essence of a substantial defense in District of Columbia

1985Accordingly, we affirm. 4 Until recently, it had long been this court’s position that a defendant is deprived of his Sixth Amendment right to the effective assistance of trial counsel if “there has been gross incompetence of counsel and ... this has in effect blotted out the essence of a substantial defense.” Angarano v. United States, 312 A.2d 295 , 298 n. 5 (1973), pet. for recon. denied, 329 A.2d 453 (D.C.1974) (applying the standard enunciated in Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967)); see also Johnson v. United States, 413 A.2d 499, 502 (D.C.19

1985Accordingly, we affirm. 4 Until recently, it had long been this court’s position that a defendant is deprived of his Sixth Amendment right to the effective assistance of trial counsel if “there has been gross incompetence of counsel and ... this has in effect blotted out the essence of a substantial defense.” Angarano v. United States, 312 A.2d 295 , 298 n. 5 (1973), pet. for recon. denied, 329 A.2d 453 (D.C.1974) (applying the standard enunciated in Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967)); see also Johnson v. United States, 413 A.2d 499, 502 (D.C.19

1985Prior to the Supreme Court’s ruling in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1982), this court required that an appellant, to succeed on such a claim, must demonstrate that “ ‘there [had] been gross incompetence of counsel and this [had] in effect blotted out the essence of a substantial defense.’ ” Johnson v. United States, 413 A.2d 499, 502 (D.C.1980) (emphasis added) (quoting Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); Angarano v. United States, 312 A.2d 295, 298 (1973).

1985Accordingly, we affirm. 4 Until recently, it had long been this court’s position that a defendant is deprived of his Sixth Amendment right to the effective assistance of trial counsel if “there has been gross incompetence of counsel and ... this has in effect blotted out the essence of a substantial defense.” Angarano v. United States, 312 A.2d 295 , 298 n. 5 (1973), pet. for recon. denied, 329 A.2d 453 (D.C.1974) (applying the standard enunciated in Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967)); see also Johnson v. United States, 413 A.2d 499, 502 (D.C.19

1984The test for reversal on the ground of ineffective assistance is “that counsel was grossly incompetent and that counsel’s incompetence ... ‘blotted out the essence of a substantial defense.’ ” Oesby v. United States, 398 A.2d 1, 4 (D.C.1977) (quoting Bruce v. United States, 126 U.S. App.D.C. 336, 340, 379 F.2d 113, 117 (1967)).

1981Trial Counsel’s performance, “blotted out the essence of a substantial defense.” Given the “totality of the circumstances,” Tillery, supra at 973 ; Oesby, supra at 8 , the trial court erred in concluding that, although trial counsel was “grossly incompetent” (which the government does not contest), he “has not caused the defendant actual prejudice by blotting out the essence of a substantial defense.” See Angarano, supra at 298 n.5; Bruce, supra at 339-40 , 379 F.2d at 116-17 .

1985Prior to the Supreme Court’s ruling in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1982), this court required that an appellant, to succeed on such a claim, must demonstrate that “ ‘there [had] been gross incompetence of counsel and this [had] in effect blotted out the essence of a substantial defense.’ ” Johnson v. United States, 413 A.2d 499, 502 (D.C.1980) (emphasis added) (quoting Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); Angarano v. United States, 312 A.2d 295, 298 (1973).

1985Accordingly, we affirm. 4 Until recently, it had long been this court’s position that a defendant is deprived of his Sixth Amendment right to the effective assistance of trial counsel if “there has been gross incompetence of counsel and ... this has in effect blotted out the essence of a substantial defense.” Angarano v. United States, 312 A.2d 295 , 298 n. 5 (1973), pet. for recon. denied, 329 A.2d 453 (D.C.1974) (applying the standard enunciated in Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967)); see also Johnson v. United States, 413 A.2d 499, 502 (D.C.19

1985Under this test appellant must demonstrate (1) “that there has been gross incompetence of counsel”, and (2) this incompetence “has in effect blotted out the essence of a substantial defense.” Id. at 298 n. 5. 8 As formulated by the Supreme *540 Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Id. at 104 S.Ct. 2063 .

1985Accordingly, we affirm. 4 Until recently, it had long been this court’s position that a defendant is deprived of his Sixth Amendment right to the effective assistance of trial counsel if “there has been gross incompetence of counsel and ... this has in effect blotted out the essence of a substantial defense.” Angarano v. United States, 312 A.2d 295 , 298 n. 5 (1973), pet. for recon. denied, 329 A.2d 453 (D.C.1974) (applying the standard enunciated in Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967)); see also Johnson v. United States, 413 A.2d 499, 502 (D.C.19

1980We will not penalize mere errors of judgment, Woody v. United States, D.C.App., 369 A.2d 592 (1977), nor measure coun *973 sel's tactical decisions by their success at trial.

