Criminal Law Blog

The DCCA holds that whether trial counsel would have presented suppressed, favorable evidence is irrelevant under Brady, but finds no Brady violation on the facts presented.

Andrews v. United States (decided February 22, 2018)

Players: Chief Judge Blackburne-Rigsby, Senior Judges Washington and Steadman. Opinion by Senior Judge Washington. Michael S. Bailey, Donald P. Salzman, and Michael A. McIntosh for Mr. Andrews. Trial Judge: Ronna Lee Beck.

Facts: Appellant and his co-defendant Mack were convicted for murder of Deyon Rivers after a joint trial at which Morris Jones was the key eyewitness. Jones testified that shortly before the murder, appellant’s friend, David Braddy, told appellant and Mack that Rivers had nearly hit Braddy’s girlfriend with a bottle rocket. Jones testified that he later accompanied Braddy to smoke marijuana and drink on Braddy’s porch and that after Braddy went inside to answer the phone, Rivers drove by and stopped at nearby corner. According to Jones, appellant and Mack then emerged from an alley and shot into Rivers’ car.

At trial, Jones was the only witness who placed appellant at the crime scene. The government also presented evidence that police found a magazine from the likely murder weapon under the driver’s seat of a burgundy Cadillac, which also contained several items belonging to appellant—e.g., medical prescriptions, traffic citations, and a vodka bottle—as well as some that did not, including a hotel receipt for Octavian Brown. Jones testified that appellant confessed to the shooting the day after it happened.

The government did not call David Braddy to testify and disclosed only limited parts of his statements to police and the grand jury—specifically, his statement, contrary to Jones’ account, that Braddy had been home alone the night of the shooting. Neither appellant nor Mack called Braddy at trial, in part because he refused to speak with defense counsel. Mack called David Braddy’s father, James, who testified that he had not seen Jones on the porch after the shooting.

Before Mack’s retrial on the same charges, the government disclosed additional statements by David Braddy, which further contradicted that Jones had been at the house near the time of the shooting or at the fireworks incident. At the retrial, Braddy testified, and the court declared a mistrial after the jury was unable to return a verdict.

Appellant moved for a new trial, arguing that the government violated Brady by failing to disclose David Braddy’s prior statements and that conflicts of interest with respect to Octavian Brown and another potential alternate suspect, Kevin Bellinger, deprived him of his right to counsel. The trial court denied both claims. Regarding the Brady claim, it ruled that David Braddy’s statements were not material, in part because the court found incredible trial counsel’s testimony that she would have called him as a witness. The trial court ruled that counsel’s representation of Brown and Bellinger did not violate the Sixth Amendment because her relationship with Bellinger did not meaningfully begin until after appellant’s conviction and there was insufficient evidence connecting Brown or Bellinger to the murder.

Issue 1: Did the government violate Brady by failing to disclose David Braddy’s videotaped interview and grand jury testimony?

Holding 1:  No. A Brady violation requires suppression, favorability, and materiality. The trial court erred by taking into account whether counsel “would have actually used the suppressed Brady evidence,” which is “irrelevant once evidence is found to be favorable and suppressed.” A court may appropriately recognize “the benefits and potential disadvantages of suppressed evidence,” but should proceed “directly” to assessment of materiality “in light of the entire record, without speculat[ing] as to the defense counsel’s actual use of that evidence and without making a finding as to trial counsel’s credibility.”

Nevertheless, David Braddy’s suppressed statements were not material because they were in part cumulative of James Braddy’s testimony and largely went to impeach Jones, who was significantly impeached at trial, and further because the statements were in part harmful to appellant, in that David had said that appellant carried a gun and drove the Cadillac where the magazine from the murder weapon was found and that his father had seen appellant running from the scene of the shooting after it happened. Neither David Braddy’s testimony at Mack’s retrial nor the outcome of that retrial change this conclusion, in light of the differences in the respective cases against Mack and appellant.

Issue 2: Did trial counsel’s relationships with Brown and Bellinger create conflicts of interest that violated appellant’s right to counsel?

Holding 2: No. Notwithstanding any conflict, appellant failed to show that he was prejudiced by counsel’s failure to pursue Brown and Bellinger as alternate suspects because there was insufficient evidence to establish that they had the requisite “practical opportunity to commit the crime.” See Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc). Thus, counsel would not have been able to present Brown and Bellinger as alternate suspects.—WC

Read the full opinion here.