KEVIN M. BELLINGER v. UNITED STATES. , 127 A.3d 505 ( 2015 )

District of Columbia
Court of Appeals
No. 13-CO-252
NOV 25 2015
KEVIN M. BELLINGER,
Appellant,
v. FEL-6204-00
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: Washington, Chief Judge; Glickman, Associate Judge; and Farrell,
Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record, the briefs filed, and was
argued by counsel. On consideration whereof, and as set forth in the opinion filed this
date, it is now hereby
ORDERED and ADJUDGED that the matter on appeal is remanded for the trial
court to hold an evidentiary hearing on the appellant‟s ineffective assistance of counsel
claim, and for other further proceedings consistent with this opinion.
For the Court:
Dated: November 25, 2015.
Opinion by Associate Judge Stephen Glickman.
Concurring opinion by Senior Judge Michael W. Farrell.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CO-252 11/25/15
KEVIN M. BELLINGER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(FEL-6204-00)
(Hon. Russell F. Canan, Trial Judge)
(Argued February 12, 2015 Decided November 25, 2015)
Michael J. Anstett, with whom Douglas W. Baruch was on the brief, for
appellant.
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, and James Sweeney, Assistant United States
Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and
FARRELL, Senior Judge.
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Senior Judge FARRELL at page 38.
2
GLICKMAN, Associate Judge: Appellant was convicted of assault with intent
to kill while armed and four firearm offenses,1 all arising from the shooting of
Lorraine Jackson on May 26, 2000. This court affirmed his convictions on direct
appeal in 2007, in an unpublished decision.2 Now before us is appellant‟s appeal
from the summary denial of his post-conviction motion alleging ineffective
assistance of counsel and Brady3 violations as grounds for granting him a new trial
pursuant to D.C. Code § 23-110 (2012 Repl.). We remand for an evidentiary
hearing on appellant‟s ineffective assistance claim and otherwise affirm the trial
court‟s rulings, but without prejudice to appellant‟s submission of a renewed,
narrower request to take discovery with respect to his Brady claim pursuant to the
Superior Court Rules Governing Proceedings Under D.C. Code § 23-110.
I.
At around 2:40 a.m. on May 26, 2000, Lorraine Jackson was shot in an alley
in the 1800 block of D Street Northeast. She survived the shooting and identified
1
The firearm convictions were for possession of a firearm during a crime of
violence, carrying a pistol without a license, possession of an unregistered firearm,
and unlawful possession of ammunition.
2
Bellinger v. United States, 916 A.2d 199 (D.C. 2007).
3
Brady v. Maryland, 373 U.S. 83 (1963).
3
appellant as her shooter. Appellant was arrested and charged with the shooting in
October 2000. It took three trials to convict him. After the first trial, which ended
with a hung jury on May 30, 2001, the Public Defender Service (PDS) moved in
September 2001 to withdraw as appellant‟s counsel on account of a conflict of
interest. The reason for this conflict—that another client of PDS could be linked to
the gun used in the shooting of Jackson—allegedly was not revealed until
sometime later, and it is at the heart of appellant‟s present claims. The trial court
granted PDS‟s motion and appointed Phyllis Baron to serve as appellant‟s new
defense counsel. Baron represented appellant at his second trial, which also ended
in a hung jury, and at his third trial, which concluded on April 5, 2002, with a jury
verdict of guilty on all counts. After the verdict, new counsel entered their
appearances for appellant and represented him at sentencing, on direct appeal, and
in connection with his post-conviction challenges, as more fully discussed below.
A. The Evidence at Trial
Lorraine Jackson testified that she had known appellant since approximately
1997. He had lived with her and her children for a period of about six months, and
she continued to see him almost every day. A week before the shooting, appellant
approached Jackson and told her that people in the neighborhood said she was
4
“snitching” to the police. Appellant asked Jackson if that was so and she denied it.
Appellant said “okay” and walked away, but his inquiry worried Jackson because
she “kn[e]w how he felt about people and snitching”; she had heard him say things
like “snitches get stitches.”
Jackson in fact had been giving information to the police. Sometimes she
did so without receiving anything in return, but she also worked as a paid
confidential informant, providing information about drug dealing even though she
was using drugs herself.
Jackson testified that on May 24, 2000, two days before her shooting, she
called the police and reported that appellant and another person were playing with
guns in front of a building in the 400 block of 18th Street Northeast. Appellant and
others fled when the police arrived to investigate, and no arrests were made. After
the police departed, appellant returned and asked Jackson why she did not flee with
everyone else when the police showed up. Jackson responded that she did not need
to leave because she had not done anything. The look appellant gave her left
Jackson concerned that he suspected her of having reported him to the police.
On May 25, 2000, the day before the shooting, Jackson started smoking
crack cocaine around noon. She then slept for about twelve hours and, after
5
waking up, went out to purchase another $10 worth of crack cocaine. As she
walked up 18th Street on the way to buy the drugs, she saw appellant and his friend
Ed talking near a car. After making her intended purchase, Jackson headed to her
friend Wanda‟s apartment in the 1800 block of D Street Northeast, where she
intended to smoke the crack cocaine.
Upon entering the alley behind Wanda‟s building to get to its rear entrance,
Jackson saw someone walking toward her from the opposite end of the alley.
From a distance, she testified, she recognized that the person approaching her was
appellant by “the way he was built and his walk and everything.” Jackson then
saw and recognized appellant‟s visage when he passed under a streetlight in the
middle of the alley, where the two met “face to face.” At that moment, Jackson
testified, appellant pulled out a gun and started shooting at her. Jackson was
wounded in the back, neck, arm, and legs, and fell to the ground. As appellant then
ran from the alley, she yelled after him, “That‟s all right. At least I know who you
are.”4
4
This account was corroborated at trial by the resident manager of the
building where Jackson had purchased her crack cocaine. The witness, who knew
Jackson and recognized her “distinctive” voice, testified that he heard the gunshots
from his bedroom window and then heard Jackson yell out, “I know who you are.”
