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Tucker v. United States

March 31, 2005

DERONTE M. TUCKER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (F7546-99). (Hon. Judith E. Retchin, Trial Judge).

Before Wagner, Chief Judge, Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Argued January 16, 2003

Appellant Deronte M. Tucker was charged with first-degree murder while armed (premeditated), in violation of D.C. Code §§ 22-2401, -3202 (1996),*fn1 and convicted of the lesser included charge of second-degree murder. He also was convicted of possession of a firearm during a crime of violence, in violation of § 22-3204 (b),*fn2 carrying a pistol without a license, in violation of § 22-3204 (a),*fn3 unlawful possession of an unregistered firearm, in violation of D.C. Code § 6-2311 (a) (1995),*fn4 and unlawful possession of ammunition, in violation of § 6-2361 (3).*fn5 He filed a timely appeal and primarily contends that the trial court erred by (1) refusing to compel the government to produce a government witness' grand jury testimony from another murder case in which the witness misidentified the perpetrator, and prohibiting cross-examination of the witness' alleged prior "false testimony"; (2) improperly curtailing the cross-examination of another witness; and (3) giving a second-degree murder instruction. We affirm the judgment of conviction.

FACTUAL SUMMARY

The government presented evidence showing that around 10:30 p.m. on the night of October 8, 1999, Mr. Tucker shot and killed Eugene Adams, Jr. on Second Street in the Southwest quadrant of the District, at the Syphax Apartment complex. Just prior to the shooting, Mr. Adams had been playing craps or shooting dice outside the complex with other men, including Mr. Tucker and Troy Carter. Mr. Carter saw Mr. Adams leave the game after losing and lean on a nearby gate. Mr. Tucker took his turn at the game, won, but did not pick up his money. Instead, he left the game. Mr. Carter heard a gunshot and started running. As he was running, he "looked back" and saw Mr. Tucker standing . . . over top of [Mr. Adams while he] kept shooting." He heard "around eight or nine [more] shots."

Another eyewitness, Natasha Sanders, who lived in the Syphax Apartment complex and was visiting a friend in the same complex at the time of Mr. Adams' murder, was at a window eating pizza. When she had gone to the street to pick up her pizza from the delivery person, she spoke with Mr. Tucker, whom she described as a friend she has known for ten years. While sitting at the window, she saw the crap game in progress and observed Mr. Adams at the fence. She watched as Mr. Tucker "left the crap game" and proceeded to the place where Mr. Adams stood. She heard shots and saw Mr. Tucker shoot Mr. Adams in the back. Mr. Adams ran and fell face down. Mr. Tucker walked away but returned and shot Mr. Adams "about 10 or 11" more times while standing "over top of him." Two days prior to the murder, Mr. Tucker visited Ms. Sanders and her five-year-old son in her apartment. She was in the kitchen after preparing her son for bed. Mr. Tucker went into the boy's room to talk with him before he fell asleep. Ms. Sanders decided to check on what they were doing and saw that Mr. Tucker "had his gun out." Ms. Sanders asked Mr. Tucker to leave her son's room, and the two went to the living room to talk. Mr. Tucker inquired whether Ms. Sanders had seen Mr. Adams. She replied, "no" and Mr. Tucker left her residence.

Eyewitness Tracey Washington, identified Mr. Tucker as her "Godbrother" and Mr. Adams as a person she had known for the past two or three years. Approximately eight months before his murder, Ms. Washington saw Mr. Adams walk up to Mr. Tucker, "put a gun to his head," and heard him utter a derogatory greeting. On the night of Mr. Adams' murder, Ms. Washington was present during the crap game, which took place in a well lit courtyard on Second Street, Southwest. She testified that both men left the game -- first Mr. Tucker and then Mr. Adams. While Mr. Adams was standing at a fence near the site of the game, Mr. Tucker walked over to him and words were uttered but Ms. Washington "couldn't really hear the words that he said to him at first." She "just heard gunshots" and Mr. Adams "tried to run," but "he fell." Mr. Tucker had started to walk away, then turned around and saw Mr. Adams "lifting his head." He returned, voiced a derogatory appellation and added, "You're not dead yet?" He stood over Mr. Adams and "just kept on shooting him." Mr. Tucker got into his car and drove away.

ANALYSIS

Mr. Tucker contends that the trial court erred by refusing to compel the government to produce alleged Brady*fn6 material, and thus violated his constitutional due process rights because he was "precluded . . . from cross-examining Ms. Washington regarding the accuracy of her testimony in the unrelated matter," her bias and lack of credibility, and her decision to "provide[] false information in order to get the police to look the other way as to her own illegal drug activities." The alleged Brady material consisted of a transcript of Ms. Washington's grand jury testimony in another case. There, Ms. Washington incorrectly identified an individual as a person who committed a murder. The government never indicted that individual on a charge of murder. Mr. Tucker claims there is a reasonable probability that the outcome of his case would have been different had he been able to introduce and use the alleged Brady material in cross-examination of Ms. Washington. The government argues there was no error because "the pertinent information in the [grand jury] transcript was disclosed to counsel, the matters contained therein did not constitute Brady information, and the trial court allowed [Mr. Tucker's] counsel to conduct an extensive and probing cross-examination of [Ms.] Washington."

The controversy surrounds grand jury testimony by Ms. Washington in a case involving a homicide that occurred some ten years prior to Mr. Adams' murder. In that case, Tyrone Brawner was accused of murdering Larry Wright. Ms. Washington testified that Mr. Brawner was like a "brother" to her and that he shot Mr. Wright. Further police investigation established that Mr. Brawner was not the shooter, and another individual was tried for Mr. Brawner's murder. Prior to trial in this case, defense counsel asked the government about Brady material. The government filed a response to the request on May 11, 2001, which stated in part:

Trac[e]y Washington testified in the Grand jury in a 1989 homicide case against Tyrone Brawner . . . . The case against Tyrone Brawner originated from a murder that took place on June 29, 1989 . . . . The victim in the murder was Larry Wright. Assistant United States Attorney Roy McCleese investigated the case and presented it to the Grand Jury in 1989 and 1990. In the grand jury, Trac[e]y Washington identified Tyrone Brawner as the person she saw kill Larry Wright. After investigating the case, however, Assistant U.S. Attorney McCleese dismissed the case before indictment because of insufficient evidence to return the indictment . . . .

Assistant United States Attorney Douglas Klein was not aware of Trac[e]y Washington's involvement as a witness to the 1989 murder until about two weeks ago when defense counsel informed him of the information. In response to the defendant's motion, and in compliance with the Brady request, the United States turns over the following police documents related to the 1989 murder; PD 163, PD 251 and PD 252, photo array, and arrest warrant. Trac[e]y Washington was the witness [o]n which the United States based the arrest warrant for Mr. Brawner in 1989.

The government asked the trial court to "conduct a short hearing on the Brady issue prior to the selection of the jury in the case." Defense counsel filed a motion to compel disclosure of Ms. ...


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