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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-CO-688

                         PATRICK F. ANDREWS, APPELLANT,
                                                                         02/22/2018
                                         V.

                             UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (FEL5460-00)

                      (Hon. Ronna Lee Beck, Motions Judge)

(Argued November 30, 2016                              Decided February 22, 2018)

      Michael S. Bailey, with whom Donald P. Salzman and Michael A. McIntosh
were on the brief, for appellant.

      Lauren R. Bates for appellee.

        Channing D. Phillips, United States Attorney at the time the brief was filed,
with whom Elizabeth Trosman, John P. Mannarino, T. Anthony Quinn, Stephen F.
Rickard, and Ann K. H. Simon, Assistant United States Attorneys, were on the
brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge,* and WASHINGTON** and

      *
         Chief Judge Blackburne-Rigsby was an Associate Judge of the court at the
time of argument. Her status changed to Chief Judge on March 18, 2017.
      **
           Judge Washington was Chief Judge of the court at the time of argument.
                                                                  (continued . . .)
                                          2

STEADMAN, Senior Judges.

      WASHINGTON, Senior Judge: On May 15, 2002, a jury convicted appellant

Patrick F. Andrews and his co-defendant, Randall Mack, of the first-degree

premeditated murder while armed of Deyon Rivers, and of additional firearms

related offenses arising out of the shooting.       Appellant filed both direct and

collateral appeals, which were affirmed and denied respectively. In this appeal, his

second collateral appeal, appellant raises two new constitutional claims: a Brady1

claim for the government‟s suppression of statements by a critical witness, and

ineffective assistance of counsel claims for his trial attorney‟s conflicts of interest

with two possible third party perpetrators. The trial court granted an evidentiary

hearing on these issues but ultimately denied appellant‟s § 23-110 motion. For the

reasons stated below, we affirm.




(. . . continued)
His status changed to Senior Judge on March 20, 2017.
      1
          Brady v. Maryland, 373 U.S. 83 (1963).
                                         3

                                         I.



                          The Murder of Deyon Rivers



      Appellant and Mack were convicted of the July 7, 2000, first-degree

premeditated murder of Deyon Rivers, while Rivers sat in his car near the corner of

18th and C Streets, N.E. We affirmed appellant‟s conviction on direct appeal, and

denied his subsequent request for relief alleging ineffective assistance of counsel.

See Andrews v. United States (Andrews I), 922 A.2d 449 (D.C. 2007); Andrews v.

United States (Andrews II), No. 07-CO-867, Mem. Op. & J. (D.C. June 3, 2008).



      The shooting of Rivers occurred in the wake of an altercation the previous

day between Rivers and David Braddy, who was a friend of both appellant and

Mack. Braddy had complained to appellant and Mack that Rivers, who did not live

in the neighborhood, had shot “bottle rockets,” one of which had almost hit

Braddy‟s girlfriend. Braddy was angry about the incident, but the altercation

ended without violence.



      At the time of the confrontation between Rivers and Braddy, the latter was

purportedly in the company of Morris Jones, then fifteen years old. Jones, who
                                         4

suffered from a learning disability as well as low intellectual functioning and

substance abuse, was a principal prosecution witness at the trial. According to

Jones, he and Braddy spoke with appellant and Mack shortly after Braddy‟s

encounter with Rivers, where Braddy told them what had occurred. Later in the

evening, well after midnight, Jones and Braddy were sitting on the porch of

Braddy‟s home, drinking alcohol and smoking marijuana. According to Jones,

Braddy received a telephone call and went into the house, leaving Jones alone on

the porch. After Braddy‟s departure, Jones saw a car pull up to the corner of 18th

and C Streets. He recognized the driver as the individual who had fired the “bottle

rocket” near Braddy‟s girlfriend. At this point, appellant and Mack came out of an

alley and fired handguns into the vehicle. Jones further testified that he and

Braddy encountered appellant on the following day and inquired about the events

of the previous night. Appellant told them that he had seen “a suspicious car

coming down the street,” that he had become “paranoid or something like that,”

and that he had shot at the car. Jones is the sole witness to place appellant at the

crime scene; there was no forensic evidence linking appellant to the murder.2



      2
        We expressed skepticism in appellant‟s first appeal as to the government‟s
motive that would have led appellant and his codefendant to kill Rivers, noting that
“an incident with a firecracker which could have struck, but did not strike,
someone else’s girlfriend is . . . „something of a stretch.‟” Andrews I, 922 A.2d at
463 (emphasis in original).
                                         5

      On July 21, 2000, approximately two weeks after the shooting, an officer

observed an unoccupied burgundy-colored Cadillac in the 300 block of 17th Place,

N.E., with an expired rear paper license tag. The officer opened the door of the

Cadillac, (which, remarkably, was unlocked) for the purpose, inter alia, of

checking the tag against the VIN number. Inside the vehicle, he observed a black

ammunition magazine protruding beneath the driver‟s seat in plain view. The

officer called for Crime Scene Search Officers, and they subsequently recovered a

Glock 17 semi-automatic pistol loaded with a single round of ammunition, as well

as a clip containing 26 rounds. This weapon was ultimately identified as having

fired fourteen of the sixteen spent cartridges recovered near Rivers‟ body.



      Inside the car, officers found a number of items linking it to appellant.

These items included: (1) a vial of prescription medicine in appellant‟s name; (2)

an envelope addressed to appellant; (3) several traffic citations for moving

violations, all issued to appellant; and (4) an empty bottle of Vodka with

appellant‟s right palm print on it. The registration was in the name of Deon Long,

who was the girlfriend of a friend of appellant. She testified appellant had asked

her to “sign for” a loan for a car that appellant wanted to buy. Ms. Long signed the

paperwork, and appellant took possession of the vehicle.        Evidence was also

recovered that suggested individuals other than appellant used the vehicle: (1) a
                                        6

hotel receipt with Octavian Brown‟s name on it, (2) a probation report and referral

for drug and alcohol testing for Douglas Quander, and (3) an empty bottle of

Vodka found in the Cadillac with twelve usable prints, two of which matched

appellant.



