Appeals from the Superior Court of the District of Columbia (M-3697-03) (Hon. Rhonda Reid-Winston, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and FERREN, Senior Judge.
Appellant was convicted at a bench trial of an attempted threat*fn1 against the complainant, Henry Harris. Appellant filed a direct appeal (for which no argument has been presented) and a collateral attack on his conviction (in the form of a motion for new trial and petition for writ of error coram nobis) alleging ineffective assistance of trial counsel. The judge who tried the case treated the motion as filed under D.C. Code § 23-110 (2001) and scheduled a hearing, after which she denied the motion in an eighteen-page opinion. She did not rule on the coram nobis petition, the standard for which, she said (and we agree), "is much more stringent than that for vacating a conviction on 23-110 grounds." See Butler v. United States, 884 A.2d 1099 (D.C. 2005). We affirm.
Appellant lived in complainant's house, where the two men were taking care of the four children of complainant and his wife, Towanda Harris, as well as the three children of appellant and the same Towanda Harris. This caretaking arrangement had developed because of Ms. Harris's absence in the military. The day of the incident, however, Towanda Harris was at home, arguing with appellant over a pair of shoes. Shortly thereafter, appellant confronted complainant about the argument with Towanda Harris, telling complainant that he "needed to talk to [his] wife about her mouth." Complainant testified that, during this confrontation, appellant told him, "I will put you six feet under because I have a lot next door to my house," and "I will burn . . . this mother fucking house down and anybody that's in it" -- threats that complainant testified had made him "somewhat scared."
At trial, appellant did not testify, but two of his children testified on his behalf.
Appellant's nine-year-old son, who complainant confirmed on direct examination had been seated in a car about four feet away when appellant uttered the threats outside the house, testified that he had not seen his father and complainant involved in any discussion whatsoever. The daughter supplied irrelevant testimony, for she said that she had been in her room at the time. She further testified, unhelpfully (and inaccurately), that her brother had been in his room as well. To rebut complainant's testimony on direct examination that he had been "somewhat scared" of appellant's threats, counsel elicited on cross-examination that complainant had received training as a special police officer. Ultimately, the case came down to an assessment of credibility, and the trial judge accepted complainant's word over that of appellant's son.
Appellant argues on appeal that the motions court erred in denying his motion for new trial. In order to demonstrate constitutionally ineffective assistance of trial counsel, appellant must show both that counsel's performance was deficient and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant demonstrates prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A defendant has the burden of affirmatively proving prejudice. Id. at 693.
The issues on appeal can be grouped under four headings. First, appellant alleges ineffectiveness in trial counsel's investigation and preparation of the case, primarily counsel's failure to introduce evidence of complainant's motive to fabricate the threats charged. Specifically, he stresses, counsel failed to introduce evidence from Lanita Van Dyke that Towanda Harris had falsely claimed that appellant had threatened her (Ms. Harris); that Towanda Harris had told Van Dyke that she was going to get appellant "locked up" and take sole custody of appellant's and her children; that she had given complainant a power of attorney authorizing him to care for her children "because she was in the military"; and that complainant would then be in a position to "put the kids back on [TANF (child welfare)], to try to get a bigger check . . . because all of the bills were behind in their house and everything else." Appellant argues that this evidence would have revealed complainant's bias against him and thus complainant's motive to fabricate.
The motions court did not find constitutional deficiency in failing to call Van Dyke as a witness, in part because "Van Dyke's testimony about Towanda Harris' statement to her would not have been relevant to show bias by [complainant] and would, in any event, have been hearsay." But even assuming deficient investigation and trial preparation as to Van Dyke, and further assuming relevance*fn2 and admissibility*fn3 of all the evidence from Van Dyke that appellant has proffered, we cannot find prejudice sufficient for reversal under Strickland.
From the trial proceedings it is clear that the motions judge was aware that appellant had custody of his children with Towanda Harris; that appellant and complainant -- Towanda Harris's husband -- had been living together and jointly caring for all the children of Towanda Harris; and that the living arrangement was unstable: "there was tension" between Towanda Harris and appellant, as evidenced by an earlier fight between them; and there was "some tension" between complainant and appellant about whether appellant "would continue to live in" the Harris home. Accordingly, said the motions judge, even without regard to Lanita Van Dyke's evidence at the motions hearing about "Towanda Harris' custody complaints" there was evidence in the trial record "from which the Court could infer bias" against appellant. Although the excluded evidence might have reinforced the possibility of complainant's bias, enhancing a motive to fabricate, we are satisfied from the motions judge's own analysis that this evidence did not materially add to what she already knew, as fact-finder at trial, about the parties' relationships, biases, and motives.
In reaching this conclusion, we take into account Lanita Van Dyke's reference at the motions hearing to a factor neither identified at trial nor previously implied by the unstable relationships among the parties: the availability of TANF benefits for appellant's children if Towanda Harris and complainant were to gain custody. Van Dyke's testimony could be interpreted to suggest that complainant might have felt free to use these TANF funds for overdue family bills not strictly related to the welfare of appellant's children -- a possible motive for fabricating a complaint against appellant that the motions court expressly acknowledged.*fn4 (Appellant does not argue, however, that this testimony could also be interpreted to mean that complainant had been motivated against appellant by the hope of taking control of TANF funds for his own, personal use.) Although a TANF-related argument was not made at trial, the motions judge was aware of the TANF evidence, as well as the other evidence concerning custody, ...