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Walker v. United States

Court of Appeals of Columbia District

August 24, 2017

Chamontae Walker and Corey D. Yates, Appellants,
v.
United States, Appellee.

          Argued July 1, 2015

         Appeals from the Superior Court of the District of Columbia (CF1-5957-11, CF1-14652-11) Hon. Thomas J. Motley, Trial Judge.

          Thomas C. Paynter for appellant Walker. Todd F. Braunstein, with whom Matthew Thome was on the brief, for appellant Yates.

          James M. Perez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Sharon Donovan, and Emily A. Miller, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman and Fisher, Associate Judges, and Reid, Senior Judge.

          Glickman, Associate Judge

         Appellants Chamontae Walker and Corey Yates were indicted with Meeko Carraway on charges relating to the September 25, 2010, murder of Darrell Hendy. Carraway, who fired the shots that killed Hendy, pleaded guilty to second-degree murder. Walker and Yates, charged as Carraway's accomplices in the shooting, went to trial. Walker was convicted of three felonies - first-degree murder while armed, conspiracy to commit murder, and accessory after the fact to murder - and a misdemeanor charge of assaulting, resisting, or interfering with the police officer ("APO") who arrested him shortly after the shooting. Yates was convicted of second-degree murder while armed and accessory after the fact. In these consolidated appeals, Yates claims the government presented insufficient evidence to convict him of murder and suppressed evidence that he was not guilty of being an accessory after the fact. In addition, both appellants claim the trial court erred in rulings on evidence and in allowing the prosecutor to misstate the evidence in closing argument.

         I.

         On September 25, 2010, Darrell Hendy was walking in the 800 block of Southern Avenue when Meeko Carraway approached him from behind and shot him. At appellants' trial, the government presented evidence that Walker had been feuding with Hendy and instigated the shooting, and that he and Yates were Carraway's accomplices and after-the-fact accessories.

         Ebony House, Walker's girlfriend at the time of the murder, testified that Walker and Hendy had a falling out in the spring of 2010 and were not on speaking terms. Walker told House about a month before the shooting that he believed Hendy and another man had "put a hit out on him." During the summer of 2010, Walker acted "paranoid" whenever he saw Hendy.

         On the morning of September 25, Walker and House had what she described at trial as a long and physically violent fight at his mother's house, where the two were living. Walker eventually calmed down, but as far as House was concerned, their relationship was "over." House recalled that after the fight, Walker received two phone calls that she partially overheard. The first call, at around noon, was from either Carraway or Yates. House heard Walker say "yeah, I'll meet you at the building." The second call was from a man she knew as "Uncle Poochie." Walker told her that Uncle Poochie, who was in his car outside, was taking him to Realco, a gun store in Maryland, "to go get bullets."

         Uncle Poochie, whose real name was Kenneth Buchanan, testified that Walker had called him and asked to be picked up. Buchanan drove Walker to Realco, where Walker purchased a box of 9mm ammunition. Buchanan recalled that Walker was in a solemn mood and said he was "angry at his girl."

         After buying the ammunition, Walker asked Buchanan to drive him to 10th Place S.E. in the District to pick up his "cousins, " Yates and Carraway. They went to 10th Place and Savannah Street, which was where Yates resided with his grandfather. Walker got out of Buchanan's car and spoke privately with Yates and Carraway in the alley. Buchanan was unable to hear their whole conversation, but he did hear Walker say "something B" with regard to "his girl." The three men - Walker, Carraway, and Yates - returned to Buchanan's car and asked him to drive them to an apartment building at 800 Southern Avenue. On the way, Yates sat in the back of the car next to the box of ammunition Walker had purchased. Buchanan heard Yates ask what kind of bullets they were.

         As they approached their destination, Walker told Buchanan to slow down, and both Walker and Yates said, "There goes the van." This was an apparent reference to Darrell Hendy's van, which subsequently was found in a parking lot at 800 Southern Avenue. Buchanan asked, "What van?" Yates told him, "Don't worry about it." Walker said "they was just looking for somebody" and he and Yates told Buchanan to keep going and drive around the corner. Yates then said, "Let's suit up." Over defense objection, Buchanan testified he understood this "to mean to do bodily harm to somebody. . . . you want to hurt somebody." Frightened, Buchanan said to the group, "Y'all ain't about to do nothing crazy, because if you is, get out the car." Buchanan dropped Walker, Yates, and Carraway off at the side of the building at 800 Southern Avenue and left them there.

