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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 18-CO-1166

                    DELONTA ROBERT ST. JOHN, APPELLANT,

                                         v.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF1-5712-07)

                      (Hon. Michael L. Rankin, Trial Judge)

(Submitted October 10, 2019                               Decided May 14, 2020)

      Delonta Robert St. John, pro se.

      Jessie K. Liu, United States Attorney, with whom Elizabeth Trosman,
Elizabeth H. Danello, Kendra Briggs, Vinet Bryant, and Steven B. Snyder,
Assistant United States Attorneys, were on the brief, for appellee.

     Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge,
and NEBEKER, Senior Judge.

      NEBEKER, Senior Judge: Appellant, Delonta Robert St. John, appeals the

trial court’s denial without a hearing of his pro se motions under D.C. Code § 23-

110 (2012 Repl.) to vacate his convictions, asserting ineffective assistance of

counsel by his trial counsel and unlawful suppression of material exculpatory
                                        2


evidence by the government during his criminal trial. We affirm.



                 I. Factual Background and Procedural Posture




      On August 9, 2006, while gambling in a dice game, appellant argued with

John Lucas over an outcome of the game and shot Lucas three times. Lucas was

taken to Prince George’s Hospital on the same day, and Dr. Said Daee was a

treating physician for Lucas.      On November 5, 2006, Lucas died from

complications associated with his gunshot wound, for which Lucas’s family filed a

wrongful death suit against Prince George’s Hospital and Dr. Daee on November

19, 2007, alleging negligent treatment by Dr. Daee.



      Dr. Michael Wingate, an expert witness for Lucas’s family and general

surgeon, testified in the wrongful death suit on September 15, 2009, that Dr. Daee

breached the standard of care in his treatment of Lucas, and that such breach was a

cause of Lucas’s death. The Circuit Court for Prince George’s County rendered a

jury verdict against Dr. Daee and Prince George’s Hospital on September 17, 2009.



      The government had filed an indictment against appellant on September 4,

2007. Before appellant’s criminal trial, the government sent a letter on August 6,
                                         3


2008, to appellant’s trial counsel, Ronald Horton, disclosing the pending wrongful

death suit against Dr. Daee for Lucas’s death and Dr. Daee’s scheduled testimony

during the criminal trial. On February 12, 2009, Dr. Daee testified in appellant’s

criminal trial that appellant’s bullet lacerated Lucas’s pancreas and that Lucas died

from complications from his gunshot wound.



      After a jury trial, on February 19, 2009, the trial court convicted appellant of

second-degree murder while armed under D.C. Code §§ 22-2103 (2012 Repl.),

-4502 (2012 Repl.), possession of a firearm during a crime of violence under D.C.

Code § 22-4504(b) (2012 Repl.), and carrying a pistol without a license under D.C.

Code § 22-4504(a). Appellant did not raise claims of ineffective assistance of

counsel nor violations under Brady v. Maryland, 373 U.S. 83 (1963), during his

direct appeal. This court affirmed appellant’s convictions on October 4, 2012.




      On June 3, 2016, appellant filed his pro se motion for relief under D.C. Code

§ 23-110. In his motion, he alleged ineffective assistance of his trial and appellate

counsels, in violation of the Sixth Amendment, for failure (1) to apprise appellant

of the wrongful death suit against Dr. Daee and (2) to investigate a cause of

Lucas’s death, namely Dr. Daee’s alleged gross negligence. Furthermore, in his

supplemental motion for relief under D.C. Code § 23-110, he asserted that the
                                         4


government violated his constitutional rights by suppressing material exculpatory

evidence—or in his vocabulary, “newly discovered evidence”—that Dr. Daee was

grossly negligent and by presenting false testimony of Dr. Daee at appellant’s

criminal trial.



       The government argued, squarely refuting appellant, that his claims of

ineffective assistance of counsel and unconstitutional suppression of evidence by

the government were procedurally barred because appellant should have raised the

same claims in his direct appeal, and that he failed to show any cause or prejudice

to excuse his procedural default.



       The trial court denied appellant’s § 23-110 motions without a hearing on

October 10, 2018, and this appeal ensued.



                               II. Standard of Review



       We review a trial court’s denial of a motion for relief under D.C. Code § 23-

110 without a hearing for abuse of discretion. Thomas v. United States, 772 A.2d

818, 824 (D.C. 2001); Sykes v. United States, 585 A.2d 1335, 1340 (D.C. 1991).
                                          5


      We consider each § 23-110 assertion in turn and hold that the trial court did

not abuse its discretion in either instance because the “motion[s] and files and

records of the case conclusively show that the [appellant] is entitled to no relief.”

