Bellinger v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CO-0745

KEVIN M. BELLINGER, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(2000-FEL-006204)

(Hon. Russell F. Canan, Trial Judge)

(Argued November 17, 2022 Decided May 25, 2023)

Michael J. Anstett, with whom Karen T. Grisez was on the brief, for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Michael R.
Sherwin, Acting United States Attorney at the time, Elizabeth Trosman, Elizabeth
H. Danello, Diane Lucas, James Sweeney, and Patricia A. Heffernan, Assistant
United States Attorneys, were on the brief, for appellee.

Before EASTERLY, DEAHL, and ALIKHAN, Associate Judges.

DEAHL, Associate Judge: Kevin Bellinger was convicted of assault with intent

to kill while armed and related offenses connected to the shooting of Lorraine

Jackson. After Bellinger was convicted, he learned of ballistics evidence suggesting

that the same gun used to shoot Jackson had been used in a homicide six weeks later
 2

in the same neighborhood. Based on this new evidence, Bellinger challenged his

conviction under D.C. Code § 23-110, arguing that the government had violated its

Brady obligations by failing to turn over the ballistics evidence. He also contended

that his trial lawyer, Phyllis Baron, effectively knew of the ballistics match and

provided ineffective assistance of counsel when she failed to use it to advance a

third-party perpetrator defense at trial. The trial court rejected those arguments and

Bellinger now appeals. We affirm.

I.

The Jackson shooting

Jackson was a paid police informant who provided information about various

crimes in the 18th and D Streets Northeast area. In May 2000, Jackson called the

police to report that Bellinger and a friend were playing with guns in front of a

building on the 400 block of 18th Street Northeast. When the police arrived,

Bellinger and his friend fled, but Jackson did not. When Bellinger returned, Jackson

thought he seemed suspicious about the fact that she had not fled, which made her

nervous.
 3

Two days later, in the early hours of the morning, Jackson purchased some

crack cocaine and was on her way to a friend’s house to smoke it. As she walked

down an alley leading to the home’s back entrance, the following sequence of events

happened (according to Jackson’s testimony): Jackson saw someone walking toward

her but could not tell who it was at first, because the alley was poorly lit. She soon

recognized the person as Bellinger because of his build and his walk. She also saw

his face when he passed under a streetlight in the middle of the alley. Jackson knew

Bellinger well. She had known him for years—he had even lived with her for six

months—and she testified that she recognized him “just like I know my own child.”

When Bellinger was about six feet away from Jackson, he pulled out a gun and

repeatedly shot her. Jackson turned around to run and fell to the ground. She was

hit by six bullets in her arm, legs, neck, and back. As Bellinger was leaving, Jackson

shouted after him, “That’s all right. At least I know who you are.” The police arrived

shortly afterward and Jackson was taken to the hospital.

Bellinger’s trials and conviction

Bellinger was arrested and charged with assault with intent to kill while

armed, possession of a firearm during the commission of a crime of violence or
 4

dangerous offense, carrying a pistol without a license, possession of an unregistered

firearm, and unlawful possession of ammunition.

Bellinger was tried three times, with the first two trials ending in hung juries.

At Bellinger’s first trial, in May 2001, the jury was deadlocked at 6-6. The Public

Defender Service (PDS) attorney who was representing him withdrew after the trial,

in September 2001, because of an unspecified conflict of interest, and the trial judge

appointed Phyllis Baron as counsel. Bellinger was tried again in February 2002.

That trial also ended in a mistrial, with the jury voting 10-2 for acquittal.

