Appeal from the Superior Court of the District of Columbia (F2346-96) (Hon. Kaye K. Christian, Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
Before THOMPSON, Associate Judge, and SCHWELB and REID, Senior Judges.*fn1
Opinion for the court by Senior Judge REID.
Dissenting opinion by Senior Judge SCHWELB at page 30.
We previously resolved part of appellant Colie L. Long's consolidated appeal following his conviction on charges of conspiracy to commit murder, first-degree premeditated murder while armed, assault with a dangerous weapon, and possession of a firearm during a crime of violence. See Long v. United States, 910 A.2d 298 (D.C. 2006) (Long I). Mr. Long was convicted of the shooting death of a fourteen-year-old boy, Ronald Williamson, two weeks after Mr. Williamson threatened Mr. Long at gunpoint.
Id.at 301. The government's evidence established that William Tilghman and Mr. Long were together at the time of the murder, that Mr. Long instructed Mr. Tilghman to kill Mr. Williamson, but that when Mr. Tilghman hesitated, Mr. Long grabbed the gun and shot Mr. Williamson multiple times.*fn1 Id.at 301-02. As we stated in Long I, "the theory of [Mr. Long's] defense was that [Mr.] Tilghman killed Mr. Williamson by himself, and that he was lying about [Mr.] Long's participation in the murder in order to receive a lighter sentence." Id.at 302.
Although we rejected two of Mr. Long's direct appeal claims, we vacated the trial court's order denying his D.C. Code § 23-110 (2001) motion for a new trial based on ineffective assistance of counsel, because the trial court denied that motion without a hearing. Id.at 301. We said that a hearing was necessary to assess the credibility of witnesses, because "credibility determinations cannot be based on affidavits or countered by conclusory statements but may be resolved only by recourse to a full evidentiary hearing." Id.at 310 (quoting Newman v. United States, 705 A.2d 246, 261, 262 (D.C. 1997) (internal quotation marks omitted)). Consequently, we remanded the case "for further proceedings on the [D.C. Code § 23-110] motion in accordance with our opinion." Id.at 310-11. On remand, the trial court held an evidentiary hearing on the ineffective assistance of counsel motion and subsequently denied the motion. Mr. Long challenges the denial of his motion. We affirm the trial court's judgment of conviction, and its judgment denying Mr. Long's D.C. Code § 23-110 motion.
In addition to the ineffective assistance of counsel issue, before us is the trial court's denial of Mr. Long's renewed motion for correction of sentence pursuant to Super. Ct. Civ. R. 35. He asserts that his sentence is illegal because the trial court made findings on matters that should have been decided by the jury. We disagree and affirm the trial court's denial of Mr. Long's Rule 35 renewed motion for correction of sentence.
SUMMARY OF THE EVIDENTIARY HEARING ON REMAND
On remand, the trial judge conducted an evidentiary hearing on Mr. Long's D.C. Code § 23-110 motion. The hearing took place on, April 23 and 24, 2008, and August 5, 2008.
Mr. Long presented seven witnesses.*fn2 Their testimony variously focused on (1) an alleged statement by Mr. Tilghman showing that he and not Mr. Long killed Mr. Williamson; (2) the injury to Mr. Long's hand which allegedly made it impossible for him to shoot Mr. Williamson; (3) Mr. Long's dissatisfaction with his attorney, Mitchell Baer; and (4) an alleged conspiracy to harm Mr. Tilghman. Following is a summary of the testimony of Mr. Long's witnesses.
Halim Flowers, who grew up with Mr. Long, stated that he had been in
prison for eleven years, and that he had met Mr. Tilghman*fn3
in 1997, when they were incarcerated in the juvenile block at
the D.C. Jail. Mr. Tilghman told him (Mr. Flowers) "that he had
committed a murder, or that he was going to beat the murder . . . by
blaming it on another individual by the name of Meatball [Mr. Long]."
Others who heard Mr. Tilghman's confession were Michael Plummer,
Momolu Stewart, Dominique Littlejohn, and Michael White. Sometime
between February 1998 and May 1998, Mr. Flowers and Mr. Stewart met
with a defense lawyer or investigator and recounted what Mr. Tilghman
had said. Mr. Flowers was impeached with his felony convictions
(including first-degree murder and first-degree burglary while armed).