6
Once appellant was gone, Jackson made her way to the front of Wanda‟s
apartment building. When police arrived there soon afterward, she told them it
was “Kevin” who shot her. Jackson said he shot her “out of fear that she was
going to talk to the police.” She also told the police they probably could find
Kevin at the liquor store on Bladensburg Road with her niece, “Pooh.”
When the police later presented Jackson with a photo array, she immediately
selected appellant‟s picture, saying she was “just as sure as [she] know[s] [her]
own mother and [her] children” that appellant was the one who shot her. At trial,
Jackson testified that she was sure appellant was the person who shot her because
she had “looked right in his face.”
Jackson‟s niece “Pooh,” whose real name was Satira Shank, testified at trial
that she and appellant were like “real sisters and brothers.” Prior to trial, Shank
had appeared before the grand jury and adopted, under oath, a signed statement she
had given investigators in which she said that appellant told her he shot Jackson
because she “called the police on people.” When Shank denied this at trial, her
grand jury testimony and statement were admitted to impeach her and as
substantive evidence.
7
The jury also learned that the police recovered four cartridge shell cases at
the spot in the alley where Jackson was shot. A police firearms examiner
identified them as four “9 mm Luger cartridge cases, Winchester brand,” and
concluded that they had been fired by the same gun. The gun itself was not
introduced in evidence and had not been found.5
Appellant presented an alibi defense. Three friends testified that appellant
was with them on the night of the shooting at a club on Bladensburg Road. One of
these alibi witnesses, Douglas Quander, testified that he and appellant were at the
club until 2:30 a.m., and that he then dropped off appellant and his friend “Ed” at
the home of appellant‟s girlfriend.6 Another defense witness, Christina Giles,
testified that Jackson told her that her assailant‟s face was covered.
5
The government also presented testimony that police noticed a car (which
turned out to have been stolen) traveling away from the area of the shooting at a
high rate of speed without its lights on. The police followed this car to a parking
lot. They did not see anyone exit the vehicle, but thereafter they saw two men
coming from its vicinity, one of whom appeared similar in physical description to
the man Jackson had described as her assailant. The two men were seen going into
an apartment building and entering an apartment on the top floor, which (the police
later determined) belonged to appellant‟s second cousin. After a short while, the
police were admitted to the apartment. Appellant was not present there. There
was a rear exit the officers had not secured.
6
Jackson, who had testified that she saw appellant with Ed near the alley on
her way to buy the crack cocaine, also testified that she saw Quander and a second
man standing across the street when she left the alley after being shot.
8
B. Appellant’s Collateral Challenge
Prior to appellant‟s sentencing, Jenifer Wicks replaced Ms. Baron as
appellant‟s defense counsel. On August 7, 2002, Ms. Wicks filed an ex parte
motion seeking access to certain firearms and ballistics evidence in the possession
of the Metropolitan Police Department. In pertinent part, the motion represented
that appellant‟s first defense counsel, a PDS attorney, had moved to withdraw in
September 2001 because of a conflict of interest between appellant and another
PDS client named Randall Mack. According to the motion, the basis of this
conflict (not disclosed to the court when PDS moved to withdraw) was that “the
defense had learned” that a gun recovered in the arrest of Mack on July 21, 2000,
and linked by police ballistics analysis to a homicide committed on July 7, 2000,
“should match” the gun that fired the four cartridge cases found at the scene of the
Jackson shooting six weeks earlier. The motion proffered, in addition, that the two
shootings were “in the same area”; that Mack was “a known drug dealer” in the
neighborhood of 18th and D Streets Northeast with “an apparent proclivity for
violence and weapons possession”; and that Mack was acquainted with Jackson
and knew she was an informant. Concluding that a match between Mack‟s weapon
and the gun used in the Jackson shooting might enable appellant to advance a
third-party-perpetrator defense, the motion requested the court to order the
9
Metropolitan Police Department to make the firearm and ballistic evidence in the
two cases available for testing by a defense ballistics expert. The trial court
granted the motion on August 9, 2002.
Appellant‟s expert, John Dillon, did not receive the requested evidence for
testing until sometime in 2006.7 In a report dated November 8, 2006, he opined
that there was a match: the four shell casings found at the scene of Ms. Jackson‟s
shooting on May 26, 2000, were fired from the handgun used in the July 7, 2000,
shooting, that the police recovered from Mack on July 21, 2000.
Five years later, on November 4, 2011, appellant filed his motion for a new
trial alleging, inter alia, that his trial counsel, Ms. Baron, had been ineffective in
failing to investigate the ballistics match and use it to present a third-party-
perpetrator defense, and that the government had violated its obligations under
Brady by failing to disclose the ballistics match.8
7
It appears that additional motions and proceedings were required to
dislodge the evidence. In the meantime, appellant‟s present counsel had entered
their appearance on his behalf, succeeding Ms. Wicks.
8
In addition to seeking a new trial on those constitutional grounds pursuant
to D.C Code § 23-110, appellant presented a claim of actual innocence under the
Innocence Protection Act (IPA), D.C. Code § 22-4135. He has not asserted any
(continued…)
10
Relying in part on information set forth in the opinion of this court in
Andrews v. United States,9 appellant proffered that on July 21, 2000, the police
recovered the two 9mm semi-automatic pistols, a Glock and a Bryco, that were
used (according to a July 2000 police firearms examiner‟s report) in the murder of
Deyon Rivers at 18th and C Streets Northeast on July 7, 2000. The ultimately
convicted perpetrators of this homicide were two men named Patrick Andrews and
Randall Mack.10 Police recovered the Glock from Andrews‟s automobile, and the
Bryco from Mack when he attempted to discard it during the course of his arrest.
After being taken into custody, Mack claimed that Andrews had given him the
Bryco and told him the gun was “hot.”11
(continued…)
claim of error with respect to the trial court‟s denial of his IPA claim, however, so
we do not address it further in this opinion.
