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District of Columbia Court of Appeals
June 27, 2002
CARLTON B. CHATMON, APPELLANT,v.UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (F-7829-93) (Hon. Truman A. Morrison, III, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Ruiz, Associate Judges.
Argued March 7, 2000
Concurring opinion by Associate Judge Farrell. Dissenting opinion by Chief Judge Wagner.
After a jury found him guilty of armed robbery *fn1 and first-degree felony murder while armed, *fn2 appellant received concurrent sentences of incarceration of fifteen years to life for armed robbery and thirty years to life for felony murder while armed, *fn3 concurrent with any other sentences. *fn4
Appellant contends in his direct appeal that the prosecutor's rebuttal argument was improper and that the resulting prejudice requires reversal of his convictions. In his appeal from the trial court's denial of his post-trial claim that his counsel was constitutionally ineffective, appellant contends that counsel precipitated the introduction of an extremely damaging eyewitness identification and failed to object to either the introduction of graphic color autopsy photographs of the murder victim, or, more importantly, the prosecutor's use of those photographs in conjunction with improper statements during rebuttal argument.
We agree with the trial court that the prosecutor's conduct in needlessly displaying gory photographs of the decedent coupled with his charged contemporaneous statements to the jury during rebuttal argument was improper, and that defense counsel should have objected. We also conclude that defense counsel's questioning introduced an identification of appellant as the shooter, which had been excluded by agreement in limine, that significantly strengthened the government's case, constituting ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). We therefore reverse and remand for a new trial. *fn5
I. Facts
Kevin McGill, who also participated in the crime, was the central government witness at trial. He had entered a plea of guilty to second-degree murder while armed, and as part of his plea agreement, agreed to testify against appellant.
McGill testified that on the morning of July 9, 1993, appellant pulled up to a recreation center in a gray Honda Accord and told McGill that he had a "sweet" place to rob, and asked McGill if he wanted in on the robbery. McGill agreed. They drove to The Corner Market, a convenience store at 1499 Howard Road, SE, owned by Henry Choi. That morning Kwang Ahn, a friend of Choi, had gone to the store to meet Choi for a game of golf. Ahn helped serve customers while they waited for Choi's wife to come to the store so they could leave for their golf game.
McGill testified that he went into the store first, followed by appellant, who was carrying a shotgun. Two customers were in the store at the time, both of whom saw appellant with the gun, but they continued making their purchases. McGill got into the line as if to make a purchase. As customers were still in the store, McGill assumed the robbery was called off and began to walk out. McGill then heard a "pop," turned, and saw Ahn holding his stomach and falling to the floor while appellant stood three to four feet from where Ahn had fallen. *fn6 McGill did not actually see appellant fire the gun because his back was turned and he was almost to the door when it went off. According to McGill, appellant told him that he shot Ahn because he tried to grab the gun away from him.
The two men then ran to the cash registers which were located behind bullet-proof glass at the back of the store. Appellant pointed the gun at Choi while McGill took approximately $500 from the till. McGill left the store, followed by appellant, and the two got into the Honda and drove up the hill and over to Bowen Road. They divided the $500 and parted. McGill testified that he drove the Honda after the robbery, but gave a confusing account of who had driven to the store originally and who had the keys to the car.
McGill told the police detectives investigating the case that the gun used in the murder, the "neighborhood gun," was stored in a rooming house on Bowen Road where appellant "hung out." McGill admitted that he was quite familiar with the gun, knew where it was stored, and had held, carried, and fired it before the robbery. Based on McGill's information, the police obtained a warrant and recovered the shotgun from a kitchen cabinet at the rooming house. McGill identified the shotgun as the one appellant used in the robbery. Evidence retrieved from the shotgun was "consistent" with a round of live ammunition and shotgun wadding found at the crime scene as well as shotgun pellets recovered from the decedent's body during the autopsy. No fingerprints were recovered, however, and no scientific or technical evidence conclusively linked the shotgun found in the rooming house to the gun used in the crime.
Choi testified at trial that he was in the back of the store on the telephone with his wife when he noticed a customer come into the store and heard the boom of a shotgun. He then saw the gun pointed at him and two men running toward him who took money out of two cash registers. As they left, Choi followed them out of the back part of the store and he saw his friend on the floor. After he called 911, Choi ran outside the store in time to see a car pulling away and heading up the hill.
Choi further testified at trial that he would not recognize the individuals who robbed his store and shot his friend, but gave a general description: both men were black, the man who held the gun had shoulders that were "a little bit broad" hair a "little bit" long, and weighed more; the other was shorter and had narrower shoulders.
Michael Walker, who had lived across the street from the store for about twelve years, testified that from his house he could see the front door of Choi's store. On the morning of the robbery, he was on the telephone in an upstairs room at the front of the house and noticed that the store was busy, but that eventually traffic slowed down. He saw a brown-skinned, male teenager of medium build standing in front of the store who "kept turning around [and] looking back and forth," which made Walker suspicious. The young man looked into the store, then walked around the corner out of view, and returned carrying what appeared to be a rifle. Walker called 911 to report a robbery in progress, and while still on the phone, heard a "boom" and told the operator that he thought someone had been shot. A few seconds later, Walker saw two black teenagers run from the store; the one who had carried the gun into the store ran out first, but without the gun, and the other followed carrying the gun Walker had previously seen. The two ran around the corner of the building, and soon after, Walker saw a Honda with tinted windows speeding out of the store parking lot and making a right hand turn on Howard Road. Walker could not identify the two men.
Detective Roderick Wheeler of the Metropolitan Police Department testified that appellant was first interviewed on July 13, 1993, four days after the shooting, but was not then a suspect in the killing. The government introduced a written statement that appellant gave to the police on that day. Appellant said that he had seen McGill on the morning of July 9th, but that McGill drove off without speaking to him, and appellant went back to sleep until 11:45 a.m. After he awoke, appellant ran into a friend named "Jeffery" with whom he went "uptown until it was getting dark." When they returned, he heard from people in the neighborhood that someone had been killed.
Detective Wheeler further testified that in the statement appellant acknowledged that he had been in a "tannish-brown" Honda with McGill on previous occasions, but not on the day of the robbery. According to appellant, "every time people see [appellant] or see the car they automatically think I'm with him. People think me and Kevin are the best of friends. We are not the best of friends but I'm just making him think that." During his interview with Wheeler, appellant described the shotgun from the rooming house in detail and admitted having held it before, but claimed never to have shot it. He said that although he did not see McGill with a gun the morning of the shooting, he had in the past seen him with "a shotgun, a nine millimeter, and a .22 caliber rifle." Appellant said he was aware people were saying that he and McGill had something to do with the death of the Korean merchant (referring to Ahn), but he told Wheeler that people just assumed he was in the car with McGill that morning. In his written statement, appellant denied having been present at all during the robbery. He also stated that he noticed that after the robbery, McGill began to act suspiciously, and did not come around the neighborhood as regularly as he had in the past.
Detective Wheeler also testified that, a few days after the robbery, Choi had made a positive identification of appellant and McGill from a photo array. When confronted with the English translation of a statement written by Choi in Korean that the identification was tentative because the robber had longer hair than the man in the picture, Wheeler added that when interviewed, appellant had said that he had "all of [his] hair cut off" a few days after the date of the robbery.
After his arrest, appellant gave a videotaped statement, which was played for the jury. In this statement, appellant said that on the morning of July 9th, McGill invited appellant to go with him to the "shopping center" to rob a store, but that McGill left without him while appellant was taking out the trash. Appellant then jogged over to the shopping center to see what McGill was doing, observed McGill and what appeared to be another person from outside the store, and saw McGill shoot Ahn. He claimed he saw McGill and the other man run out of the store, get into the Honda and drive away. Appellant then ran away from the scene. He again denied any participation in the robbery.
II. Improper Prosecutorial Argument
Appellant claims that during rebuttal argument the prosecutor improperly showed to the jury enlargements of graphic and inflammatory color photographs of Ahn's body lying on the floor of the Corner Market, soaked with blood, without any legitimate purpose. The transcript in this case provides us with the trial court's description of what transpired in the courtroom during the prosecutor's rebuttal. The judge clearly was concerned not only by the gory photographs themselves, but also by the manner in which the prosecutor used them during closing and rebuttal. After instructing the jury, the judge called the lawyers to the bench to discuss an additional instruction in response to the rebuttal argument, giving a description of the prosecutor's conduct:
THE COURT: I have been doing a difficult thing which is that my mind has been on whether or not I should have interrupted [the prosecuting attorney] at one point. I am wondering whether to give an instruction with regard to it. . . .
