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McClary v. United States

September 2, 2010


Appeal from the Superior Court of the District of Columbia (CF3-18852-06) (Hon. Herbert B. Dixon, Jr., Trial Judge).

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

Argued April 27, 2010

Before WAGNER, KERN and NEBEKER, Senior Judges.

After a jury trial presided over by Judge Dixon, appellant was convicted of assault with intent to kill while armed (AWIKWA), aggravated assault while armed (AAWA), assault with a dangerous weapon (ADW), three counts of possession of a firearm during commission of a crime of violence (PFCV), carrying a pistol without a license (CPWL), possession of an unregistered firearm, and unlawful possession of ammunition.*fn1 He argues on appeal that the court erred by limiting his cross-examination of the victim for bias, by giving an "attitude and conduct of the jury" instruction, and in failing to merge the AAWA and AWIKWA charges, the AAWA and ADW charges, and the three counts of PFCV. We affirm the convictions except with respect to the counts of PFCV, which merge, and AAWA and ADW, which also merge.


Sean Grady, sixteen years-old on August 7, 2006, testified that on the night of that date, he had been on Livingston Road selling crack cocaine, when appellant, whom he had seen in the neighborhood a couple of times, approached him and asked him, "Nigga, was there a problem?" Grady responded, "no, Nigga, there's no problem." Grady then "smack[ed]" his teeth, making a "ssst" sound because he thought appellant was "faking" or acting "big." Appellant pointed a gun at Grady's face and began firing. Appellant fired at least seven shots at Grady, hitting him under the nose, in the right cheek, neck, arm, chest, and twice in the back. Grady hesitated for a moment after appellant began shooting him, and then ran towards a gate, but could not make it because he "lost [his] energy." He turned around and ran past appellant toward the school, in an attempt to get away from him. As he ran toward the school, Grady hopped over a gate, and continued to run until he "passed out" by the school, where he remained for a few hours before he was brought to the hospital.

On the evening of August 7, 2006, Hugh Chandler and Rene Paige were sitting in lawn chairs outside an apartment complex at 4628 Livingston Road, Southeast, "talking, having some drinks[.]"

Chandler had known appellant for about a year, and saw him frequently in the neighborhood. At approximately 10:30 p.m., Chandler and Paige saw a fifteen- to seventeen-year-old boy, later identified as Grady, who told Paige he was looking for two of his friends and then entered the middle building of the apartment complex. A few minutes later, Chandler saw appellant standing next to a car on Livingston Road along with several other men. Chandler saw appellant raise his right arm straight out from his chest and fire in Grady's direction. Appellant was about ten to twelve yards from Chandler and was illuminated by several street lights. Chandler could not see the gun itself, but he saw the flashing from the gun's muzzle. He could not see whether the boy had been hit. Paige similarly reported having a "clear view" of appellant, who was illuminated by a street light, and of the "fire" coming from his gun.

After the shooting, Paige went inside to her apartment and Chandler remained in his lawn chair outside. Appellant and the other men disappeared into the parking lot, reappeared, got into a car, and sped off. Chandler assumed Grady had not been shot and did not call the police because he observed Grady run out from the parking lot, jump the school fence, and run behind the school. A few hours later, while walking to a friend's house to retrieve a jacket, Chandler walked behind the school and observed Grady lying on the ground moaning. He then went to a nearby gas station where he informed a police officer that there was a shooting victim behind the school.

Prior to trial, which began on June 7, 2007, appellant asked the court to discuss the extent to which the defense could cross-examine Grady for bias regarding "the complainant's juvenile record and ongoing cooperation with the government" and "juvenile adjudications" -- including the fact that Grady was on probation and had an outstanding custody order on the night of the shooting, that he violated his probation by selling drugs that night, and that he had been arrested two days earlier for possession of marijuana and driving an unregistered automobile.*fn2 Defense counsel argued that, under Davis v. Alaska, 415 U.S. 308 (1974), inquiry was necessary on these topics to demonstrate Grady's bias towards the government due to his ongoing relationship with the government. The trial court denied defense counsel's request to cross-examine Grady regarding his juvenile cases, probation, and custody order. The court stated that the present case differs from Davis, where the witness had reason to be concerned that he might be charged with the same charges facing appellant, and therefore had more reason to be biased. In regard to the pending traffic charge and "no papered" drug possession charge, the Assistant United States Attorney stated that he had not been in contact with Grady while decisions were being made whether to paper these cases and that he was not involved in these cases, and "to his knowledge," no one representing the United States had told Grady there would be any connection between the cases. The trial court ruled that it did not consider inquiry about the new arrest to be relevant, but that the defense counsel would "still have the chance to make [the] argument" as to why it was an appropriate line of questioning.*fn3

On June 11, prior to Grady taking the stand, defense counsel requested that the court permit them to file a "Supplemental Memorandum of Law on the Scope of Defendant's Right to Cross-Examine Complaining Witness" in the court jacket, "just . . . for the record." In the memorandum, appellant argued that he should be allowed to cross-examine Grady about (1) his juvenile record (charges for robbery, theft, and burglary), (2) his receipt of probation and probationary status at the time of the shooting, at the time of his testimony before the grand jury, and at the time of his identification of appellant to the police, (3) his outstanding custody order at the time of the shooting for failure to appear in court, (4) his engagement in illegal activity (drug-selling) on the evening he was shot, (5) his arrest for possession of marijuana and driving an unregistered automobile at the time of trial, and (6) the involvement of one of the Assistant United States Attorneys prosecuting the present case with a previous juvenile hearing in which Grady was involved. The trial court subsequently asked counsel if they wished to raise any issues orally; counsel for the government responded by noting concerns about the accuracy of the memorandum. Defense counsel did not respond to the trial court's inquiry.

At trial, appellant elicited from cross-examination of Grady that (1) he was testifying pursuant to an immunity agreement, (2) on the night of the shooting, he was selling crack cocaine, (3) he initially gave a false name and refused to cooperate with the police, and (4) the government had not charged him criminally for selling crack cocaine on the night of the shooting. Appellant presented evidence of a stipulation that Grady told the prosecutor that he took Ecstasy on the day of the shooting. Appellant also presented evidence of Grady's immunity agreement, and the court provided an "immunized witness" instruction to the jury.*fn4 See Criminal Jury Instructions for the District of Columbia, No. 2.204 (5th ed. rev. 2009).

II. Bias Cross-Examination

Appellant contends that he was denied his constitutional right to confront a witness against him by the limitations imposed on his cross-examination of Grady. We first address the government's argument that appellant failed to raise some of the topics for ...

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