      While Jones did not report the shooting to police, investigating officers

apparently learned that he may have been a witness. On August 22, 2000, the

police brought him to the United States Attorney‟s Office for questioning. By this

time, appellant and Mack were the primary suspects because police had recovered

the two pistols with which the decedent had been shot to death and each weapon

had been in the possession of one of the two defendants. Jones initially told the

police that he knew nothing about the shooting, but after being questioned for

approximately three hours, Jones identified appellant and Mack as the shooters.

He was immediately taken before the grand jury, where he repeated his

identification of the defendants.



      At trial, Mack presented the testimony of James Braddy, David Braddy‟s

father. According to James Braddy, he, his wife, and his son were inside the house

watching television for a “couple of hours” prior to the shooting. When he heard

shots, James Braddy went to the porch to investigate, and Jones was not there.
                                            7

Indeed, James Braddy testified that he had not seen Jones anywhere, either that

night or on the previous day. He, however, admitted that he had retired upstairs for

bed thirty minutes prior to the shooting.



            David Braddy’s Statements and Grand Jury Testimony



      The government did not call David Braddy to testify at trial, instead relying

on Jones‟s testimony. Appellant and his codefendant also did not call Braddy to

testify in part due to his refusal to speak with defense counsel and their

investigators prior to the trial.   However, the government had both Braddy‟s

videotaped statements to police and his grand jury testimony in its possession. The

government only disclosed limited statements as part of its Brady obligation,

noting a single contradiction between David Braddy and Jones‟s accounts;

specifically, Braddy was home alone on the night of the shooting. Braddy‟s grand

jury testimony, however, differed markedly from Jones‟s trial testimony.

Appellant notes six major contradictions, where either Braddy excludes Jones‟s

presence from key events or Braddy‟s account markedly differs from Jones‟s. In

addition, Braddy‟s videotaped interview with police contradicted his grand jury

testimony in several respects.
                                       8



                     Co-defendant Randall Mack’s Retrial3



      Although the government failed to disclose Braddy‟s statements for

appellant and co-defendant Mack‟s original trial, the government disclosed the

testimony in Mack‟s retrial. Mack‟s defense opted this time to call Braddy to

testify. Braddy testified that Jones was not present the night of the shooting.

Mack‟s defense argued Jones was not to be believed and that Jones and Braddy

intentionally lied to blame appellant and Mack for the murder. The jury was

unable to return a verdict, and the court ordered a mistrial. After the mistrial,

Mack pled guilty to second-degree murder. See United States v. Mack, 2000-FEL-

5243 (D.C. Super. Ct. Jan. 8, 2010).



               Appellant’s Second § 23-110 Evidentiary Hearing



      On March 21, 2014, appellant filed a second § 23-110 motion presenting

two new ineffective assistance of counsel (“IAC”) claims, a claim of actual


      3
         We reversed Mack‟s conviction finding that the trial court erred in
redacting an exculpatory portion of Mack‟s statement introduced by the
government. Andrews I, 922 A.2d at 458-64.
                                        9

innocence,4 and a Brady claim.      Judge Ronna L. Beck held four evidentiary

hearings from December 2014 through February 2015.



      At the hearing, Jenifer Wicks, appellant‟s trial counsel, testified that she

worked to develop Braddy as an alternate perpetrator but decided against calling

him as a witness because he refused to speak with the defense and she did not

possess his grand jury testimony.     She testified that statements about Rivers

tracking Braddy down and threatening him made Braddy a more credible alternate

perpetrator. Had the government disclosed his statements, she would have called

Braddy as a defense witness. Wicks further testified that appellant admitted to her

that he was one of the two people who shot Rivers.



      On May 20, 2015, the trial court denied all of appellant‟s claims in a

comprehensive order issued from the bench. In regards to appellant‟s Brady claim,

the trial court found Braddy‟s grand jury testimony and video statements both

favorable to the defense and suppressed, satisfying the first two prongs of Brady.5


      4
          D.C. Code § 22-4131 (2013 Repl.).
      5
         The trial court identified five classes of impeachment and exculpatory
evidence: (1) Braddy contradicts Jones‟s presence at his house the night of the
shooting in several respects; (2) Jones‟s and Braddy‟s accounts of appellant‟s
alleged confession differed; (3) Braddy contradicts Jones‟s presence at the
                                                                (continued . . .)
                                         10

However, the trial court found the statements immaterial. In doing so, the trial

court expressed its skepticism that Wicks would have called Braddy to testify at

appellant‟s trial and discredited her testimony to that effect. The trial court found

that Wicks already knew that Braddy contradicted Jones‟s presence at his house

the night of the shooting, although it was only later that she learned that Braddy

had very serious harmful testimony to add to the government‟s case.6

Additionally, Wicks was still able to elicit contradictions in Jones‟s testimony

through the testimony of James Braddy without David Braddy. The trial court

rejected any implication from Mack‟s mistrial, where Braddy testified for the

defense, because Braddy did not have comparably incriminating testimony

regarding Mack as he did of appellant.        The trial court held that “under the

circumstances, no one can honestly say that it is reasonably probable that the trial

would have had a different result given the double-edge sword represented by

Braddy‟s testimony.”

