McCray v. United States

133 A.3d 205

Marcellus McCRAY, Lamonte Henson, Antonio Fortson, and Timothy Parker, Appellants,

v.UNITED STATES, Appellee.

Nos. 12–CF–1778

12–CF–1799

12–CF–1800

12–CF–1869.

District of Columbia Court of Appeals.

Argued June 9, 2015.

Decided March 10, 2016.

Stephen Domenic Scavuzzo, Vienna, VA, for appellant McCray.

Thomas T. Heslep, Washington, DC, for appellant Henson.

William R. Cowdenfor appellant Fortson.

Peter H. Meyers, Washington, DC, for appellant Parker.

David P. Saybolt, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Jeff Pearlman, and Laura Bach, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMANand FISHER, Associate Judges, and REID, Senior Judge.

REID, Senior Judge:

These appeals arise from the indictment of nine men on multiple felony charges relating to shootings, assaults, and murders that occurred in the Benning Terrace housing complex in the Southeast quadrant of the District of Columbia from 2009 to 2011.¹ Appellants Marcellus McCray, Lamonte Henson, Antonio Fortson and Timothy Parker were tried together by a jury presided over by the Honorable Henry F. Greene.² At the conclusion of the trial, which lasted about two months, they were convicted of some of the charges.³ They present numerous arguments on appeal: (1) Mr. Fortson argues that the trial court abused its discretion by permitting a juror who violated the court's instructions to continue serving, thus denying Mr. Fortson his Sixth Amendment right to an impartial jury; (2) Messrs. McCray, Fortson, and Parker claim error pertaining to the trial court's urban gun battle and aiding and abetting instructions; (3) Messrs. McCray, Henson, and Fortson contend that the evidence was insufficient to convict them of specified charges; (4) Mr. McCray and Mr. Parker contend that the trial court abused its discretion by curtailing their efforts to obtain mental health information in order to impeach a key government witness and former codefendant; and (5) appellants make several other arguments, some of which we treat summarily.

For the reasons stated below, we (1) discern no abuse of discretion with respect to Judge Greene's approach to and resolution of the alleged juror misconduct issue; (2) conclude that (a) the trial court's urban gun battle and aiding and abetting instructions did not result in a constructive amendment of the indictment, and (b) there was no prejudice to the defendants resulting from these instructions, and hence, any error would be harmless; (3) hold that the evidence was sufficient to convict Mr. McCray of counts 8 and 9; (4) hold that the evidence was sufficient to convict Mr. Fortson, Mr. McCray, and Mr. Parker, as co-principals, of the lesser-included offense of voluntary manslaughter (count 10), as well as the related weapons charges; (5) reverse Mr. Henson's CPWL conviction (count 16) on insufficiency of evidence grounds; (6) conclude that the government's evidence was sufficient to convict Mr. Fortson of ADW (counts 5 and 6); (7) hold that the government proved by a preponderance of the evidence that the statements in Mr. McCray's videotaped confession were voluntary; (8) conclude that the trial court did not abuse its discretion in denying Mr. McCray's severance motion; (9) reject Mr. Parker's contention that the trial court abused its discretion in permitting Ms. Rajah to testify on redirect that she relocated, in part, because of her fear of Mr. Parker, and we also reject Mr. Parker's merger arguments; (10) remand Mr. Parker's and Mr. McCray's cases to the trial court solely to provide them with an opportunity to show, at a hearing and through expert opinion, whether at the time of his trial testimony Mr. Faison's mental disabilitiesseriously impacted his credibility; and (11) conclude that appellants' other contentions are not persuasive.

FACTUAL SUMMARY

The government presented evidence of shootings⁴ in April and May 2010, and other months, in part of the Benning Terrace housing complex.⁵ The shootings took place in two areas: (1) an area known as "the circle" where several low-rise apartment buildings are located to the north of and on the west and east sides of 46th Place, and (2) an area known as "the Avenue" because it is located near Alabama Avenue where other housing units are located.

The shootings arose from a "beef" or feud between young men who identified with "the circle" and others who were linked to "the Avenue." The feud grew out of drug transactions in the circle area of the housing complex. Jovan Clay, who at one time lived in the 620 building on 46th Place, testified that the feud occurred because young men from the Avenue were "trying to come in the circle and rob people in the circle."⁶ Joshua Johnson, who lived on F Street, near Alabama Avenue, but who hung around the circle, stated that "there was a dispute between individuals who hung over on the Avenue and individuals who hung in the circle." The feud between the young men from the circle and those from the Avenue involved the use of guns. As Mr. Clay put it, the circle and Avenue men were "trying to kill each other." According to Mr. Johnson, Mr. Fortson once said "bi* *h a*s nig* *s from the Avenue, they always ... think they're going to come out here and do what they want and we[']re not going to do nothing to them." Mr. Johnson also heard Mr. McCray say, "he kill[ed] when he was over there [the Avenue], some bi* *h a*s nig* *s."