Momolu Stewart also was incarcerated with Mr. Tilghman in the juvenile block of the D.C. Jail, in 1998. He was a co-defendant in a case with Mr. Flowers before the charges against him (Mr. Stewart) were dismissed. He acknowledged that Mr. Flowers, Mr. Plummer, Mr. Long, Mr. Hunter, and Mr. Bellinger also were at the D.C. Jail in 1998. He became "real close" with Mr. Tilghman and talked with him "[p]retty much like every other day" about how Mr. Tilghman "said he was going to put the case on Colie Long because somebody . . . said they was going to do something to his mother." Mr. Tilghman "[b]asically said he committed the murder on [Mr. Williamson]." Mr. Stewart admitted that he had been convicted of first-degree murder in 1998, and he also acknowledged convictions on weapons offenses on more than one occasion. He stated that Mr. Tilghman had spoken to him "[a]bout ten times" concerning Mr. Long's case, but that he could not remember the details.
Patrick Andrews described himself as "an old friend" of Mr. Long.
Their families lived in the same neighborhood. In early 1996, Mr.
Andrews saw Mr. Long with a "hard cast" on his right hand.*fn4
He spoke with Mr. Long again sometime in 1998; Mr. Long said
"he needed [Mr. Andrews] to be a witness for him." Mr. Andrews later
talked with Mr. Long's counsel about Mr. Long's hand. Mr. Andrews did
not testify on behalf of Mr. Long. He acknowledged that he was
incarcerated in March 1998. Mr. Andrews admitted that he had been
convicted in two separate cases for first-degree murder while armed
and related weapons charges.
Kevin Bellinger and Mr. Long are cousins. He was with Mr. Long at a club when a fight broke out and Mr. Long injured his hand. Later, Mr. Bellinger saw Mr. Long with a hard cast on his hand on more than one occasion within about a two-week period. Mr. Bellinger admitted that he was found guilty, in 1999 and 2002, of weapons offenses, attempted possession with intent to distribute cocaine, and assault with intent to kill while armed, with accompanying weapons violations.
Lawrence Hunter was incarcerated with Mr. Long and Mr. Tilghman at the D.C. Jail, in 1996. While he was on the juvenile block, he heard Mr. Tilghman brag about killing [Mr. Williamson]. Mr. Hunter was not called as a witness at Mr. Long's trial, and he did not recall being in court on March 16, 1998, and invoking the Fifth Amendment, or being told that "the government believed they had evidence that he [Mr. Hunter] [was] part of a conspiracy to harm [Mr.] Tilghman." Nor did he remember refusing to speak with Mr. Long's counsel on February 27, 1998, because Mr. Long "advised [him] not to speak to his [Mr. Long's] attorney." Nor did he remember having written letters containing threats against Mr. Tilghman. Mr. Hunter admitted that he was convicted of first-degree murder in a 1996 case. On redirect examination, Mr. Hunter recalled being angry with Mr. Tilghman about his attempt to put Mr. Williamson's murder on Mr. Long, because it was wrong. However, he never told anyone about Mr. Tilghman's plan. He stated that he was never charged with threats against Mr. Tilghman or with obstructing justice in Mr. Long's case.
Michael Plummer was incarcerated with Mr. Tilghman in the juvenile block of the D.C. Jail in 1997. He heard Mr. Tilghman say that he committed a murder but that he would "put it on Meatball" (Mr. Long). When Mr. Plummer turned 18, he was moved to the adult block where he met Mr. Long. Mr. Long had heard that Mr. Plummer had been on the juvenile block with Mr. Tilghman. Mr. Plummer gave testimony at Mr. Long's first trial.*fn5
Government counsel impeached Mr. Plummer with his convictions on charges of first-degree murder while armed and related weapons offenses. Mr. Plummer acknowledged that his own counsel advised him not to testify at Mr. Long's second trial; Mr. Plummer's own retrial occurred at the same time as Mr. Long's retrial.*fn6 On redirect examination at the § 23-110 hearing, Mr. Long's counsel tried to pose questions to determine whether Mr. Plummer did not testify at Mr. Long's second trial because of fear of an obstruction of justice charge, but the trial court sustained objections to the questions. However, the court allowed Mr. Plummer to respond to the question: "Did you not testify at the second trial because you would get into trouble?" Mr. Plummer responded, "Yes."
