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Bellinger v. United States ( 2023 )


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  • Notice: This opinion is subject to formal revision before publication in the
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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.