeyes restaurants as well.
Detective Shine informed appellant's mother that a warrant had been issued for appellant's arrest. Appellant was not arrested until November 1, 1985, when he was apprehended in front of his mother's home. Detective Shine interrogated appellant following his arrest. Appellant informed Detective Shine that, for at least a part of the period between April 29, 1985 and November 1, 1985, he had been in New York City, living with his grandfather. According to Detective Shine, appellant indicated that he was aware of the warrant issued for his arrest, but that his mother's boyfriend had advised him to leave town.
At trial, FBI agents trained in serology testified as to inconclusive results of tests on blood and semen samples taken from the three victims. All three victims were Type A secretors and appellant was a Type O secretor, both of which were typical of a sizeable percentage of the population.*fn19
Appellant's uncle testified for the defense. He stated that he was a construction contractor who renovated and remodeled existing homes and built new homes. Appellant had worked with his uncle on a sporadic basis since 1983, although he was not working for his uncle at the time of the assaults. According to his uncle, appellant was employed as an apprentice carpenter.
Appellant testified on his own behalf. He denied having had any contact with any of the complainants. Appellant claimed that he left the District of Columbia on April 30 or May 1, 1985 to live with his grandfather, because, after being denied admission to an educational workshop, being robbed, and then stopped by the police, all on the same day, he "just decided Washington wasn't for me no more."
Appellant denied that he knew that the police were looking for him before he left for New York, claiming that he first became aware of the arrest warrant after he returned to the District of Columbia. Appellant further denied that his mother's boyfriend advised him to leave town, although he stated that after he returned from New York, his mother told him to "stay out of [the police's] way and don't give them no reason for them to . . . stop you or anything like that."
Appellant attempted to explain the presence of his prints at NN's residence. He testified that, sometime in early April 1985, he lost his way while hiking in Rock Creek Park*fn20 and found himself in somebody's back yard. He further stated that he "decided to look into the window of the house . . . just to see how it was built, just for a few moments." According to appellant, "[A] lot of old homes have modern construction in their inside and a lot of modern homes have early settings in the inside."
Appellant also attempted to explain his presence in the vicinity of the NN and LL homes at 1 a.m. on April 28, 1985. He testified that, on the afternoon of April 27, 1985, two unidentified individuals robbed him at the intersection of Connecticut Avenue and Porter Street, N.W., cutting his hand in the process. He further stated that a neighbor picked him up on Adams Mill Road at approximately 6 p.m. and drove him to the hospital, where he stayed for approximately four or five hours.*fn21 According to appellant, after returning to his home at 1321 Fairmont Street, N.W., he walked back to Connecticut and Porter to look for a backpack he had left behind. He was on his way to Connecticut and Porter when the police stopped him.
Appellant testified that he had worked for the Popeyes restaurants chain at twelve different locations in New York and the District of Columbia. When first asked when he worked for the company, he replied, "I began in 1980. And I stopped working at Popeyes I believe . . . in the summer of '85." When asked specifically when he stopped working at Popeyes in the District of Columbia, appellant answered, "I would say in early March." During cross-examination, appellant stated, "In April I wasn't working. I wasn't working because I was . . . getting myself prepared to go to New York." Later, when the prosecutor asked if appellant was still working on March 14, 1985, he answered, "No, sir." Appellant further explained that he knew that it was in April 1985 when he became lost while hiking, because he quit his job in March and "started hiking deeply in April."
Appellant testified that he believed that he was in Silver Spring, Maryland at the time that AA was assaulted, but was not entirely certain. He was unable to account for his whereabouts at the times of the assaults on LL and NN. He maintained, however, that he had never been inside the homes of either LL or NN, nor the apartment building where AA was raped.
On February 25, 1986, the jury found appellant not guilty of all the charges relating to the assault on AA and guilty of all of the charges relating to the assaults on LL and NN. The trial court subsequently vacated appellant's two convictions for first degree burglary while armed, as well as his conviction for unauthorized use of a motor vehicle.
On May 8, 1986, appellant filed an appeal in which he was represented by new counsel, Richard S. Stolker. The appeal included no claims of ineffective assistance of trial counsel.*fn22
We affirmed appellant's conviction in an unpublished Memorandum Opinion and Judgment. Jones v. United States, No. 86-CF-761 (February 12, 1988). We subsequently appointed Kenneth D. Auerbach to represent appellant on a writ of certiorari to the Supreme Court of the United States. See Corley v. United States, 416 A.2d 713, 714 (D.C. 1980) ("[T]he assistance of compensated counsel in preparation of a petition for writ of certiorari is within the intent and coverage of D.C. Code 1978 Supp., § 11-2603 representation 'through appeals.'"). The Court denied the petition on October 3, 1988. 488 U.S. 60.