Bellinger, still represented by Baron, was tried a third time in April 2002. The

government argued that Bellinger had shot Jackson because she had reported him to

the police two days earlier. Bellinger’s defense was that Jackson had misidentified

him based on a quick interaction in a poorly lit alley, and he called three alibi

witnesses who testified that they had seen Bellinger outside of a club at the time

Jackson was shot. At this third trial, the jury convicted Bellinger of all five counts,

and he received an aggregate sentence of 20 years to life. Bellinger appealed, and

we affirmed his convictions.
 5

The ballistics evidence

Several months after the third trial but before sentencing, Bellinger fired

Baron and retained Jenifer Wicks as counsel. Wicks filed an ex parte motion seeking

access to certain firearm and ballistics evidence from the Metropolitan Police

Department (MPD). She represented that Bellinger’s PDS counsel had withdrawn

after the first trial because “the defense had learned” that a gun recovered from

another PDS client, Randall Mack, and linked to a homicide of a man named Deyon

Rivers “should match” the gun used to shoot Jackson. 1 Wicks proffered that the two

shootings were six weeks apart, in the same neighborhood, and that Mack was

acquainted with Jackson and knew she was a police informant. Therefore, she

argued, a ballistics match would have enabled Bellinger to advance a third-party

perpetrator defense, see Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc),

implicating Mack as the person who had shot Jackson.

1
Wicks herself came to learn of this ballistics match from one of her clients,
Mack’s codefendant in the Rivers homicide case, who had brought an ineffective
assistance of counsel case against her, thereby waiving his attorney-client privilege
and enabling Wicks to speak publicly about what she had learned from discussions
with him. See Andrews v. United States, 179 A.3d 279, 292 (D.C. 2018).
 6

The trial court granted that motion and ordered MPD to make the firearm and

ballistics evidence from the two cases available to Bellinger in August 2002. The

government did not turn over that evidence until September 2006, more than four

years later. By that time, Wicks had been replaced by attorneys at Fried, Frank,

Harris, Shriver & Jacobson, LLP, who were appointed as pro bono counsel and who

represent Bellinger in this appeal. Bellinger’s firearms expert examined the

evidence and, in a report issued in November 2006, opined that the same firearm

used to shoot Jackson had also been used in Rivers’s murder.

Bellinger’s motion to vacate his conviction

Five years after that report was issued, in November 2011, Bellinger filed a

motion for a new trial under D.C. Code § 23-110, the District’s collateral review

statute. Bellinger argued that the government had failed to disclose the exculpatory

ballistics evidence in violation of its obligations under Brady v. Maryland, 373 U.S.

83 (1963). While Bellinger did not contend that anybody in the government had

been aware of the ballistics match at the time of the trials, he argued that there were

sufficient clues that the two shootings were connected such that the government

should have investigated the possibility of a ballistics match. Their failure to do so
 7

and to turn over evidence of the ballistics match that they should have found, he

argued, violated Brady.

On similar grounds, Bellinger argued that his trial counsel had rendered

ineffective assistance. To support this claim, Bellinger argued that Baron knew of a

potential ballistics match and that her decision not to investigate this lead further,

and not to present a Winfield defense blaming Mack for the shooting, was objectively

unreasonable. He further argued that, had Baron presented that defense, there was a

reasonable probability he would not have been convicted. The government

countered that it could have met any Winfield defense with powerful rebuttal

evidence that both Bellinger and Mack were affiliated with the 18th and D Street

crew, whose members shared guns. That meant, in the government’s view, that it

was a reasonable strategic decision for Baron not to present a Winfield defense

because it was unlikely to succeed and it would have opened the door to this

damaging evidence. Without holding an evidentiary hearing, the trial court

summarily denied Bellinger’s motion. Bellinger appealed.

This court remanded for the trial court to hold a hearing on Bellinger’s

ineffective assistance claim. Bellinger v. United States, 127 A.3d 505, 509 (D.C.

2015) (reaffirming that § 23-110 litigants are entitled to a hearing unless their claims
 8

(1) are palpably incredible; (2) are vague and conclusory; or (3) even if true, do not

entitle them to relief). We directed the court on remand to focus on the credibility

of Bellinger’s assertions that Baron had known about the ballistics match and on

what admissible evidence the government could have used to rebut a Winfield

defense. Id. at 519. We determined there was no abuse of discretion in the trial

court’s denial of the Brady claim because Bellinger had not alleged that the

government actually knew of the ballistics match. Id. at 520-21. We nonetheless

directed the trial court to allow Bellinger to conduct limited discovery on this issue

and to reconsider the Brady claim if Bellinger found evidence that the government

actually knew of the match. Id. at 523.