         Two months later, Walker and Ebony House started dating again and she asked him about the rumors she had heard concerning Hendy's shooting on September 25.[1] Walker admitted his involvement in the shooting and described to House what happened. Over Yates's objection, the trial court ruled that Walker's incriminating statements to House were declarations against Walker's penal interest and hence admissible as affirmative evidence against Yates.[2] House recalled Walker telling her that after "Uncle Poochie" took him to Realco to get bullets, they drove directly to the "high-rise" at 800 Southern Avenue, where Walker met up with Carraway and Yates.[3] After leaving Uncle Poochie, the three men went to apartment 405. There, House testified, Walker "said he was mad because we had broken up, and he told Meeko and Corey, you all I got, you all I got, somebody gonna die today."

         Carraway then told Walker that Darrell Hendy was "down the street." Walker retrieved his gun from somewhere in the apartment and gave it to Carraway. Carraway loaded the weapon with Walker's bullets. The three men then went downstairs "[a]nd all three of them walked down the street" in Hendy's direction.

         Walker told House they found Hendy sitting on a stoop in the Tiger Market parking lot on the Maryland side of Southern Avenue. The three men crossed over to that side and remained there for a while, keeping watch on Hendy. At some point, Carraway announced, "I'm about to do it, Cuz. I'm about to do it, " but Walker warned him not to because there were too many cameras in the area. Walker and Yates then crossed back to the District side of Southern Avenue and waited there while Carraway stayed on the Maryland side in their sight. In the course of the encounter, Walker told House, Hendy asked "what's up, " Walker said "what's up" back to him, and he and Hendy "was giving each other dirty looks, like mugging on each other."

         It appeared to Walker that Hendy did "not feel right about the situation." Hendy got up, crossed the street back to the District side, and headed on foot toward his van in the parking lot at 800 Southern Avenue. Walker gestured for Carraway to come back across the street to join them, which he did. Walker told House that he, Carraway, and Yates then proceeded to follow Hendy as he walked away. Carraway went ahead of Walker and Yates and closed in on Hendy from behind. Next, Carraway looked back at his two friends, told them to "watch this, " and then shot Hendy multiple times from behind.[4] Walker, Yates, and Carraway then fled together into the high-rise at 800 Southern Avenue and back to apartment 405.

          Video footage taken by security cameras just before and after the shooting and introduced in evidence at trial corroborated much of the story House recounted. The footage showed Yates and Walker waiting across the street from Hendy; Hendy and another person[5] walking toward Hendy's van; Carraway crossing the street and joining Walker and Yates; Carraway passing Walker and Yates, turning back to say something, and continuing after Hendy; and then, after the shooting, Carraway running into the apartment building at 800 Southern Avenue, followed by Walker and Yates. The shooting itself was not caught on video.

         Walker's cousin, Orlando Smith, testified at trial that he was in apartment 405 at 800 Southern Avenue at the time of the shooting and heard the gunshots. Moments later, Walker, Yates, and Carraway arrived at the apartment. The three men were sweating. Smith testified that Walker advised Carraway to cut his hair and helped him begin doing it. Walker and Yates then left the apartment together. Carraway did not go with them. Police searching the building in the immediate aftermath of the shooting (based on witness reports that the suspects had fled into the building) found and arrested Carraway while he was still in apartment 405. However, because the police lacked sufficient evidence at that time to charge him for Hendy's shooting, Carraway soon was released.

         The police search of the building continued, floor by floor. Officer Sean Corcoran, who had assisted in Carraway's arrest in apartment 405, found Walker in another apartment on the eleventh floor. When Corcoran discovered him, Walker was "straddling the balcony as if he was going to jump off or climb down." As Corcoran tried to handcuff him, Walker grabbed for the officer's service pistol, but Corcoran succeeded in restraining him. This was the conduct that led to the APO charge against Walker. Like Carraway, however, Walker was not charged at this time for Hendy's shooting, and he was released two days later.