Government counsel inquired about the prosecutor's cross-examination of Mr. Plummer during his testimony at Mr. Long's first trial. The cross-examination included questions concerning whether (1) Mr. Plummer "had authored a report in jail that people were pressing on [him]," that is, "people were violating [his] body"; (2) "he would do anything to keep them off of [him]"; (3) a man "named Gangster came up to [him and another man named Littlejohn], told [him] to go after [Mr.] Tilghman, [and] that's exactly what [Mr. Plummer] started to do"; (4) he had stolen the shoes he was wearing in court from Mr. Tilghman, and (5) when Mr. Tilghman "asked for his shoes back, . . . [he] t[o]l[d] [Mr.] Tilghman, 'you better be glad that I just took your shoes, because we were supposed to kill you.'" Government counsel used the March 13, 1998, transcript from Mr. Long's first trial to establish that the questions had been asked and that Mr. Plummer had denied the accusations. Government counsel then asked Mr. Plummer at the § 23-110 hearing, whether at Mr. Long's first trial, "the prosecutor was accusing [him] of being involved in the conspiracy to kill Mr. Tilghman." The trial court sustained the defense objection to that question. After several more questions, government counsel inquired whether "the substance of the [prosecutor's] question . . . [was] that [Mr. Plummer was] supposed to kill [Mr.] Tilghman?" Mr. Plummer answered, "Yes." Mr. Plummer acknowledged that in a 1997 case, he was convicted of first-degree murder while armed and weapons offenses.
Mr. Long began his testimony at the § 23-110 hearing by explaining the reasons for his dissatisfaction with his trial counsel, Mr. Baer; Mr. Baer represented him at his first and second trial. Mr. Long's dissatisfaction included Mr. Baer's failure to personally investigate Mr. Long's case, his advice that Mr. Long not testify at the suppression hearing or at trial, Mr. Baer's lack of experience in trying murder cases, and Mr. Baer's alleged failure to call witnesses, including Tiffany Rauch.*fn7 With respect to the injury to his right hand, Mr. Long indicated that about three weeks before the shooting of Mr. Williamson, he broke the knuckle of his hand during a night club fight and it was still swollen at the time of the shooting.
Mr. Heslep asked Mr. Long about Mr. Plummer's failure to testify at Mr. Long's second trial. He responded:
He [Mr. Baer] said he did not put Mr. Plummer on the stand because of allegations that Mr. Plummer had stole [Mr.] Til[gh]man's tennis shoes and certain things and he said my association with [Mr.] Plummer makes me look bad because they're trying to say that I was sending guys to threaten [Mr.] Til[gh]man and trying to say obstruction of justice. So he said me being associated with the guys, he wouldn't call them for a witness.
Mr. Long denied directing anyone to intimidate Mr. Plummer. When Mr. Heslep inquired whether Mr. Long had talked with Mr. Baer about the fact that he was not convicted at his first trial even though Mr. Plummer answered questions about the sneakers and intimidation, Mr. Long said he had and that Mr. Baer "was adamant . . . that my being associated with this guy with allegations of me trying to witness tampering and threatening him, that he didn't want to put him on the stand." Furthermore, Mr. Long expressed dissatisfaction with Mr. Baer because he did not follow-up on information Mr. Long gave him about (1) government witness Angela Wheeler's visits to him at the jail and her assertion that she had lied during her testimony, and (2) the clothes found in his apartment belonging to Mr. Tilghman and not to Mr. Long, as well as the failure to examine the shell casings found at the scene to prove that Mr. Long's fingerprints were not present.
