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Brown v. United States

Court of Appeals of The District of Columbia

March 29, 2018

Joseph A. Brown, Appellant,
United States, Appellee.

          Argued April 27, 2017

          Appeals from the Superior Court of the District of Columbia (CMD-6506-91, FEL-9002-92, and FEL-1695-97) (Hon. Ann O'Regan Keary, Trial Judge)

          Cecily E. Baskir for appellant.

          Anne Y. Park, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Carolyn K. Kolben, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, and Glickman, Associate Judge, and Nebeker, Senior Judge.



         Brown appeals from the denial, as time or otherwise barred, from forty-eight pro se and interrelated motions. The motions collaterally attacked his three convictions in the 1990's (two were on negotiated guilty pleas on 1991 and 1992 weapons offenses, and a third for a first-degree murder conviction in 1997). This court appointed present counsel to represent Brown on the appeal. Brown was serving a life sentence in a California federal prison for the murder when he was charged with assault on a prison guard in 2008. He unsuccessfully presented an insanity defense to that charge, where he had the burden of persuading the jury by clear and convincing evidence that he had an abnormal mental condition which deprived him of capacity for choice and control of his conduct at the time of the murder. See 18 U.S.C. § 17. The jury was unable to reach a verdict and a mistrial was declared. The indictment was later dismissed on motion of the government.

         The argument on appeal is that Brown's four counsel in the 1990's were constitutionally ineffective in failing to recognize and develop possible insanity defenses to those charges. He presents his defense expert's testimony in his California trial (a Dr. A.A. Howsepian) to challenge as ineffective his four counsel in the 1990's.[1] Brown's initial argument is that this court should remand and direct that the trial court hold a hearing on the issue of the ineffectiveness of his counsel in order to show or justify cause for the delay in his challenges. In her thirty-page order, the trial court meticulously dealt with each of Brown's pleadings, which included many motions based on D.C. Code § 23-110, error coram nobis, for evidentiary hearings to amend his sentence, all filed between March 2012 through December 2014. She reasoned that there is no evidence to explain "why [Brown] failed to raise his ineffective assistance of counsel claim during his direct appeal . . . ." The court noted that even if Brown had demonstrated adequate reason for delay, he presents no evidence that supports "a reasonable probability that . . . the result of the proceeding would have been different." In fact, many of the events cited by his psychiatrist, Dr. Howsepian, as contributing to Brown's insanity occurred after the cases at issue here, such as Brown's nine years of solitary confinement, which came after the 1990's convictions. The trial court also found that the doctor's opinion pertained only to Brown's insanity at the time of the 2008 assault, "many years after his conduct in the instant case." She noted that there was nothing in the record demonstrating that any prior counsel should have been aware of any possible condition affecting Brown's mental condition. The trial court found no obligation on the part of counsel to investigate Brown's mental health simply because appellant disclosed that he was shot in 1991. We agree.

         In order to prevail when bringing a claim of ineffective assistance of counsel, appellant must show that "his trial attorney's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the error affected the outcome of the trial to his prejudice." Simpson v. United States, 576 A.2d 1336, 1337 (D.C. 1990) (see Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Generally, an appellant should collaterally attack his conviction on the basis of ineffective assistance of counsel during the pendency of his direct appeal. Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987). Where an appellant failed to do so, we require appellant to show cause for the delay and prejudice as a result of the delay. Id. (see Head v. United States, 489 A.2d 450, 451 (D.C. 1985)). In order to show cause, appellant must show "exceptional circumstances" that prevented him from bringing his claim in a timely manner. Head, 489 A.2d at 451 (citations omitted). To show prejudice, appellant must show that the errors at trial created more than a mere "possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Washington v. United States, 834 A.2d 899, 903 (D.C. 2003) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).[2]

         The dissent argues that the question of procedural default as a result of Brown's failure to bring these claims in a timely manner "blends" with the question of the merits of Brown's ineffective assistance of counsel claims. However, the Supreme Court has said that "the question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made." Murray v. Carrier, 477 U.S. 478, 488 (1986) (emphasis added). Ineffective assistance of counsel excuses a procedural default only where the ineffectiveness of counsel was the cause of the procedural default. Id. ("[I]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State ...."); see also Washington, 834 A.2d at 904 n.10 (interpreting Murray v. Carrier as saying that "ineffectiveness of counsel may constitute 'cause' only when that ineffectiveness itself is the very reason why such claims were not made on direct appeal" (emphasis in original)). In Brown's case, there is no ineffectiveness in the first instance.

         Brown showed no cause for his failure to file this collateral attack in a timely manner. We have held that the unavailability of claims resulting from the trial counsel's actions are only cause for delay where the counsel's own failure to effectively communicate with the defendant led to the delay in filing. See, e.g., White v. United States, 146 A.3d 101, 105-06 (D.C. 2016) (the trial court and counsel's misleading statements regarding appellant's eligibility for parole led to the guilty plea appellant sought to withdraw once he was properly informed of his parole eligibility); see supra page 5-6. Here, Brown alleges the opposite and contends that: a latent condition, withheld from counsel by defendant, was the cause of the delay. See infra page 7. Moreover, if Brown's mental condition was not "reasonably available" to Brown or his counsel prior to 2009, it is difficult to deem trial counsel's failure at the time of trial to investigate the matter in the 1990's unreasonable. We are therefore unpersuaded by the dissent's argument that Brown's factual basis for his claim may not have been reasonably available to him prior to Dr. Howsepian's assessment for his 2009 trial.