         The basis for the accessory-after-the-fact charges was evidence that Walker and Yates helped Carraway hide out in North Carolina a few days after the shooting when it became clear to them that the police were about to arrest Carraway for Hendy's murder.[6] On September 29, Yates, Walker, and Carraway were observed at unoccupied property belonging to Yates's family in the town of Seaboard, North Carolina. Shamel Prude and Kathleen Wade, two neighbors who lived across the street and who were well-acquainted with Yates and his family, testified at trial.

         Shamel Prude testified that he walked over to the property after seeing a blue van in the driveway and found Yates there with two other men he did not know. At trial he identified those two men as Walker and Carraway. Prude chatted with them briefly. After he went to bed that night, he heard the van drive off. The next day, Prude saw only Carraway at the house. Prude lent him a telephone to use and brought him something to eat. That evening, Prude testified, Ms. Wade's daughter and her husband gave Carraway a ride out of town, and Prude accompanied them in the car. Carraway was alone and had no luggage.[7]

         Kathleen Wade testified that she too saw a blue van at Yates's family's house. The next morning, September 30, 2010, Prude informed her that Yates was there and that he had "brought two guys with him." Later in the day Carraway appeared at her house and asked to use her phone. By then Yates was gone. Wade did not think Carraway was supposed to be there by himself and told him to call Yates to come pick him up. While Carraway was on the phone with Yates, Wade asked to speak to him. She asked Yates why he had left Carraway "stranded" at the empty house. Yates answered that it was his family house and that he would be coming back. Wade asked him how he had gotten into the house and Yates told her his grandfather had given him the key. Afterward, Carraway told Wade that Yates was coming back for him. However, as the day wore on, Yates did not appear. That night, Wade arranged for her daughter and her daughter's fiancé to drive Carraway to Roanoke Rapids, North Carolina, where he claimed to know someone.[8]

         Walker presented no evidence at trial. Yates called two witnesses. Detective Robert Cephas testified that he interviewed Yates on September 27, and that Yates identified Carraway as the person who shot Hendy. The police obtained a warrant for Carraway's arrest the next day. The second witness was Samuel Hamilton. Hamilton, an attorney, testified that Yates came to see him in late September 2010 to inquire whether it would be wise for a person who might be facing some charges "to get a lawyer and to approach the authorities." Hamilton said Yates also expressed vague ("gloriously indefinite") concerns about possible retaliation. Hamilton had a subsequent meeting with Yates, Walker, and Carraway, in which they asked him whether an attorney could help someone "who might have some concerns about people in the community about maybe retaliating against him or doing something in the community because they think that he might have been involved in something, some criminal activity." The testimony of Detective Cephas and Mr. Hamilton supplied the evidentiary predicate for Yates's defense claim that any actions he took following Hendy's murder were not done with the intent to hinder or prevent Carraway's arrest.[9]

         II.

         Appellants present several grounds for reversal of their convictions. Yates claims the government presented insufficient evidence to convict him of murder as an aider and abettor, and that it withheld materially exculpatory evidence bearing on the accessory-after-the-fact charge against him. In addition, appellants claim the trial court erred in ruling that Walker's admissions to Ebony House were statements against penal interest; in permitting Buchanan to opine as to the meaning of Yates's remark, "Let's suit up"; in allowing Officer Corcoran to testify that unknown persons had implicated Walker in the shooting; and in allowing the prosecutor, in closing argument, to misstate the evidence regarding when and where Walker allegedly told Yates and Carraway that "somebody gonna die today." We address the claims in that sequence.

         A. Sufficiency of the Evidence of Aiding and Abetting

         Yates contends the evidence was insufficient to prove that he did anything to aid or abet the commission of Hendy's murder or that he had the mental state required to be guilty of second-degree murder as an aider and abettor. We do not agree.