I was troubled by the number of times that [the prosecutor] picked up the photograph, admittedly there were no objections made in the trial, before the trial, to any of these bloody, gory photographs, and for reasons known only to [defense counsel], and so the jury has seen them many times during the trial.
But [the prosecutor] seemed to be using - I wasn't sure what you were doing with the bloody photographs. For example, the most recent time you used it is you began your rebuttal argument by saying [defense counsel] asked you to render a verdict you can live with and as you said that, no particular probity [sic] with regard to any evidence in this case except to inflame the passion of the jury, you picked up this enlarged photo of the decedent lying in a huge pool of blood on the floor and walked down the jury row displaying it in the face of each of the jurors not making any point about ballistics or distances, or anything else, but presumably asking them to render a verdict that they could live with sort of repeating [defense counsel's] call for them to do that indicating to them by holding up the photograph how could you live with anything other than voting for us, I found it completely inappropriate.
There wasn't any objections, I didn't say anything and you picked the photograph up at least two other occasions, maybe during your argument, and sort of walked about with it for no apparent purposes. (emphasis added).
The court then asked the prosecutor to respond to these observations.
THE COURT: Why did you have to pick [the photograph] up?
THE PROSECUTOR: Well, it is evidence, Your Honor, they are going to see the photographs, and it was -
THE COURT: Yes, they are. So they are entitled to get a good healthy dose of blood during your argument, is that your point?
THE PROSECUTOR: Your Honor, I was showing the photograph because that's what this crime is about. Mr. Aun [sic] was killed brutally and that's the point.
The court then proposed to give an instruction to the effect that the nature of the charges should not inflame the jurors in their deliberations.
THE COURT: I don't know what to do - there wasn't any objection and he is right that the photographs are in evidence and - so I don't know.
DEFENSE COUNSEL: I saw at least two jurors divert their eyes when the photographs were shown, I would like [an instruction].
Hearing no objection from the prosecutor, the court then gave the following instruction:
But let me add as we turn to the logistics and the rules of the jury room and the deliberation process, you are cautioned about not letting the nature of the charge, a serious one involving the violent death of a person, to affect your verdicts. You are to consider only the evidence that's been presented in this case in rendering a fair and impartial verdict. The nature of the charge in the kind of case this is should not inflame you, you are to base your decision on the evidence in the case.
A. Standard of Review
When reviewing an allegation of prosecutorial error, this court first determines whether the challenged actions or comments were improper. See Freeman v. United States, 689 A.2d 575, 584 (D.C. 1997). If so, the court must, viewing the remarks in context, consider 1) the gravity of the impropriety, 2) its relationship to the issue of guilt, 3) the effect of any corrective action by the trial judge, and 4) the strength of the government's case. See id. (quoting McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991)).
Where appellant did not preserve the objection, we reverse only for plain error, i.e., if the misconduct "so clearly prejudiced" the appellant's substantial rights "as to jeopardize the fairness and integrity of his trial." Irick v. United States, 565 A.2d 26, 32 (D.C. 1989). Reversal for plain error in cases of alleged prosecutorial misconduct is confined to "particularly egregious situations." Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)). That is, "reversal under the plain error doctrine is justified only in exceptional circumstances where `a miscarriage of justice would otherwise result.'" Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).
Appellant argues that even though defense counsel did not object either during or immediately after the prosecutor's rebuttal argument, he satisfied the requirement for a contemporaneous objection to preserve the argument on appeal by agreeing with the judge, who sua sponte raised the need for a curative instruction. The conventional requirement is that a defendant "take his objection at the earliest possible opportunity when, by doing so he can enable the trial judge to take the most efficacious action." Hunter v. United States, 606 A.2d 139, 145 (D.C. 1992) (quoting United States v. Briggs, 457 F.2d 908, 911 (2d Cir. 1972)). However, we have relaxed this requirement in the case of closing arguments in order to avoid disruptive interruptions. An appropriate objection or motion at the bench at the conclusion of the prosecutor's presentation is sufficient to preserve the point for appeal. See id.; Irick, 565 A.2d at 32 n.13. Appellant did not make a contemporaneous objection, nor did he object at the end of the closing argument. Instead, responding to the court's comment that it was considering whether to give a curative instruction, appellant agreed that an instruction would be appropriate, but expressed no preference as to its content and did not object to the instruction that the trial judge gave.
Appellant states that because defense counsel made his position known in time for the judge to at least consider taking corrective action, we should review for harmless error. See Kotteakos v. United States, 328 U.S. 750, 765 (1946) (noting that error will be ground for reversal where the appellate court "cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error"). The government urges that it is illogical that appellant's acquiescence in the court's action at trial preserves an objection to that action, and that our review should be limited to plain error.
The purpose of the requirement of timely exceptions to trial errors is to alert the trial court and give it an opportunity to correct the error. See (Linwood) Johnson v. United States, 387 A.2d 1084, 1089 (D.C. 1978) (citing Pennsylvania R.R. Co. v. Minds, 250 U.S. 368, 375 (1919) and Allis v. United States, 155 U.S. 117, 122 (1894)). Notwithstanding defense counsel's inaction, appellant in this case benefits from the supervision of the trial by an attentive judge who broached sua sponte the subject of his discomfort with the prosecutor's rebuttal argument. We have often noted that in considering claims of improper prosecutorial argument, we do not review the prosecutor's actions, but those of the trial court in responding to the prosecutor's comments. See McGrier, 597 A.2d at 40. This court's role is to determine "whether the trial judge should have intervened if and when the prosecutor went beyond the limits of permissible argument." Id. Here, the trial judge did intervene by considering the propriety of the prosecutor's comments and actions and giving a curative instruction. Thus, the appropriate standard of review is harmless error and not plain error. See id. at 41. *fn7
B. Were the prosecutor's actions improper?
In making its case to the jury, the government is not required to deliver a dispassionate presentation of sterile facts. The gritty reality of the crime, including its human toll, is relevant to the jury's consideration. See Dixon v. United States, 565 A.2d 72, 76 (D.C. 1989). As with all matters presented to the jury, however, undue prejudice must be taken into account to ensure that the jury's verdict is based on the evidence and law, and not the emotional response of inflamed passions. See id. at 77-78. The trial judge, observing what transpired, thought that the prosecutor's actions crossed that line, said so on the record, and decided that the transgression was serious enough to require a cautionary instruction, which he gave without objection from the prosecutor. *fn8 While the government argues that defense counsel failed to object and thereby acquiesced in the trial court's action - which we discuss below - we also think that the government, having not objected, for its part acquiesced in the trial court's response and the characterization of the prosecutor's conduct during rebuttal as "completely inappropriate." We cannot replicate the trial judge's vantage point as an observer of the impact in the courtroom of the prosecutor's argument. Based on the record before us, and our deference to the trial court's judgment, see Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (en banc), we conclude that the prosecutor's remarks coupled with the use of unnecessarily graphic photos of the corpse were improper.
Although the court had admitted the photographs into evidence, and they had been used in the trial, during rebuttal the prosecutor on more than one occasion thrust into the "face of each of the jurors," a one and a half foot high photograph, described by the trial court as "gory," of the decedent "lying in a huge pool of blood on the floor." In response, as defense counsel noted, at least two jurors were compelled to divert their eyes. The impact of the prosecutor's use of the photographs was heightened by the prosecutor's accompanying comment that the jury should return a verdict it could "live with." The message the prosecutor was sending to the jurors was clear. As the court interpreted, the jurors were being asked "how could you live with anything other than voting" guilty?
We agree with the trial court that the photographs were displayed during rebuttal for no apparent reason other than "to inflame the passion of the jury," further evidenced by the prosecutor's use of the photographs during trial. The court also observed that during rebuttal, the prosecutor was "not making any point about ballistics or distances, or anything else, but presumably asking them [the jury] to render a verdict that they could live with." The prosecutor confirmed the trial court's assessment of his motivation when he responded, "I was showing the photograph because that's what this crime is about. Mr. Aun [sic] was killed brutally and that's the point."
