McCLELLAN v. UNITED STATES

• Decision Date: 19 June 1997
• Docket Number: No. 92-CF-1522,92-CF-1522
• Citation: 706 A.2d 542
• Parties: Chris McCLELLAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

706 A.2d 542

Chris McCLELLAN, Appellant, v. UNITED STATES, Appellee.

No. 92-CF-1522.

District of Columbia Court of Appeals.

Argued April 18, 1996.

Decided June 19, 1997.

APPEAL FROM SUPERIOR COURT, DISTRICT OF COLUMBIA, ROBERT I. RICHTER, J.

Mindy Daniels, appointed by this court, Washington, DC, for appellant.

Diana Harris Epps, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Michael L. Volkov, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN and FARRELL, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge:

Appellant McClellan urges that his conviction of first degree murder and related weapons offenses be reversed because of the following claimed trial court errors: (1) allowing an eyewitness to the crime to testify for the government while denying the defense the right to cross-examine that witness for bias in one particular when the witness invoked his Fifth Amendment privilege against self-incrimination; (2) allowing testimony that two witnesses (who were sisters) and their family had moved to North Carolina because of their fear of testifying against McClellan; (3) failing to grant a mistrial when the prosecutor, in closing argument, improperly suggested that the jury could use the witnesses' move to North Carolina, out of fear, as a basis for believing that one of them could, but would not, identify McClellan as the murderer; and (4) improperly admitting prior consistent grand jury testimony. We are satisfied that the trial judge made a reasonable and permissible accommodation between the appellant's right to confront a witness against him and the witness' Fifth Amendment privilege to refuse to incriminate himself by testifying about an offense different from the one being tried. Although some of the prosecutor's comments in closing argument were impermissible, the jury could readily evaluate and discount them in deciding the case. The otherclaimed errors do not warrant reversal. Therefore, we affirm.

I.

After a jury trial on September 10-17, 1992, Chris McClellan was convicted of the first degree murder while armed of Leonard Cole, III, D.C. Code §§ 22-2401, -3202 (1989); of carrying a pistol without a license, id. § 22-3204(a); and of possession of a firearm during a crime of violence, id. § 22-3204(b). The trial court sentenced McClellan on December 1, 1992, to a total of twenty-one years to life in prison. This timely appeal followed.

We set forth the facts in some detail in order to provide the basis for our conclusion that there was no violation of the Confrontation Clause — McClellan's principal claim on appeal — because McClellan had an adequate opportunity to demonstrate witness Wayne Smith's bias against him.

Wayne Smith testified that on the afternoon of September 12, 1991, he and Shantia Moore, Moore's sister Ayanna Grant, and Leonard Cole drove by Dunbar High School. Shantia Moore was driving, Ms. Grant was in front, and the two men were in the back seat. As they drove by, Smith noticed McClellan and a group of his friends standing outside the school. Smith testified that McClellan was wearing "a loose shirt collar[,] . . . a navy blue shirt with white stripes, short sleeve[s]." McClellan yelled obscenities at the four in the car, and Cole responded in kind. Smith saw McClellan jog about fifteen steps toward the car while brandishing a silver handgun. From a distance, according to Smith, it "looked like a .45." McClellan then retreated to where he had been standing with his friends.

The vehicle went a few blocks farther and then stopped at a red light at the corner of Sixth and R Streets, N.W. There, McClellan again approached the rear of the car. Smith indicated that he looked at McClellan through the rear window of the vehicle and that there was nothing blocking Smith's "view of [McClellan's] gun, his arms, his shirt and his face." Using the same silver, chrome gun Smith had seen a few minutes earlier, McClellan fired three shots into the vehicle. Smith grabbed the door and the lock and attempted unsuccessfully to grab Cole's shirt. McClellan paused, and then fired another four shots into the back seat of the car, striking Cole. After the four shots, Smith kicked the car door open and ran away through a gap between the cars parked nearby. As Smith ran from the vehicle, toward 7th Street, he saw McClellan running the other way, inferably on R Street, until he turned onto Fifth Street, N.W.

Defense counsel was not permitted to cross-examine Smith about an incident a week earlier at Dunbar High School in which he and decedent Cole shot at McClellan and others because Smith declined to testify about that incident on Fifth Amendment grounds. Accordingly, the testimony of government witness Karlyles Spencer is worthy of special note.