(. . . continued)
fireworks incident; (4) Braddy‟s account of the fireworks incident also differed
from Jones‟s; and (5) Jones testified that Braddy said he wanted to kill Rivers, but
Braddy never testifies to wanting to kill Rivers.
      6
         The trial court identified six harmful facts: (1) Braddy‟s testimony that his
father told him that a person whom he saw running from the scene of the shooting
looked like appellant; (2) appellant‟s confession to Braddy; (3) appellant requested
Braddy hold onto one of the murder weapons; (4) Braddy saw appellant with the
murder weapon all the time; (5) appellant regularly drove the Cadillac; and (6)
appellant and Mack hung out all the time.
                                          11



                                          II.



      Appellant alleges two constitutional violations on appeal:      (1) a Brady

violation associated with the government‟s suppression of David Braddy‟s

statements, which the trial court found immaterial, and (2) a Sixth Amendment

right to the effective assistance of counsel resulting from appellant‟s conflict of

interest with two potential alternate perpetrators.



                                         III.



      The government‟s obligation to disclose material evidence favorable to the

accused arises from the Due Process Clause‟s purpose of preventing miscarriages

of justice. See Brady, 373 U.S. at 87. It is, however, the appellant who shoulders

the burden of proving the three prongs of a Brady violation. Mackabee v. United

States, 29 A.3d 952, 959 (D.C. 2011). An appellant must show that evidence in

question (1) “is favorable to the accused”;7 (2) “was possessed and suppressed by

the government, either willfully or inadvertently”; and (3) is material to guilt or


      7
         Favorability includes exculpatory and impeachment evidence. See Giglio
v. United States, 405 U.S. 150, 154-55 (1972).
                                          12

punishment. Vaughn v. United States, 93 A.3d 1237, 1254 (D.C. 2014) (citation

and internal quotation marks omitted).



        Under Brady, evidence is material “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Miller v. United States, 14 A.3d 1094, 1115 (D.C. 2011)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A „reasonable

probability‟ is a probability sufficient to undermine confidence in the outcome.”

Mackabee, 29 A.3d at 959 (quoting Bagley, 473 U.S. at 682). It is a fairness

inquiry of the ultimate verdict that courts must address. The Supreme Court has

clarified that materiality is not a “sufficiency of [the] evidence test.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995). Rather, a defendant demonstrates a Brady

violation “by showing that the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.”

Id. at 435 (footnote omitted). Materiality is assessed by the cumulative effect of all

suppressed evidence favorable to the defense, not item-by-item.           Id. at 436.

Suppressed evidence may be evaluated for its tendency and force item-by-item, but

only the cumulative effect is evaluated for the purposes of materiality. Id. at 436

n.10.
                                        13

      Here, the trial court‟s analysis of appellant‟s Brady claim proceeded as

follows: (1) the court reviewed the Brady disclosures made by the government; (2)

it determined that the government suppressed favorable evidence; (3) it gave five

examples of favorable suppressed evidence; (4) it then discredited appellant‟s trial

attorney‟s testimony that she would have used the suppressed statements in

appellant‟s defense; (5) it gave six examples of unfavorable statements; and finally

(6) the court concluded that due to the “double-edge sword” represented by the

suppressed statements there was no reasonable probability that the trial would have

resulted in a different outcome. This review, however, is improper as step four is

inconsistent with the Brady materiality analysis. Whether a trial attorney would

have actually used suppressed Brady evidence or whether the defendant could

demonstrate actual use is irrelevant once evidence is found to be favorable and

suppressed. Thus, such a consideration was erroneous.



      In its brief, the government supports the trial court‟s unique Brady analysis

by citing to Mackabee and Cotton v. United States, 388 A.2d 865 (D.C. 1978).8


      8
         Specifically, the government argues “[e]vidence that information . . .
would have had some effect on the proceeding . . . is a necessary factual predicate
to the larger question of whether cognizable prejudice „ensued‟ from the
government‟s failure to disclose the information.” Where a defendant “failed to
show that disclosure would have had any effect, the question of cognizable
prejudice simply does not arise.” The government avers that, even if appellant‟s
                                                                   (continued . . .)
                                        14

We fail to see how either of these cases supports the trial court‟s analysis here.

Mackabee, for instance, involved the late disclosure—one week prior to trial—of a

witness who failed to identify Mackabee from a photograph array, but instead,

identified two other individuals whom the witness believed looked like the

shooter.9 29 A.3d at 956-57. Mackabee argued the untimely disclosure cost him

the opportunity to present the witness‟s “exculpatory testimony” at trial; we

disagreed. Id. at 962. Mackabee‟s claim rested on the mere possibility that his

defense might have located the witness, might have located the two men identified

as looking like the shooter, and might have uncovered information to undermine

the government theory that Mackabee was the assailant. Id. This mere possibility,

the court held, was not shown to be a reasonable probability of a different result

had the disclosure occurred earlier. Id. at 964. Mackabee appropriately applies the


(. . . continued)
trial attorney possessed Braddy‟s statements, she never would have risked calling
him to testify or using his statements at trial, and as such, appellant did not
demonstrate that the suppression had any effect on his trial.
      9
            Mackabee also appealed the late disclosure of a videotaped police
interview of an eyewitness‟s account to a murder, who gave an exculpatory
description of the perpetrator. Mackabee, 29 A.3d at 956-57. The defendant
argued the late disclosure of the videotaped interview amounted to a Brady
violation because his defense lacked the opportunity to use the evidence effectively
at trial. Id. at 958. The court disagreed, finding his counsel knew of the witness a
year prior to trial, his counsel did in fact make effective use of the videotape
evidence at trial, and the defendant did not advance, given the record, how his
counsel could have used its contents any more effectively at trial. Id. at 959-60.
                                             15