9
922 A.2d 449, 453-54 (D.C. 2007).
10
Andrews and Mack were tried together for the murder of Rivers. On May
1, 2002, a jury found them each guilty of first-degree murder while armed and the
related firearm possession offenses. In Andrews v. United States, supra, this court
affirmed Andrews‟s convictions, but granted Mack a new trial. After his re-trial
resulted in a hung jury, Mack pleaded guilty to second-degree murder.
11
A friend of Mack and Andrews named David Braddy later testified to
having seen them with the guns frequently before the murder of Rivers.
11
Per the November 2006 ballistics report obtained from Mr. Dillon, the Bryco
obtained from Mack was the gun used by Jackson‟s assailant on May 26, 2000.
This conclusion was corroborated by police crime scene reports showing that some
of the cartridge cases found at the scene of the Rivers shooting were the same
brand as those found at the scene of the Jackson shooting.
In an affidavit accompanying his new trial motion, appellant stated that PDS
never told him what the conflict of interest was that required his original trial
attorney to withdraw. Appellant did not then know that PDS lawyers had
“discovered” that Mack, who was also a PDS client, was accused of murdering
someone with “the same firearm used to shoot Lorraine Jackson, in the same
neighborhood, during the same time period.” However, appellant averred, after
Ms. Baron was appointed to represent him, she told him prior to his second trial
“that someone told her about a firearm from another shooting, namely, the Mack
case, that could be linked to [appellant‟s] case.” Appellant, who professed his
innocence, hoped this information would exonerate him, and Baron assured him
she would investigate the report of a ballistics match. But neither Baron nor her
12
investigator followed up on the report in any way.12 Instead, appellant stated,
Baron told him, falsely, that the prosecutors refused to turn over any information
about ballistics or matching firearms, and that the court had denied her motion to
compel the disclosure of information about a ballistics match—a motion she
actually had never filed.
The government opposed appellant‟s motion for a new trial. It did not
dispute that the gun used to shoot Jackson was recovered from Mack. It denied,
however, that appellant‟s trial counsel had been constitutionally ineffective or that
there had been a Brady violation. The government argued, inter alia, that it had
been prejudiced by appellant‟s five-year delay in presenting his ineffective
assistance claim, because Baron‟s death (in October 2009) prevented the
government from establishing what she knew and did. The government further
argued that the ballistics match had not been withheld from the defense because
neither the prosecutors nor the police knew of the match. In any event, the
government contended, the ballistics match was not probative of appellant‟s
innocence, because guns frequently were shared among members of the 18th and D
12
In a second affidavit appellant submitted to the court, Baron‟s
investigator stated that he was not asked to do anything with respect to appellant‟s
case except serve subpoenas.
13
Street Crew (a local gang with which Andrews and Mack allegedly were
affiliated), and appellant therefore could not show either the prejudice required to
support his claim of ineffective assistance or the degree of materiality required for
a Brady violation.
In support of its contentions, the government submitted affidavits from (1)
Assistant United States Attorney (AUSA) Glenn Kirschner, a homicide division
supervisor who prosecuted Andrews and Mack for the murder of Rivers and
thereafter participated in a joint FBI-MPD investigation of the 18th and D Street
Crew; (2) Detective Norma Horne, who also was involved in that investigation;
and (3 and 4) AUSA (now Associate Judge of the Superior Court) Jennifer
Anderson and AUSA Diane Lucas, who were the prosecutors at appellant‟s second
and third trials. The affidavits were offered to support the government‟s claims
that neither the police nor the prosecutors knew of the ballistics match at the time
of appellant‟s trials, and that the match did not exculpate appellant in light of the
regularity with which guns were shared.
AUSA Kirschner averred that, “[a]fter consultation with relevant law
enforcement agents, fellow AUSAs, and a review of the available records, I have
no indication or recollection that there was any information linking the murder
14
weapons used by Patrick Andrews and Randall Mack in the murder of Deyon
Rivers to the May 2000 shooting of Lorraine Jackson.” Kirschner further stated
that Andrews and Mack were members of the 18th and D Street Crew; that
“information was developed” that members of the crew used “multiple communal
guns,” some of which were hidden in a compartment of a lamppost located at the
intersection of 18th and D Streets Northeast; and that it was believed to be
“common knowledge among” the crew members that “these guns were accessible
and available to any crew member who needed a gun at any given time.”
Detective Horne, the sole police affiant, asserted that the Metropolitan
Police Department “protocol” is that investigators do not request ballistic
comparisons “as a matter of course,” but only when they have “specific reason to
believe that some connection may be made to the case at hand.” Detective Horne
averred that, “[t]o [her] knowledge, no such evidence existed at the time” of
appellant‟s trial. (Although her affidavit did not mention it, the parties appear to
agree that Detective Horne had worked on appellant‟s case.) The detective also
stated that “[d]uring the course of the investigation of the 18th & D Crew we
learned from cooperating witnesses and informants that[] firearms utilized by the
crew members change[d] hands constantly” in an effort “to foil law enforcement
efforts to arrest the armed subjects.”
15
AUSAs Anderson and Lucas each averred that they had no knowledge of
any ballistics comparison of the guns used in the shootings of Jackson and Rivers
and no reason to request such a comparison. The “mere fact” that another shooting
occurred in the same area six weeks later would not have prompted them to ask for
a ballistics comparison, they explained, given the high incidence of gun-related
violence in the neighborhood of 18th and D Streets Northeast.