         A challenge to the sufficiency of the evidence to support a criminal conviction requires the appellate court to assess 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 . . . ."[10] We must "deem the proof of guilt sufficient if, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"[11] The evidence need not "negate every possible inference of innocence" to meet this standard.[12]

         Second-degree murder is a killing done with "malice aforethought, "[13] a term meaning "either specific intent to kill or inflict serious bodily harm, or a conscious disregard of the risk of death or serious bodily injury."[14] Our aiding-and-abetting statute provides that "[i]n prosecutions for any criminal offense, all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals . . . ."[15] For such criminal liability to attach, of course, the encouragement or aid must be deliberate, not accidental: "In order to aid and abet another to commit a crime[, ] it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."[16] Where a particular mens rea is an element of the offense, the defendant must have had that mens rea himself to be guilty of aiding and abetting that offense.[17]

         To prove that Yates encouraged or aided the commission of Hendy's murder with malice aforethought, the government relied primarily on the account of Yates's words and actions provided in the testimony of Kenneth Buchanan and Ebony House, together with the corroboration supplied by Orlando Smith and the security camera footage. If the jury credited that evidence, as was its prerogative, it could have found Yates aided and abetted Hendy's murder for the following reasons.

         First, crediting Buchanan, the jury could have found that he drove Yates along with Walker and Carraway to the scene of Hendy's murder; that Yates asked about the ammunition in the car; that Yates was on the lookout for Hendy and pointed out Hendy's van to his companions; that when Buchanan inquired, Yates told him "not to worry" whose van it was; that upon arriving at Southern Avenue Yates helped direct Buchanan where to go; and that Yates then said to Walker and Carraway, "Let's suit up." From this evidence alone, the jury reasonably could infer that Yates encouraged his companions in their venture to find and attack Hendy, expressly associated himself with that venture, and aided the mission by lending his support, helping to locate Hendy, directing Buchanan where to take them, and keeping Buchanan in the dark about their aims.

         Second, though Buchanan's testimony by itself permitted the jury to draw the reasonable inference that Yates shared the mens rea required to find him guilty of second-degree murder while armed, further powerful evidence of Yates's knowledge and intent was furnished by House. According to her, Walker said that Yates continued to pursue Hendy with him and Carraway after Walker said "somebody gonna die today, " after Walker gave his gun and ammunition to Carraway, after Carraway loaded the gun, and after the group found Hendy and Carraway declared that he was "about to do it."[18] That Yates demonstrably knew his companions planned a murderous attack on Hendy and never withdrew or disassociated himself from it, but instead stayed with them from start to finish, was itself "sufficient to establish implied approval, and hence aiding and abetting."[19]

         Third, the evidence of Yates's conduct on Southern Avenue showed that he did not behave like an "innocent bystander."[20] His association there with Walker and Carraway went well beyond mere presence at the scene of the murder to provide concrete aid as well as tacit encouragement. Specifically, the testimony and surveillance footage allowed the jury to find that Yates stalked Hendy with Walker and Carraway; that Yates helped keep Hendy under surveillance and waited with his friends for Hendy to leave the area where his shooting would be caught on camera; that Yates joined Walker and Carraway in pursuing Hendy when he tried to walk away from them; that Yates maintained this pursuit up until Carraway shot Hendy in the back; and that Yates then fled with Walker and Carraway to the safety of Orlando Smith's apartment. The jury readily could infer that Yates's participation not only fortified his accomplices' resolve to proceed with the murder but also helped them to accomplish it by reinforcing their power over Hendy and making it harder for him to defend himself, obtain assistance, or escape.[21]

         For these reasons, we hold that the evidence was sufficient to sustain Yates's conviction for second-degree murder while armed.

          B. Withholding of Exculpatory Evidence

         Yates was convicted for having been an accessory after the fact ("AAF") to murder based on the evidence that he sheltered Carraway and helped him hide from the police at his family's home in North Carolina following Hendy's murder. Yates's defense to this charge was that he did not intend to hinder or prevent Carraway's arrest; to the contrary, it was Yates who enabled the police to obtain the arrest warrant for Carraway by identifying him as Hendy's assailant to Detective Cephas.[22] That Yates might have secreted Carraway in North Carolina for a different reason, namely, to protect him from the revenge of Hendy's friends, was indicated, arguably, by the evidence that Yates consulted an attorney, Samuel Hamilton, regarding his concerns about retaliation.