On September 12, 1986, appellant wrote a letter to the Honorable Fred B. Ugast, then Chief Judge of the Superior Court of the District of Columbia. In the letter, appellant alleged that his trial counsel was ineffective and requested "assistance in referring [his] case to the Public Defender Service." Appellant faulted his attorney in particular for failing to conduct a proper investigation and failing to present "exculpatory materials germane to [his] case." Appellant failed, however, to identify the exculpatory materials. Chief Judge Ugast forwarded the letter to Judge Scott, who responded to appellant in a subsequent letter providing the name and address of appellant's newly appointed appellate counsel.
Subsequently, following final affirmance of his convictions, from December 30, 1988 to July 25, 1989, appellant sent a series of letters to Judge Scott in which he argued, inter alia, that both his trial counsel and his appellate counsel had proven ineffective in their failure to adequately investigate his case and requested that he be appointed new counsel and an investigator.*fn23 On August 8, 1989, Judge Scott entered an order, construing the letters as "three separate pro se motions" and denying all three.*fn24
On April 4, 1994, appellant wrote a letter to the Clerk of the Superior Court, requesting that his case be "opened and an attorney appointed." According to the letter, appellant had discovered in 1988 that "he [was] working at the time of one of the crimes."*fn25 He further asserted, "I have a time card, an application and three (3) affidavits."*fn26 On April 15, 1994, the Honorable Reggie Walton entered an order construing the letter as a pro se motion for a new trial and appointment of counsel based on the discovery of new evidence, pursuant to Super. Ct. Crim. R. 33, and denying the motion as untimely.*fn27 On April 27, 1994 and May 10, 1994, appellant sent two subsequent letters, both of which Judge Walton construed as "pro se motion[s] for the appointment of counsel, for the purposes of apparently petitioning for new trial," and both of which he denied as untimely.*fn28
On June 21, 2000, Judge Walton denied, without explanation, a motion for production of documents and evidence and a motion for appointment of counsel, both of which were filed by appellant on November 10, 1999.
Appellant eventually obtained new counsel.*fn29 On August 8, 2001, appellant filed, through Peter Mann, his new attorney, the § 23-110 motion that is the subject of this appeal. In the motion, appellant contended that his trial counsel failed to discover and call two alibi witnesses.*fn30 Appellant attached three supporting affidavits.
In the first affidavit, appellant stated that at the time of trial, he was uncertain about where he was on March 14, 1985 or April 22, 1985. Appellant, who claimed to have suffered from hepatitis since he was fifteen, further asserted that, on March 12, 1985, his excessive alcohol consumption caused a "worsening" of his condition. As a result, appellant fell extremely ill. He did not specify where he spent the night of March 12. According to appellant, despite his illness, he attempted to go to work at a Popeyes restaurant on March 13. When he arrived, however, he informed his supervisor that he was too ill to work. An argument ensued, ending when appellant quit his job. According to appellant, because of his illness, he remained at his sister's house from March 13 until March 15. He further claimed that his trial counsel ignored his request to talk to members of his family and establish whether they could account for his whereabouts and, perhaps, provide an alibi.
According to appellant's affidavit, Popeyes rehired him in April of 1985. Appellant claimed that he "was scheduled to work from 10:00 a.m. until 5:30 p.m. on April 22, 1985," but that documents he obtained from Popeyes established that, on that date, he actually worked from 6:32 a.m. until 5:32 p.m., with a break from noon until 1:12 p.m. Appellant further stated that, prior to trial, he was uncertain about where he was on April 22, 1985.
According to appellant, his trial counsel did not comply with his requests to obtain his employment records and interview Andre Williams, a co-worker who appellant believed might be able to provide an alibi. Appellant further stated that his attorney claimed that he could not locate Mr. Williams and ignored appellant's request to seek a continuance in order to find him.*fn31
In a second affidavit, appellant's sister, Malisa Jones, stated that, after her brother became ill on March 12, 1985, he spent the night at her house. She claimed that her brother was "bedridden" on March 13, 14, and 15, 1985, because of his illness. She further asserted that "[appellant] did not leave [her] house at anytime during" that period. ...