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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CO-688

PATRICK F. ANDREWS, APPELLANT,

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 . . .)

02/22/2018
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-FEL5243 (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 Cotton11 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 attorneyclient 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 claim 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.