It is well settled that remarks directed to the emotions and prejudices of the jury, or calculated to arouse passion or inflame the jury, are improper and impermissible. See, e.g., Diaz v. United States, 716 A.2d 173, 180 (D.C. 1998) (citing Powell v. United States, 455 A.2d 405, 410 (D.C. 1982)). In Ford v. United States, 487 A.2d 580 (D.C. 1984), the court held that remarks of the prosecutor in conjunction with holding up a picture of the decedent before the jury were improper, but excused the conduct because it was in response to remarks made by the defense. See id. at 590-91. Here, although the prosecutor purported to be responding to the defense's closing that the jury should render a verdict it could "live with," defense counsel's remarks in closing emphasized the seriousness of the jury's responsibility *fn9 and the photographs were not used to counter any specific argument by the defense.
We underscore that the prosecutor's comment and his confronting each juror with the graphic enlarged photographs of the shooting victim occurred during the government's rebuttal. Inappropriate comments by the government "are looked upon with special disfavor when they appear in the rebuttal because at that point defense counsel has no opportunity to contest or clarify what the prosecutor has said." Coreas v. United States, 565 A.2d 594, 605 (D.C. 1989) (quoting Hall v. United States, 540 A.2d 442, 448 (D.C. 1988)). The government's rebuttal in this case was designed to appeal to the emotions of the jury and improperly sought to influence the jury's assessment of appellant's guilt by suggesting that someone should be held responsible for what was done to the murder victim. The only person available to the jury was the appellant. We have no hesitation in concluding that the prosecutor's rebuttal argument was improper.
Given the lack of a timely objection by defense counsel, the court's curative instruction was not as effective as it would have been if counsel had timely alerted the judge and proposed a more specific instruction. By the time the trial court raised the matter sua sponte, the jury had heard the complete government rebuttal and seventeen transcript pages of instructions. The curative instruction was thus removed in time from the incident which had provoked it. See Baldi v. Nimzak, 158 A.2d 915, 917-18 (D.C. 1960). Furthermore, the instruction was phrased in general terms, and gave a gentle caution to the jury that the "nature of the charges" should not affect the verdict, without specifically mentioning the prosecutor's objectionable use of the photographs and comments. Although the cautionary instruction given appears relatively mild when compared to the aggressiveness of the prosecutor's improper rebuttal, and there is a question whether it was sufficient to counter the prejudice from the prosecutor's improper argument, we need not arrive at a conclusive evaluation of its impact on the jury's verdict for we decide that counsel's ineffectiveness in questioning a witness requires reversal.
III. Ineffective Assistance of Counsel
Appellant contends that he was denied his constitutional right to effective legal representation because his attorney made several prejudicial errors during the course of the trial. His principal complaint is that trial counsel elicited an out-of-court identification of appellant made by Choi, which otherwise would have been inadmissible. In addition, he maintains that defense counsel's failure to object to the introduction of the enlarged photographs of the decedent and to the prosecutor's improper rebuttal, also amounted to ineffective assistance of counsel.
A claim of ineffective assistance of counsel presents mixed questions of law and fact. Strickland, 466 U.S. at 698. We defer to any relevant findings of fact if they are supported by the evidence, see Smith v. United States, 686 A.2d 537, 547 (D.C. 1996), cert. denied, 522 U.S. 839 (1997), but owe no deference on the ultimate question of law. See Curry v. United States, 498 A.2d 534, 540 (D.C. 1985).
We apply Strickland's familiar two-prong standard for evaluating claims of ineffective assistance of counsel. First, appellant must show that his defense counsel at trial committed errors "so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. Second, appellant must prove prejudice that is "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. In other words, appellant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
A. Facts Relevant to Choi's Identification of Appellant Pre-trial proceedings excluding the identification
During the investigation of the shooting, Detective Wheeler showed Choi, the store owner and the only impartial witness to the shooting, *fn10 an array of nine photographs which included pictures of appellant and McGill. Choi picked out both men as the robbers, but qualified his identification of appellant by saying that the robber had longer hair than the person in the photograph. *fn11
Choi was unable to make an in-court identification of appellant at a pretrial hearing, and the prosecutor therefore agreed not to ask Choi to make an in-court identification at trial. Choi's identification from the photo array was excluded in limine as "unusable," because the array was unduly suggestive. *fn12 The prosecutor also agreed not to use appellant's statement to Detective Wheeler that he had gotten "all of my hair cut off" a few days after the murder because, as the prosecutor conceded, without Choi's identification from the photo array, it was not relevant. *fn13
A colloquy ensued during which the trial court confirmed that the prosecutor did not intend to elicit information about either Choi's identification or appellant's statement about the haircut in the government's case-in-chief. Defense counsel confirmed to his satisfaction that the prosecutor had prepared Choi sufficiently so that he would not inadvertently blurt out excluded information or give answers unless specifically asked. The trial court warned defense counsel, however, that if he asked questions about whether witnesses had been shown photographs, it would open the door to the introduction of Choi's identification of appellant from the photo array as well as appellant's statement about the haircut.
Trial: Introduction of Choi's identification and appellant's corroborating statement
At trial, the prosecutor acknowledged in his opening statement that Choi could not identify his assailants. *fn14 In the defense's opening statement, counsel told the jury that McGill was "one of the lowest characters" and would be the only person to identify Chatmon as a participant in the robbery. *fn15 He emphasized that Choi, "who was right there," could not identify appellant and that the jurors would be asked to find appellant guilty solely on McGill's word, the unreliable word of a cooperating felon awaiting sentence. *fn16
In the government's case-in-chief, the prosecutor abided by the pre-trial agreement and asked Choi to describe the robbers rather than identify them. McGill testified that appellant invited him to participate in the robbery, brought the gun to the store, and fired the weapon. He explained that he had pled guilty to second-degree murder for his role in the robbery and faced a significant sentence as a result.
Detective Wheeler testified about the two statements given by appellant. The prosecutor did not elicit any testimony about Choi's identification from the photo array or the statement appellant made to Wheeler about his haircut. Unexpectedly, near the end of the cross-examination of Detective Wheeler, defense counsel asked, "Have you tried to have anyone identify either Mr. McGill or Mr. Chatmon as the robbers?" Initially, Detective Wheeler responded that he did not recall, but counsel asked him to review his police reports to refresh his memory. The detective then responded that he had, and that Choi, "the guy on the scene at the time of the murder," had indeed identified appellant. Shortly thereafter, defense counsel continued, "Just one more question area, Mr. Wheeler. You said that Henry Choi made an eyewitness identification," and proceeded to ask the detective about Choi's written statement in Korean in which he had said that Chatmon's photograph looked "familiar" but that he could not be sure about the identification because the actual robber he had seen had longer hair.
The prosecutor, assuming the door had been opened, began to ask Detective Wheeler about Choi's identification of appellant and McGill from the photo array. Defense counsel did not object. Detective Wheeler then testified as follows:
He was shown nine photographs of individuals on similarity -looked similarly alike.*fn17 And he immediately, for some reason I remember this part, he immediately selected Mr. Chatmon and Mr. McGill because I noticed when he selected them he was like shaken. Because we had got their pictures so soon and he immediately picked them out.
The only thing I remember him saying about Mr. Chatmon is the guy who came in there seemed to have just a little bit more hair, maybe. Other than that, he says this is the guy. It looks like he has a hair cut or something he mentioned to me. But he was pretty sure.
Before the prosecutor could ask Detective Wheeler about appellant's statement regarding his haircut, the trial court sua sponte interrupted the examination and called both attorneys to the bench. The judge labeled the turn of events "bizarre." The prosecutor admitted that he was "very surprised" as well. The court chided the prosecutor for not approaching the bench prior to questioning to clarify that the ground rules for the examination had changed after the defense asked about Choi's identification. When defense counsel then objected to the admission of appellant's statement about the haircut, the trial judge overruled the objection and observed, "You opened this all up. . . . We had this all nailed down shut so nobody was going to hear a word about it." *fn18 The prosecutor proceeded to elicit testimony from Detective Wheeler that "Mr. Chatmon told me that he had his hair cut two days ago, which was two days prior to me interviewing him, which would have been about I guess July 10th, the day after the homicide, the day after the shooting." This statement fully explained Choi's hesitation in identifying appellant from the photo array, because the robber had longer hair (before the haircut) than the person in the photograph.