Kyles materiality test to entirely speculative claims. Id. at 964-65 (“[T]he evidence

that appellant was the shooter was strong (if not overwhelming), and the matters

discussed above do not undermine our confidence in the outcome of appellant‟s

trial.”).   The court never demanded Mackabee prove the suppressed evidence

would have been used at trial; rather, it dismissed the remote possibility that

unknown favorable evidence could have been discovered had timely disclosure

occurred. Here, the trial court permissibly recognized the benefits and potential

disadvantages of Braddy‟s suppressed statements. The trial court‟s materiality

analysis, however, should have then appropriately proceeded to consideration of

that evidence in light of the entire record, without speculation as to defense

counsel‟s actual use of that evidence and without making a finding as to trial

counsel‟s credibility. Indeed, in a usual Brady setting, there will be no testimony

from trial counsel relative to use of the suppressed evidence and the trial court will

proceed directly to the materiality issue.



       Cotton offers even less support because the Brady issue there involved

favorability and not materiality.10 Cotton argued, under Brady, that the trial court


       10
           Only in the very last sentence of Cotton does the court address
materiality. 388 A.2d at 873 (“The strength of the eyewitness identifications of
appellant renders it unlikely that the questionable array was of sufficient
materiality to establish a denial of appellant‟s due process rights.”).
                                          16

should have granted him a midtrial evidentiary hearing to explore the

circumstances surrounding a witness‟s pretrial identification of Cotton (given

conflicting trial testimony as to when a photographic identification occurred in

relation to the robbery) and to determine the identity of the suspect the witness

identified. Cotton, 388 A.2d at 872. The court rejected Cotton‟s argument because

it was pure speculation that the witness identified someone other than Cotton 11 and

the remote possibility of favorable evidence was insufficient. Id. at 873. Here, the

lower court already concluded that the evidence suppressed by the government was

favorable; Cotton, therefore, is inapplicable.



      Mackabee and Cotton aside, the Supreme Court has said the purpose of

Brady “is not to displace the adversary system as the primary means by which truth

is uncovered, but to ensure that a miscarriage of justice does not occur.” Bagley,

473 U.S. at 675 (footnote omitted).       A prosecutor‟s obligation is to disclose

evidence favorable to the accused that would deprive the defendant of a fair trial if

suppressed. Id. Compliance with this obligation, therefore, does not turn on

      11
           The witness‟s identification was also based on sources independent of the
disputed pretrial photographic array: she saw Cotton in the area where she lived
prior to the robbery, she paid particular attention to him at the robbery because she
thought he was attractive, and she made prompt identification of Cotton the day
after the robbery. Cotton, 388 A.2d at 872. Additionally, there were two other eye
witnesses and the prosecutor did not rely on the disputed photographic
identification in closing arguments. Id.
                                          17

speculation as to whether a defendant will use the disclosed evidence at trial. It is

realistic that, in order to ensure a fair trial, Brady demands the timely disclosure of

certain exculpatory or impeachment evidence, which may not ultimately fit with

the defense‟s theory at trial, and for some other reason, may not be used at trial.

Nonetheless, materiality requires that a trial judge examine the withheld evidence

“in the context of the entire record, and determine in light of that examination”

whether the withheld evidence puts the trial in a different light so as to undermine

confidence in the verdict. Turner v. United States, 137 S. Ct. 1885, 1893 (2017)

(internal citation omitted). It is the inculpatory evidence admitted at trial against

which a court must consider the suppressed evidence in order to determine whether

“there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Miller, 14 A.3d

at 1115 (quoting Bagley, 473 U.S. at 682).12



      Though the trial court improperly considered the actual use or non-use of the


      12
          “[A] showing of materiality does not require demonstration . . . that
disclosure of the suppressed evidence would have resulted ultimately in the
defendant‟s acquittal . . . .” Kyles, 514 U.S. at 434 (citation omitted). “A
defendant need not demonstrate that after discounting the inculpatory evidence in
light of the undisclosed evidence, there would not have been enough left to
convict.” Id. at 434-35. Nor must a defendant demonstrate that “some of the
inculpatory evidence should have been excluded.” Id. at 435.
                                         18

suppressed evidence by defense counsel as part of its Brady analysis, we are

satisfied that such error was harmless as there is no reasonable probability that had

Braddy‟s grand jury testimony been disclosed, the result of the proceeding would

have been different. The materiality question itself is a legal conclusion, in which

we review de novo. Turner v. United States, 116 A.3d 894, 915 (D.C. 2015), aff’d,

137 S. Ct. 1885 (2017).


             Therefore, while we defer in this case to the motions
             judge‟s assessments of credibility, evaluations of the
             weight of the evidence and the inferences to be drawn
             therefrom, and findings of historical fact, so long as they
             have record support, we respect, but we do not accord
             comparable deference to, the judge‟s determination of the
             ultimate question of Brady materiality.

Id.

      The trial court identified five areas of impeachment evidence relating to

Jones‟s testimony that it considered to be favorable to the appellant, including (1)

Braddy‟s contradiction of Jones‟s presence at his house on the night of the

shooting, (2) differences in Braddy‟s and Jones‟s accounts of appellant‟s alleged

confession, (3) Braddy‟s contradiction of Jones‟s presence at the fireworks incident

with Rivers, (4) differences in Braddy‟s and Jones‟s explanations of the fireworks

incident, and (5) Braddy‟s failure to testify that he wanted to kill Rivers, thereby

contradicting Jones‟s testimony that Braddy had made those comments. With

respect to the first, the record reveals that it was largely cumulative of other
                                          19

impeachment evidence appellant possessed and had used at trial.             “Although

impeaching information does not have a lesser standing in the context of the

government‟s Brady disclosure obligations than affirmatively exculpatory

information, it can be immaterial . . . if it is cumulative and the witness has already

been impeached by the same kind of evidence.” Id. at 922 (footnotes and internal

quotation marks omitted). James Braddy, Braddy‟s father, testified that he, his

wife, and his son were inside their home at the time of the shooting, watching

television. Andrews I, 922 A.2d at 453. When James Braddy heard the gunshots,

he went to his porch and did not see Jones anywhere in sight. See id. Moreover,

he “had not seen Jones anywhere, either that night or on the previous day.” Id.