During cross-examination by government counsel, Mr. Long confirmed that Ms. Rauch was related to him and that he "hung out with her or she was in [his] circle of friends." In addition, counsel established that Mr. Long's family had hired a private investigator during representation by his first counsel, not Mr. Baer. Government counsel turned to the firing of Leroy Nesbitt, another attorney who had represented Mr. Long, and inquired why Mr. Nesbitt was fired. Mr. Long replied that Mr. Nesbitt wanted him to testify that Mr. Tilghman had killed Mr. Williamson. When asked how he knew that Mr. Tilghman had killed Mr. Williamson, Mr. Long maintained that he (Long) was in the apartment building when he heard shots and that Mr. Tilghman had run to the apartment and said he had killed Mr. Williamson. On the subject of Mr. Long testifying at his own trial, government counsel said: "And the reason you didn't is because of the advice of your counsel that you would be impeached with the alleged confession you gave to the police when you were arrested; is that correct? Mr. Long answered: "His exact words was they were going to find me guilty because the detectives will come in and say you confessed to it . . . and it will be your word against their word and the jury is going to go with the police."*fn8
The government called one witness during the § 23-110 hearing, Mr. Baer. In response to government counsel's question as to whether he attempted to present Mr. Plummer as a witness in Mr. Long's retrial proceeding, Mr. Baer declared, "I believe that because of the nature of his testimony in the first trial and because of the Fifth Amendment issue, I don't believe I presented Mr. Plummer in the second trial." By "nature of his testimony" Mr. Baer explained that he was referring to the cross-examination questions the prosecutor had asked Mr. Plummer, at Mr. Long's first trial, relating to Mr. Plummer's alleged theft of Mr. Tilghman's basketball shoes and his alleged threats against Mr. Tilghman - "something to the effect that Mr. Til[gh]man was lucky that all they did was take his shoes because they were threatening to stab him."
In February 1998, Mr. Baer spoke with men who were incarcerated with Mr. Long about Mr. Tilghman; three men refused to speak with him. Of those to whom he spoke, Mr. Baer "was skeptical of what they were telling [him] for a number of reasons," including their serious criminal charges and "inconsistencies in what they told [Mr. Baer]." He became concerned "about whether they were telling the truth." He moved to withdraw from the case because of "ethical concerns about presenting testimony that he knew to be false." The motions judge advised him to consult with Bar Counsel. Bar Counsel advised him to try to persuade Mr. Long not to present false testimony, but if he was not successful, he should present the testimony. Mr. Baer withdrew his motion to withdraw.
Mr. Baer informed Mr. Long that he did not believe Mr. Stewart was credible and Mr. Long agreed not to present him as a witness. However, Mr. Long disagreed with Mr. Baer's decision not to call Ms. Wheeler, so Mr. Baer called her as a witness. Mr. Baer spoke with the doctor at the D.C. Jail about Mr. Long's right hand injury and that doctor said that the hand injury would not have prevented Mr. Long from firing the gun, and therefore, Mr. Baer did not call the doctor as a witness. Mr. Baer was able to make contact with Ms. Rauch. He determined that "she would not be helpful at all to Mr. Long" because she claimed that at the time of the Williamson shooting, Mr. Long was asleep in her apartment, but Mr. Long had informed Mr. Baer that he was asleep in Florence Green's apartment when the shooting occurred. In addition, Mr. Baer's July 18, 1997, notes show that according to Mr. Nesbitt, Mr. Tilghman "told [Ms. Rauch] . . . to hide the guns" and that "both . . . Mr. Long, and Mr. Til[gh]man had guns."
On cross-examination, Mr. Heslep wanted to know why Mr. Baer called Mr. Plummer during the first trial, but not Mr. Flowers, Mr. Stewart and Mr. Hunter. Mr. Baer replied that he "had no reason not to put on Mr. Plummer" and that he "became skeptical of the others because . . . they refused to speak with [him] at first" and because "they all had very serious charges" which "was going to detract from their credibility." He also thought their location on the same block with Mr. Long at the D.C. Jail, "would have been a pretty big coincidence." However, he did not recall examining the records at the D.C. Jail to determine whether Mr. Long and the others were in the same block at the jail. Although he had some of the men to whom he had spoken brought to the courthouse for the second trial "because Mr. Long wanted [him] to call them," he did not put them on the stand because "it was a combination of them asserting the Fifth Amendment, . . . [and] there were disadvantages to calling them that [he] had discussed with Mr. Long and [Mr. Long] agreed that it would be better not to call at least some of them."