Post-trial ruling on § 23-110 motion
The government opposed appellant's § 23-110 motion claiming ineffective assistance of counsel, submitting defense counsel's affidavit explaining his trial strategy. At the hearing on appellant's § 23-110 motion, no evidence was taken, but the court heard arguments from counsel on what had happened during trial, focusing on the introduction of Choi's identification and the statement about the haircut. The trial court opened the discussion by describing its own thinking about the case, referring to defense counsel's questioning of Detective Wheeler several times as a "blunder," and discrediting his explanation about why he questioned Detective Wheeler about Choi's identification.
And I am very troubled about [defense counsel's] opening the door wide to reasonably powerful identification evidence. And the statement by the defendant, which underscored, strengthened the identification evidence. We had decided, with total clarity at the [pre] trial, that there would be no evidence of the photo identification, and that Mr. Chatmon's statement about getting his hair cut was not admissible on that plan for the litigation. And it was all done. And without any discussion, out of the clear blue sky, and now rationalized as born of a need to impeach the detective, [defense counsel] flings wide the barn door. And inside the barn, is the government's ability to say, albeit with a suggestive array . . . to come back with a photo identification by the complaining witness that is not positive, but is directed toward Mr. Chatmon . . . what we would call a tentative identification. But it was qualified with regard to hair . . . and then [the jury] . . . get[s] to hear that Mr. Chatmon got his hair cut. And I think that's powerful evidence that harmed Mr. Chatmon.
I remember, with great vividness, my astonishment and shock, when this happened in the courtroom when [defense counsel] did what he did about the identification evidence. . . . I remember being struck at the time by how remarkable this turn of events was in the courtroom.
The trial court declined to decide whether or not defense counsel's errors fell below the professional standard of the first prong of Strickland, 466 U.S. at 687, but included in the discussion a fairly detailed analysis of that prong:
[I]t seems to me if the rationale is so totally wanting that it doesn't pass must[er] under the first prong of Strickland. And I have to say that my current thinking is that although it's very close, I think that was such a grievous error, so insufficiently justified by the explanation of the tactics, that it satisfied the first prong of Strickland. . . . And if I had to decide it right now, I would say that he's [defendant has] met his burden under the first prong.
The trial court summarized its assessment of the closeness of the case, saying that "if the first prong [deficient performance] is difficult, the second prong [prejudice] is extremely difficult. And, in the end, I come out the other way, I think, although by the narrowest of margins." Concerning the prejudice prong, the trial court preliminarily expressed the view, before hearing from counsel, of what it considered the strengths of the government case: that McGill, the co-perpetrator, had not been "significantly impeached," [id] and that appellant had given two "abruptly different versions" of his own conduct in statements to the police, one of which placed him outside the store during the robbery. The trial court did not consider that Walker's testimony was "terribly important," and the government essentially agreed with that assessment. *fn19 Appellant's counsel, however, challenged the notion that McGill had not been significantly impeached. He pointed out that the jury could well infer a strong bias from his plea agreement which did not include any minimum jail time and in which he waived his privilege against self-incrimination. Although counsel admitted that appellant's inconsistent statements to the police hurt him, he argued that, in the end, both statements were exculpatory.
The final oral ruling by the trial court is not on the record, and there is no written order. However, the substance of the trial court's reasoning is revealed in the discussions during the hearing. The closing discussion between the parties and the court that is on the record revolved around how to characterize the standard of review. The discussion caused the trial judge to excuse himself for a five-minute recess "to look at one more thing in Strickland that I'm having trouble finding here." He indicated that "for clarity to the appellate record, I will reveal a struggle that I'm going through" but that struggle was not, in the end, revealed. *fn20 It is clear from the trial judge's comments about counsel's deficient performance that the court intended to decide the case on the second prong of Strickland, finding that the prejudice was not enough to grant a new trial, but was unclear about how to characterize the standard he was applying to the evidence in this case. The court's comments immediately before recessing were:
I think that Mr. Chatmon was entitled to better representation than he got. But that's not, in the end, in the last analysis, that's not the issue. I'm not free to redo first degree murder trials because I think they should have been done better. And I think this one should have been done better by a wide margin by the defense in this one area. But I think in the end I can't find the second prong of Strickland satisfied.
B. Analysis
Prong 1: Counsel's Performance
In evaluating counsel's performance, the reviewing court must indulge a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. "Trial tactical decisions generally do not result in a finding of ineffective assistance of counsel." Zanders v. United States, 678 A.2d 556, 569 (D.C. 1996). This court does not second-guess trial counsel's strategic choices because "many alternative tactics are available to defense attorneys and their actions are often the products of strategic choices made on the basis of their subjective assessment of the circumstances existing at trial." Id. (quoting Carter v. United States, 475 A.2d 1118, 1123 (D.C. 1984)). "[M]ere errors of judgment and tactics as disclosed by hindsight do not, by themselves, constitute ineffectiveness." Lane v. United States, 737 A.2d 541, 549 (D.C. 1999) (quoting Curry, 498 A.2d at 540). Appellant bears the burden of overcoming the presumption of counsel's competence. See Strickland, 466 U.S. at 689.
In his affidavit prepared for the § 23-110 hearing, defense counsel explains that
The defense strategy in this case was to isolate the cooperating co-defendant as the only witness who could convict Mr. Chatmon and to show that his testimony was unreliable and therefore raised a reasonable doubt as to Mr. Chatmon's guilt. It was essential to show that there was no identification of Mr. Chatmon by anyone except McGill and that his testimony contradicted other witnesses.
Counsel states that in order to isolate McGill as the only identifying witness, he asked Detective Wheeler whether anyone else had identified appellant believing that Choi's statement was not an identification. Instead, defense counsel's question elicited a response that Choi had, in fact, made such an identification from the photo array. Counsel relates that he then attempted to impeach Wheeler's testimony about Choi's identification with Choi's statement that he was unsure because of the robber's hair length, see supra note 11, but that this line of questioning "unavoidably" opened the door to appellant's statement that he had cut his hair after the robbery, before the picture was taken. The trial court, which recognized that its role was not to "substitute tactical judgments" for trial counsel, nevertheless said that this explanation "makes no sense."
The government makes several arguments in attempting to show that defense counsel's tactics do make sense. First, it surmises that defense counsel realized the trial was going so poorly for his client that he had to do something drastic to change its course. This "desperate measures" strategy, as the government calls it, was not mentioned by defense counsel in his affidavit. In another strategy, that elaborates on defense counsel's affidavit, the government suggests that defense counsel purposely questioned Detective Wheeler about the photo array to show that Choi could not identify appellant from even a suggestive photo array, and thus cast doubt on the government's case by questioning Detective Wheeler's truthfulness and investigative tactics. *fn21
A threshold question arises whether, on appeal, we consider the adequacy of counsel's performance in light of any possible strategies that would explain defense counsel's actions, or whether we consider only those trial strategies and tactics that counsel actually embraced as disclosed either in an affidavit, as in this case, or in testimony at a hearing. In Strickland, the Supreme Court explained that to satisfy the deficiency prong, the defendant must "show that counsel's representation fell below an objective standard of reasonableness," 466 U.S. at 688, and "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)) (emphasis added). Strickland recognizes that there is a "wide range of reasonable professional assistance" and establishes a "strong presumption" that counsel has rendered adequate assistance. Id. From this language we could conclude that our evaluation is an objective one: if counsel's action could be justified by a sound trial strategy, it should not be considered deficient, even if it was not defense counsel's actual trial strategy. We are not persuaded that is the proper course here, however, because "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, just as we do not burden counsel's actual tactical choices with the benefit of "tactics as disclosed by hindsight," Lane, 737 A.2d at 549 (quoting Curry, 498 A.2d at 540), neither do we salvage them on that basis. Analysis under Strickland is highly fact bound and the presumption created by Strickland is simply that, a presumption, that can be overcome by the facts in a particular case. Therefore, once the record establishes the actual tactical explanation for counsel's actions, the government is not free to invent a better-reasoned explanation of its own. *fn22
In this case we have no difficulty concluding that trial counsel's questioning of Detective Wheeler, which led to introduction of Choi's identification from the suggestive photo array and to the admission of appellant's damaging statement about the haircut - all of which had been agreed pretrial were otherwise inadmissible - constitutes performance so deficient as to satisfy the first prong of Strickland. Up to that point, trial counsel's strategy was to show that McGill, who participated in the robbery and received a plea bargain for his testimony, was the only witness who could identify appellant. This was the defense that counsel presented to the jury from the outset of the trial, during opening argument. We focus on this strategy because whatever the other elements of its case, the government must always prove beyond a reasonable doubt that the defendant is the person who committed the charged crime. See Brooks v. United States, 717 A.2d 323, 327 (D.C. 1998) (citing United States v. Telfaire, 152 U.S. App. D.C. 146, 149, 469 F.2d 552, 555, 559 (1972)). The introduction of Choi's testimony eviscerated the defense strategy to isolate and create doubt about the government's key witness against appellant.
