Appeal from the Superior Court of the District of Columbia Criminal Division (F-3892-92) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and ROSS,Associate Judge, Superior Court of the District of Columbia.*fn1
Appellant Kelvin Freeman was convicted, following a third jury trial, of two counts of first-degree premeditated murder while armed, one count of first-degree burglary while armed, one count of possession of a firearm during a crime of violence, and one count of carrying a pistol without a license.*fn2 On appeal, he challenges the trial court's disqualification in his first trial of his retained counsel and the trial court's refusal to reinstate that counsel at his third trial. He also contends that the trial court abused its discretion by denying, without a hearing, his D.C. Code § 23-110 motion to vacate his conviction based upon ineffective assistance of counsel at his third trial. Finding no error, we affirm.
Bettie Jean Cherry and Frank Luckett were found shot to death inside their apartment located at 323 L Street, S.E., Washington, D.C. on September 11, 1991. They were the mother and stepfather, respectively, of Comelia Cherry,*fn3 with whom appellant Kelvin Freeman had a son.
The government presented evidence that Mr. Freeman had been fighting with Comelia over money, his drug use, and their son, and that she had complained to his parole officer about his threatening behavior, which led to the issuance of an arrest warrant for violating his parole. Mr. Freeman repeatedly had threatened to kill Comelia, but more recently had told her that he would not kill her, because their son needed a mother, but that he would "punish [her] and make [her] suffer." Mark Monroe and Melissa Hargrove were in another apartment in the same building as Comelia's parents on the night of the murders. They identified Mr. Freeman as the man they saw leaving the apartment and wiping off, what appeared to them to be, a firearm before placing it in his waistband. The government's witnesses testified that Mr. Freeman had "bragged" to four people, including government witness Cornell Thomas, that he had killed Comelia's parents to punish her.
The defense presented evidence that the government's witness, Cornell Thomas, asked one of his fellow inmates, Frederick Miller, to obtain as much information as possible about several other inmates, including Mr. Freeman, because Mr. Thomas planned to "put [that information] together and testify to some things and [that Mr. Thomas] was going to make a deal with the government." Mr. Miller testified that he did not provide any of the requested information to Mr. Thomas. On cross-examination, Mr. Miller conceded that Mr. Thomas never said that he intended to lie and that he only wanted information. Other inmates who were incarcerated with Mr. Thomas testified that Mr. Thomas studied Mr. Freeman's legal materials "three, four times a week," that Mr. Thomas asked other inmates about the status of Mr. Freeman's case, and that Mr. Thomas stated his intent to cooperate with the government to reduce his sentence. Timothy Williams, who also had been incarcerated with Mr. Thomas, testified that he "caught [Mr. Thomas] several times informing" on other inmates, and that Mr. Freeman had left property with Mr. Thomas while they were incarcerated at the same facility.
Defense investigator Howard Weiner testified regarding written statements he took from Mr. Monroe and Ms. Hargrove, in which they expressed uncertainty regarding their observations on the night of the murders. Mr. Weiner conceded on cross-examination that Ms. Hargrove was "scared about going to court" against Mr. Freeman. Mr. Freeman's former girlfriend Stephanie Lee testified that, on the night of the murders, Mr. Freeman was in her apartment when she left for work and was there when she returned in the morning. Her son testified that Mr. Freeman babysat him and his brother while his mother was at work and that Mr. Freeman did not leave them unattended during that time.
Mr. Freeman denied committing the murders and denied that he had confessed about committing the murders. Mr. Freeman also testified that he had never met Mr. Miller.
Mr. Freeman's first jury trial began on August 30, 1999, before the Honorable Ann O'Regan Keary and resulted in a mistrial when the jury was unable to reach a unanimous verdict. His second jury trial began on May 16, 2000, before Judge Keary and also resulted in a mistrial when the jury was unable to reach a unanimous verdict. Mr. Freeman's third jury trial began on August 23, 2000, before Judge Keary, and the jury returned guilty verdicts on all counts charged in the indictment, with the exception of the possession of a firearm during the commission of a crime of violence charge (PFCV) predicated upon Mr. Luckett's murder, on September 25, 2000.*fn4 On November 17, 2000, the trial court sentenced Mr. Freeman to a total of fifty-six years to life imprisonment, with a forty-year mandatory minimum sentence. Mr. Freeman timely appealed.
On April 7, 2004, Mr. Freeman moved to vacate his convictions under D.C. Code § 23-110, alleging ineffective assistance of counsel. The trial court denied the petition without a hearing on October 31, 2006. Mr. Freeman timely appealed.
A. The Trial Court's Initial Disqualification In The First Trial And Denial Of Mr. Freeman's Motion To Reinstate His Retained Counsel Jonathan Stern In The Third Trial
Mr. Freeman contends that the trial court abused its discretion by disqualifying his retained counsel, Jonathan Stern, in the first trial and by refusing to reinstate him at the third trial, because there was no conflict of interest. Mr. Freeman argues that the trial court was required to accept the waivers of any conflict that existed and that changed circumstances warranted the reinstatement of Mr. Stern in the third trial. We hold that the trial court did not abuse its discretion in its disqualification or denial of the motion to reinstate Mr. Stern because an actual conflict of interest existed. Further, the trial court had discretion to refuse the waivers, and the defense counsel failed to apprise the trial court of changed circumstances warranting reinstatement.
On July 7, 1998, Jonathan Stern, who had been retained by Mr. Freeman, entered his appearance in the case as defense counsel. Three months later, in October 1998, Mr. Stern filed an ex parte pleading. The pleading advised the Honorable Mary Ellen Abrecht, who was assigned the case at the time, that he planned to call Navarro Hammond -- whom he had previously represented in an unrelated murder case -- to testify as a witness at Mr. Freeman's trial. Mr. Stern advised the trial court that he expected Mr. Hammond would testify that he and another man, who also would appear as a defense witness, had committed the murders with which Mr. Freeman was charged. In his ex parte pleading, Mr. Stern recognized that this strategy presented a conflict of interest and asked the trial court to appoint counsel for Mr. Hammond so that Mr. Stern could determine whether Mr. Hammond would agree to waive any conflict of interest.
By an order dated October 23, 1998, Judge Abrecht found that "there is a conflict of interest and there can be no effective waiver by the former client [Mr. Hammond]." Judge Abrecht ordered Mr. Stern to withdraw, which he did on November 2, 1998. On December 1, 1998, Richard Gilbert, who had ...