Appeals from the Superior Court of the District of Columbia. (F-6896-92) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before REID and BLACKBURNE-RIGSBY, Associate Judges, and TERRY, Senior Judge.
These two consolidated appeals are taken from the trial court's denial of appellant's two motions to vacate his sentence pursuant to D.C. Code § 23-110 (2001). In those motions appellant contended that he received ineffective assistance of counsel at his trial and that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963). We hold that his claims lack merit and affirm the denial of both motions.
On October 7, 1991, District of Columbia Corrections Officer Ronald Richardson was scheduled to testify at the criminal trial of Michael Page in the Superior Court. As he prepared to leave his home to go to court that day, Richardson was shot and killed in his driveway.
In 1992 appellant Wright and four co-defendants were indicted on numerous counts stemming from the murder of Officer Richardson. Three co-defendants were severed for various reasons, and appellant Wright and one co-defendant, Navarro Hammond, were tried together in January 1997.*fn1 Both men were convicted of various offenses, including first-degree murder while armed and conspiracy to commit that offense.
Briefly summarized, the evidence at trial showed that on October 7, 1991, two men jumped out of a burgundy van and shot Officer Richardson in the head and body. Appellant testified on his own behalf and denied any involvement in the murder. He claimed that he had spent the weekend before the shooting with a co-defendant at the latter's apartment. Government witnesses testified, however, that before the shooting appellant had said he "wanted to give someone all head shots," and that after the shooting he had told two people that he shot the victim in the head while a co-defendant, Bradley Sweet, shot him in the body. Appellant and Hammond were both found guilty of all the charges against them, except that appellant was acquitted of carrying a pistol without a license. This court affirmed both appellant's and Hammond's convictions on direct appeal, remanding only to vacate the judgment as to certain merged offenses. Hammond v. United States, 880 A.2d 1066 (D.C. 2005) ("Hammond II").*fn2
In January 1997, shortly after his trial ended, appellant filed a pro se "motion to arrest judgment," and later he also filed a § 23-110 motion, alleging ineffective assistance of counsel. He obtained counsel for these post-trial proceedings, who in due course filed an amended § 23-110 motion. The latter motion raised allegations of prosecutorial misconduct and ineffective assistance of counsel, asserting inter alia that appellant's trial counsel had failed to subpoena four witnesses who were essential to establish an alibi defense. The trial court refused to address the claim of prosecutorial misconduct because this court had considered and rejected that argument on direct appeal. See Hammond II, 880 A.2d at 1107-1108. The court did hold a hearing to allow appellant to call the witnesses who had not testified at trial, but only two of those four witnesses could be located. Those two - appellant's mother and the mother of his daughter - testified but gave conflicting accounts of appellant's whereabouts on the day of the shooting. The court concluded that the decision not to call those witnesses was "entirely reasonable" and "a sound tactical decision . . . because their conflicting account of activities during the weekend [before the murder] would have strengthened the government's case against [appellant]." Accordingly, the court denied the § 23-110 motion.
On March 19, 2007, appellant filed a second § 23-110 motion, alleging that the prosecutor had withheld material, exculpatory evidence under Brady v. Maryland - specifically, a transcript from the trial of Terry Pleasant (a co-defendant) and information relating to Michael Tinch. The court denied the second motion without a hearing, ruling that appellant did not provide any factual support for his claims, and that he had failed to explain how the information which allegedly should have been disclosed was exculpatory or would undermine confidence in the jury's verdict.
In these consolidated appeals from the orders denying both § 23-110 motions, appellant contends that the trial court erred when it denied each motion. We review the denial of a § 23-110 motion for abuse of discretion. E.g., Thomas v. United States, 772 A.2d 818, 824 (D.C. 2001). We consider each motion in turn and conclude that the trial court did not abuse its discretion in either instance.
The trial court did not abuse its discretion in denying appellant's first § 23-110 motion because he failed to show either that his counsel's performance was constitutionally deficient or that such deficiency (assuming there was any) resulted in prejudice to his defense.
To prevail on a claim of ineffective assistance of counsel, the movant must show that his counsel's representation fell below an objective standard of reasonableness and that he suffered prejudice as a result of the allegedly deficient performance. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). Whether counsel rendered ineffective assistance is a mixed question of law and fact. We "accept the trial court's factual findings unless they lack evidentiary support in the ...