The government argues that the "most damaging part of opening the door to this subject could not have been anticipated by counsel" because counsel did not know that Detective Wheeler would testify that Choi had immediately identified appellant. This argument violates a cardinal rule of examination - if defense counsel did not know what Wheeler would say, he should not have asked. Moreover, from pretrial discussions defense counsel knew that questioning Wheeler generally about identifications could elicit a response about Choi's identification, which would open the door to the government's introduction of appellant's statement to Wheeler about getting his hair cut between the date of the shooting and the photograph used in the array. *fn23 The sequence of questions that would precipitate introduction of this evidence was carefully previewed by the trial court, and precludes surprise as an explanation for counsel's flawed trial strategy. Ultimately, even if counsel believed that Choi's statement was somehow less than a positive identification, it does not mean that it was no identification. Evaluated against counsel's express strategy to isolate McGill as the only person who identified appellant, the introduction of any other identification -even if tentative - was simply illogical and could only be counter productive.
Prong 2: Prejudice
Even if counsel's performance has been deficient, to obtain relief appellant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In assessing the prejudice to defendant, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695 (emphasis added).
As we have already discussed, the record is not clear on how the trial court ultimately evaluated the prejudice prong. The court recognized that neither sufficiency of the evidence, nor a preponderance of a different outcome are the correct standard, see id. at 694, but we do not have the benefit of the trial court's final evaluation of all of counsel's mistakes under the correct standard. *fn24 Nonetheless, our review of the prejudice prong is de novo. See Woodard v. United States, 738 A.2d 254, 257 (D.C. 1999). We disagree with the trial court's conclusion that there was no Strickland prejudice.
Had trial counsel not caused the introduction of Choi's identification, he could have argued that the government's case rested solely on the testimony of McGill, a confessed participant in the crime who had a significant incentive to lie about who did the actual shooting. The judge instructed the jury that the testimony of accomplices is to be "received with caution and scrutinized with care." The trial court recognized the strength of this defense, noting at the post-trial hearing that without Choi's identification, defense counsel could isolate McGill as the only identifying witness. "[A]ll [defense counsel] has to do is stand up in closing argument. You don't have to do anything else." That sound defense strategy was shattered once the jury heard that appellant had been identified by Choi, an unbiased eyewitness. Counsel's blunder not only introduced Choi's identification. Counsel further compounded his mistake when he sought to impeach Detective Wheeler with Choi's statement expressing some hesitation about his identification. All knew that the prosecutor had an effective response at hand: appellant's statement to the police about his haircut, which removed the basis for Choi's hesitation, strengthening his identification of appellant.
The government argues that its case was very strong and that, even without trial counsel's errors, conviction was assured. It asserts that McGill's testimony was convincing and in substance unimpeached because he clearly identified appellant as the man who shot Kwang Ahn; he told police where to find the murder weapon, and it was found there; he claimed to have a partner in the robbery and to having driven away with appellant after the robbery; and that Walker confirmed there were two men and saw a car drive off in the direction McGill claimed.
We do not share the government's assurance. The argument underscores that McGill was the heart of the government's case. As the trial court noted, the details of McGill's testimony that were confirmed by Walker were trivial, and government counsel conceded that his testimony was hesitant. *fn25 McGill's participation and, therefore, presumed first-hand knowledge of what transpired was not at issue. Thus, the fact that he was unimpeached with respect to these details was of little moment. *fn26 The only real question before the jury was the identity of the other participant. It was on this issue that isolating a biased McGill as the only witness who identified appellant was essential to the case, as defense counsel conceded. But this essential strategy was undone by the introduction of Choi's identification, an identification the reliability of which, for admissibility purposes, had never been determined. See supra note 12. The government contends that defense counsel was able to present the jury with flaws in the government's case, by arguing that Detective Wheeler was overzealous in focusing the investigation on appellant to the point of choosing a very suggestive photo array and, perhaps, even lying about appellant's haircut. These arguments, however, were not part of a defense strategy as much as they were necessary to contain the damage done by counsel's mistakes.
Conversely, the government's case gained significantly from Choi's tentative identification, when coupled with appellant's statement about the haircut. Whereas before Choi's identification from the photo array was introduced, the government could present only an allegedly biased accomplice's testimony to identify the second robber, Choi's identification added corroborating testimony from a witness who had no reason to lie. The jury heard from Detective Wheeler that Choi had "immediately" selected Chatmon and McGill from the photo array and was "shaken because he got [their] picture so soon and picked them out." As the trial court recognized, "that's important stuff. He goes right to the two of them. He's shaken. I remember it." Moreover, Choi's tentativeness in identifying appellant from the photo array in all likelihood was perceived by the jury as a mark of his scrupulousness. Initially Choi was reluctant to confirm his identification of appellant, and in his Korean language statement said that he was not sure because the robber he saw had longer hair than the person in the picture he selected. See supra note 11. Choi's identification from the photo array may have been tentative, but appellant's statement about having his hair cut soon after the robbery provided a complete explanation for why Choi might not have been sure, because it showed that appellant did, in fact, have longer hair at the time of the robbery than in the photograph, which was taken after the robbery. This transformed a weak identification into a powerful one, corroborating McGill's story and his credibility. If McGill was at the heart of the government's case, Choi was its lynchpin. The government recognized this and - as Judge Farrell notes in his concurrence - emphasized Choi's identification during its closing and rebuttal arguments to the jury.
In considering a claim of ineffectiveness of counsel, we review the evidence at trial and "ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent [defense counsel's] errors. See Strickland, 466 U.S. at 696. If we exclude Choi's identification from the evidence presented to the jury, we think there is a reasonable probability that the jury would have had a reasonable doubt as to appellant's guilt, and, thus, that the outcome of his trial would have been different. *fn27
Reversed and remanded.
Farrell, Associate Judge, concurring in part and concurring in the judgment:
I agree that this conviction must be reversed for ineffective assistance of counsel. What the experienced trial judge described as a "grievous" misjudgment - or, as a practical matter, failure to exercise judgment - by defense counsel in opening the door to the photographic identification by Choi still warrants that description despite the government's effort on appeal to rehabilitate it. So, although ordinarily a single misstep by counsel should not be enough to make out deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), I concur with Judge Ruiz that counsel's performance in inviting an identification that contradicted the defense's own strategy of misidentification "fell below an objective standard of reasonableness." Id. at 688. *fn28
The issue of whether counsel's error creates "a reasonable probability that, but for [that] error[], the result of the proceeding would have been different," id. at 694, is much closer. The Chief Judge is right that (as the trial judge recalled) the defense scored no knock-out blows in cross-examining McGill, the government's primary witness. But the truth is that we cannot know what impeachment weight the jury gave to his motive, as one awaiting sentence for the same murder, to furnish testimony acceptable to the prosecution; in a case such as this corroboration may be all-important. What gives me substantial pause on the issue of prejudice is the successive statements appellant himself gave the police which ended up putting him on the scene (outside the store), and could reasonably be taken by the jury as falsely exculpatory. Nevertheless, it is plausible for me to imagine the jury, or individual members of it, poised on the edge of reasonable doubt if that evidence - McGill's testimony and appellant's statements - were all the proof of guilt it had before it. *fn29 And the Choi identification provided a potentially clinching piece of corroboration by a witness with no motive other than to convict the actual killer of his friend. Choi's identification was uncertain, as the Chief Judge points out, but the prosecutor made much of it in both opening and rebuttal summation -in particular, exploiting appellant's admission to the police that he had later cut his hair, thus helping explain Choi's uncertainty. Besides spending two transcript pages of his initial closing on the identification, *fn30 the prosecutor returned immediately to it at the start of rebuttal, emphasizing that Choi "was a very careful man" who "could not be one hundred percent sure of the photo of Mr. Chatm[o]n because the subject he observed commit the robbery had more hair" -something explained by the visit to the barber. The prosecutor went on to connect the identifications by Choi and McGill, as he had before, as mutually supporting:
And, ladies and gentlemen, the photo spread may not be the greatest but it included the two people who committed this robbery, Mr. McGill tells you that. He is in that photo spread, and remember Mr. Cho[i] picked Mr. McGill's photo saying he looked familiar, and he was right, he was right.