At a status hearing on appellant‟s motion, the government‟s counsel
represented that he personally had gone through the government‟s files in
appellant‟s case and in the Andrews and Mack case, and that no comparative
ballistics testing had been done. In a subsequent supplemental pleading, appellant
acknowledged that he had “no reason to doubt” that the prosecutors were not aware
of any comparative ballistics testing or of information that, “in their minds,” would
have linked the Jackson and Rivers shootings. Nonetheless, appellant argued, that
did not dispose of his Brady claim, because the law enforcement officials
investigating the two shootings “had every reason to suspect a connection between
the two events and to pursue those connections.” (Emphasis by appellant.) While
appellant admittedly could not yet “pinpoint specific exculpatory information
contained in police files,” he requested leave of court to propound “targeted
discovery requests” to ascertain whether such information existed. Specifically,
16
appellant asked that the government be required to disclose all “reports, notes, and
other materials prepared, requested, or obtained in connection with” the
investigations of the two shootings; the memorandum of understanding between
the FBI and the Metropolitan Police Department regarding their joint investigation
of the 18th and D Street Crew; all police protocols relating to the handling of
firearms evidence, firearms examination and ballistics testing, the conduct of joint
law enforcement operations and of homicide and assault with intent to kill
investigations; and the names of all law enforcement personnel who were involved
in investigating the crew, criminal activity in the area of 18th and D Streets,
Northeast, the Jackson shooting, or the Rivers homicide.
II.
The trial court denied appellant‟s § 23-110 motion, without first holding an
evidentiary hearing on his claims of ineffective assistance and Brady violation, in a
written order issued on February 6, 2013. In the same order, the court rejected
appellant‟s request to take discovery in aid of his Brady claim. Appellant contends
that the court erred in each of these rulings. We review both the denial of his
17
claims without an evidentiary hearing and the denial of discovery for abuse of
discretion.13
A. Evidentiary Hearings on Motions Pursuant to D.C. Code § 23-110
While the decision whether to hold an evidentiary hearing on a § 23-110
collateral challenge to the constitutionality of a conviction is committed to the trial
court‟s discretion, the extent of that discretion is “quite narrow.”14 The statute
itself states that the court “shall” grant a hearing “[u]nless the motion and files and
records of the case conclusively show that the prisoner is entitled to no relief.”15
Thus, we have emphasized, “[a]ny question regarding the appropriateness of a
hearing [on a §23-110 motion] should be resolved in favor of holding a hearing.”16
We “will affirm the trial court‟s denial of a § 23-110 motion without a hearing only
if the claims (1) are palpably incredible; (2) are vague and conclusory; or (3) even
13
See Long v. United States, 910 A.2d 298, 308 (D.C. 2006) (denial of a
hearing); Metts v. United States, 877 A.2d 113, 123 (D.C. 2005) (denial of
discovery in connection with a §23-110 motion).
14
Long, 910 A.2d at 308.
15
D.C. Code § 23-110 (c) (emphasis added).
16
Newman v. United States, 705 A.2d 246, 261 (D.C. 1997) (internal
quotation marks omitted).
18
if true, do not entitle the movant to relief.”17 Under the last of those three
categories, “if no genuine doubt exists about the facts that are material to the
motion, the court may conclude that no evidentiary hearing is necessary.”18
However, in reviewing a summary denial, “we must be satisfied that under no
circumstances could the petitioner establish facts warranting relief.”19 Where this
issue turns on questions of witness credibility, “we have consistently held that
credibility determinations cannot be based on affidavits or countered by conclusory
statements but may be resolved only by recourse to a full evidentiary hearing.”20
B. Ineffective Assistance of Counsel
To prevail on his ineffective assistance claim, appellant needed to show that
his trial counsel‟s representation was deficient, and that her deficient performance
prejudiced his defense.21 The deficiency prong calls for a showing that counsel‟s
performance “fell below an objective standard of reasonableness,” a standard
17
Id. (internal quotation marks omitted).
18
Ginyard v. United States, 816 A.2d 21, 38 (D.C. 2003).
19
Long, 910 A.2d at 308 (internal quotation marks omitted).
20
Newman, 705 A.2d at 261 (citing cases).
21
Strickland v. Washington, 466 U.S. 668, 687 (1984).
19
established by reference to “prevailing professional norms.”22 The prejudice prong
requires a showing that counsel‟s errors were “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”23 “[A] defendant need not
show that counsel‟s deficient conduct more likely than not altered the outcome in
the case. . . . 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.”24 It suffices to
show “a reasonable probability that, but for counsel‟s unprofessional errors, the
result of the proceeding would have been different”; in other words, “a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”25 The term “reasonable probability” is not subject to
22
Id. at 688.
23
Id. at 687.
24
Id. at 693-94.
25
Id. at 694-95. Where, as here, the putative error is an investigative
omission resulting in counsel‟s failure to discover evidence favorable to the
defense, the prejudice inquiry has a dual aspect: “We must inquire, first, whether
there is a reasonable probability that a competent attorney, aware of the favorable
evidence, would have introduced it at trial in an admissible form; if so, then we
must ask whether, had the jury been confronted with this evidence, there is a
reasonable probability that it would have returned with a different verdict.” Cosio
v. United States, 927 A.2d 1106, 1132 (D.C. 2007) (en banc) (internal quotation
marks, brackets and ellipses omitted) (quoting Wiggins v. Smith, 539 U.S. 510,
535-36 (2003)).
20
precise quantification; the Supreme Court defined it in Strickland as simply “a
probability sufficient to undermine confidence in the outcome.” 26
1. Deficient Performance
Appellant claimed that his trial counsel, Ms. Baron, unreasonably failed to
investigate evidence that would have helped exonerate him. Specifically, appellant
averred under oath (1) that Baron told him she had learned the gun used to shoot
Jackson could be identified as the gun someone else (Randall Mack) used to
commit another shooting in the same neighborhood at around the same time 27; (2)
that Baron inexplicably failed to investigate this information after assuring him that
she would; and (3) that Baron lied to him to cover up her failure to investigate.
Appellant professed to base these averments on his personal knowledge, i.e., his
own interactions with Baron. The averments were corroborated by, among other
things, his investigator‟s affidavit; PDS‟s withdrawal as appellant‟s counsel on
conflict of interest grounds because (as Wicks, appellant‟s third attorney,
represented in her 2002 ex parte motion for access to the ballistics evidence) it had
26
Id. at 694.
27
It is unclear from appellant‟s affidavit whether he claims that Ms. Baron
actually knew Mack‟s identity or the particulars of the other shooting.
