Bellinger v. United States
| Citation | 294 A.3d 1094 |
| Docket Number | 19-CO-0745 |
| Decision Date | 25 May 2023 |
| Parties | Kevin M. BELLINGER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Michael J. Anstett, with whom Karen T. Grisez, Washington, DC, was on the brief, for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time, Elizabeth Trosman, Elizabeth H. Danello, Diane Lucas, James Sweeney, and Patricia A. Heffernan, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly, Deahl, and AliKhan, Associate Judges.
Kevin Bellinger was convicted of assault with intent to kill while armed and related offenses connected to the shooting of Lorraine Jackson. After Bellinger was convicted, he learned of ballistics evidence suggesting that the same gun used to shoot Jackson had been used in a homicide six weeks later in the same neighborhood. Based on this new evidence, Bellinger challenged his conviction under D.C. Code § 23-110, arguing that the government had violated its Brady obligations by failing to turn over the ballistics evidence. He also contended that his trial lawyer, Phyllis Baron, effectively knew of the ballistics match and provided ineffective assistance of counsel when she failed to use it to advance a third-party perpetrator defense at trial. The trial court rejected those arguments and Bellinger now appeals. We affirm.
The Jackson shooting
Jackson was a paid police informant who provided information about various crimes in the 18th and D Streets Northeast area. In May 2000, Jackson called the police to report that Bellinger and a friend were playing with guns in front of a building on the 400 block of 18th Street Northeast. When the police arrived, Bellinger and his friend fled, but Jackson did not. When Bellinger returned, Jackson thought he seemed suspicious about the fact that she had not fled, which made her nervous.
Two days later, in the early hours of the morning, Jackson purchased some crack cocaine and was on her way to a friend's house to smoke it. As she walked down an alley leading to the home's back entrance, the following sequence of events happened (according to Jackson's testimony): Jackson saw someone walking toward her but could not tell who it was at first, because the alley was poorly lit. She soon recognized the person as Bellinger because of his build and his walk. She also saw his face when he passed under a streetlight in the middle of the alley. Jackson knew Bellinger well. She had known him for years—he had even lived with her for six months—and she testified that she recognized him "just like I know my own child." When Bellinger was about six feet away from Jackson, he pulled out a gun and repeatedly shot her. Jackson turned around to run and fell to the ground. She was hit by six bullets in her arm, legs, neck, and back. As Bellinger was leaving, Jackson shouted after him, The police arrived shortly afterward and Jackson was taken to the hospital.
Bellinger ’s trials and conviction
Bellinger was arrested and charged with assault with intent to kill while armed, possession of a firearm during the commission of a crime of violence or dangerous offense, carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition.
Bellinger was tried three times, with the first two trials ending in hung juries. At Bellinger's first trial, in May 2001, the jury was deadlocked at 6-6. The Public Defender Service (PDS) attorney who was representing him withdrew after the trial, in September 2001, because of an unspecified conflict of interest, and the trial judge appointed Phyllis Baron as counsel. Bellinger was tried again in February 2002. That trial also ended in a mistrial, with the jury voting 10-2 for acquittal.
Bellinger, still represented by Baron, was tried a third time in April 2002. The government argued that Bellinger had shot Jackson because she had reported him to the police two days earlier. Bellinger's defense was that Jackson had misidentified him based on a quick interaction in a poorly lit alley, and he called three alibi witnesses who testified that they had seen Bellinger outside of a club at the time Jackson was shot. At this third trial, the jury convicted Bellinger of all five counts, and he received an aggregate sentence of 20 years to life. Bellinger appealed, and we affirmed his convictions.
