Herbert D. Jackson v. United States , 371 F.2d 960 ( 1966 )

BASTIAN, Senior Circuit Judge:

Appellant was charged with assault with a dangerous weapon, a pistol, in violation of D. C. Code Sec. 22-502. The case came on for trial after appellant’s plea of not guilty, appellant being represented by counsel of his own choosing.

At the trial, Minkow, the owner of a night club, testified that under an agreement which he had with a detective agency for services, appellant, an employee of that agency, had been assigned to his club as a special police officer on the evening in question; that during a quarrel with him, appellant became enraged, drew a gun and shot him in the mouth, inflicting serious injury. Minkow also testified that at no time during the quarrel did he have a gun in his possession, but admitted that a gun was kept in a locked drawer behind the bar. He further testified that no one, to his knowledge, had removed the gun from the drawer on the night of the shooting. There was corroborative testimony by a witness to the incident to the effect that he had seen no weapon, other than appellant’s gun, during the evening, and that appellant was the aggressor in the argument. No weapon was found on Minkow, although a search was made.

Appellant asserted self defense, claiming that Minkow was the aggressor and that only after Minkow had reached toward his pocket had he [appellant] shot in self defense, at that time thinking that Minkow was reaching for a gun. A defense witness corroborated appellant’s testimony. Both this witness and appellant admitted they had seen no weapon in Minkow’s possession, although both testified that they knew he had at times carried one on his person.

The jury convicted appellant. Before sentence, appellant’s counsel filed, on February 25, 1966, a motion for a new trial on the ground of “newly discovered evidence,” claiming that material evidence had been discovered which, with due diligence, could not have been obtained for use at the trial of the case. The so-called newly discovered evidence was stated to be:

“(1) testimony of an eye-witness who at the time of trial was outside the jurisdiction, inaccessible to forthwith subpoena [sic];

“(2) aforesaid eye-witness will testify that complaining witness was armed and that she saw an employee remove a gun from complainant’s person;”

The motion was denied on March 3, 1966, the trial judge making the following notation:

“Denied. Name of witness and address not given. No statement witness not known. Would not change result in any event.”

On March 22, 1966, and before sentencing, appellant, through new counsel of his own choosing, filed what was denominated a motion for reconsideration of denial of new trial, based on the claim of ineffective assistance of counsel. Attached to this motion were several affidavits, the most important of which was that of a former employee of Minkow who was in his employ on the date of the shooting and who was present during the dispute on that evening. The affidavit stated:

“I was not summoned nor did I appear as a witness in the trial of Mr. Jackson although around January 8, 1966 [over a month before the trial] I had indicated to Mr. Jackson’s attorney at the time * * * that I did witness the incident and would be available to testify as a defense witness on Mr. Jackson’s behalf. [The attorney] spoke with me on January 8, 1966 concerning my appearing as a witness but I was never informed by him of the date or time I should appear as a witness nor did I receive other notification from either party directly or through counsel, nor a subpoena through the Court for my appearance. I never heard from [the attorney] after early January 1966.”

The affidavit also contained the following:

“I first learned from Mr. Jackson after the trial was over that there had ever been a trial. I then explained to Mr. Jackson my absence from the trial resulted from my not being aware or notified. Mr. Jackson then told me that his [then] attorney * * * had repeatedly assured him (Mr. Jackson) that he [the attorney] would make sure I appeared as a witness.”

Appellant also filed an affidavit of his own stating that his then counsel had repeatedly assured him before the trial that he [counsel] “would make sure my witness * * * would be aware of the trial and would be present.”

The motion for reconsideration came on for hearing on April 1, 1966. The trial judge was advised by an associate of appellant’s original counsel that said counsel was absent because of illness. The trial judge announced that he was inclined to go ahead with the hearing on the motion unless appellant demanded that his original counsel be present, to which appellant’s new counsel responded that he did not demand the presence of original counsel and was willing to go ahead without such counsel. After argument on the motion, at which appellant produced no witnesses, the motion was denied.

The court then entered judgment that the imposition of sentence be suspended and appellant be placed on probation for a period of two years. From this judgment appellant has appealed.

Appellant here argues that he should be awarded a new trial or, alternatively, that the case should be remanded to the trial court for a hearing inquiring into the factual question of ineffective assistance of counsel.

We shall not reverse and grant a new trial; but, for reasons hereinafter stated, we shall remand for an evidentiary hearing on the question of ineffective assistance of counsel.

The facts sworn to in the Thompson affidavit were sufficient, if found to be true, to warrant a new trial, and, in our opinion, the trial court should have set the case for a hearing at which the witness could be present if available, and subject to cross examination. The testimony of this witness cannot be said to be cumulative as she is the only person who states that a gun was actually seen in Minkow’s possession. While it well may be improbable that a man in Min-kow’s condition — seriously wounded— would have had the presence of mind to pass a gun to an employee for hiding, it is undeniable that such testimony was entirely material and important to appellant’s case.

This case is clearly governed by our decision in Campbell v. United States, No. 19,411, decided May 16,1966. In that case we were asked to review District Court denial of a new trial sought by appellant therein on the ground of newly discovered evidence, and we held that the motion on that ground was properly denied. At oral argument on appeal, however, the court was advised that the original retained counsel was aware of certain material witnesses but had consciously failed to call them. Whether or not appellant’s original counsel had good reason for this failure did not appear. We held that we could not make an appraisal of whether it was a factual decision on the part of counsel not to call the alleged witnesses or whether it was failure on his part to explore the matter fully. Accordingly, we remanded the record to the District Court to bring out relevant facts to enable that court to make an informed decision. See also Jones v. Huff, 80 U.S. App.D.C. 254, 152 F.2d 14 (1945); and Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).

We hold that the record in the present case, as in Campbell, must be remanded to the District Court so that it may be supplemented by the testimony of witnesses, including original trial counsel, to the end that the District Court may take such action as it deems proper in the light of the testimony.

We retain jurisdiction, subject only to the power of the District Court to grant a new trial if it concludes that to be the proper course.

Remanded for further proceedings consistent with this opinion.