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Andrews v. United States

Court of Appeals of The District of Columbia

February 22, 2018

Patrick F. Andrews, Appellant,
United States, Appellee.

          Argued November 30, 2016

         Appeal from the Superior Court of the District of Columbia (FEL5460-00) (Hon. Ronna Lee Beck, Motions Judge)

          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. Richard, and Ann K. H. Simon, Assistant United States Attorneys, were on the brief, for appellee.

          Before BLACKBURNE-RIGSBY, Chief Judge [*] and WASHINGTON [**] and 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 Brady[1]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.


         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 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]

         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 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. 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.

         Co-defendant Randall Mack's Retrial[3]

         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-FEL-5243 (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 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] 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."


         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 ...

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