          Yates asks us to set aside his AAF conviction and grant him a new trial on the charge because, he claims, the prosecution withheld from him evidence materially favorable to his defense to the AAF charge in violation of his right to due process as set forth in Brady v. Maryland.[23] Favorable evidence is deemed to be withheld if the prosecution fails to disclose it "in time for the defense to be able to use it effectively, not only in the presentation of its case, but also in its trial preparation."[24] For this reason, deferring the disclosure of Brady evidence until the trial is under way or about to start is risky at best and "is not compatible with the Constitution, with our case law, or with applicable professional standards."[25]

         Favorable evidence is material within the meaning of Brady if it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."[26] The defendant must show that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"[27]; and "where disclosure was made but made late, the defendant must show a reasonable probability that an earlier disclosure would have changed the trial's result and not just that the evidence was material."[28]

         "[W]hether a defendant has established a violation by the government of its obligations under Brady presents a mixed question of fact and law."[29] We review the trial court's factual conclusions under the clearly erroneous standard, but we review legal conclusions de novo.[30] Materiality "is, in the end, a legal conclusion."[31]

          The evidence that Yates claims the government withheld was grand jury testimony in which (1) Ebony House said Walker told her the person who drove Carraway to North Carolina was someone other than Yates, and (2) Carraway's mother said she heard Yates urge Carraway to surrender to the police.

         1. Ebony House's Grand Jury Testimony

         The night before House testified at trial, the government provided her grand jury testimony to the defense in compliance with its obligation under the Jencks Act and Criminal Rule 26.2 to turn over statements of its witnesses.[32] The next morning, Yates moved for a dismissal with prejudice or, alternatively, a mistrial based on the government's untimely disclosure of Brady evidence. House testified in the grand jury that she had asked Walker how Carraway got down to North Carolina, and that Walker said a friend of his who lived there picked Carraway up in Virginia and drove him down. House testified that she did not know the friend's name. Yates argued that this testimony had been disclosed too late for him to investigate or make effective use of it at trial, and that it was materially exculpatory because it conflicted with the prosecution's theory, as set forth in the government's opening statement, that Yates himself drove Carraway to North Carolina.[33] In response, the prosecutor stated that the government would not introduce any evidence as to who actually drove the vehicle in which Carraway traveled to North Carolina, and that Yates's AAF liability was based simply on the evidence of his having sheltered Carraway from the police in North Carolina regardless of who drove Carraway there.[34] The prosecutor added that the government had no information as to the identity of the friend Walker mentioned to House.

         After further discussions with the trial court, and with the permission of Walker's defense counsel, Yates's counsel was able to interview Walker himself about who drove Carraway to North Carolina. Yates's counsel reported back to the court that Walker was "not helpful" - he said he did not know who went with Carraway to North Carolina.[35] The court then asked the prosecutor to disclose what Carraway, who did not testify at trial, had said about how he got to North Carolina when the government debriefed him in connection with his guilty plea. Reading out loud from her notes of the debriefing, the prosecutor reported that Carraway said he and Yates stole a blue van from Maryland in which Yates drove him to North Carolina.[36]

         Apart from its opening statement, the government presented no evidence or argument that Yates personally drove Carraway to North Carolina. Even after having received House's grand jury testimony, Yates did not ask her at trial to repeat what Walker told her about the identity of the driver.[37] At the hearing on Yates's new trial motion a few months later, his counsel explained that he did not seek to elicit testimony at trial from House about Walker's statement because of concern that the jury would "penalize" the defense for raising expectations it then could not satisfy with proof that the "mysterious third party" actually existed.[38]

         The trial court denied Yates's Brady motion for lack of reason to believe the government's delay in disclosing House's grand jury testimony had resulted in the suppression of any material evidence. In reaffirming this ruling when it ruled on Yates's motion for a new trial, that court noted that even with the additional time to investigate, Yates still had no evidence substantiating the existence of "this third party" who might have been the driver.

