Bellinger v. United States, 13–CO–252.

• Decision Date: 25 November 2015
• Docket Number: No. 13–CO–252.,13–CO–252.
• Parties: Kevin M. BELLINGER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

127 A.3d 505

Kevin M. BELLINGER, Appellant,

v.UNITED STATES, Appellee.

No. 13–CO–252.

District of Columbia Court of Appeals.

Argued Feb. 12, 2015.

Decided Nov. 25, 2015.

Michael J. Anstett, with whom Douglas W. Baruch, Washington, DC, 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.

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 This court affirmed his convictions on direct appeal in 2007, in an unpublished decision.² Now before us is appellant's appeal from the summary denial of his post-conviction motion alleging ineffective assistance of counsel and Brady³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 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 "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 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

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.

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.

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 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

Relying in part on information set forth in the opinion of this court in Andrews v. United States,⁹ appe...