reversing order denying § 23-110 motion without a hearing where, although proffered testimony of neighbors was not set out in conventional sworn affidavits, there was "no reason to doubt their willingness to testify”
How later courts described this case
- reversing order denying § 23-110 motion without a hearing where, although proffered testimony of neighbors was not set out in conventional sworn affidavits, there was "no reason to doubt their willingness to testify”
- hearing required when counsel did not interview exculpatory witnesses and judge discredited their letters, submitted “as a kind of informal affidavit”
- likening a § 23-110 motion to an initial pleading
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
dissenting in No. 00-CO-487:
Had this been a jury trial, I would agree with the conclusion that a hearing must be held. But it was a bench trial, and the judge concluded that the testimony of Manuel and Johnson, assuming it would have conformed to their statements, 1 would not have changed her decision to credit the complainant’s testimony as to who was the first aggressor (the judge had focused on that issue at trial, personally questioning both wife and husband as to “who was the first person to use force against the other”), and thus would not have changed her verdict. Since in my view the judge explained this conclusion satisfactorily, she was not obliged to hold an evidentiary hearing.
Manuel purportedly had heard (in the majority’s words) a “verbal barrage” by Mrs. Lanton in the hallway outside the apartment. But, as the judge pointed out, *906 the trial evidence was unequivocal — from both husband and wife — that the first blow had been struck inside the apartment; the spouses differed only as to who had delivered it and at precisely what point in their argument. Thus Manuel could shed only pale light on the first aggressor issue. Johnson’s professed observations were perhaps slightly more probative because he, an adjoining neighbor, had heard Mrs. Lanton through the thin apartment wall “baiting [her husband] to fight her.” Accepting this auditory observation as true, however, the trial judge still considered it thin gruel in suggesting who had initiated the violence. Indeed, what had impressed the judge most about the wife’s credibility at trial was her candor in admitting (in the majority’s words) that she had given “as good as she got.” She testified that when appellant began hitting her, she hit back repeatedly because, as she said, “[n]obody is going to put their hands on me without me hitting back.” Appellant, by contrast, had professed to be blameless in the altercation — in the judge’s view, “the picture of calm, intervening only to prevent the [wife] from becoming out of control.” The judge had also found him to be “arrogant” on the stand and in effect contemptuous of his truthtelling duty, asserting “that he just doesn’t remember much about the day,” in contrast to the wife who “presented a far clearer memory of this day.”
For these reasons, the trial judge was not convinced that merely learning through other witnesses that the wife had stood toe to toe with her husband or even taunted him during the altercation would have changed her conclusion as the trier of fact. As she stated, “it would not have altered [her] assessment of the complainant[’s] and the defendant’s credibility” on who was responsible for the fray. I would leave the matter at that, rather than remand for a hearing whose outcome seems to me inevitable.
. It is disturbing that appellant, through his appointed counsel, failed to provide sworn affidavits from these two witnesses, or for that matter himself, in support of their factual allegations. The majority agrees, pointing out that the case "would be in a different posture ... if the trial judge had given Lanton a specified brief period to present his allegations and the allegations of his witnesses in affidavit form, and if Lanton had failed to comply.” Ante at 903-04 n. 10. There is language in our cases suggesting the trial court is not bound to afford such an opportunity. See, e.g., Fields v. United States, 698 A.2d 485, 489 (D.C.1997) (“The fact that Fields has not provided an affidavit from any of these witnesses is itself a sufficient ground to reject without a hearing allegations of ineffectiveness premised on the failure to call them.”). I do not make an issue of this failure, however, because our decisions have not been clear on whether a formal affidavit is required or only some "other credible proffer” of what the witness would say. Ready v. United States, 620 A.2d 233, 235 (D.C.1993); see also Ellerbe v. United States, 545 A.2d 1197, 1199 (D.C.1988) ("Nor did [appellant] file any affidavits with his motion or make a proffer of facts to support his claims”). Here, as the majority notes, Manuel's statement (at least) was framed "as a kind of informal affidavit,” lacking only the oath or an assertion that it was true under penalty of perjury. See 28 U.S.C. § 1746 . That would appear sufficient under those cases.