Appeals from the Superior Court of the District of Columbia (F-6206-00, F-6219-00) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 18, 2007
Before WASHINGTON, Chief Judge, and GLICKMAN and KRAMER, Associate Judges.
Appellant Kenneth Aiken was convicted of a series of felony and misdemeanor offenses against his former girlfriend, Patricia Parker, and of escaping from a halfway house to which he had been committed prior to trial. His arguments on appeal center on the alleged deprivation of his Sixth Amendment right to the effective assistance of counsel. Appellant maintains the trial court abused its discretion by denying his pretrial request for a new attorney and by rejecting two post-conviction claims of ineffectiveness without a hearing.
We remand for a hearing on one of appellant's contentions. Prior to his indictment, appellant testified at a hearing on the complainant's petition for a civil protection order (CPO). His testimony in that civil proceeding was covered by a statutory grant of immunity from use and derivative use at his criminal trial.*fn1 However, appellant's criminal defense counsel took no steps to prevent such impermissible use, even though both the complainant and a police detective were privy to appellant's immunized testimony. Had defense counsel requested a so-called Kastigar hearing, appellant contends, the government would have borne the burden of proving that its evidence was not tainted by any exposure to his CPO hearing testimony. Whether counsel was ineffective in failing to request such a hearing, as appellant asserts, cannot be determined on the existing record. We therefore conclude that an evidentiary hearing on this claim is required. In all other respects, we affirm the trial court's rulings.
On March 11, 2000, according to the government's evidence, appellant assaulted Parker during a domestic dispute and was arrested. Two days later, on March 13, he allegedly threatened Parker with bodily harm if he went to jail. Parker did not report the March 13 threat to the authorities for several months, however, and in the meantime, the assault charge against appellant was dismissed without prejudice when she did not appear for his trial. A few months afterward, in mid-August, appellant started stalking Parker, damaging and destroying her property, and threatening her and her children. Appellant was arrested on a felony threats charge, appointed counsel, ordered to stay away from Parker, and released to a halfway house. He also was served with a notice to appear on September 26 for a hearing in Superior Court on Parker's request for a CPO.
At the September 26 hearing, Parker was represented by the District of Columbia Corporation Counsel*fn2 and accompanied by Detective Pamela Montague, the lead investigator on the pending threats case against appellant.*fn3 Appellant appeared alone and represented himself pro se at the CPO hearing.*fn4 Under oath, Parker described appellant's harassment beginning with his assault on her in March. Parker claimed she ended her intimate relationship with appellant after that assault and had refused his subsequent overtures to get back together. Appellant took the stand to rebut Parker. He testified that Parker, not he, was the aggressor on March 11; that their romantic relationship had resumed in April and did not end until he walked out on her in July; and that she had fabricated her accusations against him because he refused to marry her. Appellant attributed the vandalism of Parker's property and the threats she had received in August and September to enemies of his cousin, David Brox, who had moved in with Parker after appellant's departure. It appears that both Parker and Detective Montague were present during appellant's testimony.
In granting the CPO at the conclusion of the hearing, the court made clear that it credited Parker and disbelieved appellant. That night, appellant did not return to the halfway house. In violation of the CPO, he telephoned Parker the next day. The following week, on October 2, Parker reported to the police that appellant had confronted her outside her apartment building, thrown a brick at her, and then hit her face with his fists, fracturing her cheekbone. Appellant soon was rearrested.
Parker testified before the grand jury not long after the CPO hearing.*fn5 Appellant eventually was charged in a fifteen-count indictment with having committed felony and misdemeanor offenses against Parker in approximately ten incidents of domestic violence between March and October, including aggravated assault, assault with a dangerous weapon, and simple assault; felony threats; stalking, destruction of property, and violations of the CPO. In a separate indictment, appellant also was charged with escape as a result of his abscondence from the halfway house. The two cases were joined for trial.
On the morning of trial, appellant informed the judge that he did not "want to go to trial with this attorney" because she had not investigated his case properly. Following an extended colloquy with appellant and his counsel, the judge ruled that counsel had prepared adequately for trial and would not be replaced. The case then proceeded to trial. Parker's testimony against appellant was corroborated by other prosecution witnesses, including the aforementioned David Brox, and by forensic and other physical evidence. Appellant denied the charges (except for the escape and CPO 5 violations, which he admitted). His exculpatory testimony, which was not corroborated, mirrored his explanation at the CPO hearing.
