McAdoo v. United States, 83-795.

• Decision Date: 24 September 1986
• Docket Number: No. 84-70.,No. 83-795.,83-795.,84-70.
• Citation: 515 A.2d 412
• Parties: Christopher M. McADOO, Appellant, v. UNITED STATES, Appellee. Dwayne E. WILSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 412

515 A.2d 412

Christopher M. McADOO, Appellant, v.UNITED STATES, Appellee.

Dwayne E. WILSON, Appellant, v.UNITED STATES, Appellee.

No. 83-795.

No. 84-70.

District of Columbia Court of Appeals.

Argued October 3, 1985.

Decided September 24, 1986.

COPYRIGHT MATERIAL OMITTED

Kenneth Michael Robinson, with whom Timothy P. Junkin, Washington, D.C. was on briefs, for appellant McAdoo.

Nigel L. Scott, Washington, D.C., for appellant Wilson.

Kenneth J. Melilli, Asst. U.S. Atty., with whom Joseph E. DiGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C. were on brief, for appellee.

Before NEWMAN, FERREN and ROGERS, Associate Judges.

FERREN, Associate Judge:

A jury convicted two brothers, McAdoo and Wilson, of first degree murder while armed, D.C.Code §§ 22-2401, -3202 (1981), and carrying a pistol without a license, id.,§ 22-3204.¹Both appellants contend the trial court erred in refusing to grant a mistrial after the prosecutor cross-examined Wilson's character witness about his knowledge of Wilson's juvenile adjudications.Appellant McAdoo also asserts his trial counsel was constitutionally ineffective in numerous respects, including counsel's failure to call certain character witnesses, his mishandling of other witnesses, his neglect to investigate leads, and his failure to move for a severance to relieve McAdoo from the taint of his brother's juvenile record and drug use.McAdoo also maintains that the government failed to produce sufficient evidence of premeditation and deliberation to support a conviction of first degree murder.

We agree that the trial court erred in permitting the prosecutor to use Wilson's juvenile adjudications in cross-examining Wilson's character witness.We also agree that McAdoo's trial counsel may have been deficient in several respects.We conclude, however, that neither appellant was sufficiently prejudiced by the revelation of Wilson's juvenile record to require a mistrial.Nor is there a reasonable probability that, but for counsel's deficiencies, the outcome of McAdoo's trial would have been different.Accordingly, we affirm appellants' convictions.

I.

The government's evidence showed that on July 3, 1982, at about 1:00 a.m., Sharon Epps was selling drugs at the intersection of 4th and Elm Streets, N.W. Appellant Wilson purchased some drugs from Epps but gave her $12.00 instead of paying the $15.00 purchase price.Epps returned the money to Wilson and demanded that he return the drugs.Wilson refused, and an argument ensued.Wilson then instigated a fight which ended with Wilson punching Epps in the face, causing injuries for which she received hospital treatment.

The next day, Epps saw Clifford Talley, her cousin.Talley inquired about her injuries, and Epps replied that Wilson had hit her.Talley indicated that he would speak with Wilson to find out why Wilson had hit her.On July 6, 1982, Talley encountered Wilson at Elm and 3rd Streets, N.W., and struck him several times in the face, knocking him to the ground.A witness to the assault, Larry Stevenson, helped Wilson to his feet, and Wilson left the area without assistance.

Later that same night, at approximately 12:30 a.m., Wilson returned to the 300 block of Elm Street, accompanied by his brother, appellant McAdoo.A group from that neighborhood, including Talley, Sandra Epps(a sister of Sharon Epps and a cousin of Talley), and Denice Burroughs, were outside at the time.Both Sandra Epps and Burroughs, who each knew both appellants, saw Wilson enter the area carrying a stick.When Talley saw Wilson and McAdoo running toward him, he attempted to retreat toward an alley.Appellants caught Talley, and witnesses then observed Talley lying on the ground while Wilson beat him repeatedly with the stick and McAdoo kicked his head and face.During the assault, one of the appellants said he was going to kill Talley.When the witnesses approached to intervene on Talley's behalf, McAdoo repeatedly reached for a gun in the pocket of his blue sweat suit as a warning for them to stay clear.

At one point, a witness called the police.Appellants temporarily discontinued their assault, allowing Talley to stagger into an alley and fall to the ground.Both appellants and Sandra Epps followed him into the alley.Although an unidentified third person prevented Epps from approaching Talley, Epps saw both appellants approach and stand over the fallen Talley, at which point McAdoo pointed a gun at Talley and fired one shot at him from close range.Both appellants and the unidentified third man then fled from the area.