21
learned that Mack‟s gun had been used in the Jackson shooting; the evidence
adduced in the prosecution of Mack and Andrews for the shooting of Rivers,
including the testimony linking Mack to the gun around the time of the Jackson
shooting; and the subsequent, undisputed confirmation of a ballistics match.28 Had
Ms. Baron investigated and obtained evidence that Mack had possessed and used
the weapon, she would have been able to present it at appellant‟s trial in support of
a third-party-perpetrator defense to supplement his alibi defense.29 The unjustified
failure of counsel to conduct reasonable investigation into evidence that would
shore up the defense is a classic form of constitutionally deficient performance.30
It cannot be maintained that appellant‟s claim of deficient performance by
his trial counsel was, on its face, palpably incredible, vague and conclusory, or
insufficient, even if true, to entitle him to relief. Nor was this an issue as to which
28
The fact that Ms. Wicks learned as early as 2002 why PDS had a conflict
of interest would seem to enhance the likelihood that Ms. Baron had learned of it
too.
29
See Winfield v. United States, 676 A.2d 1, 4-5 (D.C. 1996) (en banc)
(holding that to be relevant and admissible, third-party-perpetrator evidence need
only “tend to indicate some reasonable possibility that a person other than the
defendant committed the charged offense.”).
30
See Cosio, 927 A.2d at 1123-27; see also, e.g., Kigozi v. United States, 55
A.3d 643, 651 (D.C. 2012) (“[C]ounsel‟s arbitrary or ill-considered decision to
forgo relevant pre-trial investigation is constitutionally deficient.”).
22
the court could forgo taking evidence because there was no genuine doubt as to the
material facts. Although the government did not dispute the ballistics match or
Mack‟s possession of the gun used in the Jackson shooting, it did not concede
appellant‟s allegations about Ms. Baron‟s conduct. A hearing at which appellant
could have testified and presented whatever supporting evidence he could muster
would have allowed the judge, as trier of fact, to assess whether appellant was
telling the truth about Ms. Baron.
The trial court gave three reasons for ruling, without holding an evidentiary
hearing, that appellant did not make a sufficient showing that Baron‟s
representation fell below an objective standard of reasonableness. First, the court
reasoned that the credibility of appellant‟s claim was weakened by his prolonged
delay in filing his motion for a new trial and the prejudice to the government from
the consequent unavailability of his trial counsel. Second, the court took into
account Baron‟s otherwise effective representation at trial, noting in particular that
appellant‟s second trial resulted in a jury hung 10-2 in favor of acquittal and that
Baron performed well overall at his third trial (at which he was convicted).31
31
The judge, who presided over both the trial and the § 23-110 motion,
noted that Baron filed motions to suppress evidence; “conscientiously prepared for
trial and was a vigorous advocate during the proceedings;” made “an effective
(continued…)
23
Third, the court reasoned that even if counsel knew of a potential ballistics match,
she could have made a strategic decision not to use that information at trial because
“any attempt to prove Andrews and Mack [were arrested with the gun used to
shoot Jackson] would have inevitably opened the door” to the government‟s
introduction of evidence of appellant‟s “affiliation with the 18th & D Crew and
their proclivity to share weapons.”
These reasons do not suffice to justify rejection of appellant‟s claim without
affording him an evidentiary hearing. As to the first reason given by the trial court,
we have held that where a claim is sufficiently plausible on its face to justify an
evidentiary hearing, even a delay of many years in presenting the claim is not a
sufficient ground for summarily denying it. Rather, the court “in conducting an
evidentiary hearing . . . , may consider the length of [the] delay . . . , any excuses
for that delay, and any resulting prejudice to the government as factors bearing on
the credibility” of the claim.32 In addition, by virtue of a laches provision added to
(continued…)
opening statement” and “a thoroughly competent closing argument”; and
“professionally cross-examined government witnesses.”
32
Ramsey v. United States, 569 A.2d 142, 148-49 (D.C. 1990); see, e.g.,
Dobson v. United States, 711 A.2d 78, 84 (D.C. 1998) (hearing required despite
defendant‟s eleven-year delay in presenting ineffectiveness claim); cf. Stewart v.
United States, 37 A.3d 870, 873-75 (D.C. 2012).
24
D.C. Code § 23-110 in 2009, the court is empowered to dismiss the motion for
relief “if the government demonstrates that it has been materially prejudiced in its
ability to respond to the motion by the delay in its filing, unless the movant shows
that the motion is based on grounds which the movant could not have raised by the
exercise of reasonable diligence before the circumstances prejudicial to the
government occurred.”33 The trial court did not cite this provision in its order and
did not find that the government had demonstrated material prejudice to its ability
to respond to appellant‟s motion. It concluded only that the government was
“disadvantaged by the delay, as counsel became unavailable.” We think the trial
court needed to hold an evidentiary hearing to determine the applicability of this
provision to appellant‟s motion; it was not enough that the government merely
claimed in its opposition pleading to have been prejudiced.
As to the trial court‟s second reason, counsel‟s otherwise capable
representation is not a sufficient basis for concluding that a particular omission—
i.e., her alleged failure to conduct appropriate investigation—did not amount by
itself to constitutionally deficient performance. “[I]t has long been the rule that
counsel‟s investigation before trial is an essential component of effective
33
D.C. Code § 23-110 (b)(2).
25
representation and can be as important to the defense as counsel‟s performance
during trial.”34 And it is well-settled that “the type of breakdown in the adversarial
process that implicates the Sixth Amendment is not limited to counsel‟s
performance as a whole—specific errors and omissions may be the focus of a
claim of ineffective assistance as well.”35
Finally, as we explained in Cosio, “[d]eficient investigation cannot be
excused on the ground that a competent attorney, aware of the evidence that an
adequate investigation would have uncovered, could have made an informed
judgment to pursue an alternative strategy and not utilize that evidence at trial.”36
“[I]n assessing the alleged shortcomings of the investigation performed by
appellant‟s trial counsel in the present case, the issue „is not whether counsel
should have presented‟ at trial the evidence that ought to have been discovered.