And when he said the same thing about Mr. Chatm[o]n looking familiar he was right because Mr. McGill told you Mr. Chatm[o]n was the second person.
It therefore cannot be said - and the prosecutor did not argue - that the government's case came down to the credibility of McGill unsubstantiated by Choi's identification.
If the test for prejudice under Strickland were whether it is "more likely than not" that Choi's identification made the difference between conviction and a jury conclusion of reasonable doubt, I would not vote to reverse. But, as the Court stated there, "The result of a proceeding can be rendered unreliable, 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." 466 U.S. at 694. For me, the prosecutor's own recognition of the importance of Choi's identification confirms the required "reasonable probability," id., that a different result would have occurred had defense counsel not opened the door to that evidence. The prejudice he thereby created is "sufficient to undermine confidence in the outcome." Id. *fn31
Because we reverse on this ground, I do not associate myself with Judge Ruiz's treatment of the issue of the prosecutor's use of the photographs of the victim in closing argument, which has the character of lengthy dictum. It is enough to admonish, as the judge effectively did when he instructed the jury sua sponte not to be inflamed by the gruesome aspects of the case, that a prosecutor jeopardizes a conviction by excessive zeal in brandishing photographs of this sort while asking the jury "to make a decision that you can live with."
Wagner, Chief Judge, dissenting:
Assuming that trial counsel was constitutionally ineffective, 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 (1984). *fn32 That standard requires a "showing that counsel's errors 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, Chatmon 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. *fn33 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. *fn34 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 Chatmon'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. *fn35 Third, contrary to Chatmon's second 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 Chatmon 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. *fn36 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).
I am mindful that in Frederick, we recognized Strickland's teaching that "`[t]he result of a proceeding can be rendered unreliable, 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). 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." *fn37 Defense counsel argued in closing the uncertainty of the identification. *fn38 The uncertainty of Choi's out-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). 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; see also Williams v. Taylor, 529 U.S. 362, 394-95 (2000). For these reasons, I respectfully dissent.
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United States District Court, District of Columbia
July 12, 2013
LA TRICIA HARDY, Plaintiff,v.NORTHERN LEASING SYSTEMS, INC., Defendant
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[Copyrighted Material Omitted]
Page 152
Page 153
LA TRICIA HARDY, Plaintiff, Pro se, Washington, DC.
For NORTHERN LEASING SYSTEMS, INC., Defendant: OlaDipo A. Akin-Deko, LEAD ATTORNEY, AKIN-DEKO & PUIG PLLC, Silver Spring, MD.
Page 154
AMY BERMAN JACKSON, United States District Judge.
This matter is before the Court on the motion to dismiss the plaintiff's amended complaint filed on behalf of Northern Leasing Systems, Inc. [ECF No. 11]. For the reasons discussed below, the motion will be granted.
This action arises from efforts by Northern Leasing Systems, Inc. (" NLS" ) to enforce an equipment finance lease, personally guaranteed by the plaintiff, for the rental of equipment for processing non-cash payments at the plaintiff's business, Capitol Hill Beauty LLC. See Am. Compl. ¶ ¶ 12-14; Mem. of P. & A. in Support of Def.'s Mot. to Dismiss for Failure to State a Claim (" Def.'s Mem." ); id., Ex. 1 (New York Civil Court Summons and Verified Complaint and Non Cancelable Equipment Finance Lease Agreement (" Lease Agreement" )) at 5-10 (page numbers designated by ECF).
NLS is a " corporation located in the state of New York" which " finances the equipment needs of . . . business[es] . . . ." Def.'s Mem. at 1. NLS represents that it
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" has no ties to the District of Columbia," that it " does not have an office in the District of Columbia, and that it does not " solicit or engage in persistent conduct aimed at deriving revenue from good or services from the District of Columbia." Id. at 3.
The plaintiff entered into the Lease Agreement with NLS on October 14, 2010. See Def.'s Mem. at 1; Mem. of P. & A. in Support of Denying Def.'s Mot. to Dismiss for Failure to State a Claim (" Pl.'s Opp'n" ) at 3. She thereby agreed to " individually, absolutely and unconditionally guarant[ee] to [NLS] prompt payment when due" of all obligations under the lease. Lease Agreement at 2. The plaintiff " abid[ed] by her contract for over two years," Am. Compl. ¶ 12, at which time she " stopped the automatic payment deductions from her bank account," id. ¶ 14, and " requested that said contract be cancelled due to inequities within said contract." [1] Id. ¶ 12. When the plaintiff defaulted on her payment obligations, NLS " filed a lawsuit against the [her] . . . in New York State Court[.]" Def.'s Mem. at 1; see id., Ex. 1 (Verified Complaint). " [A] judgment was entered in favor of [NLS]." Def.'s Mem. at 1; Pl.'s Opp'n, Ex. B (Civil Judgment entered on October 26, 2012).
The plaintiff alleges that NLS " placed negative information on [her] credit reports with all three (3) Credit Bureaus," Am. Compl. ¶ 15, and " placed two (2) inquiries on [p]laintiff's credit reports to reflect her account as being a charge off for non-payment," id. ¶ 21. These actions allegedly " brought her credit down drastically." Id. Due to what the plaintiff describes as " erroneous placements on [her] credit reports," she further alleges that " she has been unable to secure any type of loan," causing her " undue hardship." Id. ¶ 22.
According to the plaintiff, NLS violated the Fair Credit Reporting Act (" FCRA" ), see 15 U.S.C. § 1681, the Fair Debt Collection Practices Act (" FDCPA" ), see 15 U.S.C. § 1692, certain District of Columbia criminal statutes, see D.C. Code § § 22-3401 to -3403, the D.C. Consumer Protections Act (" Consumer Act" ), see D.C. Code § 28-3814, and the D.C. Consumer Protection Procedures Act (" CPPA" ), see D.C. Code § 28-3904. See generally Am. Compl. ¶ ¶ 23-28 (Counts I-IV). She demands a declaratory judgment and monetary damages. See id. at 5 (page number designated by ECF).
A. Subject Matter Jurisdiction
The Court recognizes its ongoing obligation to ensure that " it is acting within the scope of its jurisdictional authority," Ha v. U.S. Dep't of Educ., 680 F.Supp.2d 45, 46 (D.D.C. 2010) (internal citations omitted), and begins its discussion with NLS's motion to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the Court lacks subject matter jurisdiction over the plaintiff's FDCPA and Consumer Act claims. According to NLS, neither statute applies, and therefore, " the Court lacks power to hear [these claims]." Def.'s Mem. at 4. The plaintiff responds that the Court has jurisdiction because " liability and damages are founded on [f]ederal question jurisdiction." Pl.'s Opp'n at 5. The Court concurs.
Page 156
It is apparent that the plaintiff's causes of action arise in part under two federal statutes -- the FDCPA and the FCRA -- and these are matters over which this Court has subject matter jurisdiction. Whether the statutes are applicable is a different question which the Court will address in the context of NLS's motion under Rule 12(b)(6) to dismiss the complaint for failure to state claims upon which relief can be granted.
B. Personal Jurisdiction
NLS moves to dismiss the plaintiff's amended complaint under Rule 12(b)(2) of the Federal Rules of Civil Procedure on the ground that this Court lacks personal jurisdiction over it. See Def.'s Mem. at 2. Because " the [p]laintiff has failed to make a prima facie showing of personal jurisdiction over [NLS]," it argues that " the suit must be dismissed." Id. at 4. The plaintiff counters that NLS falls within the scope of the District of Columbia's long-arm statute because the equipment " was that of [NLS], it was set-up on behalf of [NLS] and any payment made regarding this lease was made to [NLS]. . . . [T]his is evidence of them doing business within the District of Columbia." Pl.'s Opp'n at 6.
The plaintiff bears the " burden of establishing personal jurisdiction over each defendant." Thompson Hine LLP v. Smoking Everywhere, Inc., 840 F.Supp.2d 138, 141 (D.D.C. 2012) (citing Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 455-56, 282 U.S.App. D.C. 295 (D.C. Cir. 1990). She cannot rely on bare allegations or conclusory statements, but " must allege specific acts connecting [the] defendant with the forum." Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524, 348 U.S.App. D.C. 238 (D.C. Cir. 2001) (internal quotation omitted). The plaintiff's pro se status does not relieve her of her obligation to " plead an adequate jurisdictional basis for [her] claims." Donnelly v. Sebelius, 851 F.Supp.2d 109, 116 (D.D.C. 2012) (internal citation omitted).