The ballistics evidence
Several months after the third trial but before sentencing, Bellinger fired Baron and retained Jenifer Wicks as counsel. Wicks filed an ex parte motion seeking access to certain firearm and ballistics evidence from the Metropolitan Police Department (MPD). She represented that Bellinger's PDS counsel had withdrawn after the first trial because "the defense had learned" that a gun recovered from another PDS client, Randall Mack, and linked to a homicide of a man named Deyon Rivers "should match" the gun used to shoot Jackson.1 Wicks proffered that the two shootings were six weeks apart, in the same neighborhood, and that Mack was acquainted with Jackson and knew she was a police informant. Therefore, she argued, a ballistics match would have enabled Bellinger to advance a third-party perpetrator defense, see Winfield v. United States , 676 A.2d 1 (D.C. 1996) (en banc), implicating Mack as the person who had shot Jackson.
The trial court granted that motion and ordered MPD to make the firearm and ballistics evidence from the two cases available to Bellinger in August 2002. The government did not turn over that evidence until September 2006, more than four years later. By that time, Wicks had been replaced by attorneys at Fried, Frank, Harris, Shriver & Jacobson, LLP, who were appointed as pro bono counsel and who represent Bellinger in this appeal. Bellinger's firearms expert examined the evidence and, in a report issued in November 2006, opined that the same firearm used to shoot Jackson had also been used in Rivers's murder.
Bellinger ’s motion to vacate his conviction
Five years after that report was issued, in November 2011, Bellinger filed a motion for a new trial under D.C. Code § 23-110, the District's collateral review statute. Bellinger argued that the government had failed to disclose the exculpatory ballistics evidence in violation of its obligations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While Bellinger did not contend that anybody in the government had been aware of the ballistics match at the time of the trials, he argued that there were sufficient clues that the two shootings were connected such that the government should have investigated the possibility of a ballistics match. Their failure to do so and to turn over evidence of the ballistics match that they should have found, he argued, violated Brady .
On similar grounds, Bellinger argued that his trial counsel had rendered ineffective assistance. To support this claim, Bellinger argued that Baron knew of a potential ballistics match and that her decision not to investigate this lead further, and not to present a Winfield defense blaming Mack for the shooting, was objectively unreasonable. He further argued that, had Baron presented that defense, there was a reasonable probability he would not have been convicted. The government countered that it could have met any Winfield defense with powerful rebuttal evidence that both Bellinger and Mack were affiliated with the 18th and D Street crew, whose members shared guns. That meant, in the government's view, that it was a reasonable strategic decision for Baron not to present a Winfield defense because it was unlikely to succeed and it would have opened the door to this damaging evidence. Without holding an evidentiary hearing, the trial court summarily denied Bellinger's motion. Bellinger appealed.
This court remanded for the trial court to hold a hearing on Bellinger's ineffective assistance claim. Bellinger v. United States , 127 A.3d 505, 509 (D.C. 2015) (). We directed the court on remand to focus on the credibility of Bellinger's assertions that Baron had known about the ballistics match and on what admissible evidence the government could have used to rebut a Winfield defense. Id. at 519. We determined there was no abuse of discretion in the trial court's denial of the Brady claim because Bellinger had not alleged that the government actually knew of the ballistics match. Id. at 520-21. We nonetheless directed the trial court to allow Bellinger to conduct limited discovery on this issue and to reconsider the Brady claim if Bellinger found evidence that the government actually knew of the match. Id. at 523.
The evidentiary hearing
After further discovery, the trial court held an evidentiary hearing in December 2018. Bellinger called three witnesses: Wicks, Bellinger's previous counsel who had first requested that the MPD turn over the ballistics information; Detective Norma Horne, one of the four police officers who had investigated the Jackson shooting; and Bellinger himself. Bellinger also introduced an affidavit from the court-appointed investigator who had worked with Baron on Bellinger's case. The investigator stated that, other than serving subpoenas, he did not perform any investigative work on the case.
Detective Horne testified that she was part of a "core group" of four officers who focused on crime in the area of 18th and D Streets. Because she worked on non-homicide shootings, whereas homicides were handled by a different division, Horne had worked on the Jackson investigation but not on the Rivers case. Horne believed that, due to the high volume of shootings in the District, it was MPD policy not to...
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