As an example of a disadvantage, Mr. Baer pointed to the government's cross-examination questions, posed during Mr. Long's first trial, about "some kind of a conspiracy to get Mr. Til[gh]man" and the government's revelation "that for the second trial . . . they were going to pursue that line of cross-examination with the other witnesses, other than Mr. Plummer." Mr. Baer agreed that the conspiracy line of Mr. Plummer's cross-examination at the first trial "hadn't been a complete disaster." When asked why, then, he had not read Mr. Plummer's testimony at the first trial into the record of the second trial after Mr. Plummer asserted the Fifth Amendment, Mr. Baer said: "I can't recall if I considered it, but all of his testimony would have come in . . . . I can't recall if it occurred to me or not. It may not have occurred to me." Mr. Baer "probably did not" discuss the introduction of the transcript of Mr. Plummer's testimony with Mr. Long.
On redirect examination, Mr. Baer was again asked about Mr. Plummer's cross-examination during the first trial. He declared that "it was quite a surprise to [him] that [Mr.] Plummer was alleged to have been wearing [Mr.] Til[gh]man's shoes and it was also a surprise to [him] that he was alleged to have been biased against [Mr.] Til[gh]man in this plot to potentially stab him, so that made his testimony - that hurt his credibility." As to the reading of Mr. Plummer's cross-examination into the record of the second trial, Mr. Baer asserted: "I would probably be pretty reluctant - thinking back on it now, I would probably be pretty reluctant to do that, based on the cross-examination."
THE TRIAL COURT'S DECISION ON THE SECTION 23-110 MOTION
The trial court rendered its decision on the D.C. Code § 23-110 motion on December 10, 2008, in a twenty-five page order. Judge Christian discredited the testimony of Mr. Long and the other defense witnesses, but credited the testimony of Mr. Baer. Based upon the testimony given during the hearing, and consistent with her credibility determinations, Judge Christian made findings of fact relating, in part, to the incarceration of potential defense witnesses with Mr. Tilghman in the juvenile block of the D.C. Jail, the transfer of some of those witnesses to the adult cellblock at the jail where they met Mr. Long, Mr. Baer's surprise at the cross-examination responses of Mr. Plummer during Mr. Long's first trial, Mr. Baer's concern about the veracity, credibility and criminal records of those whom Mr. Long wanted as his witnesses, Mr. Long's "active role in directing his defense," Mr. Baer's serious concerns about Mr. Plummer's truthfulness and his willingness to change his testimony, Mr. Baer's investigation of Mr. Long's claim that he could not have shot Williamson because of his broken right hand, Mr. Long's ability to "ball his fingers together to legibly sign his name on the PD-47 card only hours after Mr. Williamson was shot and killed," Mr. Baer's conclusions about Ms. Rauch's proposed testimony, Mr. Baer's investigation of the lighting at the scene at the time of the shooting, and Mr. Baer's cross-examination of Ms. Wheeler which resulted in her statement that "she was not certain who actually shot Mr. Williamson."
Judge Christian made conclusions of law rejecting Mr. Long's claims that Mr. Baer was ineffective because he did not present (1) testimony regarding Mr. Long's inability to shoot a gun at the time Mr. Williamson was shot; (2) the testimony of Mr. Flowers, Mr. Stewart, Mr. Hunter, and Mr. Plummer at the second trial; (3) Ms. Rauch's testimony; and (4) nighttime photographs of the crime scene. Judge Christian summarized her conclusions as follows:
Based on the evidence presented during the evidentiary hearing in this matter, the [c]court finds that Mr. Baer was not ineffective in representing [Mr. Long] in his first and second jury trials. In foregoing the presentation of evidence related to [Mr. Long's] hand injury, Mr. Baer made a strategic decision premised on a sound investigation of facts available at the time. In addition, the lack of testimonial evidence from [Mr.] Flowers, [Mr.] Stewart and [Mr.] Hunter was based on a combination of said individuals invoking their Fifth Amendment privilege against self-incrimination and a lack of general credibility. Likewise, although [Mr.] Plummer testified in the Defendant's first trial, Mr. Baer's decision to avoid using his testimony in [Mr. Long's] second trial was a tactical decision designed to avoid introducing potentially incriminating evidence from a less than credible witness. Moreover, Mr. Baer's decision not to present [Ms.] Rauch as a potential alibi witness represented another strategic decision to avoid the introduction of potentially incriminating evidence and complications from a less than willing witness. Finally, although Mr. Baer could have introduced nighttime photographs of the crime scene during [Mr. Long's] trials, his failure to do so did not prejudice [Mr. Long] in any way. Thus, [Mr. Long] has presented no viable argument for why this [c]court should find Mr. Baer ineffective during his representation of [Mr. Long].