The jury acquitted appellant of assault with a dangerous weapon and aggravated assault but found him guilty of the lesser-included offense of simple assault and of all the other felony charges. The trial judge found appellant guilty of the remaining misdemeanor counts.
In August 2004, appellant moved for a new trial pursuant to D.C. Code § 23-110 (2001) on grounds of ineffective assistance by his counsel. Among his numerous claims, he asserted defense counsel was ineffective in failing to request a hearing to ensure that the prosecution made no use of his CPO hearing testimony; and in failing to obtain the transcript of Parker's CPO hearing testimony for use in his defense. Appellant alleged that he told counsel about his and Parker's testimony and "specifically asked" her to order a transcript, which counsel "indicated" she would do.
In its opposition to appellant's motion, the government urged the court to deny the foregoing claims summarily. Even if defense counsel's performance was deficient, the government argued, appellant could not demonstrate prejudice because the evidence of his guilt was overwhelming;*fn6 Parker's testimony at trial was "consistent in all significant details" with what she said at the CPO hearing; and "nothing in the record" indicated the prosecutor had used the "fruits" of appellant's CPO hearing testimony against him. In a supporting affidavit, the prosecutor stated that she was "aware" of the CPO hearing in preparing appellant's case for indictment and trial, and "well aware" that D.C. Code § 16-1002 (c) "strictly prohibits the use of a respondent's testimony and fruits of that testimony . . . in a criminal proceeding involving the same matter(s)." The prosecutor averred that she never spoke with the complainant or anyone else "about what happened" at the CPO hearing, and never "request[ed], possess[ed], or read a transcript of that hearing." Appellant's defense counsel also provided an affidavit in support of the government's opposition, but she professed "not [to] have a specific recollection of what was involved regarding Mr. Aiken's civil protective order hearing," though she believed appellant had told her he was going to consent to the CPO "without making admissions."*fn7
On April 14, 2005, the trial judge denied appellant's claims of ineffective assistance relating to the CPO proceeding without holding an evidentiary hearing on them, "for the reasons stated in the government's opposition."*fn8
II. Appellant's Pretrial Request for New Counsel
Whether the trial court erred in denying appellant's pretrial request for new counsel turns on the adequacy of the court's inquiry to dispose of appellant's complaints. We have held that when a defendant asserts a pretrial claim of ineffective assistance of counsel, "the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant's allegations."*fn9 More than pro forma inquiry is required; the court's questioning must be "specific and thorough" enough "to elucidate counsel's degree of compliance" with the applicable "criteria of professional competence."*fn10 Subject to that standard, the "substance and scope" of the inquiry are committed to "the sound discretion of the trial court."*fn11 Thus, we will "defer to the trial judge's determination as to the form, substance and scope of the inquiry unless the record compels us to act otherwise."*fn12 The trial court's decision as to whether to grant new counsel "will be disturbed on appeal only if the court has abused its discretion."*fn13
We find no abuse of discretion here. At the outset, when appellant vaguely declared that his counsel did not have his "best interest" at heart, the judge urged him to articulate his "specific complaint." Appellant said he was dissatisfied because his case was "not being investigated." The judge then questioned appellant and defense counsel extensively about the circumstances and particulars of that complaint. Among other things, the judge confirmed (and appellant himself conceded) that counsel had hired an investigator, visited the crime scene, obtained extensive discovery from the government, reviewed applicable law, conferred at length with appellant about his potential defenses, subpoenaed documents suggested by appellant, and interviewed nearly all the witnesses that appellant had identified.
Upon further probing, the judge ascertained that counsel had not fulfilled appellant's request that she interview his mother and the day care center employees who cared for Parker's young children. According to appellant, his mother could have attested to his continuing relationship with Parker after March, and the day care workers could have confirmed that he picked up Parker's children during the summer of 2000 (inferentially bolstering his claim that he and Parker were still together then). ...