Appeal from the Superior Court of the District of Columbia (F-5414-02) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before KRAMER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
In the first of these consolidated cases, appellant Reginald Steward seeks reversal of his conviction on a single count of distribution of heroin, arguing insufficiency of the evidence. In the second case, he contends that the trial court erred in denying, without a hearing, his motion, brought pursuant to D.C. Code § 23-110 and Super. Ct. Crim. R. 33, in which he alleged ineffective assistance of counsel and sought a new trial. We have no trouble concluding that the evidence at trial was sufficient to sustain the jury's guilty verdict. We agree with appellant, however, that the court erred in summarily dismissing his section 23-110 motion without affording him a hearing (or, at least, an opportunity to supplement his motion before the court determined whether to hold a hearing). We therefore vacate the order denying the section 23-110 motion and remand the case to the trial court for further proceedings consistent with this opinion.
The evidence at trial was that Metropolitan Police Department Investigator Clarence Brooks and other police officers were running an undercover buy/bust operation on August 20, 2002, in the 4100 block of Wheeler Road, S.E.*fn1 That evening, Brooks approached an individual who later, upon his arrest, gave his name to police as James Taylor, but who subsequently was confirmed to be Bobby Praylow.*fn2 Brooks asked Praylow for two dime bags (i.e., two ten-dollar bags of drugs). Praylow told Brooks to follow him to a parking lot.
Praylow then walked over to a fence while Investigator Brooks stood approximately fifteen to twenty feet away. A woman and two or three men, including appellant, were standing near the fence. Investigator Brooks testified that at the fence, Praylow had a short conversation with appellant, during which Brooks heard the word "two." Thereafter, appellant walked a few feet away, bent down, and retrieved some small objects from a grassy area. Appellant then walked to Praylow and handed him two green ziplocs of white powder. Praylow took the ziplocs, walked back to Brooks, and handed him the two ziplocs in exchange for $20 in pre-recorded police funds.
Investigator Brooks returned to his car and radioed a lookout description for both Praylow and appellant, describing appellant as a "a heavy-set Black male wearing a white T-shirt [and] blue jean shorts."*fn3 Officer James Tyler received the lookout and drove to the rear of 4100 Wheeler Road. Officer Tyler saw a man, appellant, matching the radioed description, pulled up beside him, and stopped him. After Investigator Brooks positively identified appellant as the man who had supplied drugs to Praylow, Officer Tyler placed appellant under arrest. Police searched appellant and recovered fourteen dollars on his person. Police officers also searched the grassy area from where appellant had retrieved the small objects that he gave to Praylow, but did not recover anything. Officer Brooks testified that he was a "hundred percent" sure that appellant was the individual that he saw retrieving objects from the grass and providing them to Praylow.
The defense called as witnesses three women, including Carol Foster, Deborah Pride, and appellant's mother. Foster and Pride both testified that they had been standing and chatting with appellant and others in the area behind the 4100 block of Wheeler Road for about forty-five minutes on the evening in question and that appellant was continuously in their line of vision. None saw appellant go over to the fence line. On the second day of trial, one of the jurors sent the judge a note asking, among other things, "how many [other people who were arrested during the police operation] resembled the defendant, either in physical appearance or dress?" and "Did other officers have the defendant under direct surveillance, from the time of the transaction to his arrest?" The court responded that it "does not permit questions to be asked by the Jury during the trial." The jury began deliberations at 9:30 a.m. the next day. At 2:25 p.m., the jury sent the court a note saying that it could not reach a verdict. Court reconvened at 2:31 p.m., and the trial judge instructed the jury to resume its deliberations. The jury requested a fifteen-minute break, and then at 4:00 p.m., sent the judge a note saying that it had reached its verdict.
Appellant was sentenced on August 1, 2003, and noted his direct appeal on August 28, 2003. On April 21, 2004, appellant filed his "Motion Pursuant to DC Code § 23-110 and Motion for a New Trial," to which were attached two affidavits of his own and an affidavit of Bobby Praylow. The motion alleged, inter alia, that appellant's trial counsel had provided ineffective assistance by failing to properly investigate appellant's assertions regarding his co-defendant Praylow and Praylow's "desire to exculpate him," and that there was "newly discovered information, obtained from the juvenile Co-Defendant, regarding his part in the crimes as charged, and potential exculpatory testimony regarding [appellant's role] in these matters." Appellant stated in his affidavit dated March 10, 2004, that "[a]t no time did my attorney . . . talk to my co-defendant, Bobby Praylow or his defense counsel" or "suggest to have Bobby Praylow come and testify at my trial that he was the person who sold the drugs to the undercover policeman." Appellant stated in his affidavit dated April 1, 2004, that he asked his trial counsel to "talk with Bobby Praylow and interview him in regard to what part he played in the offense I was charged with," and that he did "not know if [trial counsel] had any conversations or interviews with Bobby Praylow or his attorney." Praylow stated in his affidavit dated February 3, 2004, that he "was never contacted" by appellant's counsel and that he "never received any drugs or money from [appellant] on August 20, 2002, before I was arrested, or after I was arrested on August 20, 2002." Praylow also stated that he "was willing to testify in court on [appellant's] behalf and testify to the fact that I was the person who sold two bags of heroin to the undercover police officer on August 20, 2002 . . . ."
On January 9, 2006, the trial court ordered the government to respond to appellant's motion. On March 10, 2006, before any government response was filed and without a hearing, the court denied appellant's motion. The court explained:
I cannot reasonably conclude that it is more probable that but for trial counsel's failure to introduce the testimony of co-defendant Bobby Praylow (Taylor), which was a strategic choice, the outcome of the trial would have been different. . . . Trial counsel's strategic choice of not introducing the testimony of co-defendant Praylow (Taylor), who was arrested in the same offense, in no way prejudiced the defendant's case. Given the overwhelming evidence against the defendant and the co-defendant, it is this Court's belief that trial counsel's strategic choice was made after thorough investigation of law and facts relevant to plausible options.
This court consolidated appellant's direct appeal and his appeal from denial of his ...