The Court determines whether personal jurisdiction may be exercised " by reference to District of Columbia law." United States v. Ferrara, 54 F.3d 825, 828, 311 U.S.App. D.C. 421 (D.C. Cir. 1995). " A District of Columbia court may exercise personal jurisdiction over a person domiciled in . . . or maintaining . . . its principal place of business in, the District of Columbia as to any claim for relief." D.C. Code § 13-422. Nowhere in the complaint does the plaintiff allege that NLS either is domiciled in or maintains its principal place of business in the District of Columbia.
The Court next engages in a two-part inquiry to determine whether a non-resident defendant is subject to personal jurisdiction in the District of Columbia. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347, 339 U.S.App. D.C. 332 (D.C. Cir. 2000). The Court " first examine[s] whether jurisdiction is applicable under the [District of Columbia's] long-arm statute and then determine[s] whether a finding of jurisdiction satisfies the constitutional requirements of due process." Id. (citing Ferrara, 54 F.3d at 828). To this end, the plaintiff may show that NLS has " minimum contacts" with this forum, such that " the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). These minimum contacts must arise from " some act by which the defendant purposefully avails itself of the privilege of conducting activities with the [District of Columbia], thus invoking the benefits and protections of its laws." Asahi Metal Indus. Co., Ltd. v. S.Ct. of Cal., Solano Cnty., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174,
Page 157
85 L.Ed.2d 528 (1985)). In other words, " the defendant's conduct and connection with the [District of Columbia] are such that [it] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
In relevant part, the long-arm statute allows a court in the District of Columbia to exercise personal jurisdiction over a non-resident defendant with regard to a claim arising from the defendant's conduct in:
(1) transacting business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.
D.C. Code § 13-423(a).[2] Although the plaintiff alleges that " the conduct complained of occurred here," Am. Compl. ¶ 7, she does not indicate which provision of the long-arm statute applies in this case. Her opposition to the defendant's motion, however, suggests that she relies on the " transacting business" provision. She " contends that due to the fact that no one other than [NLS] provided the equipment, installed it or received payment, that this is evidence of [NLS] doing business within the District of Columbia. Pl.'s Opp'n at 6.
Section 13-423(a)(1) is " interpreted to be coextensive with the Constitution's due process limit." First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1377, 267 U.S.App. D.C. 27 (D.C. Cir. 1988) (internal citations omitted). " To establish personal jurisdiction under the 'transacting business' clause of the long-arm statute . . . a plaintiff must demonstrate that (1) the defendant transacted business in the District; (2) the claim arose from the business transacted in the District . . . ; (3) the defendant had minimum contacts with the District; and (4) the Court's exercise of personal jurisdiction would not offend 'traditional notions of fair, play and substantial justice.'" COMSAT Corp. v. Finshipyards S.A.M., 900 F.Supp. 515, 521 (D.D.C. 1995) (quoting Int'l Shoe, 326 U.S. at 316).
In the face of NLS's arguments that it neither engages in persistent conduct aimed at deriving revenue from goods or services from the District of Columbia or transacts any business here, see Def.'s Mem. at 3, the plaintiff gives no indication that NLS has the requisite contacts, ties, or relation to the District of Columbia. Missing from the amended complaint are any factual allegations to show that NLS " 'purposefully directed' any activities at residents of the District of Columbia . . . [or] that it has any 'contacts, ties, or relation' to the District of Columbia." Buesgens v. Brown, 567 F.Supp.2d 26, 36 (D.D.C. 2008) (quoting Burger King, 471 U.S. at 472).
If the plaintiff were to rely on D.C. Code § 13-423(a)(2) as a basis for asserting personal jurisdiction, she still cannot prevail. " [T]he mere existence of a contract between a non-resident and a resident is not sufficient basis on which to claim jurisdiction over the non-resident in the District of Columbia." COMSAT, 900
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F.Supp. at 524 (citing Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)); Willis v. Willis, 655 F.2d 1333, 1338, 211 U.S.App. D.C. 103 (D.C. Cir. 1981). The Lease Agreement is a particularly weak justification for invoking the D.C. long-arm statute. By its terms, New York law governs, and any litigation shall be brought in the federal or state courts in New York. See Lease Agreement at 5.[3]
If the Court were to consider NLS's alleged threats to sue the plaintiff, see id. ¶ 19, telephone calls to her workplace, id. ¶ 20, and the " undue hardship" she allegedly suffers, id. ¶ 22, as tortious injury suffered in the District of Columbia caused by NLS's actions outside of the District of Columbia, the plaintiff cannot rely on section 13-423(a)(4) either. The plaintiff fails to establish " any of subsection (a)(4)'s so-called 'plus factors': " regularly do[ing] or solicit[ing] business, engag[ing] in any other persistent course of conduct, or deriv[ing] substantial revenue from goods used or consumed, or services rendered, in the District of Columbia." McIntosh v. Gilley, 753 F.Supp.2d 46, 59 (D.D.C. 2010) (quoting D.C. Code § 13-423(a)(4)).
NLS is neither subject to the District's long-arm statute nor maintains sufficient contacts with the District so as to render it subject to this Court's jurisdiction.[4] Its motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction will be granted.
C. Failure to State Claims Upon Which Relief Can Be Granted
NLS moves to dismiss the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the pleading fails to state claims under the FCRA, the FDCPA, and the Consumer Act upon which relief can be granted. See Def.'s Mem. at 6-9. To survive a motion to dismiss under Rule 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678,
Page 159
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, it must " plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403, 401 U.S.App. D.C. 263 (D.C. Cir. 2012) (internal quotation omitted). Although a complaint filed by a pro se plaintiff is " to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), it, too, must set forth factual allegations that " raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
1. Fair Credit Reporting Act
NLS moves to dismiss the plaintiff's claims under the FCRA on the ground that the complaint " has not alleged any facts which would make the FCRA applicable to this action . . . ." Def.'s Mem. at 7. " Congress enacted FCRA to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (internal citations omitted). In order to show a violation of the FCRA, the plaintiff must allege that NLS is a " consumer reporting agency," [5] or that it creates " consumer report[s]," [6] or that it " regularly engages in . . . assembling or evaluating consumer credit information, or other information on consumers for the purpose of furnishing consumer reports to third parties." 15 U.S.C. § 1681a(f). Although information originating from NLS may have been reported to the credit bureaus, see Am. Compl. ¶ 24, the amended complaint fails to make any factual allegations showing that NLS is a consumer reporting agency, or that it creates consumer reports, or that it otherwise engages in conduct within the scope of the FCRA. Her claim under the FCRA therefore will be dismissed.
2. Fair Debt Collection Practices Act
NLS also moves to dismiss the plaintiff's claim under the FDCPA which, it alleges, " do[es] not apply to the facts of this case." Def.'s Mem. at 8. NLS asserts that it is not a " debt collector" and the plaintiff's debt is not a " debt" as these terms are defined in the FDCPA. See id. at 7-8.
" The FDCPA is a consumer protection statute that prohibits certain abusive, deceptive, and unfair debt collection practices," and it " authorizes any aggrieved person to recover damages from any debt collector who fails to comply with any provision of the FDCPA." Marx v. General Revenue Corp., __ U.S. __, , 133 S.Ct. 1166, 1171 n.1, 185 L.Ed.2d 242, 249 (2013) (internal quotation marks and citations omitted). A " debt collector" is any person in any business
Page 160
" the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Excluded from the FDCPA's coverage is activity that " concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor." 15 U.S.C. § 1692a(6)(F)(iv). Rather, the FDCPA concerns debt collection practices for " consumer debt[s]" that are primarily for " personal, family, or household purposes." 15 U.S.C. § 1692a(5).