Rather, we must „focus on whether the investigation supporting counsel‟s decision
not to introduce such evidence was itself reasonable.‟”37 In other words, the
34
Kigozi, 55 A.3d at 650-51.
35
United States v. Cronic, 466 U.S. 648, 657 n.20 (1984).
36
Cosio, 927 A.2d at 1126.
37
Id. at 1125-26 (internal citations, brackets and ellipses omitted) (quoting
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (emphasis in the original)).
26
relevant question is whether it was objectively reasonable for appellant‟s counsel
to forgo investigating the reported ballistics match.38 The trial court did not
address this question. In our view, the record in its current state does not enable
the court to find that the alleged failure to investigate was objectively reasonable.39
For these reasons, we hold that the trial court erred in ruling that counsel‟s
performance was not deficient without having afforded appellant an evidentiary
hearing on the question.
2. Prejudice
The trial court ruled in the alternative that appellant had not demonstrated
the requisite likelihood of prejudice. The evidence identifying appellant as
38
In answering that question, a court must be careful “not to slap the label
of objective reasonableness on fanciful or unrealistic rationalizations for an
attorney‟s conduct.” Id. at 1127.
39
Moreover, as we proceed to discuss, at least in its current state, the record
does not clearly support the court‟s assumption that the government could have
introduced rebuttal evidence of appellant‟s affiliation with the 18th and D Street
Crew.
27
Jackson‟s assailant was “compelling,”40 the court reasoned, while the ballistics
evidence was “weak” and “not dispositive exculpatory evidence because of the
communal nature of the guns used by defendant and his associates and the six-
week lapse between the Jackson and Rivers shootings.”
We agree that, if appellant had been able to introduce the comparative
ballistics evidence at his trial and to present a third-party-perpetrator defense, the
government might have been permitted to introduce rebuttal evidence that the gun
used in the Jackson and Rivers shootings was shared among the members of the
18th and D Street Crew, and that appellant was a member of that crew. However,
the government‟s proffer to the trial court in opposition to appellant‟s ineffective
assistance claim did not sufficiently show what, if any, admissible evidence the
government would have had at its disposal at the time of appellant‟s trial to
establish those facts. None of the affidavits submitted by the government linked
appellant to the 18th and D Street Crew, and they contained only vague hearsay
statements regarding the sharing of weapons by members of that crew (e.g., AUSA
Kirschner‟s statements that “information was developed” about such sharing and it
40
The court cited Jackson‟s long familiarity with appellant and her prompt
identification of him, and the circumstantial evidence corroborating her account—
in particular, the testimony of the witness who heard Jackson yell that she knew
who the shooter was.
28
was “common knowledge”). On the record before it, the court could not say with
any confidence what rebuttal evidence would have been available to the
government. One purpose of an evidentiary hearing would have been to answer
this question.
We respect the trial judge‟s first-hand assessment of the strength of the
identification evidence presented at appellant‟s third trial. But the case was not
one-sided—appellant did present an alibi defense—and it is striking that the jury
hung in the two previous trials, 6-6 in the first and then 10-2 for acquittal in the
second. To be sure, there were differences in the evidence presented at the three
trials; notably, the witness who heard Jackson yell in the alley after being shot did
not testify in either of the first two trials, and Satira Shank did not testify in the
second of them. But these differences are not so great that we can dismiss the
results of the first two trials entirely; at a minimum they indicate that the
government‟s case was not without its weaknesses.41
41
There was, we note, no physical or forensic evidence pointing to
appellant as Jackson‟s assailant, and the jury might have had reasons to be dubious
of Jackson‟s credibility.
29
Without a record and findings as to the rebuttal evidence the government
actually could have introduced, we cannot say there is no reasonable probability
that the outcome of appellant‟s third trial would have been different had his
counsel presented the ballistics comparison.
We conclude that the existing record does not provide an adequate basis for
disposing of appellant‟s ineffective assistance of counsel claim, and that the trial
court erred in rejecting that claim without holding an evidentiary hearing focusing
on the credibility of appellant‟s assertions and how the government might have
rebutted ballistics match evidence had it been presented at appellant‟s trial.
C. Suppression of Evidence Favorable to the Defense
We reach a different conclusion with respect to the trial court‟s denial,
without taking evidence, of appellant‟s Brady claim that the government withheld
evidence and information pertaining to the ballistics match from him in violation
of his constitutional right to due process. An evidentiary hearing was not required
on this claim because, as the trial court held, appellant was unable to proffer
30
evidence that the government suppressed any exculpatory evidence or information
in its possession.42
In Brady v. Maryland, the Supreme Court recognized that the government
has a constitutional obligation to disclose material evidence in its possession that is
favorable to the accused.43 This obligation exists “whether the evidence was
actually known by the individual prosecutor, or merely by “others acting on the
government‟s behalf in the case, including the police.”44 Thus, to establish a Brady
violation, a defendant must show not only that the information was favorable to his
defense and material to the question of guilt or punishment, but also that the
42
This was one of two alternative grounds on which the trial court rejected
appellant‟s Brady claim. The court also ruled that the ballistics match was not
materially exculpatory for the same reasons it found no Strickland prejudice from
counsel‟s failure to investigate and use the match at trial. See Miller v. United
States, 14 A.3d 1094, 1115 (D.C. 2011) (evidence is material within the meaning
of Brady “if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.”) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)). As we have explained, we
think the court needed to hold an evidentiary hearing to properly decide this
prejudice/materiality question.
43
373 U.S. 83, 87 (1963); see generally Turner v. United States, 116 A.3d
894, 914-15 (D.C. 2015).
44
Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Strickler v. Greene,
527 U.S. 263, 280-81 (1999) (“[T]he rule encompasses evidence „known only to
police investigators and not to the prosecutor.‟”).