The evidentiary hearing

After further discovery, the trial court held an evidentiary hearing in

December 2018. Bellinger called three witnesses: Wicks, Bellinger’s previous

counsel who had first requested that the MPD turn over the ballistics information;

Detective Norma Horne, one of the four police officers who had investigated the

Jackson shooting; and Bellinger himself. Bellinger also introduced an affidavit from

the court-appointed investigator who had worked with Baron on Bellinger’s case.
 9

The investigator stated that, other than serving subpoenas, he did not perform any

investigative work on the case.

Detective Horne testified that she was part of a “core group” of four officers

who focused on crime in the area of 18th and D Streets. Because she worked on

non-homicide shootings, whereas homicides were handled by a different division,

Horne had worked on the Jackson investigation but not on the Rivers case. Horne

believed that, due to the high volume of shootings in the District, it was MPD policy

not to run ballistics comparisons between two shootings unless there was specific

reason for the police to suspect there might be a match. In a sworn affidavit, Horne

also stated that she was not aware that any ballistics comparison had been run on the

ballistics evidence from the Jackson shooting.

Wicks testified that she had been aware of a potential ballistics match between

the gun used in the Jackson shooting and the Rivers homicide, and that Baron had

been aware of this match too. Specifically, Wicks testified that when she took over

Bellinger’s case from Baron in June 2002, after his convictions, she met with Baron

so that Baron could hand over her case files. At that meeting, Baron told Wicks that

she was aware of the ballistics match. Wicks did not inquire further about when

Baron had found out about the match or how she had found out about it.
 10

Bellinger likewise testified that Baron had been aware of a potential ballistics

match and had informed him about it. According to Bellinger, Baron told him she

had spoken to the government and had filed a motion with the court requesting the

ballistics evidence, but the court had denied the motion. Bellinger later found out

that none of this was true. On the basis of this evidence, Bellinger renewed his

ineffective assistance claim against Baron and amended his Brady claim to argue

that the government not only should have but in fact must have known of the

ballistics match, given the quantum of evidence pointing to that conclusion.

The government, in addition to disputing those arguments, highlighted

evidence that it could have introduced to rebut a Winfield defense. Specifically, the

government proffered that it could have linked Bellinger to the 18th and D Street

crew and that it could have presented officer testimony that the crew was violent and

kept a shared stash of guns. The government pointed to materials seized from

Bellinger’s room, including a poster that depicted guns, contained a violent poem

referencing putting people “in they grave quicker!” and said “18-N-Dst N.E.,”

seeming to reference the crew. The government also noted that Bellinger had

acknowledged that he was in the area “all the time” and that he had friends in the

crew. And Detective Horne’s testimony established that members of the crew shared

guns. Additionally, the government noted that Mack was a poor third-party
 11

perpetrator candidate because he was committed to a juvenile detention center in

Pennsylvania called Terraces at the time Jackson was shot. Though Mack was

occasionally allowed weekend visits to the District, it was quite unlikely he was on

such a visit when Jackson was shot in the early morning hours of a Friday,

undermining any Winfield defense Baron could have advanced.

The government also argued that Bellinger’s ineffective assistance claim

should be dismissed under D.C. Code § 23-110’s laches provision, which permits a

court to dismiss a petitioner’s claim if their delay in bringing it materially prejudiced

the government. Bellinger’s ballistics expert had connected the firearms used in the

Jackson shooting and the Rivers homicide in 2006, but Bellinger did not file his

§ 23-110 claim until 2011. In 2009, in the midst of that five-year delay, two

important events happened: (1) Baron died, and (2) Terraces closed down and its

records—which might have indicated whether or not Mack was detained when

Jackson was shot—were subsequently lost. The government argued that these

events impeded its ability to rebut Bellinger’s ineffective assistance claim, so that

claim should be dismissed under D.C. Code § 23-110(b)(2), the statute’s laches

provision.
 12

The trial court denies Bellinger’s motion

The trial court rejected both of Bellinger’s claims. On his Brady claim, the

court credited Detective Horne’s testimony that the government had not known of

any ballistics match before Bellinger’s trial and that it was MPD policy not to run

ballistics comparisons absent a specific reason to do so. On this basis, the court

found that Bellinger had not provided evidence that the government actually knew

of, or should have investigated and uncovered, the potential ballistics match.