D.C. Code § 23-110.



                                   III.       Analysis



   A. Procedural Bar



      D.C. Code § 23-110 “is not designed to be a substitute for direct review.”

Head v. United States, 489 A.2d 450, 451 (D.C. 1985). Therefore, if appellant did

not raise a claim of ineffective assistance of counsel under that statute and he

“demonstrably knew or should have known of the grounds for” the claim on direct

appeal, appellant’s claims are procedurally barred. Shepard v. United States, 533

A.2d 1278, 1280 (D.C. 1987). Likewise, if appellant did not raise a claim of Brady

violations that he “knew or should have known of” on direct appeal, appellant’s

claim of Brady violations is procedurally barred. Wright v. United States, 979

A.2d 26, 31 (D.C. 2009).
                                         6


   B. Cause and Prejudice



1. Ineffective Assistance of Counsel



      Appellant may overcome a trial court’s procedural bar and still raise an

ineffective assistance of counsel claim by showing both cause for failure to raise

such claim in direct appeal and “actual prejudice resulting from the errors of which

[appellant] complains.” United States v. Frady, 456 U.S. 152, 167-68 (1982).

When appellant claims ineffective assistance of counsel, our analysis of a

procedural bar is inextricably linked to the merits of ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984). Murray v. Carrier,

477 U.S. 478, 488 (1986); see also Washington v. United States, 834 A.2d 889,

904 n.10 (D.C. 2003).



      However, it is “unnecessary to determine whether [appellant] has shown

cause” if this court finds no prejudice to appellant. Frady, 456 U.S. at 168 (finding

no need to determine whether appellant had shown cause where there was no

actual prejudice from alleged ineffective assistance of counsel).   When an alleged

unconstitutional error by counsel is failure to investigate and discover favorable

evidence to defense, our analysis of the prejudice part of Strickland is twofold: (1)
                                        7


“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,” and

(2) “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) (internal quotations and

brackets omitted); see also Brown v. United States, 181 A.3d, 164 (D.C. 2018). A

“reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Frady, 456 U.S. at 170.



      In general, negligent medical treatment of a “dangerous wound” – a wound

from which a victim would die if untreated – is deemed a foreseeable consequence

of appellant’s crime and is not a defense to a charge of homicide. Baylor v.

United, 407 A.2d 664, 668-69 (D.C. 1979) (holding that two-hour delay in

treatment of victim and negligent lacerations of victim’s pancreas were not defense

to charge of involuntary manslaughter because such negligence was still

foreseeable consequence of appellant’s crime); see also McKinnon v. United

States, 550 A.2d 915, 917-18 (D.C. 1988) (holding that victim’s contraction of

uncommon type of hepatitis from surgery to treat stabbing wounds was reasonably

foreseeable consequence of defendant’s criminal assault, and, thus, was not

intervening cause). Ordinarily, this court requires expert medical testimony to
                                          8


show that a wound was not in itself dangerous. Baylor, 407 A.2d at 669. Gross

negligence in medical treatment may exculpate appellant, but it must have been a

sole cause of a victim’s death. Id.



      Here, we hold that the trial court did not err by finding no prejudice to

appellant under Strickland. In view of our precedent discussed below, there is less

than a reasonable probability that a competent attorney, aware of the wrongful

death suit against Dr. Daee, would have introduced Dr. Daee’s negligence as

exculpatory or impeachment evidence at trial.



      Although we did not reach the prejudice part of Strickland in Brown, the

decision is instructive. In Brown, this court held that the failure by four counsel to

investigate the mental condition of and to plead an insanity defense for appellant,

who was serving a life sentence for the three convictions including a first degree

murder from 1990’s, was not objectively unreasonable.              To highlight the

ineffective assistance of the four counsel from 1990’s to observe his mental

condition, appellant in Brown raised the testimony of a psychiatric expert from his

California criminal trial in 2008, for assault on a prison guard, that appellant

suffered post-traumatic stress disorder. However, this court squarely refuted that

the expert’s 2008 insanity diagnosis of appellant was not evidence of his mental
                                         9


state in the 1990’s, and thus held the four counsel’s performance was not

ineffective.