Ineffective Assistance of Counsel
Mr. Long contends, in part, that his trial counsel's performance was constitutionally deficient and, "as a direct result of these deficiencies, [he] suffered prejudice." Specifically, he argues that his counsel:
(1) failed to litigate or challenge [Mr.] Plummer's purported assertion of privilege at the second trial or, in the alternative, to introduce [Mr.] Plummer's prior sworn testimony into evidence at the second trial; (2) neglected to fully investigate [Mr.] Long's serious hand injury that would have impacted [Mr.] Long's ability to load, shoot, and otherwise handle the weapon purportedly used to murder [Mr.] Williamson; and (3) failed to obtain nighttime photographs of the crime scene that would have corroborated a key witness's testimony that the area was too dark to discern who the shooter was.
The government responds that: "The record amply supports the trial court's finding that, even if [Mr.] Plummer had been available to testify in person or via transcript in [Mr. Long's] second trial, defense counsel made a reasonable tactical decision not to present that testimony." Moreover, the government emphasizes the "evident impact of the conspiracy charge," filed against Mr. Long prior to his second trial, and in light of that impact, the government contends that Mr. Long "cannot demonstrate a reasonable probability that there might have been a different outcome if [Mr.] Plummer's testimony had been part of the second trial." Under the conspiracy charge, Mr. Long could be convicted without having fired the gun. With respect to the injury to Mr. Long's hand and the absence of nighttime photographs of the crime scene, the government asserts, in part, that even assuming Mr. Long's counsel had introduced evidence showing whether Mr. Long could have fired a gun with his injured hand and revealing what the crime scene looked like at night, there is no reasonable probability that the outcome of his trial would have been different.
In addressing Mr. Long's ineffective assistance of counsel claim, we apply familiar legal standards. "'The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Cosio v. United States, 927 A.2d 1106, 1122 (D.C. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). Appellant must show both deficient performance and prejudice. With respect to deficient performance, he must demonstrate that "his trial counsel committed errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Brown v. United States, 934 A.2d 930, 943 (D.C. 2007) (citing Strickland, supra, 466 U.S. at 687) (internal quotation marks omitted). We "'must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'" Brown, supra, 934 A.2d at 943(quoting Strickland, supra, 466 U.S. at 689). "'Trial tactical decisions generally do not result in a finding of ineffective assistance of counsel.'" Brown, supra, 934 A.2d at 943(quoting Zanders v. United States, 678 A.2d 556, 569 (D.C. 1996)). We "will not second-guess trial counsel's strategic choices because '[m]any alternative tactics are available to defense attorneys and their actions are often the products of strategic choices made on the basis of their subjective assessment of the circumstances existing at trial.'" Brown, supra, 934 A.2d at 943 (alteration in original) (quoting Zanders, supra, 678 A.2d at 569) (other citation omitted).
As for prejudice, appellant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," Strickland, supra, 466 U.S. at 687, and that "but for counsel's unprofessional errors, [there is a reasonable probability] that the result of the proceedings would have been different." Id.at 694. Moreover, Strickland cautions that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id.at 689. This is so because "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id.(citation omitted).
We focus first on Mr. Long's contention regarding the trial court's alleged error:
The court erred when it determined that trial counsel was not ineffective but, rather, made a "strategic decision" or "tactical decision,: when he failed to call [Mr.] Plummer to testify and failed to introduce [Mr.] Plummer's prior sworn testimony at [Mr. Long's] second trial. [Mr.] Plummer's testimony was essential to counter the testimony of the critical prosecution witness, [Mr. Tilghman], who testified he was with [Mr. Long] when [Mr.] Long shot and killed [Mr.] Williamson.
Initially, based on our reading of the trial transcripts, we disagree with Mr. Long's characterization of Mr. Tilghman as "the critical prosecution witness." Obviously, he paints Mr. Tilghman as "the critical prosecution witness" in order to magnify the importance of Mr. Plummer's testimony as a rebuttal to Mr. Tilghman's identification of Mr. Long as the shooter.