The first shooting that was the subject of the case against appellants concerned Melvin White who was shot and killed on April 10, 2010. After the government presented compelling evidence that Curtis Faison shot and fatally woundedMr. White, Mr. Faison entered a guilty plea to various charges, including the murder of Mr. White.

The second and third shootings pertaining to the case against appellants took place on May 30, 2010. Linwood Hopkins, who lived on the third floor in the 610 building on 46th Place with his wife and their children, testified that on May 30 he and his family returned from a cookout around 7 p.m. That night he heard shots coming from the back of his building towards Alabama Avenue. He looked out of a window and saw someone running towards some dumpsters. He went to his balcony at the front of his apartment to alert people who were having a cookout to go inside. He heard more shots and saw a man run from the side of his building while shooting; the man ran behind building 600. Mr. Hopkins also witnessed a man dropping in front of his building, and he heard "a lot of shooting"; it sounded as though two or three guns were being fired.

Although he could not remember the exact date on which he saw and heard shootings at the Benning Terrace complex, Carl Brown, a maintenance worker for the District of Columbia Housing Authority, testified that it was a "warm day" in 2010. While he was working on a house at 46th Place and G Street, he heard shots and saw Lamont Thomas (who entered a guilty plea during trial), Mr. Fortson, and about four other men. Mr. Brown got under a truck. Mr. Thomas started shooting; he had "something like" "a 357." Young men walking up G Street were shooting back. Mr. Fortson had a small handgun in his hand but Mr. Brown did not see Mr. Fortson fire the gun. Mr. Fortson went behind a building on the right side of 46th Place, and Mr. Brown heard "a whole lot of shooting ... back and forth." Mr. Brown testified before the grand jury that following the shooting, Mr. Fortson said to him, "[my] bad." At trial, Mr. Brown said Mr. Fortson declared, "[my] bag."

One of the government's main witnesses regarding the events of May 30, 2010, was Angelo Wages. He grew up in Benning Terrace and lived in the 4600 block of G Street with his mother and sisters. At the time of the May shootings he had lived alone in a first floor apartment in building 620 on 46th Place for about three years. He was a reluctant trial witness and the prosecutor often used his grand jury transcripts of September 10, 2010, and September 24, 2010, to refresh his recollection or to impeach him about details relating to the events of May 30 and the actions of the appellants.

Mr. Wages recognized all of the appellants at trial. He admitted having a conversation with Mr. Fortson about keeping guns at his (Mr. Wages's) apartment. He had seen Mr. Parker around Benning Terrace with Mr. Buckner, a young man who lived in the circle part of Benning Terrace and who was killed late on the night of May 30. That night, Mr. Wages observed several young men with guns, including Mr. Henson, Mr. Thomas, Mr. Mungo, and Mr. Magruder. Earlier on May 30, before Mr. Buckner was shot, Mr. Wages heard gunshots and went outside. Mr. Thomas, Mr. Magruder and someone else were engaged in conversation. Mr. Thomas said, "They're shooting at the Avenue." The day after the May 30th shootings, Mr. Wages spoke with Mr. McCray who said that before the later shootings on May 30, he had been "shooting at the Avenue boys." The shooting was coming from the "back cut" near building 620. Mr. McCray said he was shooting with Mr. Mungo and Mr. Mungo indicated that he was shooting at the Avenue.

Following the first shootings on May 30, Mr. Wages later sat with Mr. Buckner and another person at the mailboxes, located near buildings 601, 603 and 605. Mr. Wages heard shots and got up to go into building 601. Mr. Buckner was behind him, carrying a chair and a wine bottle. Mr. Buckner never made it inside building 601. Mr. Wages saw Mr. Buckner get shot and fall to the ground. Mr. Buckner got up and staggered; he was "leaning forward, like he couldn't quite stand up straight." Mr. Wages watched Mr. Buckner from a window on the second floor of building 601 where he could see the mailboxes and half of the circle. Mr. Henson and Mr. Fortson were shooting in the courtyard between buildings 601, 603 and 605. They also had shot in a grassy...