31
information was actually in the government‟s possession and was suppressed,
either willfully or inadvertently.45
“[W]hether a defendant has established a violation by the government of its
obligations under Brady presents a mixed question of fact and law.”46 We review
the trial court‟s factual conclusions under the clearly erroneous standard, but we
review its legal conclusions de novo.47
Appellant argues that the trial court, in denying his Brady claim based on the
government‟s affidavits and without a hearing, was “too narrowly focused on
whether the prosecutors were aware of, and actually possessed, a comparative
ballistics test.”48 But while the requirements of Brady certainly do extend beyond
the files and knowledge of the individual prosecutors, appellant could not proffer
that anyone acting on behalf of the government, including anyone in the employ of
the Metropolitan Police Department or the FBI, possessed information (from
45
See Vaughn v. United States, 93 A.3d 1237, 1254 (D.C. 2014).
46
Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011) (internal
quotation marks omitted).
47
Id.
48
Brief for Appellant at 27.
32
testing or otherwise) that the gun recovered from Mack and used in the Rivers
shooting was the same gun used in the apparently unrelated Jackson shooting.49
Unable to show the government‟s actual possession of this exculpatory
information, appellant argues that he need not do so to establish a Brady violation
because the clues were there that should have led the government to investigate the
possibility of a ballistics match between the two seemingly unrelated shootings.
That is to say, in the wake of the Rivers shooting, the recovery of the guns used to
commit that shooting from Mack and Andrews, and Mack‟s statement that his gun
was “hot,” the police had sufficient reason, appellant argues, to check whether the
same guns could be linked through a ballistics match to any other recent shootings
in the same area. Had the police conducted such investigation, appellant urges,
they would have learned of the ballistics match between Mack‟s gun and the gun
used in the Jackson shooting. Brady‟s disclosure requirements must extend to the
evidence of that match, appellant argues, because the prosecution has the
recognized “duty to learn of any favorable evidence known to the others acting on
49
Nor has appellant alleged that the police or other government actors were
willfully blind to the possibility of a ballistics match.
33
the government‟s behalf,”50 and to search police files if there is a sufficient
“prospect” that they contain “exculpatory materials.”51
But having clues that, if pursued, could have led to the discovery of
exculpatory evidence or information is not the same thing as actually having the
exculpatory evidence or information in hand. “If the government does not possess
the requested information, there can be no Brady violation.”52 Brady “does not
imply the government‟s duty to investigate—and come to know—information
which the defendant would like to have but the government does not possess.” 53
50
(Anthony N.) Robinson v. United States, 825 A.2d 318, 328 (D.C. 2003)
(quoting Kyles, 514 U.S. at 437).
51
United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992).
52
Guest v. United States, 867 A.2d 208, 212 (D.C. 2005); accord O’Brien v.
United States, 962 A.2d 282, 316 (D.C. 2008) (“Brady applies only to information
in the government's possession.”).
53
Guest, 867 A.2d at 212 (internal quotation marks and brackets omitted);
see also O’Brien, 962 A.2d at 316 (rejecting a Brady claim because the potential
impeachment information was not known to the government, and Brady does not
impose an obligation to search for information outside the government‟s
possession); Reyes v. United States, 933 A.2d 785, 794 (D.C. 2007) (finding no
Brady violation where the police failed to take identifying information from a
cashier that might have impeached the complainant because that information was
not in the government‟s possession and there was no duty to investigate
information the defendant “might like to have.”); Malloy v. United States, 797
A.2d 687, 689 n.3 (D.C. 2002) (holding that Brady did not require the government
to make impressions of a bite mark on the complainant‟s breast, even if such
(continued…)
34
The evidence and information the government actually had in its possession in this
case was not favorable to appellant on its face; moreover, so far as appears, no one
acting on the government‟s behalf knew that further forensic investigation might
develop exculpatory evidence. So appellant‟s proffer did not show any
unconstitutional suppression of evidence favorable to his defense; “[t]he
government cannot have disclosed to the defense what it did not know itself.”54
Accordingly, no evidentiary hearing was required on appellant‟s Brady
claim in the posture it was in at the time the trial court ruled on it. As we proceed
to discuss, however, the court may have to revisit this ruling in the event limited
additional discovery by appellant succeeds in uncovering evidence of a Brady
violation.
(continued…)
imprints would have shown that the defendant‟s unique teeth could not have
caused the injury, because the government was not required to “create such
evidence”).
54
(Michael) Robinson v. United States, 50 A.3d 508, 520 (D.C. 2012).
35
D. Brady Discovery
Although appellant did not proffer that he could prove the government
suppressed an exculpatory ballistics match, he did ask the court to allow him to
propound discovery requests for evidence supportive of his Brady claim. The
court declined to authorize the proposed discovery, finding inter alia that the
requests were overly broad, speculative, and unlikely to uncover evidence of a
Brady violation. Moreover, having rejected appellant‟s Brady claim on its
merits—“most importantly,” as the court said, because it found the ballistics
evidence would not have been materially exculpatory—the court found that
appellant had not shown good cause to take discovery regarding the government‟s
compliance with its Brady obligations. Appellant contends that the trial court erred
in so ruling.
Rule 6 of the Superior Court Rules Governing Procedures Under D.C. Code
§ 23-110 permits a movant to take post-conviction discovery where “the judge in
the exercise of his or her discretion and for good cause shown grants leave to do
so, but not otherwise.” The trial court should permit discovery “where specific
allegations before the court show reason to believe that the prisoner may, if the
facts are fully developed, be able to demonstrate that he is confined illegally and is
36
therefore entitled to relief.”55 We review a denial of post-conviction discovery for
abuse of discretion.56
We perceive no abuse of discretion in the trial court‟s ruling here. We agree
with the court‟s characterization of appellant‟s requests as overly broad and
speculative. The requests were designed not to elicit evidence that the government
actually possessed information about the ballistics match, which would have been
an appropriate discovery aim, but rather to obtain evidence of the government‟s
negligence in failing to investigate a possible match. Discovery for this purpose
was properly denied because, as we have explained, appellant would not be
entitled to relief even if he could prove such negligence.