Had Braddy testified, he would have provided the same account as his father: that

no one was present in the immediate area of his home when he and his father went

outside to the porch to investigate the gunshots.



      As to the remaining evidence, while Braddy‟s testimony would have

contradicted Jones‟s testimony regarding certain key conversations and events that

occurred both prior to and after the shooting, the evidence would largely have been

a further impeachment of Jones‟s testimony. However, Jones‟s testimony had

already been significantly impeached and his flaws as a witness exposed, so the

question is one of degree. Here, had Braddy testified, appellant could have used
                                          20

Braddy‟s account of the fireworks incident and alleged confession to impeach

Jones regarding what amounted to discrepancies in the details. However, his

testimony also would have corroborated Jones‟s testimony that many of those

incidents actually occurred.     Most notably, Braddy‟s testimony would have

corroborated Jones‟s testimony that appellant confessed to being involved in the

shooting, that Rivers had been killed in his car, and that appellant was present

when Braddy described the fireworks incident.



      Considering this evidence in the context of the entire record, we are

convinced that there is no reasonable probability that disclosing such information

would have produced a different outcome at trial. The jury was well aware of the

flaws in Jones‟s testimony and his overall credibility as a witness. Andrews I, 922

A.2d at 462. Thus, we have difficulty giving significant weight to any further

undermining of Jones‟s credibility especially in light of the other evidence

presented at trial including the fact that two weeks after the shooting, MPD officers

“recovered a Glock 17 semi-automatic pistol loaded with a single round of

ammunition, as well as a clip containing 26 rounds” from a burgundy-colored

Cadillac, id. at 454; that a disinterested witness testified that she had signed a loan

for the car on behalf of appellant; that MPD officers discovered a number of items

linking appellant to the car; and an MPD firearms examiner testified that after
                                        21

testing, it was determined that fourteen of the sixteen cartridges recovered near

River‟s body were fired from the Glock that was found in appellant‟s Cadillac.13

Id.



      We are even less persuaded that Braddy‟s grand jury testimony was material

when we review it without separating the five favorable facts from the six the trial

court deemed harmful to appellant‟s case. For example, Braddy‟s testimony would

have provided further corroboration that appellant regularly drove the Cadillac

where one of the murder weapons was recovered, that appellant frequently had that

weapon in his possession, that appellant had confessed his role in the shooting to

friends, and that he and Mack regularly spent time together. Moreover, Braddy‟s

testimony would have included the fact that his father told him he had looked out

of his second-story bedroom window and saw someone running from the scene of

the shooting that resembled appellant.       While Braddy‟s father subsequently

provided a defense investigator with a statement contradicting his earlier

identification of appellant as the person he saw running, had Braddy testified about

his conversation with his father, there would have been evidence that a second, and

arguably more credible, eyewitness inculpated appellant in the murder. In light of


      13
         But see Gardner v. United States, 140 A.3d 1172, 1177-78 (D.C. 2016);
Williams v. United States, 130 A.3d 343, 351 (D.C. 2016) (Easterly, J. concurring).
                                        22

the “double-edged” nature of the evidence, when compared to the strong case

against appellant, we are unpersuaded that had this evidence not been suppressed

there is a reasonable probability that the outcome of appellant‟s trial would have

been different.



      Nor is our materiality assessment swayed by the jury‟s inability to reach a

verdict in Mack‟s retrial. While Braddy testified in Mack‟s second trial, appellant

fails to account for the fact that Braddy did not have remotely comparable

incriminating testimony regarding Mack that he did of appellant. Braddy‟s grand

jury testimony regarding Mack related to two areas:         (1) appellant‟s alleged

confession and, (2) Mack‟s possession of one of the murder weapons. As to the

first, in the grand jury Braddy testified that after appellant confessed to the

shooting, he had a conversation with Mack. Braddy explained he advised Mack of

appellant‟s confession and Mack responded that appellant “told me the same

thing.” Braddy further attested that Mack never told him that he was present at the

time of the shooting or in a position to observe the shooting. Braddy also testified

to his observations of Mack‟s possession of the murder weapons. He explained

that he saw Mack “with the larger gun” once before the shooting but that he held

the other handgun “most of the time.” This testimony had far less an incriminating

impact on Mack than Braddy‟s testimony regarding appellant.
                                        23



      Most notable, however, is the absence of Courtney Burley‟s testimony in

Mack‟s retrial. At the original trial in 2002, Burley was one of the primary

government witnesses implicating Mack, not appellant, in the shooting. Burley, a

juvenile with an extensive delinquency record, testified that on the night of the

shooting he encountered Mack in an alley near 23rd and C Streets, N.E. Andrews

I, 922 A.2d at 453. As he approached Mack, who was in a concealed position,

Mack told him “that it was about to get hot out there because of some gangster

shit.” Id. (internal quotation marks omitted). Burley called his brother to pick him

up, who arrived approximately fifteen minutes later. Id. As the two drove away,

Burley testified he heard the sound of gunshots. Id. On the day following the

shooting, Burley again ran into Mack.        Id. “In response to Burley‟s inquiry

regarding what had occurred the previous night, Mack allegedly stated that he had

been „shooting.‟” Id. At Mack‟s retrial, Burley completely recanted his original

trial testimony. The absence of this highly inculpatory testimony as well as the

presence of Braddy‟s testimony, which did not have a remotely comparable

incriminating effect on Mack as it did on appellant, leads us to conclude that

Mack‟s retrial has no bearing on our materiality determination in appellant‟s case.
                                          24

      On the basis of our review of the record, we agree with the trial court that

there is not a reasonable probability that the withheld evidence would have

changed the outcome of appellant‟s trial. While we find the trial court‟s error was

harmless after a proper Brady analysis, we remind the trial court that a proper

materiality evaluation precludes it from considering the actual use of the

suppressed evidence and substituting its judgment for that of defense counsel.



