Appeals from the Superior Court of the District of Columbia (F-4850-97 and F-8176-97) (Hon. Henry F. Greene, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge.*fn1
Before us are the consolidated appeals of Kareem McCraney and Momolu Stewart. Following their joint trial in 1999, a jury found each of them guilty of first- degree premeditated murder while armed, second-degree murder while armed (as a lesser-included offense of first-degree felony murder), two corresponding counts of possession of a firearm during a crime of violence (PFCV), and other weapons offenses.*fn2 After their sentencings in early 2000, appellants noted timely appeals. Each appellant subsequently filed a motion in Superior Court for a new trial pursuant to D.C. Code § 23-110 (2001). The trial judge denied Stewart's motion in 2002 and McCraney's motion in 2005, the latter after conducting an evidentiary hearing on McCraney's claims of ineffective assistance. Appellants again noted timely appeals.
In their appeals from the judgments of conviction, appellants claim the trial judge violated their Sixth Amendment rights to present a defense and to confront the witnesses against them by precluding their assertion of a third-party perpetrator defense, excluding relevant testimony of a defense witness, and curtailing their cross-examination of government witnesses for bias. They also claim the judge abused his discretion by not imposing sanctions on the prosecution under the Jencks Act for a governmental failure to preserve a 911 call recording. Appellant Stewart argues that the judge erred as well in denying his motion for a judgment of acquittal. Finally, in his appeal from the denial of his §23-110 motion, McCraney claims he was denied his Sixth Amendment right to the effective assistance of counsel because the attorney who represented him at trial had a conflict of interest that adversely affected her performance. (Stewart has not raised any issue concerning the denial of his motion for a new trial.)
In order to evaluate appellants' contentions, we find it necessary to describe in some detail the evidence presented at trial. After summarizing that evidence, we shall address the claims of error presented in the direct appeals. We shall turn then to McCraney's §23-110 motion and his ineffective assistance claim.
We conclude that appellants are not entitled to relief from their convictions. The trial judge's evidentiary rulings did not violate their Sixth Amendment rights, and the alleged loss of a recorded 911 call was not sanctionable under the Jencks Act. Nor did the judge err in denying Stewart's motion for a judgment of acquittal; the evidence was sufficient to permit the jury to find Stewart guilty beyond a reasonable doubt. McCraney's right to effective assistance of counsel was not violated either. Although his trial counsel did have a potential conflict of interest, which arose from the fact that his co-defendant paid the bulk of her legal fees, McCraney has not shown that the conflict adversely affected her performance on his behalf.
A. The Government's Evidence
McCraney and Stewart were charged with the January 1, 1997, murder of Mark Rosebure. The murder occurred on the premises of an apartment building located at 1600 E Street, N.E. At the time of his death, Rosebure was visiting his girlfriend, sixteen-year-old Sue Ann Mascall, who lived in that building. As the sole witness to Rosebure's murder, Mascall furnished critical evidence against appellants at trial. Other prosecution witnesses corroborated her account and supplied crucial details.
Mascall testified that she "grew up with" McCraney and used to see him and his friends "like every day." Among those friends were Stewart, whom she described as dark-skinned, and Xavier Gray, who was light-skinned. According to Mascall, McCraney often played craps with Mark Rosebure in her building. In December 1996, she recalled, McCraney "acted upset" after losing money to Rosebure.
On the night of December 31, Mascall and her brother Ricardo watched from a second-floor window as McCraney, Stewart, and three friends celebrated New Year's Eve by "shooting their guns" in the air outside her apartment building. Mascall recalled that McCraney fired a silver revolver and Stewart fired a silver 9mm semiautomatic handgun. Xavier Gray, who was with them, also had a silver 9 mm handgun, which Mascall testified he did not fire. A fourth individual named Halim Flowers fired a shotgun. Mascall testified that she had observed the weapons earlier in the evening, when McCraney was with Ricardo inside her building.
Rosebure visited Sue Ann Mascall on the afternoon of the following day. At approximately 5:45 p.m., as they were speaking in the hallway outside her first-floor apartment, McCraney "banged" on the front door of the building. Rosebure opened the door and let him in. McCraney asked Mascall if the police had come the night before. She told him they had not. Then, Mascall testified, McCraney withdrew a silver revolver from his pocket, pointed the gun at Rosebure's head, and asked him whether he had any money. When Rosebure lifted his hands up in response and shook his head "no," McCraney "started shooting at him."
As McCraney was firing, a second man -- allegedly, Stewart -- came up behind him. Mascall saw this man reach around McCraney and open fire on Rosebure with a silver 9mm semiautomatic handgun. Mascall did not see the second shooter's face and could not identify him, but she noticed that his gun hand was "dark-skinned."