In closing arguments at both Mr. Long's first and second trials, the government emphasized the eyewitness testimony of Linn Thomas (Mr. Williamson's mother), Angela Wheeler, and Florence Green. Defense counsel sought to impeach these witnesses,*fn9 and to stress Mr. Tilghman's importance to the case. According to the government's proof, Ms. Thomas saw Mr. Long standing over her son with a gun in his right hand (Mr. Tilghman is left-handed) and he pointed the gun directly at her. Angela Wheeler told the grand jury that she saw both Mr. Long and Mr. Tilghman and Mr. Williamson at the time of the shooting, and that Mr. Long was the shooter. When Ms. Green heard gunshots, she looked into the alley and saw Mr. Long running from the alley toward her apartment. During the first trial, the prosecutor stated in rebuttal that Mr. Tilghman "is not our key witness." In her rebuttal in the second trial, the prosecutor stated that Mr. Tilghman had lied in the case and admitted his responsibility. She also re-emphasized the separate and independent identifications of the shooter by Ms. Thomas, Ms. Wheeler, and Ms. Green. Thus, as a threshold matter, we cannot agree with Mr. Long (in his effort to stress the importance of Mr. Plummer's testimony) that Mr. Tilghman was "the critical prosecution witness."
Furthermore, we are not convinced by Mr. Long's effort to undermine the trial court's determination that Mr. Baer made a strategic decision not to call Mr. Plummer at Mr. Long's second trial, or to introduce the transcript of his testimony at the first trial. Mr. Long's second trial was quite different from the first trial due to the added conspiracy charge after the first trial. At the outset of the second trial, the trial judge informed the jury of the charges in the indictment, the first of which was the conspiracy charge - that "[Mr.] Long and another person . . . did knowingly and willfully combine, conspire, confederate and agree together to murder [Mr.] Williamson. . . ." In delivering her closing argument, the prosecutor identified two possible theories of Mr. Long's guilt. The main government theory was the conspiracy - Mr. Long decided to kill Mr. Williamson and to accomplish the killing, he asked Mr. Tilghman to help him and entered into an agreement with Mr. Tilghman. According to the government's proof, overt acts committed to accomplish the conspiracy included the fact that Mr. Tilghman and Mr. Long armed themselves with a loaded firearm on March 18, 1996, the day before Mr. Williamson's murder; Mr. Long instructed Mr. Tilghman to retrieve the loaded firearm on March 19, which he did; and both men went to the alley on the night of the murder where Mr. Tilghman gave Mr. Long the loaded firearm; Mr. Long shot Mr. Williamson, and he pointed the firearm at Ms. Thomas with his right hand. The prosecutor identified the government's alternative theory as: Mr. Long "is the shooter, the principal. He is the person that shot and killed Ronald Williamson."
We are satisfied that Mr. Baer made a strategic decision not to call Mr. Flowers, Mr. Hunter, Mr. Plummer, and others as witnesses at the second trial. At the § 23-110 hearing, he identified three reasons for his decision: (1) their assertion of the Fifth Amendment, and (2) his skepticism "about whether they were telling the truth," and (3) their serious criminal charges and convictions which would cast doubt on their credibility. Indeed, the trial court discredited the testimony of all of the defense witnesses at the D.C. Code § 23-110 hearing. Moreover, at the time of Mr. Long's second trial, Mr. Flowers, Mr. Stewart, Mr. Andrews, Mr. Hunter, and Mr. Plummer all either had been convicted of first-degree murder, or were awaiting trial on first-degree murder charges, and all had been incarcerated at the D.C. Jail.
Not only was Mr. Baer skeptical about the veracity of the potential witnesses that Mr. Long wanted to call, but he also was troubled by the prosecutor's cross-examination of Mr. Plummer at Mr. Long's first trial. In that cross-examination, the government began by posing questions which placed Mr. Plummer in the D.C. Jail, juvenile block, with Mr. Tilghman, Mr. Hunter, and Mr. Littlejohn, and with speaking access to the adult block where Mr. Long was housed. The government then turned to an alleged grievance complaint that Mr. Plummer had filed in 1997, indicating that other inmates were feeling his body; and posed further questions suggesting that because of his harassment and intimidation at the Jail, two men told him "to go after [Mr.] Tilghman," and he did. The prosecutor next focused on the shoes Mr. Plummer had worn to court, accused Mr. Plummer of stealing the shoes, and asked whether he told Mr. Tilghman, "I just took your shoes because we were suppose[d] to kill you." At the D.C. Code § 23-110 hearing, Mr. Baer said that the content of the cross-examination "was quite a surprise to [him]" and that Mr. Plummer's alleged involvement in the "plot to potentially stab" Mr. Tilghman "hurt [Mr. Plummer's] credibility."