                                         IV.



      Appellant also raises two new IAC claims in his second § 23-110 motion

that center on his trial counsel‟s alleged conflicts of interest from her simultaneous

representation of Kevin Bellinger and acceptance of compensation from Octavian

Brown, two possible alternative perpetrators.       We find appellant‟s arguments

unpersuasive and affirm the trial court‟s ruling.



      At the § 23-110 evidentiary hearing, Jenifer Wicks was questioned regarding

her alleged conflicts with Kevin Bellinger and Octavian Brown. At one of their

first meetings, appellant informed Wicks that one of the handguns used in the

Rivers murder was the same gun used by Bellinger in an earlier non-fatal shooting

that occurred on May 26, 2000. Bellinger was eventually convicted in connection
                                         25

with that earlier shooting on April 5, 2002, and, within a few days, contacted

Wicks requesting her representation during his sentencing and post-trial

proceedings.14 Wicks visited Bellinger in jail a few days later and they discussed

possible representation and fee arrangements, but it wasn‟t until after appellant‟s

trial had concluded in May of 2002 that Wicks formally agreed to represent

Bellinger during his sentencing and post-conviction proceedings and entered her

appearance.



      Appellant alleges that when Wicks met with Bellinger an actual conflict of

interest was created. He argues that Wicks used confidential information regarding

the weapon, which she learned from appellant, “to file a motion on behalf of

Bellinger seeking access to ballistics evidence from the Rivers murder” with the

goal of presenting Mack as a third party perpetrator in Bellinger‟s case, but never

sought the same ballistics evidence to present Bellinger as a third party perpetrator

in his case as a possible defense.



      In addition to the conflict with Bellinger, appellant alleges that Wicks


      14
          Bellinger had originally sought Wicks‟s representation in January 2001,
but the inquiry was never pursued. Wicks did not remember that Bellinger had
extended an offer to her when she agreed to represent appellant.
                                          26

possessed a second conflict with Octavian Brown because (1) Brown had agreed to

pay Wicks an initial $5,000 retainer fee to represent appellant but still owed $1,500

by the time of trial and (2) Wicks was also representing Brown in two unrelated

traffic cases.15 Appellant argues that the representation created a conflict because

some of the evidence in his case alluded to a connection between Brown and the

Rivers murder.16 However, Wicks testified that her contacts with Brown did not

negatively affect her representation of appellant. She further testified that she

made it clear to appellant that her duty was to him and not to those paying her fee

but also acknowledged that she never discussed the possibility that appellant and

Brown could have had adverse interests.



      The trial court rejected both IAC claims. It found that Wicks and Bellinger

lacked an attorney-client relationship until after appellant‟s trial and credited

Wicks‟s testimony that she held nothing back out of loyalty to Bellinger. The trial

court further determined that Bellinger was not a sustainable third party perpetrator

because there was no evidence discovered that, despite what the trial court

      15
          The first traffic case was dismissed in January 2002, four months before
appellant‟s 2002 trial, and the second traffic case was dismissed the day after
Brown retained Wicks. Neither matter was pending when appellant went to trial.
      16
           Police found a hotel receipt in Brown‟s name during the search of the
Cadillac, and Brown reportedly drove the vehicle two or three times. Wicks also
elicited testimony at appellant‟s trial that Brown was seen driving the Cadillac.
                                        27

considered best efforts by Wicks and her investigator, put Bellinger near the scene

of the murder during the relevant times.       Similarly, the trial court rejected

appellant‟s claim of a conflict due to the fiduciary relationship between Wicks and

Brown because appellant‟s retainer agreement with Wicks clearly set forth her duty

of loyalty to appellant, notwithstanding any fee payments by Brown.          Again

crediting Wicks‟s testimony, the trial court found that the payment arrangement

had no impact on her trial strategy because, like Bellinger, there was no evidence

that Brown was present during the day and night in question.17



                                        A.



      “Our review of the trial court‟s determination of whether a conflict of

interest exists is a deferential one, presenting a mixed question of law and fact.”

Alston v. United States, 838 A.2d 320, 324 (D.C. 2003) (citation and internal

quotation marks omitted). Review of legal conclusions is de novo, but the trial

judge‟s factual determinations are accepted, unless unsupported by the evidence.

Id.


      17
          The trial court explained, “[t]here is no evidence that Wicks failed to do
anything because of her relationships with Bellinger and Brown” and “if [Wicks]
had had more compelling evidence against either or both of them she would have
used it.”
                                          28



      When claiming ineffective assistance of counsel, a defendant must establish

that his counsel‟s performance was deficient and that the deficiency resulted in

prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). In cases where

counsel is burdened by an actual conflict of interest, there is a presumption of

prejudice. Id. at 692; see also (Jermaine) Thomas v. United States, 685 A.2d 745,

751 (D.C. 1996). This is not, however, a per se rule, and prejudice is only

presumed “if the [appellant] demonstrates that counsel „actively represented

conflicting interests‟ and that „an actual conflict of interest adversely affected his

lawyer‟s performance.‟” Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan,

446 U.S. 335, 348, 350 (1980)). The mere “possibility of conflict is insufficient to

impugn a criminal conviction.” Cuyler, 446 U.S. at 350.