1977Far from the gross ineptitude which “in effect blotted out the essence of a substantial defense”, Woody v. United States, D.C.App., 369 A.2d 592, 593-94 (1977), quoting Bruce v. United States, 126 U.S.App.

1984Gaston v. United States, 442 A.2d 958, 961 (D.C.1982) (quoting Angarano v. United States, 312 A.2d 295 , 298 n. 5 (D.C.1973), reh’g en banc denied, 329 A.2d 453 (1974)).

1983We agree that counsel should have interviewed the complainant — and was grossly incompetent in failing to do so — but we conclude that counsel’s gross incompetence does not mandate reversal of appellant’s convictions, since no reasonable juror could have found the recantation credible. 28 When a defendant brings a post-trial claim of ineffective assistance of counsel, 29 we will reverse the conviction only if “there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense.” Gaston v. United States, D.C.App., 442 A.2d 958, 961 (1982) (q

1983We have repeatedly recognized that counsel’s tactical decisions should not be measured by their success at trial, see, e.g., Tillery v. United States, 419 A.2d 970, 972-73 (D.C.1980), and that trial counsel’s tactical errors will rise to the level of constitutional ineffectiveness only when they are so gross as to blot out the essence of a substantial defense.

1983We have repeatedly recognized that counsel's tactical decisions should not be measured by their success at trial, see, e.g., Tillery v. United States, 419 A.2d 970, 972-73 (D.C.1980), and that trial counsel's tactical errors will rise to the level of constitutional ineffectiveness only when they are so gross as to blot out the essence of a substantial defense.

1978To conclude that there has been a constitutional deprivation of the right to counsel due to ineffective assistance of counsel, we must find that "there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense. . . ." Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); accord, Williams v. United States, D.C.App., 374 A.2d 885, 889 (1977); Angarano v. United States, D.C.App., 312 A.2d 295 , 298 n. 5 (1973).

1978To conclude that there has been a constitutional deprivation of the right to counsel due to ineffective assistance of counsel, we must find that “there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . . .” Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); accord, Williams v. United States, D.C.App., 374 A.2d 885, 889 (1977); Angarano v. United States, D.C.App., 312 A.2d 295 , 298 n. 5 (1973).

1977In order to set aside a conviction on such grounds, we have required a showing that the challenged conduct of counsel was so incompetent as to “blot out the essence of a substantial defense.” Cooper v. United States, D.C.App., 248 A.2d 826, 827 (1969).

1974Before it can be said that a criminal defendant has been denied effective counsel, the ruling must render counsel so impotent "as to blot out the essence of a substantial defense or deprive him of a trial in any real sense.” Cooper v. United States, D.C.App., 248 A.2d 826, 827 (1969).

1985Under this test appellant must demonstrate (1) “that there has been gross incompetence of counsel”, and (2) this incompetence “has in effect blotted out the essence of a substantial defense.” Id. at 298 n. 5. 8 As formulated by the Supreme *540 Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Id. at 104 S.Ct. 2063 .

1985Under this test appellant must demonstrate (1) “that there has been gross incompetence of counsel”, and (2) this incompetence “has in effect blotted out the essence of a substantial defense.” Id. at 298 n. 5. 8 As formulated by the Supreme *540 Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Id. at 104 S.Ct. 2063 .

1986See Asbell v. United States, 436 A.2d 804, 807 (D.C.1981) (apply totality of circumstances test in determining whether counsel’s performance blotted out the essence of a substantial defense). 9 .

1984Wesley v. United States, 449 A.2d 282, 284 (D.C.1982); Angarano v. United States, 312 A.2d 295 , 298 & n. 5 (D.C.1973).

1983See Glass v. United States, D.C.App., 395 A.2d 796, 810 (1978).

1983Appellee contends, and the trial court held, that his counsel was "per se ineffective" for filing his Rule 35 motion on the 118th day after the mandate issued from this court affirming his conviction. [4] Appellee points to this court's pronouncement in United States v. Nunzio, 430 A.2d 1372, 1374 (1981), that "we long have adhered to [the] view" that the 120 day limit in Rule 35 was jurisdictional, and to our observation in Nunzio that, by filing the motion on the 118th day, Hamid's counsel made it "virtually impossible for it to have been ruled upon with care within 120 days." Id. at 1374, n

1983Appellee contends, and the trial court held, that his counsel was "per se ineffective" for filing his Rule 35 motion on the 118th day after the mandate issued from this court affirming his conviction. [4] Appellee points to this court's pronouncement in United States v. Nunzio, 430 A.2d 1372, 1374 (1981), that "we long have adhered to [the] view" that the 120 day limit in Rule 35 was jurisdictional, and to our observation in Nunzio that, by filing the motion on the 118th day, Hamid's counsel made it "virtually impossible for it to have been ruled upon with care within 120 days." Id. at 1374, n

1983The trial court need not conduct a hearing if the “exact nature of ... [the] asserted ineffectiveness [of counsel] was not explained in the motion.” Id. at 1217 (quoting Hurt v. Saint Elizabeths Hospital, D.C.App., 366 A.2d 780, 781 (1976)).