         Furthermore, there was no ineffective assistance of counsel, even if Brown could overcome the procedural bar. There were no observable symptoms or statements from Brown that could have reasonably called attention to the possibility of an insanity defense. The expert testimony from Dr. Howsepian showed that Brown had been traumatized by injuries in the 1990's and later when in prison, including a nine-year period of solitary confinement, and such trauma could produce latent Post Traumatic Stress Disorder (PTSD). He added that PTSD would lead to avoiding conversations about its effect.[3] Indeed, Brown told his examining psychiatrist that, "I never discussed it [his symptoms] with anyone. This is the first time." Thus, we have on this record an admission by Brown that he withheld from his counsel facts with which he now seeks to charge counsel with being professionally incompetent for not knowing or recognizing as the basis for a possible insanity defense. Dr. Howsepian's ultimate and material testimony was that Brown was insane in 2008.[4] Regardless, Brown presents his 2008 insanity diagnosis as evidence of his mental state in the 1990's. Moreover, at Brown's initial prison evaluation no mental disorder was noted.

         Notwithstanding the dissent's argument to the contrary, there is simply no evidence that counsel would have had a reason to investigate appellant's mental state at the time of trial in the 1990's. Not only did Brown not mention any mental condition to alert counsel, but also the psychiatric testimony in the California trial does not describe, and there is no other showing of, any observable symptoms of an abnormal mental condition in the 1990's. Therefore, there was nothing which could have reasonably alerted his counsel to a possible insanity defense. See Cosio v. United States, 927 A.2d 1106, 1127 (D.C. 2007) (en banc) (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)) ("[W]e must assess whether the challenged investigative omission was objectively unreasonable under the circumstances counsel confronted.... The duty to conduct a reasonably thorough investigation 'does not force defense lawyers to scour the globe on the off-chance something will turn up.'"). Absent some indicia of a mental condition, there is sufficient ground to find counsel's actions in the 1990's reasonable.

         Simply put, in order for Brown's claim to succeed, the court would have to engage in pure speculation.[5] Curry v. United States, 498 A.2d 534, 540 (D.C. 1985) (citing Williams v. United States, 421 A.2d 19, 25 (D.C. 1980)). Counsel cannot be deemed ineffective for failure to raise an insanity defense in the absence of any other "good defense."

         Accordingly, we hold that Brown's counsel did not perform in an objectively unreasonable way and were not ineffective by not raising insanity defenses. Since we conclude that Brown has failed to show cause for the delay, we need not reach the prejudice prong. See Cosio, 927 A.2d at 1131 (when cause for delay is shown, prejudice must then be considered).

         The trial court's order is hereby


          Glickman, Associate Judge, dissenting.

         This appeal arises from the denial of appellant Brown's pro se D.C. Code § 23-110 motions, in which he pursues relief from convictions in the 1990s on account of his mental illness and possible insanity at the time. Brown's principal claim is an ineffective-assistance-of-counsel challenge to his 1997 conviction for first-degree murder. The salient consideration for me is that the Superior Court denied this claim without an evidentiary hearing and without first appointing counsel to assist Brown, in spite of Brown's current mental disabilities and incarcerated status and the strong statutory presumption in favor of holding a hearing. I think this denial was premature. Brown proffered sufficient facts in my view to show that, with an attorney's help, he may be able to overcome the procedural bar and demonstrate that his trial counsel was ineffective in failing to investigate and pursue an insanity defense to the murder charge.


         The murder charge arose from the fatal shooting of Kenneth Powell on January 31, 1996. Brown himself was shot in the wrist in the encounter. At trial, the government conceded that the motive for Brown to shoot Powell - someone he grew up with and knew very well - was unknown. Brown's defense relied on his testimony that an unknown third party shot both him and Powell in a marijuana sale gone bad. It was a weak defense to a strong government case.[1] This court affirmed Brown's conviction in an unpublished opinion.[2]

         Brown first claimed his trial counsel was ineffective in failing to investigate an insanity defense in the pro se § 23-110 motions he filed in Superior Court in November 2011. Brown based that claim on a psychiatric evaluation in support of an insanity defense that he presented to assault charges brought against him in 2008.[3] Dr. A. A. Howsepian, the psychiatrist who conducted the evaluation, diagnosed Brown as suffering from chronic post-traumatic stress disorder ("PTSD") since 1991, when it was triggered by a profoundly traumatic shooting that left Brown in a coma and near death. This condition was exacerbated, the psychiatrist found, by Brown's schizotypal personality disorder and a history of brain injuries and grand mal ...

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