When the police arrived, they discovered two live .357 caliber rounds lying near a pool of blood and some brain matter in the alley.Talley was pronounced dead at the hospital.The autopsy revealed he had been killed by a gunshot wound to the head, probably fired from a .38 or .357 caliber weapon.From the gunpowder residue on the entry wound, it was apparent the gun had been within inches of Talley's head when the fatal shot was fired.Talley also had several wounds on his chest and forearms consistent with having been struck by an elongated, patterned stick or club.He also had wounds on his face consistent with a blow by a sneaker or a shoe.

On July 8, 1982, the police executed arrest warrants for both appellants, as well as a search warrant for their home.The police seized a two-piece jogging suit and a blue jacket, both of which Burroughs identified as looking like the clothes McAdoo had been wearing at the time of the murder.Also recovered was a table leg from McAdoo's car which both Sandra Epps and Burroughs identified as looking like the stick Wilson had used to beat Talley and which the medical examiner identified as a weapon consistent with the patterned abrasions on Talley's chest and forearms.At the time of their arrests, Wilson had several bruises on his face, while McAdoo had no apparent injuries.

Appellants offered a different story.McAdoo testified that after hearing about a confrontation between Talley and his brother(Wilson), McAdoo went to Elm Street the afternoon before the murder and spoke with Talley, who assured McAdoo that the situation had been resolved.The two shook hands and separated.McAdoo later ran into Sharon Epps' boyfriend, "Snake," who was carrying a gun in a briefcase.McAdoo tried to tell "Snake" that the incident involving Wilson was now over, but "Snake" would not listen and the two parted after exchanging obscenities.

McAdoo claims that he was playing basketball on the night of the incident and that he was wearing a yellow striped, short-sleeved shirt and bluejean shorts.(McAdoo added that, on the night of the murder, Wilson, not McAdoo, was wearing the blue jacket which the police had seized and Burroughs had identified as McAdoo's.)McAdoo telephoned home and learned that Wilson had been involved in another fight in the Elm Street area.McAdoo returned home and decided to go over to Elm Street with Wilson to resolve the matter.

As they approached 3rd and Elm, McAdoo became scared and cut through an alley, where he picked up a stick.He saw Talley move toward Wilson, so McAdoo ran to cut Talley off.Talley grabbed the stick, causing both Talley and McAdoo to fall to the ground while wrestling for control of the stick.As this was going on, McAdoo contends, a woman yelled directions to someone to "get the gun" and to "shoot him."McAdoo eventually worked the stick free of Talley's grip and struck Talley with the stick until it broke.Someone then grabbed McAdoo, who was able to escape with the aid of Wilson.McAdoo followed Talley into the alley and then heard a gunshot.He did not have a gun himself, however, and did not see anyone else with a gun.McAdoo ran through the alley, eventually meeting Wilson and, after going home, took Wilson to the hospital.

Wilson also testified, first describing the drug sale incident with Sharon Epps.Wilson claimed that on the next day he twice confronted Epps' boyfriend, who on one occasion struck Wilson in the face and arms with a gun.Wilson also encountered Talley, who instigated a fight, but Wilson left the area after Talley had fallen to the ground.Two nights later, after McAdoo apparently had resolved the matter with Talley, Wilson met Talley and the two shook hands.A short time later, however, Wilson was knocked unconscious from behind.Larry Stevenson and another person helped him home.

Wilson claimed that when he and McAdoo returned to Elm Street, Wilson was wearing cut-off jeans and a blue jacket, and McAdoo was wearing a pullover shirt and cut-off jeans.(Wilson therefore identified the jacket seized by the police as his own, not McAdoo's.)Wilson then said that when he met Talley, Talley asked him if he wanted to see him again, causing Wilson to realize that Talley was the one who had knocked him unconscious earlier that night.Wilson corroborated McAdoo's testimony concerning Talley's and McAdoo's fight over the stick.Wilson maintained that Joyce "Tonnie" McWain was the one who had hollered to someone inside a house to get the gun.Wilson, who did not have a gun and did not see anyone with a gun, then heard a gunshot.He testified that he had never entered the alley and that, after hearing the gunshot, he had run down Elm Street and returned home.Wilson also testified that he did not see Denice Burroughs or Sandra Epps during this incident.

Both appellants called several additional witnesses.McAdoo's defense included the testimony of Tyrone Johnson, Doris Bolden, George Wilson, a police department firearms examiner, Reverend Leeman White, and Joyce McWain.Johnson corroborated McAdoo's testimony that he had been playing basketball late in the evening on July 6 and had been wearing cut-off jeans and a light-colored, pullover shirt.Bolden confirmed that when McAdoo had left home with Wilson in the early morning of July 7, he was wearing jean shorts and a striped, pullover,...