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.

Crying Wolf? Finding of Competency and Denial of Motion to Withdraw Affirmed in Light of Defendant’s Perceived Malingering and Bad Faith.

Christian D. Taylor v. United States (decided March 31, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Judge Nebeker. Nicholas B. Lewis, Anand V. Ramana, and Christopher D. McEachran for Mr. Taylor. Trial Judge: Thomas J. Motley.

Facts: Mr. Taylor was convicted on two counts of first-degree premeditated murder; four counts of felony murder, second-degree burglary while armed, and robbery while armed; and seven counts of possession of a firearm during a crime of violence (“PFCV”) for entering a store, demanding money at gunpoint, and shooting the cashier and his father, who co-owned the store.

Mr. Taylor refused to participate in his initial 24-hour competency screening. After a 45-day inpatient evaluation, the trial court found Mr. Taylor competent to stand trial. Mr. Taylor later complained of intermittent inability to speak and hear. Examiners at St. Elizabeth’s Hospital determined that he was malingering, and the court again found him competent.

Geoffrey Harris was appointed to represent Mr. Taylor with another attorney who later withdrew due to Mr. Taylor’s complaints about the representation and professed religious bias. Mr. Harris moved to withdraw, after Mr. Taylor filed a bar complaint against him. Having found that Mr. Taylor fienged his hearing/speech loss to avoid trial, the trial court similarly denied the motion to withdraw in light of perceived bad faith on Mr. Taylor’s part but appointed another attorney to act as co-counsel at trial. Mr. Harris twice renewed his motion to withdraw, including once, in light of Mr. Taylor’s alleged threats to his children. The trial court denied these motions, finding that they were also motivated by Mr. Taylor’s desire to avoid trial. The court declined to recuse itself from hearing these motions or presiding over the trial.

Issue 1: Whether the trial court abused its discretion in deeming Mr. Taylor competent to stand trial?

Holding 1: No. Mr. Taylor had no prior history of mental illness. He was deemed competent by two mental health professionals at St. Elizabeth’s Hospital. Lay testimony and the trial judge’s in-court observations further supported its finding. Mr. Taylor put forward no evidence to overcome the presumption that he was competent.

Issue 2: Whether there was an actual conflict of interest between Mr. Taylor and Mr. Harris that adversely affected Mr. Harris’ performance?

Holding 2: No. The court appropriately inquired into the potential conflict. Its remedy of appointing co-counsel for trial was sufficient to prevent any prejudice, as co-counsel took a lead role. Mr. Taylor has not complained about co-counsel’s performance and fails to identify any prejudice suffered as a result of Mr. Harris’ continued representation. Based on the record presented, the trial court correctly found that Mr. Taylor was just trying to avoid trial.

Issue 3: Whether the trial court erred in declining to recuse itself from presiding over the trial after presiding over Mr. Harris’ motion to withdraw?

Holding 3: No. The trial judge was in the best position to hear the motion to withdraw, having seen the relationship between Mr. Taylor and his attorneys, past and present. Efficiency may sometimes counsel preemptive recusal from a potentially prejudicial motion, but it is not necessary in all cases. The trial court was aware of its duty to self-recuse, if it became prejudiced. The record does not contradict its finding that there was no prejudice.

Issue 4: Whether the government presented sufficient evidence that the murders were premeditated and deliberate?

Holding 4: The issue is moot. Only one murder conviction per victim may stand. Because the sentence will be the same no matter which are vacated, the Court vacates the first-degree premeditated murder convictions and upholds only the two felony murder convictions predicated on robbery. (Mr. Taylor’s convictions for robbery merge with these felony murder convictions. Since the felony murder predicated on second-degree burglary is vacated, second-degree burglary does not merge.)

Issue 5: Whether Mr. Taylor’s PFCV convictions merge into a single conviction?

Holding 5: No. Mr. Taylor manifested a “fresh impulse” when he committed second-degree burglary, armed robbery, and then two first-degree murder.

Of note: The Court’s holding with respect to Mr. Harris’ motion to withdraw is best understood in the context of Mr. Taylor’s conduct throughout the case: “We agree with the trial court that appellant was malingering and that his attempt to manufacture a conflict of interest with his attorney was merely another effort to manipulate the court and avoid trial.” Attorneys facing threats to life or livelihood that may affect their representation should continue to bring those matters to the presiding judge’s attention, in ways that protect their client’s interests.  WC

Read full opinion here.