         Even if Walker's statement itself was inadmissible, it potentially might have led to the discovery of admissible evidence verifying it. On the premise that such theoretically obtainable evidence could have been at least somewhat favorable to Yates's defense, we agree with Yates that the government should not have waited until trial to reveal it to him.[39] Nevertheless, we agree with the trial court that the belated disclosure did not result in a Brady violation, for Yates has not met his burden of showing a reasonable probability that earlier revelation of the information would have resulted in a different verdict.

         So far as appears, Walker's statement about the driver could not be verified or even corroborated; instead, Yates learned that Carraway flatly contradicted it and Walker himself recanted it (assuming he actually did say it in the first place, as House reported).[40] Yates's counsel argued to the trial court that if he had received the information earlier, he would have subpoenaed phone records or traveled to North Carolina to identify the driver. But as the trial court pointed out, Yates had the opportunity to pursue such investigation in the months following the jury's verdict, and he still could not proffer that it would have generated evidence helpful to him at trial. To this day, Yates has "identified] no evidence that [he] was unable to present or any argument that he was precluded from making as a result of the tardy disclosure."[41] There is thus no reason to think earlier disclosure of Walker's statement would have enabled Yates to obtain evidence that could have helped him at trial. The "mere speculation that earlier [investigation] might have led the defense to discovery of additional exculpatory evidence is insufficient to establish a Brady violation."[42]

         Furthermore, the information that someone other than Yates drove Carraway to North Carolina would not, by itself, have been materially exculpatory because it would not have undermined the evidence on which the government actually relied to prove that Yates helped Carraway evade arrest by hiding out in North Carolina. The government presented the uncontradicted testimony of Kathleen Wade and Shamel Prude - testimony the trial court at the post-trial hearing described as "very, very powerful, " "extremely powerful, " and "extremely credible" - that Yates did in fact go with Carraway and Walker to his family's home in Seaboard, North Carolina on September 29, 2010. In other words, regardless of who did the driving, the government proved that Yates was along for the ride. Even if he had presented evidence that someone else drove Carraway to North Carolina, therefore, we see no reasonable probability that it would have changed the outcome of the trial. We are confident the jury still would have convicted Yates of being an accessory after the fact to murder.

         2. W-10's Grand Jury Testimony

         After trial, the government informed Yates about the grand jury testimony of "W-10, " who was Carraway's mother, and who had not been a witness at trial. In the grand jury, W-10 testified to having overheard Yates urge Carraway to surrender to the police. The government provided the following information:

On June 24, 2011, W-10 testified in the grand jury that on October 12, 2010, Carraway came to W-10's place of work to speak with W-10. W-10 told Carraway they should talk outside. When they stepped outside, W-10 saw Walker and Yates. They were in a van . . . . Carraway told W-10 that Carraway was in some trouble and was going to turn himself in (ostensibly to police) but would not tell W-10 any details. Walker was quiet and appeared to be rushing Carraway. Yates appeared agitated and also rushing. Yates kept saying, "We need to go, if you're going to do this, you need to go now before you decide not to do it. You said you were going to turn yourself in today, let's go."[43]

         At the hearing on Yates's new trial motion, the government disclosed W-10's additional grand jury testimony that after this conversation about Carraway's turning himself in, W-10 called Yates and asked him what her son was turning himself in for.[44] According to W-10, Yates said, "Ma, I don't want to talk about it over the phone; I'll meet you at the house, " but then he never showed up and she never saw him again.[45]

         Yates argued that the government's failure to disclose W-10's grand jury testimony before trial violated Brady because her testimony showed that his intent was not to shield Carraway from arrest but rather to encourage him to surrender. The trial court acknowledged that W-10's testimony might have been admissible for this purpose but disagreed that there had been a Brady due process violation for two reasons: First, because W-10 was with Yates when he urged Carraway to turn himself in, Yates already knew she could testify to that fact, so the government did not suppress her favorable evidence. Second, even if Yates had ...


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