Appeal from the Superior Court of the District of Columbia (CF1-2508-07) (Hon. Frederick H. Weisberg, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before FISHER and THOMPSON, Associate Judges,and RUIZ, Associate Judge, Retired.*fn1
Jamel Mackabee was convicted
by a jury of second-degree murder while armed, assault with intent to
kill while armed, assault with a dangerous weapon, two counts of
possession of a firearm during a crime of violence ("PFCV"), and
carrying a pistol without a license. On appeal, he presents one
principal issue for our consideration. He contendsthat he is entitled to a new trial under Brady v. Maryland*fn2
because the prosecution suppressed material exculpatory
statements and information, providing them too late for appellant to
use them effectively at trial and in preparing his defense, and
because the trial judge refused to take remedial action to protect his
rights, depriving him of a fair trial. He also asserts that his two
convictions for PFCV should merge because the evidence was that he
possessed "a single weapon during a single violent act."*fn3
The government agrees, and so do we, that the PFCV
convictions merge. As to appellant's Brady claim, while the
government's handling of its Brady obligations in this case is
troubling in a number of respects, we ultimately conclude that
appellant is not entitled to reversal of his convictions. Accordingly,
we remand for the trial court to vacate one of the PFCV convictions,
but otherwise affirm the judgment of conviction.
This case arises from a shooting in the early morning hours of January 20, 2007, at Club 1919, a go-go club located near 9th and U Streets, N.W.*fn4 Nadine Dobbins, who was employed by a company called "Men in Black," was working security at the club that night, as were other security guards who were employed either by Men in Black or by the band that was playing at the club that night. Dobbins was stationed at the entrance to the club on the ground level, where patrons entering the club were searched for weapons and drugs. At around midnight, Lonika Atkinson*fn5 went to the club along with Chapale Warren, Vernon Plater, and two other individuals. Dobbins searched Atkinson at the club entrance. Dobbins testified that, some time later, she heard Atkinson and a security guard named "Poochie" arguing at the top of the steps that led from the entrance of the club to the second floor. Poochie had placed Atkinson in a choke-hold and was attempting to eject her from the premises because she was smoking marijuana. Atkinson was visibly upset and told Poochie "he should not have put his hands on her." Atkinson angrily warned Poochie that "she was coming back" "with her folks" and stated, "I'll see you. You'll get yours." Atkinson left the club and, sometime thereafter, Poochie left the club as well.
After Atkinson was ejected from the club, Warren joined her in Plater's car where they sat together and listened to music for about half an hour. At some point, appellant knocked on the car window, and Atkinson got out of the car to talk with him. Warren could not hear their conversation, but could tell from Atkinson's gestures that Atkinson was explaining to appellant that Poochie had placed her in a choke-hold. Atkinson opened the car door and told Warren that she would be back but was going to see whether she would be barred from entering the club the next day.
Dobbins testified that, about 35 or 40 minutes after Atkinson had left
the club, she (Atkinson) re-entered with appellant.*fn6
Dobbins was standing at the door with Robert Saunders,
another of the security guards, and heard appellant ask for a promoter
at the club named "Jamal." Dobbins told appellant that Jamal was not
there that night, and appellant asked, "[W]here is the guy [Atkinson]
had the argument with[?]" Either Dobbins or Saunders informed
appellant that the person had left the club for the night. Dobbins
then told Atkinson that she could not re-enter the club, and Saunders
told appellant that he had to be searched before he could
enter.*fn7 Appellant warned Saunders that if he
touched him, "both of y'all [Saunders and Dobbins] will get it."
Dobbins testified that appellant patted his pocket as he said this, a
gesture that Dobbins understood to mean that appellant had a weapon.
Saunders testified that appellant told him not to touch Atkinson and
then asked Atkinson "how the person looked." Atkinson replied that
"he's doing security here." At that, appellant "rushed upstairs,"
while Atkinson stayed downstairs with Dobbins and Saunders.
On the second floor, bouncer Earl Caldwell was alerted to appellant's presence by the club's cashier, who informed Caldwell that appellant had not paid the admission charge.*fn8 Caldwell grabbed appellant's shoulder, and appellant "swung away" from him. Caldwell testified that appellant then pulled out a silver gun and warned Caldwell, "Get off me before I shoot you." Caldwell put his hands up (as if in surrender) and said, "[Y]ou got it." Appellant, however, took two steps towards Caldwell and hit him across the face with the gun. Appellant then backed away from Caldwell, swung the gun in the air, reached his arm out, and shot in the direction of Caldwell. Caldwell had turned sideways just before appellant fired the gun, and the bullet hit 17-year-old Taleshia Ford, instead of Caldwell. Ford died shortly after the shooting of a gunshot wound to the chest and right arm.
Arthur Green, a sound technician who was working at the club that evening, testified that he saw the confrontation between Caldwell and the man that Caldwell tapped on the shoulder.*fn9 Green saw the man hit Caldwell with a silver gun.*fn10 Seconds later, Green heard a gunshot and saw one of the patrons (Ford) fall, but did not actually see the shot fired. Dobbins and Saunders were still standing at the entrance of the club when they, too, heard the gunshot. Dobbins testified that about two or three seconds later, she saw appellant come down the stairs and walk out of the club with Atkinson.*fn11 Saunders testified that he saw a gun in appellant's hand as he (appellant) walked out of the club.
The defense did not call any witnesses, but pressed a theory of mistaken identity and, through questioning of Caldwell, suggested that Caldwell had a gun and fired it during the altercation, accidentally striking Ford. The gun that fired the fatal shot was never recovered, and no physical or scientific evidence linked appellant to the shooting.
Appellant's Brady arguments focus on two pieces of evidence: (1) a description of the shooter provided by Green in a videotaped statement he gave to police, and (2) a viewing sheet prepared after Pierre Swails, a witness to the shooting, did not identify appellant's photo but pointed to two other individuals depicted in a set of photographs and stated, ...