The trial court also denied Bellinger’s ineffective assistance claim. The court

first reasoned that dismissal was warranted under § 23-110’s laches provision

because the government was materially prejudiced by Bellinger’s delay in filing his

motion. In particular, the court concluded that “the government [could not] now

determine whether Baron made a tactical decision in deciding not to pursue a

Winfield defense” and could no longer use the Terraces records to show conclusively

that Mack was detained in Terraces on the day of the shooting, which would have

undercut a Winfield defense.

The trial court further concluded that, even if it were to reach the merits of

Bellinger’s ineffective assistance claim, the claim would fail. It found Bellinger’s

testimony that Baron knew of the ballistics match and lied to him about asking for
 13

the government to turn over the ballistics evidence “wholly incredible.” And, though

it found Wicks credible, it found her testimony did not establish that Baron had

known of the ballistics match before Bellinger’s trial because Baron told Wicks she

knew of the match around two months after the trial concluded. Without knowing

what exactly Baron knew, and when she knew it, the court concluded it could not

find her representation deficient. In any case, the court reasoned, Bellinger would

not have been prejudiced by any deficiency because evidence of his guilt was

“unusually strong,” the government had powerful evidence that Bellinger was part

of a violent crew that shared weapons, and Mack was likely detained at the time of

the shooting, meaning it was unlikely the jury would have been persuaded by a

Winfield defense. The court therefore again denied Bellinger’s motion to vacate his

conviction. Bellinger now appeals.

II.

Bellinger argues that the trial court erred in denying both of his claims. He

argues, first, that the government violated its Brady obligations because it knew or

should have known about the ballistics match and did not disclose it to the defense.

Second, he argues that Baron provided ineffective assistance of counsel by failing
 14

to investigate and present a Winfield defense, despite her awareness of a potential

ballistics match.

As a threshold matter, we note that both of Bellinger’s claims are premised on

the dubious proposition that there is now admissible evidence of a ballistics match

between the gun used in the Jackson and Rivers shootings. In Gardner v. United

States, we established that “in this jurisdiction a firearms and toolmark expert may

not give an unqualified opinion, or testify with absolute or 100% certainty, that based

on ballistics pattern comparison matching a [] shot was fired from one firearm, to

the exclusion of all other firearms.” 140 A.3d 1172, 1184 (D.C. 2016). We have

since clarified that we have not foreclosed “all firearms and toolmark evidence,” but

rather such evidence that “unqualifiedly connects a specific bullet to a specific gun.”

Williams v. United States, 210 A.3d 734, 742-43 (D.C. 2019). With that said, the

government does not dispute that, at the time, Bellinger could have introduced the

purported ballistics match evidence developed post-trial to effectively establish that

the same gun was used in the Jackson and Rivers shootings. While that proposition

seems to contravene our later decision in Gardner, the parties agree that there is now

admissible evidence establishing that the same gun was used in the Jackson and

Rivers shootings, so we take that point as undisputed and adopt the parties’ shared

locution of referring to a “ballistics match.”
 15

Starting from that premise, we reject both of Bellinger’s arguments. Bellinger

has not cured the defects in his Brady claim that we noted in our 2015 decision and

so his arguments are foreclosed by that decision. Bellinger also has not met his

burden of proving that Baron’s representation of him was objectively unreasonable.

A.

Bellinger first argues that the government violated its Brady obligations when

it failed to disclose evidence of the ballistics match. Because Bellinger has not

shown that the government actually knew of the match—or that it failed to “turn

over an easily turned rock” when it failed to uncover it, see United States v. Brooks,

966 F.2d 1500, 1503 (D.C. Cir. 1992)—we disagree.

The court in Brady recognized the government’s constitutional obligation “to

disclose to the defense, prior to trial, information in the government’s actual or

constructive possession that is favorable and material” to the defense. Vaughn v.