      We have recognized that an attorney has an actual conflict of interest when

“the attorney‟s and the [client‟s] interests diverge with respect to a material factual

or legal issue or to a course of action.” Veney v. United States, 738 A.2d 1185,

1192-93 (D.C. 1999) (recognizing actual conflict of interest where defense

attorney is required to make choices advancing one client‟s interest to the

detriment of another‟s) (citation and internal quotation marks omitted). See also

Douglas v. United States, 488 A.2d 121, 138 (D.C. 1985) (finding a conflict where
                                         29

the defendant complained of his lawyer‟s performance to Disciplinary Counsel,

which initiated an investigation, and the lawyer thereby acquired a personal,

potentially conflicting interest in how the defense would be conducted). While

“[c]onflicts of interest can arise both in cases of simultaneous and successive

representation,” “[r]epresenting more than one person charged in the same criminal

transaction . . . does not automatically create a conflict of interest.” Veney, 738

A.2d at 1193. Thus, “a conflict alone is not enough to permit reversal of a

conviction on appeal”; “the conflict must [also] be shown to have adversely

affected the trial attorney‟s performance.” Malede v. United States, 767 A.2d 267,

272 (D.C. 2001) (rejecting automatic reversal where an attorney expressed hostility

to his client, calling him a “malevolent little man”).      Likewise, “[a]n alleged

conflict of interest that obstructs the use of a particular strategy or defense is not

significant unless the defense is plausible.” Derrington v. United States, 681 A.2d

1126, 1133 (D.C. 1996) (quoting Fitzgerald v. United States, 530 A.2d 1129, 1138

(D.C. 1987)).



                                         B.



      Appellant argues that, but/for Wicks‟s conflict of interest, she would have

presented Bellinger as a potential third party perpetrator in his trial.        Even
                                          30

assuming, arguendo, appellant met his burden of establishing that an attorney-

client relationship existed between Wicks and Bellinger,18 appellant has failed to

demonstrate how a possible conflict could have adversely affected Wicks‟s

performance. See Malede, 767 A.2d at 272. The trial court found that, even if

Wicks presented Bellinger as a third party perpetrator, he would not be charged

simply because Wicks accused him of committing a criminal act,19 and Wicks


      18
          Appellant argues that Wicks owed a duty of loyalty to Bellinger after
meeting with him in prison and a third party agreed to pay his fee. While we have
recognized that an attorney-client relationship may be established before a contract
exists or before the payment of any fees, the parties must still “manifest an
intention to create the attorney/client relationship,” either “explicitly or by their
conduct.” In re Ryan, 670 A.2d 375, 379 (D.C. 1996). Moreover, “[r]epresenting
more than one person charged in the same criminal transaction. . . does not
automatically create a conflict of interest.” Veney, 738 A.2d at 1193. On these
facts, we cannot say definitively whether Wicks and Bellinger, explicitly or by
their conduct, manifested an intention to establish an attorney-client relationship.
See In re Fay, 111 A.3d 1025, 1030 (D.C. 2015) (“[W]e consider the totality of the
circumstances to determine whether an attorney-client relationship exists.”).
However, we do not need to address this question further because Wicks could not
have presented Bellinger as a third party perpetrator, and as such, appellant fails to
demonstrate how Wicks‟s performance was adversely affected.
      19
          The trial court is correct on this point; though, it bears less weight in our
analysis. The government already possessed evidence that a number of different
individuals had access to the Cadillac and murder weapons. The government, at its
sole discretion, charged those individuals, whom it believed it could prove guilt
beyond a reasonable doubt. Unless Wicks possessed additional evidence linking
Bellinger to the Rivers murder, Bellinger would not have been charged simply
because she accused him. The absence of any evidence placing Bellinger on the
scene during relevant times strengthens this observation. Appellant‟s reliance on
United States v. Nicholson, 475 F.3d 241 (4th Cir. 2007), is therefore misplaced,
and additionally, we find the unique facts in Nicholson distinguishable and
                                                                       (continued . . .)
                                         31

could not place Bellinger on the scene during the relevant times.20 The lack of

evidence linking Bellinger to the murder is significant because appellant‟s

argument of adverse performance relies entirely on the fact that Wicks did not

present Bellinger as a third party perpetrator. Accordingly, appellant‟s argument

must fail if we determine that there was insufficient evidence in the record to

support appellant‟s third party perpetrator defense. See Derrington, 681 A.2d at

1133.



        Evidence offered to show that someone other than the defendant committed

the alleged crime is commonly known as Winfield evidence. See Winfield v.

United States, 676 A.2d 1 (D.C. 1996) (en banc).          For such evidence to be

admissible, “there must be proof of facts or circumstances which tend to indicate

some reasonable possibility that a person other than the defendant committed the

charged offense.” Winfield, 676 A.2d at 4 (citation and internal quotation marks

omitted) (emphasis added). “Conversely, the trial court should exclude Winfield

evidence if it is too remote in time and place, completely unrelated or irrelevant to

(. . . continued)
unpersuasive.
        20
          As the trial court explained, “[t]here was no evidence [Bellinger] was
around when Braddy was describing the fireworks incident to Mack and Andrews
that provided the . . . motive for . . . this murder. There was no evidence he was in
the neighborhood near the time of the shooting.”
                                        32

the offense charged, or too speculative with respect to the third party‟s guilt.”