As the two assailants continued firing, Mascall grabbed Rosebure's arm and tried to pull him into her apartment. He collapsed in the open doorway. Mascall called out to her father, Carl Johnson, who was inside the apartment. Johnson testified at trial that he heard the gunshots and rushed to the door, where he found his distraught daughter holding her mortally wounded boyfriend. Within moments, other occupants of the building appeared. While they tried in vain to help Rosebure, Johnson called the police. After making the call to 911, he returned to his daughter and attempted to calm her down. At this time, Johnson reported, she told him that "Kareem" had shot Rosebure. Mascall also identified McCraney to the police who arrived on the scene minutes later.
Another prosecution witness, Geraldine Hart, lived in an apartment building two doors up from Mascall's building at 1600 E Street. On the afternoon of January 1, 1997, Hart testified, she was sitting at her window overlooking the alley behind the buildings and observed three men she knew and had seen together many times -- McCraney, Stewart and Gray. They were standing in the alley next to a brown car that had a broken side window and a temporary paper license tag taped to the rear window. Hart watched the three men remove guns from the trunk of the car and then walk down the alley toward 1600 E Street. About fifteen minutes later, Hart heard "a lot of shots" from that direction. She then saw McCraney, Stewart and Gray run back to the car, throw their guns into the trunk, and drive quickly away. The driver, Hart said, was McCraney. She called 911 to summon the police.
Eugene Bacote, who lived across the street from Hart, corroborated her account. On the afternoon of January 1, 1997, Bacote testified, he was out walking and saw three men in the alley "right behind" 1600 E Street with a brown car parked nearby. Afterward, when he was back in his own apartment, Bacote heard gunshots and saw three similarly dressed men running from 1600 E Street toward the alley. The men appeared to be trying to "put something in their pockets" as they ran. Bacote did not see the men's faces and could not identify them. However, he testified, he had seen appellants McCraney and Stewart together with a third person in the alley behind 1600 E Street on numerous prior occasions, and he had noticed that they drove a brown Pontiac with paper tags.
The day after the murder, the police located McCraney's car, which was a brown Pontiac with a broken vent window and temporary Maryland license tags.*fn3 They towed the car to a parking lot at the Fifth District Police Headquarters. Two weeks later, after obtaining a search warrant, the police opened the vehicle's locked trunk and discovered a loaded Ruger .357 magnum revolver, a Lorcin 9 mm semiautomatic handgun, and a framed Urban Services Boot Camp certificate in Stewart's name. A police firearms expert testified that the Lorcin handgun had fired eight of the bullets recovered from the hallway at 1600 E Street and had ejected eleven shell casings recovered from that hallway and the area outside the front door where appellants shot off their guns on New Year's Eve. The firearms expert similarly linked the Ruger revolver to four bullets and six shell casings recovered from the hallway area.
Although neither McCraney nor Stewart testified in his own defense, they presented the testimony of other witnesses. McCraney presented an alibi defense: his aunt and uncle testified that he was at their home in Riverdale, Maryland, on January 1, 1997, along with Xavier Gray, his cousin.*fn4 The alibi was less than perfect, however, because McCraney's aunt testified that she was not home from 11:00 a.m. to 6:00 p.m., and his uncle similarly testified that he was out from 3:15 p.m. to "[s]omewhere in the area of 5:00 to 5:30" p.m. The alibi also was problematic because it linked McCraney to Gray, whom Mascall and Hart placed at 1600 E Street on New Year's Eve and New Year's Day. Gray was not called to testify.*fn5
Stewart undertook to impeach Hart's identification of him. A police detective who interviewed Hart on January 2, 1997, testified that she identified Stewart by his nickname but was unable to describe his appearance (though she could describe McCraney). A second detective testified that Hart did not select Stewart's photograph when she viewed arrays containing his picture on August 11 and September 2, 1997. On the latter date, Hart "hesitated on two photos," one of which was of Stewart, and said "she didn't want to pick the wrong person and that she couldn't tell from those photos."
In addition, Stewart called Michael Evans to the stand. Evans testified that at approximately 6:00 p.m. on January 1, 1997, he was driving a brown Pontiac station wagon with temporary Virginia tags (one of which was taped to the vehicle's rear window) in an alley behind his home in the 1600 block of Rosedale Street, a block away from the alley behind 1600 E Street, when he observed police in the area. Evans later learned that there had been a shooting in the vicinity. Evans's brother and his brother's girlfriend also were present with him in the car. Although appellants conceded that Evans had "absolutely nothing to do with" Rosebure's murder,*fn6 his testimony was admitted (over government objection) as evidence that Hart might have seen Evans's vehicle rather than McCraney's. The defense supported this theory with photographic evidence suggesting that the temporary tags on McCraney's car were affixed to its bumpers, not its rear window.
II. Trial-Related Claims of Error
Appellants contend that several rulings by the trial judge deprived them of their Sixth Amendment rights to present a defense and to confront the witnesses against them, and that the judge abused his discretion by declining to sanction the government under the Jencks Act for its failure to preserve evidence. Appellant Stewart further asserts that the evidence was insufficient to support his ...