United States, 93 A.3d 1237, 1244 (D.C. 2014). “If the government does not possess

the requested information, there can be no Brady violation,” Bellinger, 127 A.3d at

521 (quoting Guest v. United States, 867 A.2d 208, 212 (D.C. 2005)), though the

possession prong of Brady may be satisfied where the government is in constructive

possession of the information and is willfully blind to it. Id. at 520 n.49; see also
 16

Brooks, 966 F.2d at 1503. Ultimately, Brady “does not imply the government’s duty

to investigate—and come to know—information which the defendant would like to

have but the government does not possess.” Bellinger, 127 A.3d at 521 (quoting

Guest, 867 A.2d at 212).

In our 2015 opinion, we affirmed the trial court’s rejection of Bellinger’s

Brady claim because Bellinger had asserted only that the government should have

discovered the ballistics match—not that it actually knew of such a match or was

willfully blind to one. Id. at 520 & n.49. In the absence of actual knowledge or

willful blindness, we held, there was no Brady violation. Id. at 521. We left open

the opportunity, however, for Bellinger to conduct limited discovery specifically

requesting information about any ballistics match that the government had actually

possessed. Id. at 522-23.

After additional discovery, Bellinger still has not produced any evidence

showing that the government had actual or constructive knowledge of the ballistics

match. At the evidentiary hearing following our 2015 remand, Detective Horne

stated that she was not aware of any ballistics comparison having been run and

believed it was in fact MPD policy not to run ballistics comparisons unless there was

a specific reason to do so. The trial court credited that testimony.
 17

Bellinger’s alternative argument is that the government was willfully blind to

the ballistics match, but that overstates the evidence. Bellinger argues that the

government should have known there could be a match because the two shootings

happened in the same neighborhood, six weeks apart, and were linked to members

of the same crew. But this is not the type of “government[] failure to turn over an

easily turned rock” that we have said can support a Brady violation. Vaughn, 93

A.3d at 1258 (quoting Brooks, 966 F.2d at 1503). We have typically found that

willful blindness to evidence amounted to constructive possession where the

exculpatory evidence was held by a government agency other than the prosecution.

See id. (prosecution deemed to possess evidence held by Department of

Corrections); Robinson v. United States, 825 A.2d 318, 328 (D.C. 2003) (same).

And while MPD was in possession of ballistics evidence in the Rivers homicide that

was later “matched” to the ballistics evidence in the Jackson shooting, we cannot

say that the government’s failure to proactively compare the ballistics to uncover a

“match” before Bellinger’s trial amounted to willful blindness.

In reality, it is the ballistics comparison that was potentially exculpatory (the

ballistics evidence from the Rivers homicide itself was only exculpatory once tied

to Jackson’s shooting). No comparison had been performed until Bellinger’s post-

trial counsel commissioned one. Thus, Bellinger faults the government not for
 18

failing to disclose exculpatory evidence in its possession, but for failing to develop

additional evidence. As we already explained in the prior appeal, this amounts to

requiring the government to “come to know [] information which the defendant

would like to have but the government does not possess,” which we have said is not

required under Brady. 2 Bellinger, 127 A.3d at 521 (quoting Guest, 867 A.2d at 212).

We therefore reject Bellinger’s renewed Brady claim.

B.

Bellinger next argues that Baron, his trial counsel for the second and third

trials, provided him ineffective assistance. The government disputes this and further

argues that Bellinger’s claim is time-barred by § 23-110’s laches provision because

he waited five years to bring his claim. We agree with the trial court that Bellinger

has not shown that Baron’s representation of him was deficient and therefore reject

2
This is admittedly a judgment call based on the particular facts of this case.
If the police had more specific reason to believe that the Jackson shooting and the
Rivers homicide were linked, it might have amounted to willful blindness for the
government not to conduct a ballistics comparison. However, on the facts presented
here, where there is no suggestion that there was a common suspect between the two
shootings, and the shootings were committed six weeks apart, the government’s
failure to conduct a ballistics comparison between the two shootings simply does not
rise to the level of willful blindness.
 19

his ineffective assistance claim. Before we turn to the merits, we flag two threshold

disputes between the parties, though we ultimately do not resolve either of them.