Turner, 116 A.3d at 917 (quoting (Todd) Thomas v. United States, 59 A.3d 1252,

1264 (D.C. 2013)) (internal quotation marks omitted). This is not an impotent bar

to admissibility.   Even in circumstances where other individuals had stronger

motives to murder the victim than the accused, there must still be proof that the

other individual had the practical opportunity to commit the crime. See Turner,

116 A.3d at 916; Winfield, 676 A.2d at 4. The trial court has the discretion to

exclude such evidence if “its marginal probative value is substantially outweighed

by the risk of unfair prejudice, confusion of the jury, or similar considerations.”

Turner, 116 A.3d at 917 (footnote omitted).



      Here, we are unpersuaded by appellant‟s arguments that Bellinger was a

viable third party perpetrator. Appellant‟s entire argument can be summarized as

“guilt by association.” It relies exclusively on evidence that Bellinger had access

to the murder weapon linked to Mack and to the Cadillac—as did many others in

the neighborhood—in order to assert a “plausible defense strategy,” while wholly

ignoring the dearth of evidence placing Bellinger at the scene during the fireworks

incident or in the neighborhood near the time of the shooting. Further, the record

clearly indicates the scope of Wicks‟s investigative efforts and the information she

obtained. Wicks testified that she and her investigator looked for any evidence
                                        33

linking Bellinger to the scene of the murder. They interviewed Bellinger himself,

who provided an alibi that he was in Maryland during the relevant time period.

They interviewed mutual friends of Bellinger and appellant to either confirm or

deny Bellinger‟s absence.     Wicks was unable to uncover any evidence that

Bellinger was in the neighborhood the evening of the shooting or during the early

morning hours. When asked why she did not present Bellinger as an alternative

perpetrator, Wicks testified that she was unable to establish that Bellinger had the

means, motive, or opportunity to murder Rivers.21 So, even though there was

evidence that linked Bellinger to one of the murder weapons six weeks earlier,

there was no evidence that connected him to the weapon on the day of the murder,

no evidence that connected him to the Cadillac other than the fact that it was

shared by a number of people in the neighborhood, and no evidence that indicated

he had any motive to kill Rivers.



      There is simply no reasonable possibility that Bellinger was involved in the

River‟s murder or that he had a practical opportunity to be involved. Certainly, he

previously possessed one of the murder weapons used in this heinous crime, but

      21
            Wicks also testified that the Public Defender Service, who was
representing co-defendant Mack at the time, was investigating whether Bellinger
was present the night of the shooting because of his connection with the gun linked
to Mack. There is no indication that the Public Defender Service uncovered any
additional evidence linking Bellinger to the Rivers murder.
                                         34

that fact alone is insufficient under Winfield and its progeny to offer Bellinger as a

viable third party perpetrator. For these reasons, appellant has failed to sustain his

IAC of a possible conflict from Wicks‟s connection to Bellinger, and we affirm the

trial court‟s ruling in this regard.



                                         C.



       Appellant makes a similar IAC claim with regard to Octavian Brown, a third

party who paid for appellant‟s legal services. In this instance, appellant contends

that Wicks also failed to present Brown as a third party perpetrator because he paid

appellant‟s legal fees and still owed Wicks $1,500 when appellant‟s case went to

trial. Again however, the only evidence linking Brown to the Rivers murder was

his shared access to the Cadillac and the murder weapon contained therein.



       The trial court once again rejected appellant‟s argument, finding that Wicks

“did not have an actual conflict of interest, and her trial strategy was in no way

impacted by any conflict of interest.” In coming to that determination, the trial

court credited Wicks‟s testimony that the retainer agreement signed by both Brown

and appellant clearly indicated that Wicks‟s loyalty was to appellant,
                                         35

notwithstanding Brown‟s payments,22 and that Brown‟s payments had no impact

on her trial strategy because of the insufficient evidence linking Brown to the

Rivers murder.23 After a four-day evidentiary hearing, the trial court recognized

that Wicks‟s most sound trial strategy was to have the jury believe Mack and

Braddy murdered Rivers, but also to establish that the police did an inadequate

investigation and that other people in the neighborhood had access to the murder

weapons.



      We agree with the trial court that there was no conflict of interest due to

Brown‟s payment of appellant‟s legal fees or due to Wicks‟s representation of

Brown in two unrelated traffic offenses. Simultaneous representation and third

party fee agreements do not automatically equate a conflict of interest.          See

Malede, 767 A.2d at 272; Veney, 738 A.2d at 1192-93. Nor are we persuaded by

appellant‟s contention that a small outstanding debt would cause a professional

attorney to outright forgo a plausible defense strategy for his or her client, whom


      22
           Appellant argues that any waiver of a conflict was invalid because the
original trial court never conducted the requisite on-the-record waiver colloquy.
See Pinkney v. United States, 851 A.2d 479, 488-89 (D.C. 2004). However, the §
23-110 trial court found, and we agree, that there was no conflict of interest, and as
such, no requirement that the original court conduct a colloquy.
      23
        Wicks had, in fact, elicited testimony during the cross-examination of a
government witness linking Brown to the Cadillac.
                                          36

was facing considerable incarceration for first-degree murder. Finally, for the

same reasons discussed above, we are unconvinced that Wicks would have been

able to present Brown as a viable third party perpetrator because, on these facts,

there was even less evidence linking Brown to the murder weapons and the scene

of the shooting than there was for Bellinger. As such, Wicks‟s performance was

not adversely affected nor was appellant deprived of a plausible defense strategy.

See Derrington, 681 A.2d at 1133.



      Because appellant has failed to meet his burden in demonstrating an actual

conflict of interest that adversely affected his counsel‟s performance, we affirm the

trial court‟s ruling that he was not deprived of the effective assistance of counsel.



                                        So ordered.
