Chatmon v. United States

WAGNER, Chief Judge,

dissenting:

Assuming that trial counsel was constitutionally inéffective, as the majority concludes, in my view, the trial court properly denied the motion for new trial on the ground of lack of sufficient prejudice under the Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).1 That standard requires a “showing that counsel’s *115errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.” Id. The case against Chatmon was strong. First, Chat-mon was identified as the killer by a co-defendant, Kevin McGill, whose testimony, in the apt words of the trial court, “was not significantly impeached.” The court factored in that the jury had before it evidence of McGill’s plea agreement which allowed him to enter a plea to a reduced charge of second degree murder, however, as the trial court noted:

McGill is not really tripped up. His story doesn’t fall apart. There are no inconsistencies in it .... the defense didn’t really lay a glove on Mr. McGill ... so we have a co-participant who says that [Chatmon] ... is the man who did this with me. And he says it to him face to face in an American courtroom in front of the jury and never backs off, and never wavers. And, as I say, I don’t think he was significantly impeached.

Second, as the trial court also noted, the jury heard Chatmon’s two “abruptly different versions” about his whereabouts and knowledge of the crime that he gave to the police. In the first statement, Chatmon provided an elaborate exculpatory story distancing himself from the crime scene and from McGill at the critical time.2 In the second statement, which was videotaped, Chatmon claimed innocent presence at the scene of the crime where he only witnessed, from outside the store, McGill shooting the decedent.3 Chatmon’s inconsistent statements were strong evidence which could be considered by the jury as tending to prove consciousness of guilt. See Criminal Jury Instructions for the District of Columbia, No. 2.29 (4th Ed.1996). Further, they provide evidence of Chat-mon’s familiarity and association with a weapon which McGill said Chatmon used in the crime, his discussion of the intended robbery with McGill, his association with McGill and his presence at the scene of the crime.4 Third, contrary to Chatmon’s sec*116ond version of events at the store, a witness, Michael Walker, testified that he saw only one person standing in front of the store, who captured his attention by the way he was looking around, and that the person went around the corner, returned with a rifle and entered the store just before the witness heard the fatal shot. Walker, the citizen who called the police when he saw what was happening, dispels in his testimony any statement by Chat-mon that he was outside of the store, but simply an innocent observer. Fourth, Henry Choi, the store owner, provided a general description of both men, including their relative sizes and the roles they played in the robbery and shooting. Both describe the heavier person as leaving with the gun. McGill testified that he weighed only 132 pounds and that Chatmon is the larger of the two.5 Thus, the testimony of Choi and Walker in this regard tends to dovetail into the testimony of McGill. Considering the strength of the evidence, including Chatmon’s own damaging statements, it cannot be said that there exists “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Frederick v. United States, 741 A.2d 427, 437 (D.C.1999) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. 2052).

I am mindful that in Frederick, we recognized Strickland’s teaching that “ ‘[t]he result of a proceeding can be rendered unreliáble, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.’ ” Frederick, supra, 741 A.2d at 439 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. 2052). Nevertheless, what we have here is a showing that defense counsel, opened the door for the admission of a tentative out-of-court identification of Chatmon by a witness (Choi), who made no in-court identification. Choi testified that he could not identify the persons who robbed him and shot his friend. The evidence showed that when Choi selected Chatmon’s photograph, he said, “The face looks familiar. I don’t know for sure that he was the one who came in and robbed the store, but the face looks familiar. The robber’s hair seemed a little longer than the one’s in the picture.”6 Defense counsel argued in closing the uncertainty of the identification.7 The uncertainty of Choi’s *117out-of-court identification weakens its value. This fact, and the strength of the evidence presented by the government, precludes the conclusion that Chatmon was prejudiced by trial counsel’s claimed deficiency. “The likelihood ... that a strong case would be affected by deficiencies in representation is significantly less than it would be if the conviction were only weakly supported by the evidence.” Lane v. United States, 737 A.2d 541, 551 (D.C.1999) (citing Strickland, 466 U.S. at 696, 104 S.Ct. 2052). On this record, it cannot be said that the result of the trial is unreliable and that but for counsel’s errors, there is a reasonable probability that the outcome would have been different, as required to show prejudice under Strickland. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 394-95, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). For these reasons, I respectfully dissent.

. In considering claims for new trial based upon claims of ineffective assistance of counsel, we need not determine counsel's ineffectiveness; "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, supra, 466 U.S. at 697, 104 S.Ct. 2052. The able trial judge followed that course and declined to rule as ineffective trial counsel’s decision to pursue a line of cross-examination which led to the disclosure of identification evidence which the government had agreed not to use unless the issue was raised by the defense.

.In the first statement taken by the police about four days after the crime, Chatmon said:

I woke up at about 8:00 am, took out the trash and I seen my buddy Kevin [McGill] across the street from my house by the playground. He was pulling off and I started calling him but he did not hear me.
Then I went back into the house and dozed off. I woke back up at about 11:45 am and ran into a friend of mine named Jeffrey. We went uptown and we did not come back until it started getting dark. When we got back everyone was saying someone had been killed in the neighborhood. I didn’t pay any attention to what people was saying, and that was basically it.

Chatmon also said that McGill acted suspicious after that time in that he did not come around regularly anymore. He also described two weapons which he said he had seen McGill with, a sawed-off shotgun and a rifle. He said that he had last seen the shotgun about July 6th and that he had shot the rifle before, but only touched the shotgun.

. Chatmon gave the second statement after his arrest denying that he played any part in the robbery. However, in that statement, he admitted that McGill had asked him to help him commit a robbery, but McGill left without him because he had to do something. However, Chatmon said that he jogged to the store he thought McGill intended to rob, and saw McGill inside the store pointing a shotgun at the store’s owner and another person who appeared to be with McGill. He stated that he saw McGill shoot a man and run out of the store with the other person, where both entered a Honda Accord and drove away fast.

. The trial court considered this evidence in analyzing the prejudice prong of Strickland, noting:

And aside from the abruptness of the change, which is something that a finder of fact could certainly weigh against Mr. Chat-mon, where he ends up is right there. Right there on the scene, outside the store, watching for strange reason. He has ... made it clear that Mr. McGill is not lying *116when he says that they are associates with each other. That Mr. McGill is not lying that they've spent time together, been in the car together.... But he lets the police know he’s touched the gun for whatever reason. That he knows about the gun and has actually held it.

. The jury, no doubt, could observe their relative sizes.

. In light of Choi's description that one of the robbers had longer hair, there appears to be no reason why Chatmon's statement that he had cut his hair after the robbery would not have been admissible separate and apart from its relationship to the out-of-court identification procedure.

. Defense counsel sought successfully to have Choi’s written statement concerning his efforts to make an identification admitted to show that, contrary to Investigator Wheeler's testimony, Choi did not make a positive identification. The trial court recognized at the time that the identification was not positive, stating, "I think [defense counsel] is right. I think [Choi] didn't make a positive identification.” Defense counsel was able to argue in closing that there was no .positive identification as follows:

... [Choi] said "I’m not sure. They look familiar, but I don't know for sure that he was the one who came and robbed the store but his face looked familiar.” That is not a positive identification, ladies and gentlemen.
Close counts in horseshoes, not in homicide ....