1981See, e. g., Tillery v. United States, D.C.App., 419 A.2d 970, 972 (1980); Johnson v. United States, D.C.App., 413 A.2d 499, 502 (1980); Wright v. United States, D.C.App., 387 A.2d 582, 586 (1978).

1981See, e. g., Tillery v. United States, D.C.App., 419 A.2d 970, 972 (1980); Johnson v. United States, D.C.App., 413 A.2d 499, 502 (1980); Wright v. United States, D.C.App., 387 A.2d 582, 586 (1978).

1981(A) Gross Incompetence of Trial Counsel The right to effective assistance of counsel attaches before trial, McMann v. Richardson, 397 U.S. 759, 771 , 90 S.Ct. 1441, 1449 , 25 L.Ed.2d 763 n.14 (1970), and extends through the post-trial proceedings.

1981(A) Gross Incompetence of Trial Counsel The right to effective assistance of counsel attaches before trial, McMann v. Richardson, 397 U.S. 759, 771 , 90 S.Ct. 1441, 1449 , 25 L.Ed.2d 763 n.14 (1970), and extends through the post-trial proceedings.

1978Of course, where a claim of ineffective assistance of counsel is raised, the facts alleged in a Section 23-110 motion, if true, must be susceptible to characterization as: gross incompetence of counsel [which has in effect] blotted out the essence of a substantial defense. [Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); Johnson v. United States, D.C.App., 385 A.2d 742, 744 (1978); Session v. United States, 381 A.2d 1, 2 (1977) (Yeagley, J., concurring in the result).] 7 .

1978Of course, where a claim of ineffective assistance of counsel is raised, the facts alleged in a Section 23-110 motion, if true, must be susceptible to characterization as: gross incompetence of counsel [which has in effect] blotted out the essence of a substantial defense. [Bruce v. United States, 126 U.S.App.D.C. 336, 339-40 , 379 F.2d 113, 116-17 (1967); Johnson v. United States, D.C.App., 385 A.2d 742, 744 (1978); Session v. United States, 381 A.2d 1, 2 (1977) (Yeagley, J., concurring in the result).] 7 .

1978The trial court concluded specifically that “[e]xamined in the context of the proceedings in their entirety, this Court finds that the omissions selectively garnered from the record and asserted by the defendant do not rise to the level of ineffectiveness required under Bruce to overturn the defendant’s conviction.” 30 Despite this holding, appellant contends that viewed cumulatively his trial counsel’s omissions deprived him of his Sixth Amendment right to the effective assistance of counsel, citing United States v. Hammond, 138 U.S.App.D.C. 166, 170 , 425 F.2d 597, 601 (1970).

1978The trial court concluded specifically that “[e]xamined in the context of the proceedings in their entirety, this Court finds that the omissions selectively garnered from the record and asserted by the defendant do not rise to the level of ineffectiveness required under Bruce to overturn the defendant’s conviction.” 30 Despite this holding, appellant contends that viewed cumulatively his trial counsel’s omissions deprived him of his Sixth Amendment right to the effective assistance of counsel, citing United States v. Hammond, 138 U.S.App.D.C. 166, 170 , 425 F.2d 597, 601 (1970).

1978Both Blackledge v. Allison, supra 97 S.Ct. at 1628, and Machibroda v. United States, supra at 494-95, 82 S.Ct. 510 , involved a prisoner’s post-conviction allegation that he had been induced to enter a guilty plea as part of a plea bargain and that the terms of that bargain had not been fulfilled.

1978In DeCoster, supra, the District of Columbia Circuit adopted the following standard: [A] defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. [Id. at 331, 487 F.2d at 1202 (footnote omitted).]

1978Accord, Proctor v. United States, D.C.App., 381 A.2d 249, 251-52 (1977); Coleman v. United States, D.C.App., 379 A.2d 710, 712-13 (1977); Fernandez v. United States, D.C.App., 375 A.2d 484, 486 (1977); Williams v. United States, D.C.App., 374 A.2d 885, 889 (1977); Woody v. United States, supra at 593-94.