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McCrae v. United States

September 10, 2009

RUDOLPH MCCRAE & DERRICK R. MILLER, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (FEL8215-97 & FEL8182-97) (Hon. Mary Ellen Abrecht, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued November 18, 2008

Before RUIZ and KRAMER, Associate Judges, and STEADMAN, Senior Judge.

Derrick Miller and Rudolph McCrae appeal from their convictions for assault with intent to kill while armed and related offenses arising out of a neighborhood feud between two groups of young men. Miller's sole argument is that the trial court erred in its refusal to give an instruction on duress. McCrae challenges the trial court's refusal to sever, raises objections to remarks made by counsel in opening and closing arguments, and questions the sufficiency of the evidence on two counts. We affirm.

I. The Facts

Appellants Miller and McCrae were members of a group sometimes called the 1-7 Crew (so-named because they spent their time near the intersection of 17th and Euclid Streets, in Northwest Washington, D.C.) that also included Omar Garris, Juan Salazar, Kenneth Johnson, Christopher Nicholson, Manuel Orozco, and James Marshman.*fn1 The 1-7 Crew were rivals with the nearby Holmead Crew (from the 3500 block of Holmead Place, Northwest). On the night of September 20, 1996, a fight between members of the 1-7 Crew and the Holmead Crew broke out at a nightclub. The fight moved outside and unidentified members of the Holmead Crew stabbed Salazar and Nicholson. Tensions between the groups escalated, and the 1-7 Crew decided to retaliate. In the early morning hours of September 21, 1996, several crew members rode their bicycles to Holmead Place. Shots rang out, and a member of the Holmead Crew was shot in the hand as the group on the porch ran for cover.

The next day, September 22, the crew gathered at the intersection of 17th and Euclid Streets. McCrae told Orozco what had happened the night before, commented that it was not sufficient revenge, and said he was going to bring the Holmead Crew "pain." That night, the crew gathered to further plot their revenge. Around 3:00 a.m. on September 23, 1996, members of the Holmead Crew and their friends were in front of a building on Holmead Place when "somebody got to shooting." One person was shot and killed and another was shot twice in the back. Later that night, in apparent retaliation, Johnson's car was "shot up" while Johnson and his friends were getting out of the car.

Things apparently were peaceful for several weeks.*fn2 Then, on October 29, the Holmead Crew rode by on bicycles and shot at the 1-7 Crew as they hung out on the Cooke Elementary School playground. No one was injured, but the shootings fueled the 1-7 Crew's desire for revenge.

On the afternoon of October 30, 1996, the 1-7 Crew decided to retaliate and the critical events relevant to the instant appeal unfolded. Several members of the group, including Miller and McCrae, went to a Silver Spring gun store to purchase ammunition. The men returned to the area around Fuller and 17th Streets to plan further. Garris testified that McCrae threatened to "punish" anyone who did not go up to Holmead that night, causing Garris to go along out of fear. McCrae told the men to get "strapped up," that is, to go get their black hooded sweatshirts and their guns. They proceeded to Orozco's home on Columbia Road. At one point, McCrae and one other crew member, not Miller, went some six blocks away to fetch guns. McCrae, Miller, Garris, Nicholson, Marshman, and Johnson each loaded a gun. The six men, all in black hooded sweatshirts, then began the fifteen or twenty minute walk to Holmead Place in two groups of three to avoid attracting attention. Garris walked with McCrae and Miller.

According to Garris, as the 1-7 Crew approached the Holmead area, they began to run, chasing "some Holmead people," because if "any of the [Holmead Crew] guys [were] out there, [the 1-7 Crew] was going to go get them." As the shooting began, Garris heard McCrae yell "he's in the basement" and then saw Miller shooting into the basement area. Garris said McCrae, Nicholson, and Marshman were also shooting and that he himself shot at a man who pulled up in a car and began shooting at the 1-7 Crew. The man in the car turned out to be undercover Metropolitan Police Officer Miguel Montanez, who had seen the group of men and, suspicious, had followed them. Officer Montanez shot Nicholson in the leg and apprehended him, but the other men fled and met back at 17th Street. Miller, who had been shot, was taken to a hospital in Maryland.

A jury convicted both McCrae and Miller of conspiracy, D.C. Code § 22-105(a) (1981), four counts of assault with intent to kill while armed (AWIKWA), D.C. Code §§ 22-501, -3202, four counts of possession of a firearm during a crime of violence (PFCV), D.C. Code § 22-3204(b) (1995 Supp.), one count of carrying a pistol without a license (CPWL), D.C. Code § 22-3204(a), and one count of unlawful possession of a pistol (UPP), D.C. Code § 22-3203(a)(2) (1981). Miller was also convicted on one count of obstruction of justice. D.C. Code § 22-722. Both filed timely notices of appeal.

II. The Requested Duress Instruction

Miller raises a single argument on appeal, specifically, that the trial court erred by refusing to instruct the jury on the defense of duress.*fn3 Miller's request was based essentially on a single piece of testimony by Garris in cross-examination. Garris testified about McCrae's threat that "whatever one of you all not going, [I'm] going to punish." Garris understood "punish" to mean "kill." Garris said he indeed believed McCrae would kill him if he did not go and that he went along on the venture only out of fear of McCrae. Miller's argument essentially is that if Garris feared for his life and acted under duress, the jury could reasonably infer that Miller did so for the same reason.

"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Adams v. United States, 558 A.2d 348, 349 (D.C. 1989) (citations omitted). Thus, the proper inquiry is whether there is evidence from either the prosecution or defense that fairly raises ...


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