First, the government argues that Bellinger’s delay in bringing this claim

materially prejudiced it, so that the trial court acted within its discretion when it

dismissed his motion under the so-called laches provision, § 23-110(b)(2),

permitting dismissal where “the government demonstrates that it has been materially

prejudiced in its ability to respond to the motion by the delay in its filing.” It may

be that the government was prejudiced, but it is difficult to attribute all of the

prejudice to Bellinger where the government itself took four years (from 2002 to

2006) to comply with the Superior Court’s order directing it to turn over the ballistics

evidence. That unexplained contributory delay perhaps should have been held

against the government, as Bellinger has argued, and defeated the government’s

laches defense. The trial court’s failure to even consider that argument might

amount to an abuse of discretion. Crater v. Oliver, 201 A.3d 582, 584 (D.C. 2019)

(asking “whether the decision maker failed to consider a relevant factor” when

assessing a claimed abuse of discretion (citation omitted)).

Second, there is the question of whether Baron knew of the ballistics match

before Bellinger’s third trial (the second trial at which she represented him). The
 20

trial court credited Wicks’s testimony that Baron knew of the match a couple of

months after Bellinger’s third trial concluded, but reasoned that this did not

conclusively establish that Baron had known of the match before that trial. It seems

to us that the trial court likely erected too high an evidentiary bar for Bellinger on

this point. While it is true that Bellinger did not have ironclad proof that Baron knew

of the match before trial, he needed to prove the facts underlying his ineffective

assistance claim only by a preponderance of the evidence, see Benitez v. United

States, 60 A.3d 1230, 1235 (D.C. 2013). It seems probable that Baron learned of the

match in the course of representing Bellinger in the lead-up to two trials, rather than

in the narrow window thereafter, at least in the absence of any evidence to the

contrary.

We ultimately need not resolve these two threshold questions because, even

assuming that we would resolve both of them in Bellinger’s favor and treat

Bellinger’s motion as timely and Baron’s pretrial knowledge of the ballistics match

as established, Bellinger still is entitled to no relief.

To show ineffective assistance of counsel, Bellinger must show (1) that

Baron’s performance “fell below an objective standard of reasonableness,”

measured against “prevailing professional norms,” and (2) “that there is a reasonable
 21

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 690, 694

(1984). Both prongs of Strickland are mixed questions of law and fact, so we accept

the trial court’s findings of fact unless they lack evidentiary support in the record,

and we review the trial court’s legal determinations de novo. Cosio v. United States,

927 A.2d 1106, 1123 (D.C. 2007) (en banc). We conclude that Bellinger has not

shown that Baron’s representation was unreasonable, and so we do not reach the

question of prejudice.

Under the reasonableness prong, a defendant must show that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. When assessing reasonableness, we make “every effort . . . to eliminate

the distorting effects of hindsight” and endeavor to “evaluate the conduct from

counsel’s perspective at the time.” Id. “Because of the difficulties inherent in

making the evaluation, a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. (quotation omitted).

In short, counsel are given a “wide latitude . . . in making tactical decisions.” Id. at

689. This “presumptive deference” to tactical decisions does not apply, however, to
 22

“decisions that are inexcusably uninformed or under-informed.” Cosio, 927 A.2d at

1123. “In other words, counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691.