We do not wish, however, to foreclose appellant from requesting leave on
remand to propound narrower discovery requests focusing on whether the
government actually did possess, and withhold from appellant, information linking
the gun used in the Jackson shooting to the gun used in the Rivers shooting and
recovered from Mack. We appreciate that the trial court found no suppression of
55
Brown v. United States, 726 A.2d 149, 156 (D.C. 1999) (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1968)).
56
Id.
37
such evidence based on the affidavits from the prosecutors who tried both cases
and a detective who participated in the investigation of appellant‟s case, and the
oral representations of government counsel at a status hearing on appellant‟s new
trial motion. Yet there was a potentially concerning gap in those submissions—
while they sufficiently establish that the prosecutors had no information about a
ballistic match, they say almost nothing about whether the police possessed such
information. The affidavits are silent as to whether the relevant files of the
Metropolitan Police Department were searched, or whether any police personnel
who worked on the Rivers case or who performed firearms examinations were
asked what they knew about a possible ballistics match. These seem like rather
glaring omissions since, if anyone acquired such information or developed such
evidence, it presumably would have been those personnel.
We do not think it entirely speculative that the police might have matched
the gun recovered from Mack to the gun used in the Jackson shooting. Even
setting aside the fact that PDS evidently learned of the match prior to appellant‟s
second trial (probably from a source other than the government, but who really
knows?), it is certainly plausible that the police would have thought to investigate
whether a gun described as “hot” had been used in other recent shootings in the
same vicinity (particularly if, as has been asserted, appellant himself was linked to
38
Andrews and Mack and the 18th and D Street Crew). While Detective Horne
stated in her affidavit that the MPD protocol is not to request ballistic comparisons
“as a matter of course,” but only when there is “specific reason to believe that
some connection may be made to the case at hand,” there arguably was “specific
reason” to check out Mack‟s “hot” gun in that fashion. And while Detective Horne
stated that no ballistics comparison had been performed at the time of appellant‟s
trial “[t]o [her] knowledge,” it is unclear what, if any, inquiry she made before
making that statement.
On remand, the trial court may find it appropriate for appellant to take
limited discovery with respect to these particular matters. Should such discovery
bear fruit, the court will be able to reconsider its denial of appellant‟s Brady claim.
III.
For the foregoing reasons, we remand for the trial court to hold an
evidentiary hearing on appellant‟s ineffective assistance of counsel claim, and for
other further proceedings consistent with this opinion.
So ordered.
39
FARRELL, Senior Judge, concurring: I agree with the decision to require an
evidentiary hearing, but with considerable skepticism that it will establish anything
sufficient to change the outcome of the case. Even if it becomes clear on remand
that trial counsel (Ms. Baron) was deficient under Strickland in not confirming the
ballistics match we now know existed, and it likewise is shown (relative to
appellant‟s Brady claim) that MPD personnel knew of the match, I have substantial
doubt that appellant would succeed in showing Strickland prejudice or Brady
materiality, that is, that there is a reasonable probability that had the jury learned
that Mack or Andrews used the same handgun to kill Deyon Rivers six weeks after
the shooting of Lorraine Jackson, in the same neighborhood, it would have
returned a different verdict.
The issue of prejudice or materiality does not turn on whether the
ballistics match if known would have been admissible at appellant‟s trial.
Evidence that someone else used the instrumentality of the charged crime in
roughly the same time period would surmount the minimal threshold of relevance,
and might also withstand lenient application of the test for admitting third-party
culpability evidence, see Winfield v. United States, 676 A.2d 1 (D.C. 1996) ( en
banc). But a “reasonable possibility,” id., that someone else committed the crime
is not a reasonable probability that he did so, as the Supreme Court emphasized in
40
Strickler v. Greene, 527 U.S. 263, 289, 291 (1999). As I understand appellant‟s
proffer to date, the ballistics match has been accompanied by no claim that Mack
or Andrews had a motive to shoot Jackson, had a particularized opportunity to
confront her at the time she was shot, or even knew her or were known to her. All
this is in strong contrast, for example, to the corroborative testimony of the
building manager who heard Jackson yell to her assailant, “I know who you are,”
and of Satira Shank to whom appellant admitted shooting Jackson because she was
a snitch. Mack‟s possession of the same gun six weeks later, which said nothing
about whether he possessed it at the time Jackson was shot, “might have changed
the outcome of the trial” to a jury learning of it, but that “is not the standard that
[appellant] must satisfy in order to obtain relief.” Strickler, 527 U.S. at 289
(emphasis added). In light of Jackson‟s unequivocal, corroborated identification, I
find it exceedingly hard to say that a jury apprised of the ballistics match and little
or nothing more “could reasonably [have] taken [that evidence] to put the whole
case in such a different light as to undermine confidence in the verdict.” Kyles v.
Whitley, 514 U.S. 419, 435 (1995) (emphasis added).
I nonetheless agree with the remand, for two reasons. First, the evidentiary
hearing should remove any residual unclarity as to what if anything, beyond the
ballistics match, appellant is able to present as a link between Mack and Andrews
41
and the Jackson shooting. And second, in arguing the lack of Strickland prejudice
and Brady materiality so far, the government has relied heavily on proffered
rebuttal evidence that we are in no position yet to evaluate. Its stated reason why
the ballistics evidence “does not cast meaningful doubt on the verdict [is] because
the government would have responded with damning evidence tying appellant to
the murderers of Mr. Rivers” (Brief for Appellee at 37). But, as the court points
out, the nature and admissibility of that evidence has not been determined yet.
Thus, while I am not nearly so certain as the court is that “[w]ithout . . . the
[admissible] rebuttal evidence . . . we cannot say there is no reasonable probability
that the outcome of appellant‟s third trial would have been different had his
counsel presented the ballistics comparison,” ante at 28-29, I agree that resolution
of the Strickland prejudice and Brady materiality issues should await the further
development of the record.