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Turner v. United States

Court of Appeals of Columbia District

August 10, 2017

Clinton Turner, Appellant,
United States, Appellee.

          Submitted June 22, 2017

         Appeals from the Superior Court of the District of Columbia (CMD-8679-13) (Hon. Robert E. Morin, Trial Judge)

          Nigel A. Barrella was on the brief for appellant.

          Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Barry Wiegand, Angela Buckner, and Cara A. Gardner, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Reid, Senior Judge.


         Appellant, Clinton Turner, challenges the trial court's denial of his motion, filed pursuant to D.C. Code § 23-110 (2012 Repl); the motion alleged ineffective assistance of counsel during his trial for simple assault.[1]Mr. Turner argues that the trial court erred in declining to extend to his case the Supreme Court's ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), to require a reasonably competent criminal defense attorney to inform him of collateral employment consequences. He also contends that under Padilla, the trial judge incorrectly applied the prejudice prong of the ineffective assistance of counsel standard. For the reasons stated below, we affirm the trial court's judgment.


         In October 2013, during his tenure as a Metropolitan Police Department ("MPD") officer, Mr. Turner was convicted of simple assault after a bench trial. The government's evidence showed that his conviction stemmed from an incident at a shoe store where he and another MPD officer, Lewond Fogle, were conducting a "business check." The complainant, Daniel Fox, who was working at the store, made an inappropriate comment to Officer Fogle concerning the female store manager. Officer Turner told Mr. Fox, "Don't do anything that will get you fired or arrested." The trial judge found that when Mr. Fox made yet another comment, Officer Turner "grabbed Mr. Fox, pulling him down from his table or seat, and slammed him into a wall and then to the ground and eventually arrested him." Officer Turner pulled some of Mr. Fox's hair out while pulling him down. Mr. Turner testified on his own behalf, explaining that he believed that he was justified in using reasonable force in arresting Mr. Fox, who was being disorderly. The trial court found that Mr. Turner's version of the events was "not credible and . . . not supported by any of the objective evidence, " including a video that captured the encounter. The court concluded that Mr. Turner used excessive force while interacting with Mr. Fox and found him guilty of assault.[2]

         Mr. Turner lodged a pro se Motion to File a Belated Appeal on October 3, 2014, arguing that his trial counsel had been deficient. This court interpreted his motion as a collateral attack under D.C. Code § 23-110. Mr. Turner also eventually filed a direct appeal of his assault conviction on October 23, 2015.

         At the June 3, 2016, D.C. Code § 23-110 evidentiary hearing, Mr. Turner's trial counsel, Harold Martin, [3] testified regarding his representation of Mr. Turner during the assault trial.[4] Mr. Martin explained that the defense theory at trial was that Mr. Turner "used a reasonable amount of force under the circumstances in the course of making a valid arrest or detainment for legitimate police purposes." Mr. Martin understood that Mr. Turner wanted to testify, and he explained to Mr. Turner that he did not believe he could avoid conviction without testifying. Mr. Martin practiced Mr. Turner's direct examination with him, talked to him about the principles of cross-examination, and explained how Mr. Turner might be attacked on cross-examination. He also generally spoke about the importance of being truthful. Mr. Martin stated that "[t]here never seemed to be any ambiguity about [Mr. Turner's] understanding of what was the truth and what was falsehood or what was right and what was wrong."[5]

         Mr. Martin "may have informally discussed" how the criminal trial could affect Mr. Turner's employment with MPD and he informed Mr. Turner that people "have survived a misdemeanor conviction." However, he did not have a detailed discussion with Mr. Turner about the potential administrative consequences of his criminal case because Mr. Martin believed such a discussion would be a conflict of interest and would involve speculating about results. Mr. Martin did not inform Mr. Turner about any consequences he may face regarding employment and his ability to testify in future criminal cases due to an adverse credibility finding by the court. The "focus was on trying to win th[e] trial."[6]

         The trial court denied Mr. Turner's § 23-110 motion on June 7, 2016. First, the court found that trial counsel's representation of Mr. Turner was not constitutionally deficient.[7] Second, the trial judge declared, "Even if [Mr. Martin] were deficient, however, I would find that [Mr. Turner] has not demonstrated sufficient prejudice under Strickland v. Washington, [466 U.S. 668 (1984), ] concerning Mr. Martin's purported deficient performance in giving advice." Mr. Turner appealed the denial of the § 23-110 motion, and this court consolidated his direct and collateral appeals.


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