Baron’s decision not to advance a Winfield defense, pointing to Mack as the

true perpetrator, was a reasonable one. It was a treacherous defense to advance, even

if armed with evidence that the same gun was used in the Jackson and Rivers

shootings. For one thing, it seems exceedingly likely that Mack was detained at

Terraces at the time of the shooting, which would have been fatal to any argument

that Mack shot Jackson. While Bellinger acknowledges that Mack was detained at

Terraces during the relevant timeframe, he contends that Mack was permitted

weekend visits to the District that could have provided him an opportunity to shoot

Jackson. The difficulty with that argument is that the evidence showed that Mack’s

weekend visits began on Fridays, and Jackson was shot around 2:40 am on a Friday

morning. Assuming that juvenile detainees are not transported to weekend visits in

the wee hours of the morning, this means Mack’s weekend visit would have to have

started, at the latest, on Thursday for him to be in the District when Jackson was

shot. Though Mack was sometimes able to extend his weekend visits, it appears

these extensions had to be approved by the court. For instance, there are records of
 23

the court granting Mack an extension of one weekend visit so he could attend a court

hearing in the District on a Monday. Though the Terraces records were lost, the

Superior Court records pertaining to Mack’s commitment survived, and there is no

record of a court order granting an extended weekend visit for the day Jackson was

shot. All evidence therefore indicates Mack was detained at Terraces at the time of

the shooting. This would have made any Winfield defense pointing to him as the

perpetrator quite tenuous, and perhaps entirely foreclosed.

Presenting a Winfield defense also would have opened the door for the

government to introduce damaging rebuttal evidence linking Bellinger to the 18th

and D Street crew and to guns, which could have been devastating to his defense. In

particular, the government argued that it would have introduced various firearm ads

that Bellinger had in his room along with a poster that depicted guns, contained a

violent poem referencing putting people “in they grave quicker,” and said “18-N-

Dst N.E.,” seeming to reference the crew. The government also could have

introduced officer testimony that the crew kept stashes of firearms in common

locations that they would share to try to stymie police efforts to tie any particular

firearm to any one owner.
 24

Bellinger does not dispute that a Winfield defense would have opened the door

to the above evidence. Rather, he argues that there was reason to believe it would

not have swayed the jury, because the first jury heard that he had prior convictions

involving drug-dealing and guns, but still did not convict him. 3 But there is a

substantial difference between dealing drugs and possessing guns generally, versus

being a member of a violent crew that uses a shared stash of guns to commit crimes,

as the latter far more directly undermines a Winfield defense implicating a fellow

member of the same crew. And, in any case, defense counsel is entitled to decide

among multiple reasonable defense theories. See Strickland, 466 U.S. at 689 (there

is a “wide range of reasonable professional assistance”). A defense attorney could

quite reasonably have concluded that the potential upside of presenting a Winfield

defense was outweighed by the risks. Indeed, at the evidentiary hearing, Wicks

agreed she would want to keep the evidence of Bellinger’s affiliation with the 18th

and D Street crew, and his apparent affinity for firearms, away from a jury if she

were representing him.

3
He also argues that the fact that the crew kept a shared stash of firearms
increases the likelihood that someone else could have shot Jackson, undermining the
government’s case. But that would have done nothing to undermine the
government’s case where the government relied on Jackson’s eyewitness
identification of Bellinger to prove that he was the shooter and never suggested that
Bellinger had exclusive access to the gun used in the shooting. Instead, this evidence
would have devastated a potential Winfield defense without any concomitant damage
to the government’s case.
 25

Moreover, it appears that Bellinger—contrary to the trial court’s reasoning

that the government had an “unusually strong” case—himself had a reasonably

strong case without risking the introduction of that potentially damaging Winfield

rebuttal evidence. Significantly, his first two trials had resulted in hung juries, with

the second trial, at which Baron represented him, resulting in a jury hung 10-2 for

acquittal. Clearly, several jurors did not believe Jackson’s testimony that she was

able to reliably identify Bellinger as the person who shot her. It was not

unreasonable to think that Bellinger’s misidentification defense—including his alibi

witnesses and his impeachment of Jackson—gave him a better chance at securing an

acquittal than a tenuous third-party perpetrator defense that would have opened the

floodgates to testimony that would have been extremely damaging to Bellinger. We

therefore think Baron’s decision not to present a Winfield defense was a reasonable

one.

III.

For the foregoing reasons, we affirm the trial court’s decision.

So ordered.