The plaintiff's allegations regarding NLS's debt collection activities are vague at best. For example, she contends that " many of these practices are widespread for the Defendants," Am. Compl. ¶ 3, yet she does not articulate or describe these practices. And even if NLS failed to respond to her " numerous requests of reporting of unsubstantiated credit inaccuracies . . . to all three . . . Credit Bureaus," id. ¶ 4; see id. ¶ ¶ 17-20, none of these allegations indicate that NLS is a debt collector for purposes of the FDCPA. The Lease Agreement pertains to financing for non-cash payment processing equipment for the plaintiff's business, such that the underlying debt not is a " consumer debt" for purposes of the FDCPA, notwithstanding the plaintiff's unsupported assertion that " said equipment, if used, was for personal use only." Id. ¶ 2. " [T]he burden rests on [the plaintiff], at this stage, to allege facts sufficient to support [her] claim[s]" under the FDCPA, Winstead v. EMC Mortgage Corp., 697 F.Supp.2d 1, 4 (D.D.C. 2010) (internal citations omitted), and she fails to establish that the underlying debt was a consumer debt primarily for personal, family, or household purposes.
3. The Consumer Act and the Consumer Protection Procedures Act
NLS argues that " the underlying obligation . . . is a Commercial lease in which the [p]laintiff acted as guarantor," such that the District's Consumer Act does not apply. Def.'s Mem. at 8. Had NLS acknowledged the plaintiff's claim under the CPPA, presumably it would have moved to dismiss it, too.
" [T]he [Consumer Act is] designed to police trade practices arising only out of consumer-merchant relationships . . ., and [it] does not apply to commercial dealings outside the consumer sphere." Ford v. ChartOne, Inc., 908 A.2d 72, 81 (D.C. 2006) (internal quotation marks and citations omitted). It is limited to addressing " conduct and practices in connection with collection of obligations arising from consumer credit sales, consumer leases, and direct installment loans." D.C. Code § 28-3814; see id. § 28-3802 (defining " consumer credit sale" as the " sale of goods or services in which . . . (C) the goods or services are purchased primarily for a personal, family, household, or agricultural purpose . . . ." ). The Consumer Act " does not protect merchants in their commercial dealings with suppliers or other merchants." Ford, 908 A.2d at 83 (internal citation omitted).
Similarly, " [t]he purpose of the CPPA is to protect consumers from a broad spectrum of unscrupulous practices by merchants," and " [d]espite its broad reach the CPPA applies only to consumer-merchant relationships." Busby v. Capital One, N.A., 772 F.Supp.2d 268, 279 (D.D.C. 2011) (internal quotation marks and citations omitted). For purposes of the CPPA, a " consumer" is " a person who does or would purchase, lease (from), or receive consumer goods or services." D.C. Code § 28-3901(a)(2). The term " consumer" used as an adjective " describes
Page 161
anything, " without exception, which is primarily for personal, household, or family use." Id.
According to the plaintiff, " the equipment that is at the core of this Complaint[] was delivered to a place of business," yet " if used, was for personal use only." Am. Compl. ¶ 2. Notwithstanding this assertion, the amended complaint contains no factual allegations to indicate that the underlying equipment finance lease was primarily for personal, household, or family use. The pleading neither describes the equipment, nor explains its function, nor offers an alternative interpretation of the Lease Agreement, the plain language of which establishes the commercial nature of the transaction. The plaintiff fails to state claims under the Consumer Act and the CPPA upon which relief can be granted, and both claims will be dismissed.
4. Criminal Statutes
Although NLS fails to address them, the amended complaint also includes allegations that NLS violated certain criminal laws of the District of Columbia. See Am. Compl. ¶ 27 (Count III). The sections at issue, see D.C. Code § § 22-3401 to -3403, pertain to persons engaged in the business of debt collection and prohibit such persons from using the words " 'District of Columbia,' 'District.' the initials 'D.C.', or any emblem or insignia utilizing any of the said terms as part of its design, in such manner as reasonably to convey the impression or belief that such business is a department, agency, bureau, or instrumentality of the municipal government of the District of Columbia . . . ." D.C. Code § 22-3401. A penalty for such an offense is " a fine of not more than $300 or by imprisonment for not more than 90 days, or by both." D.C. Code § 22-3402. Assuming without deciding that the plaintiff may bring a civil suit under these provisions, her claim necessarily fails because the amended complaint sets forth no factual allegations that NLS has taken any action to create the erroneous impression that it is an agency or instrumentality of the District government.
D. Attorney's Fees and Costs
Finally, NLS " move[s] the Court to award . . . costs and attorney's fees," Def.'s Mem. at 10, under the FDCPA which in relevant part provides that, " [o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees . . . ." 15 U.S.C. 1692k(a)(3). According to NLS, the plaintiff filed this action " in retaliation of the proper New York claim," and thus has acted in " bad faith . . . or for the purpose[] of harassing" the defendant. Def.'s Mem. at 10.
The plaintiff not only strains the Court's limited resources, but also forces NLS to incur expenses in responding to the complaint. But where " the plaintiff is a pro se litigant . . ., courts should afford greater leniency and rarely award attorney's fees." Scott-Blanton v. Universal City Studio Prods. LLP, 593 F.Supp.2d 171, 175 (D.D.C. 2009) (citing Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Generally, " [a]n unrepresented litigant should not be punished for [her] failure to recognize subtle factual or legal deficiencies in [her] claims." Hughes, 449 U.S. at 15. It is far more likely that the plaintiff misconstrues the law, and the filing of a lawsuit by a person with limited knowledge of the law is not an act of bad faith. The Court will deny NLS's motion for attorney's fees and costs.
Page 162
The Court concludes that it lacks personal jurisdiction over the NLS in this matter and that the amended complaint fails to state claims under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the D.C. Consumer Act and Consumer Protection Procedures Act, and the D.C. Criminal Code upon which relief can be granted. Accordingly, NLS's motion to dismiss will be granted. Its motion for an award of attorney's fees and costs will be denied. An Order accompanies this Memorandum Opinion.
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Chicken Egg Hatchability Problems - Part I
What Problems you may find in hatching chicken eggs
There are a number of problems that can arise
for the hatchability of eggs, though they will typically be problems with the
hatchery, the handling of the eggs, or the breeder flock. Identifying these
problems quickly is essential, and requires the cooperation of hatchery, egg
handling, and breeder farm personnel. When working to identify the hatchability
problems that may be occurring, detailed and accurate records are essential.
Every piece of information that can be obtained will help you locate and
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potential causes.
Problem: Infertile eggs with no blood and a small, white germinal disc that, when candled, show clear.
Causes: There are a number of things that can cause this problem, many of which can be easy to solve, some of which are unfortunately beyond control. Some examples include extreme weather conditions, inadequate lighting, and inadequate floor space. You should also check the breeder flock for problems such as parasites, feet and leg problems, excess body weight, or breeders which are too young or too old. You will also need to check for disease in the breeder flock. Signs of this may include rough, misshapen, or thin-shelled eggs. Exposure to certain drugs, pesticides, toxins or mycotoxins can also cause the issue, as can nutritional deficiencies. Also ensure that proper artificial insemination procedures are being employed, if artificial insemination is being used.
Problem: Fertile eggs that have no blood, have a
germinal disc which appears enlarged, and which candle clear may be referred to
as "blastoderm without embryo."
Causes: This is another issue that can be caused by breeders that are too young or too old, a disease in the flock, or exposure to drugs, pesticides, etc. However, many other causes of this problem are related to handling. These can include the eggs being stored too long, being held under improper conditions, washing the eggs at too high a temperature, fumigating incorrectly, or being jarred or exposed to sudden sharp changes in temperature during transport.
Problem: Eggs that, when candled, show clear, containing a blood ring or an embryo which died within three days of incubation.
Causes: This issue has many of the same causes as the previous issue. However, other causes may include inbreeding and nutrient deficiencies.
Problem: Embryos that have died within three to six days of incubation, an embryo on its left side, with a yolk sac circulatory system and no egg tooth.
Causes: Sharing many causes with the blastoderm without embryo, this problem has the additional potential causes of a lack of proper ventilation, improper turning, or vitamin deficiencies.
Problem: Embryos that have
died within seven to seventeen days of incubation, each with
an egg tooth, feathers/feather follicles, and toenails.
Causes: With this issue, it's important to check incubator conditions. There may be a problem with the temperature, humidity, turning, and/or ventilation. This problem can also be a sign of contamination, nutrient deficiencies, or lethal genes.
Problem: Embryos that have died past eighteen days of incubation.
Causes: Incubator conditions can again be an issue, as can contamination, particularly from molds. Improper fumigation techniques, transfer temperatures, handling of hatcher can also be a factor. There could be an issue with shell quality, or a broken shell.
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When it comes to backyard flocks, there are many common chicken diseases that you should become familiar with. It is essential to learn chicken diseases symptoms and even the signs of diseases respiratory based in these...


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