Spencer testified that on the morning of September 5, 1991, Spencer and Cole encountered McClellan, Raymond Rouse, and another friend of McClellan's named Germane, outside the D.C. Armory where they had gone to get their class schedules. McClellan and Cole exchanged angry words and were "looking at each other hard, looking him down." They moved close to each other as if preparing to fight when a security guard arrived and prevented it. Later that day Cole, Smith, Spencer, Raymond Bigelow, and Billy Davis drove by Dunbar High School in a stolen black Jeep. Cole was in the right front seat of the Jeep and Smith was on the right side of the back seat. Spencer sat in the back seat behind the driver, Bigelow, while Davis sat in the middle of the back seat. At the corner of New Jersey and O Street, Cole and Smith shot guns out of the windows of the Jeep. Five specified individuals, including McClellan, were standing in the area near Dunbar High School at which Cole and Smith were shooting.

On cross-examination, Spencer acknowledged that Cole had asked him to go along with him in the Jeep. Defense counsel asked him about whether the Jeep was a stolen vehicle, pressed him on whether certain individuals had stolen that Jeep and turned it over to Cole, elicited that Cole was armedwith an automatic pistol and that Smith was armed with a small .380 automatic, and established that eleven to twelve shots were fired from the Jeep. Defense counsel also elicited that before the drive-by shooting Spencer went with Cole and others to Cole's grandmother's house and that when Cole went into the house he had only one gun but that he came out with two guns. Spencer testified that before they returned in the Jeep to Dunbar for the drive-by shooting, Cole gave one of the guns to Smith. Cole told Smith at the time that he shouldn't be scared, and Smith said "I'm gonna get mine."

Spencer acknowledged that at the time of his testimony he knew that Smith had a charge pending as a result of the drive-by and that he, Spencer, had gotten immunity from that charge. He also acknowledged later giving a statement to Smith's lawyer exonerating Smith from responsibility for the drive-by shooting and stated that the statement was a lie but not given under oath.

On redirect, Spencer testified that McClellan was a friend of "Truck," a person who was with McClellan at the Armory and at the time of the drive-by shooting. Spencer stated that during the events at the Armory it was "[his] group (Cole, Spencer, et al.) against their group ('Truck,' McClellan, et al.)."

Ayanna Grant testified that a week later on September 12, 1991, she, her sister Shantia Moore, Wayne Smith, and Leonard Cole were driving around in her mother's white Hyundai Excel. They drove by Dunbar High School where she saw McClellan outside, wearing "[a] dark shirt, I believe it was green; it had white stripes in it around an inch thick and some other colors, but I couldn't make them out." After hearing a noise like firecrackers, Grant looked behind her car where she saw "an arm and part of the shirt sleeve" holding "something silverish, shiny." When asked, Grant answered that she could not see the person's face "[b]ecause it was over [the] top of the car." She further indicated that the shirt sleeve looked the same as the shirt McClellan was wearing, and that the complexion of the skin on the arm she saw was like McClellan's complexion.

Thereafter, Shantia Moore, Grant's sister, gave testimony about the events of September 12, 1991, culminating in the shooting of Cole. Moore said that after Cole was shot she first got out of the car and then got back in and drove the car to Seventh Street, N.W. She saw Cole lying across the back seat; Cole told her he had been hit. The police arrived shortly thereafter. Moore described the person she had seen on the street as a young, short, dark-skinned, black male wearing a white shirt with stripes.

Teddy Ford testified that at about 1:00 p.m. on September 12, 1991, he was leaving Dave's Carryout at the corner of New Jersey and R Streets, N.W. He heard approximately five gunshots and saw McClellan about a block away running toward Fifth Street with a gun in his hand. The gun "looked silver" and "[l]ike a .38 semiautomatic." On cross-examination, Ford could not remember what McClellan had been wearing on the day of the shooting, but Ford testified that on March 30, 1992, when he testified before the grand jury, he told the truth when he said that the person with the gun was wearing "a red and white striped shirt with a colorful hat on his head and blue jeans."

The court admitted into evidence photographs of the scene that were taken by Sanjeev Modi, a defense investigator. Modi testified that, in the photograph taken from the sidewalk outside Dave's Carryout, a person standing at the corner of Fifth and R Streets appeared "almost like a speck of dust on the picture," but acknowledged that the 3x5 inch print did not depict what the naked eye would see.

Odean Horne testified that on September 12, 1991, he had been stopped at the red light at Sixth and R Streets, N.W.,...