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David Graham, Jr v. United States

February 10, 2011

DAVID GRAHAM, JR., APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (FEL-5576-03) (Hon. Hiram E. Puig-Lugo, Trial Judge)

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

Argued September 30, 2010

Before GLICKMAN, KRAMER,and BLACKBURNE-RIGSBY, Associate Judges,

David Graham appeals from his convictions for first-degree murder while armed, possession of a firearm during a crime of violence ("PFCV"), and carrying a pistol without a license ("CPWL"). Appellant argues that the jury lacked sufficient evidence to sustain the convictions, that the trial court erred by improperly admitting hearsay evidence, that the trial court erred by giving the jury a flight instruction, and that the trial court's flight instruction itself was erroneous. We affirm.

I. Factual Background

On December 12, 2001, Kamau Walker was shot to death in his home in northwest Washington. The government's evidence showed that, prior to the shooting, Graham and Walker had at least one altercation, and on the day of the murder, at least two altercations during which Walker threatened Graham. At trial, the government introduced testimony from a number of witnesses, including Graham's friend Derrick McCray, and Walker's friends Jose Henriquez and Barrington Fowler. Because the testimony was at times contradictory, we summarize the relevant testimony of the key witnesses.

Henriquez testified that prior to the shooting, he was in the house with Graham, Fowler and Walker. Minutes after Graham arrived, Henriquez went to the bathroom, where he heard Walker speak with someone, then heard "firecrackers." When he emerged, Walker was dead, and he fled to get help. He testified that he encountered Fowler by the front door near the stairs, and told him that Walker was "on the floor." Henriquez testified that he believed that the shooter fled via the back door. That night, while giving a statement to police, Henriquez saw Graham across the street and told officers that he "might be the guy."

Fowler testified after Henriquez. He testified that he was outside the home when the shooting occurred, and while running into the home to investigate, met Henriquez in front of the house, where Henriquez, hysterical, told him "Dave [Graham] shot your friend, Kamau [Walker]." Fowler testified that despite knowing that Henriquez was in the house when the shots were fired, he did not believe Henriquez was the shooter.Fowler also testified that after the shooting, he saw Graham walking quickly down the street, in different clothing than he had worn earlier. The night of the shooting, Fowler made a report to the police. At trial, he testified that he told the police the shooter was "Kamau's [Walker's] friend, Dave [Graham]."

McCray testified that on the evening of the shooting, after an altercation with Walker, Graham stated that he should "snuff" Walker.*fn1 McCray testified that he later followed Graham into Walker's house, where he witnessed Walker's shooting. According to McCray, he was standing behind Graham, who was facing Walker, who in turn was in front of Fowler, when Walker was shot. McCray was behind Graham, thus unable to see whether or not he had anything in his hands. While McCray did not specifically see Graham shoot Walker, he testified that Fowler was definitely not shooting, and therefore he knew that Graham was the shooter. McCray further testified that a few days after the shooting, he met Graham in a parking lot in the northeast part of the city to give Graham clothes from Graham's apartment. Other witnesses testified that Graham was avoiding the area because it was "hot."

The trial judge instructed the jury, including an instruction allowing the jury to consider flight evidence. The jury convicted on all counts, and this appeal followed.

II. Sufficiency of the Evidence

Graham argues that the evidence presented at trial could not have sufficiently identified him as the shooter.*fn2 Where "identification is at issue, we must focus on the reliability of the identification. If . . . there was only one eyewitness to the crime, 'the test is whether a reasonable person could find the identification convincing beyond a reasonable doubt, given the surrounding circumstances.'" Lancaster v. United States, 975 A.2d 168, 171-72 (D.C. 2009) (quoting Beatty v. United States, 544 A.2d 699 (D.C. 1988)). "And we of course view the evidence in the light most favorable to the government, 'giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.'" Id. (quoting Williams v. United States, 881 A.2d 557, 566 (D.C. 2005)).

Graham's primary contention is that the testimony provided by the various witnesses at trial was too contradictory to sufficiently identify him as the shooter.

Furthermore, he emphasizes that McCray, the only eyewitness to the shooting, changed his account of events and was influenced by a plea agreement with the government. Nonetheless, viewing the evidence in the light most favorable to the government, we find ...


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