      Like appellant in Brown, appellant here raised the testimony of Dr. Wingate

to highlight the asserted ineffective assistance of the trial counsel to plead an

intervening-cause defense. We hold not only that it was temporally impossible for

the trial counsel to introduce—or the government to withhold from appellant—Dr.

Wingate’s testimony in appellant’s criminal trial, but also that even if appellant’s

trial counsel somehow foresaw Dr. Wingate’s testimony and still decided not to

pursue an intervening-cause defense, the decision would not have rendered the trial

counsel’s performance ineffective under Strickland.



      Under our precedent, there is certainly less than a reasonable probability that

a jury would have found—or a competent attorney would have introduced—Dr.

Daee’s negligence as an intervening cause.       Both Dr. Daee and Dr. Wingate

testified that the bullet appellant shot damaged Lucas’s pancreas, from which the

complications arose; therefore, Dr. Daee’s alleged gross negligence was certainly

not a sole cause of Lucas’s death. Even if appellant had introduced Dr. Wingate’s

testimony during his criminal trial—which was temporally impossible because Dr.

Wingate testified in the wrongful death suit after the guilty verdict against
                                        10


appellant in his criminal trial—Dr. Daee’s alleged gross negligence would not have

exculpated appellant.



      In Baylor, this court affirmed that a two-hour delay in treatment of the

victim and negligent laceration by a doctor during an operation on the victim were

not an intervening cause, and, thus, did not relieve appellant of responsibility for

the victim’s death. Baylor, 407 A.2d at 670. In McKinnon, we affirmed that the

rare type of hepatitis the victim contracted from surgery to cure stabbing wounds

was not an intervening cause. McKinnon, 550 A.2d at 917-18. Similarly, here, we

see no error in the trial court’s conclusion that Dr. Daee’s treatment was not an

intervening cause of Lucas’s death.



      Because appellant has failed to show “prejudice,” we hold that the trial court

did not abuse its discretion by denying, without a hearing, appellant’s ineffective

assistance of trial counsel 1 claim under D.C. Code § 23-110.




      1
          We do not reach the merits of appellant’s ineffective assistance of
appellate counsel claim because a claim of ineffective assistance by appellate
counsel “must be litigated as an independent claim, which requires a recall of the
mandate of the direct appeal.” Wu v. United States, 798 A.2d 1083, 1091 (D.C.
2002) (citation omitted).
                                         11


2. Brady Violations



      We also affirm the trial court’s determination of a procedural bar on

appellant’s Brady claim under D.C. Code § 23-110 because appellant simply

cannot show “cause and prejudice” from the government’s alleged Brady

violations.



      Violation of due process under Brady occurs (i) “when the prosecution fails

to disclose, before or during trial, evidence favorable to the defense,” and (ii)

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

defense, the result of the proceeding would have been different,” United States v.

Bagley, 473 U.S. 667, 682 (1985).         “[N]on-disclosure of evidence affecting

credibility” falls within the purview of the Brady rule. Giglio v. United States, 405

U.S. 150, 154 (1972).



      Here, not only did the government disclose the pending wrongful death suit

against Dr. Daee before appellant’s criminal trial, but it was temporally impossible

for the government to withhold or suppress Dr. Wingate’s testimony against Dr.

Daee’s negligence because Dr. Wingate testified in the wrongful death suit against

Dr. Daee on September 15, 2009, after the jury verdict against appellant on
                                        12


February 19, 2009. Thus, we hold that there was no abuse of discretion by the trial

court in procedurally barring appellant’s Brady and Giglio claims.



   C. § 23-110 Hearing



1. Ineffective Assistance of Counsel



      On the present record, we hold that appellant’s ineffective assistance of

counsel claim furnishes no ground for us to provide relief. Appellant’s “newly

discovered evidence” can be discovered in this very record. Although there is a

presumption for holding a hearing under D.C. Code § 23-110, appellant’s claim is

less than middling. For the reasons stated in previous sections of this opinion, we

hold that his claims are based on vague and conclusory allegations, not one of

which warrants any relief to appellant. Accordingly, we affirm the trial court’s

decision not to hold a hearing for appellant’s ineffective assistance of counsel

claim and the denial of relief.



2. Brady Violations
                                         13


      Since the motions, files, and records of this case conclusively show that

appellant is not entitled to collateral relief, we affirm the trial court’s decision

without a hearing on appellant’s Brady and Giglio claims.



                                   IV.    Conclusion



      The decision of the trial court is affirmed.



                                 So ordered.