Mr. Long claims prejudice because Mr. Baer did not challenge "Mr. Plummer's assertion of privilege at the second trial or, in the alternative, . . . introduce [Mr.] Plummer's prior sworn testimony into evidence at the second trial."*fn10 Our dissenting colleague disagrees with the trial court's stated belief that "[Mr.] Plummer could assert a valid claim of privilege." However, Mr. Plummer testified at the § 23-110 hearing that his own attorney advised him not to testify. Moreover, as we previously pointed out, in response to his own attorney's question, during the D.C. Code § 23-110 hearing, Mr. Long recounted the reasons Mr. Baer had given him for not calling Mr. Plummer to testify at Mr. Long's second trial:
He [Mr. Baer] said he did not put Mr. Plummer on the stand because of allegations that Mr. Plummer had stole [Mr.] Til[gh]man's tennis shoes and certain things and he said my association with [Mr.] Plummer makes me look bad because they're trying to say that I was sending guys to threaten [Mr.] Tilghman and trying to say obstruction of justice. So he said me being associated with the guys, he wouldn't call them for a witness.
In addition, Mr. Long stated that Mr. Baer "was adamant . . . that my being associated with this guy with allegations of me trying to witness tampering and threatening him, that he didn't want to put him on the stand." As we also established earlier in this opinion, the record reflects at least three reasons why Mr. Baer did not call Mr. Plummer, Mr. Hunter, and Mr. Flowers as witnesses at Mr. Long's second trial; the Fifth Amendment privilege was only one of those reasons. Indeed, the testimony of both Mr. Long and Mr. Baer at the § 23-110 hearing reveals that Mr. Baer was deeply concerned about the veracity of Messers Plummer, Flowers, and Hunter, and the impact on their credibility of their felony convictions, which included first-degree murder.
As the trial court recognized, Mr. Baer made a strategic choice, or a tactical decision, not to present Mr. Plummer as a witness at the second trial. The cross-examination of Mr. Plummer (and any of the other men who were housed at the D.C. Jail at the same time as Mr. Long) undoubtedly would have been vigorous and would have focused on the alleged harassment of Mr. Plummer and the alleged plot against Mr. Tilghman. Moreover, the government indubitably would have insisted that the full transcript of Mr. Plummer's testimony be introduced, rather than just the direct examination testimony. With Mr. Baer's focus, at the time of the second trial, on the harmful nature of the government's cross-examination of Mr. Plummer at the first trial and his credibility, it is understandable that he could not recall whether he considered reading Mr. Plummer's testimony into the record at the second trial. Nevertheless, Mr. Baer remarked at the § 23-110 hearing, that "all of [Mr. Plummer's] testimony would have come in." Therefore, it is unlikely that he would have considered introducing the transcript of Mr. Plummer's trial testimony.
Our case law is clear that "'[t]rial tactical decisions generally do not result in a finding of ineffective assistance of counsel.'" Brown, supra, 934 A.2d at 943 (quoting Zanders, supra,678A.2d at 569); see also Strozier v. United States, 991 A.2d 778, 787 (D.C. 2010) ("[S]trategic choices . . . will seldom if ever be wanting.") (first alteration in original) (quoting Strickland, supra, 466 U.S. at 681) (internal quotation marks omitted)). As we reiterated in Strozier, "[b]ecause advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment." 941 A.2d at 787 (citing Strickland, supra, 466 U.S. at 681) (internal quotation marks omitted). Here, Mr. Baer made a clear strategic choice and on this record, we cannot say that Mr. Baer's strategic choice not to present Mr. Plummer as a witness constituted ineffective assistance of counsel. See Brown, supra, 934 A.2d at 943 ("This court will not second-guess trial counsel's strategic choices because [m]any alternative tactics are available to defense attorneys ...