McCoy v. US, No. 96-CO-660

• Citation: 760 A.2d 164
• Decision Date: 28 September 2000
• Docket Number: No. 94-CF-1009, No. 96-CO-569, No. 96-CO-710, No. 94-CF-1275., No. 94-CF-983, No. 94-CF-1014, No. 96-CO-660
• Parties: Louis A. McCOY, Jr., Appellant, v. UNITED STATES, Appellee. Troy D. Burner, Appellant, v. United States, Appellee. Nathaniel Harrod, Appellant, v. United States, Appellee. Francois D. Bracmort, Appellant, v. United States, Appellee.
• Court: Court of Appeals of Columbia District

760 A.2d 164

Louis A. McCOY, Jr., Appellant, v. UNITED STATES, Appellee.

Troy D. Burner, Appellant, v. United States, Appellee.

Nathaniel Harrod, Appellant, v. United States, Appellee.

Francois D. Bracmort, Appellant, v. United States, Appellee.

Nos. 96-CO-660, 94-CF-983, 94-CF-1009, 96-CO-710, 94-CF-1014, 96-CO--CF-1275.

District of Columbia Court of Appeals.

Argued January 12, 1999.

Decided September 28, 2000.

Paul J. Zidlicky and Jeffrey T. Green, Washington, DC, appointed by this court, for appellant McCoy.

Susan Pleasant, appointed by this court, for appellant Burner.

Peter H. Meyers, Washington, DC, appointed by this court, for appellant Harrod.

M. Elizabeth Kent, Washington, DC, appointed by this court, for appellant Bracmort. Matthew L. Levine, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Kenneth C. Kohl, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and REID, Associate Judge, and KERN, Senior Judge.

WAGNER, Chief Judge:

Appellants Louis A. McCoy, Jr., Troy D. Burner, Nathaniel Harrod, and Francois D. Bracmort, were convicted following a jury trial of first-degree premeditated murder while armed of Michael Wilson (D.C.Code §§ 22-2401, -3202 (1989)), carrying a pistol without a license (CPWL) (D.C.Code § 22-3204(a)), and possession of a firearm during a crime of violence (PFCV) (D.C.Code § 22-3204(b)). McCoy, Burner and Harrod were charged with and convicted of an additional count of assault with intent to kill while armed (AWIK W/A) of Joseph "Go-Go" Kinard (D.C.Code §§ 22-501, -3202), which occurred the same night that Wilson was shot. Appellants Burner, Harrod, and McCoy argue for reversal on the principal grounds that the trial court erred in: (1) precluding them from introducing evidence that the government's key witness, Antoine Payton, committed the offenses; (2) admitting post-shooting hearsay statements of appellant Bracmort; (3) denying their respective motions for severance; and (4) denying post-conviction relief based upon the government's failure to disclose exculpatory evidence. Bracmort's principal challenges are that the trial court erred in: (1) admitting into evidence letters he wrote to Payton which tended to "depict him as a man of bad character, guilty by association with unsavory bandits, with a propensity to commit other crimes"; and (2) allowing improper, prejudicial rebuttal argument by the prosecutor. We conclude that none of these claimed errors required reversal. However, we reverse the convictions of Burner and Bracmort for CPWL for evidentiary insufficiency on an aiding and abetting theory, and remand the case to the trial court with instructions to vacate all appellants' convictions for PFCV, which the government concedes was not a crime at the time relevant hereto.

I. Factual Background

The case arose out of a shooting in the 600 block of Fifteenth Street, N.E. which occurred on April 21, 1990 at about 9:00 p.m. Two men wearing dark clothing and dark "hoodies" or "ski masks" chased down and shot at Michael Wilson and Joseph Kinard. Michael Wilson sustained gunshot wounds from which he later died. Wilson's friend, Gerri Shaw, along with her brother, Eric, and another friend had been talking with Wilson just prior to the shooting before returning to Ms. Shaw's car. As she drove away, Ms. Shaw heard the sound of gunfire from automatic weapons. She immediately stopped the car, looked through the rear view mirror, and spotted two men chasing after and shooting at Wilson and Kinard.¹ Shaw noticed that one of the gunmen chased Kinard across the street, but the gunman then resumed his chase after Wilson.² While running, Wilson fell and the two gunmen then stood over him, and from a distance of four to five feet, fired approximately fifty shots from automatic weapons. Ms. Shaw testified that she could not see the faces of the assailants because of the hoodies or ski masks covering them. The government called as one of its key witnesses Antoine "Gangster or Short Dog" Payton.³ Payton testified that he had known Bracmort, who had lived around 16th and Benning Road, Northeast, for approximately six years.⁴ Payton testified that he met Harrod and McCoy through Bracmort in December 1989, but he had known Burner since 1987 and had a closer relationship with him than the others. In April 1990, Payton was living in Bracmort's apartment in Maryland, where he had lived since 1990. Burner, Harrod and McCoy also lived there at this time.

According to Payton's testimony, approximately two to three days prior to the shooting, Burner, Harrod, McCoy and Bracmort were in the living room of the apartment discussing plans to murder Wilson because Bracmort had heard that Wilson was planning to rob him.⁵ Payton said that they all agreed "in principle" to participate in the shooting. They knew that Wilson was often in the area of 15th Street, Northeast, and they developed a plan to approach him in a "T"-like formation, which required three to four people for execution. The plan called for Bracmort to drive his car and meet McCoy, Harrod and Burner after the shooting.

About twenty minutes before the planned shooting, Payton met Bracmort about a block from 15th Street. Payton testified that Bracmort informed him that he was waiting for Burner, McCoy and Harrod to ambush and kill Wilson. Shortly thereafter, while driving on 15th Street, Payton spotted Wilson standing near Miner Elementary School. Payton testified that he saw Burner standing on the corner of 15th and Gales Streets, wearing a hooded sweatshirt, but his face was not covered at the time, and he did not have his gun drawn.

At approximately 9:00 p.m., Payton heard gunshots and observed one gunman chasing Wilson, and another, chasing another man, later identified as Joseph Kinard. Payton also saw someone, whom he believed to be McCoy, chasing Wilson, and he saw Harrod chasing Kinard.⁶ Both of the gunmen were firing automatic weapons. Payton then saw Harrod join McCoy as they both stood over Wilson firing bullets into Wilson. About this time, Payton saw Burner, who was holding a gun, put his hood over his head to obscure his face and move away from the scene. Payton did not see Burner fire his weapon. Payton testified that he did not get involved in the shooting because he had recently been in trouble, was staying with his mother, and he was babysitting his one-year old brother, who was in the car with him.

Payton testified that he went back to the apartment about 11:00 p.m. that evening, and Bracmort, Burner, Harrod and McCoy were all there. He said that they talked about how Harrod and McCoy had carried out the plan to murder Wilson. Payton testified that McCoy and Harrod accused Burner of being a coward for failing to fulfill his part of the plan. Burner responded that he did not do anything because he feared getting caught in the cross-fire. Bracmort "recommended that [appellants] not do a lot of talking about what happened," and they all agreed. The conversation ended with Harrod and Burner getting into an altercation which led to Burner moving out.

The government also called Antonio "Hub" Johnson, a long-time friend of Bracmort and Wilson.⁷ Johnson testified that Wilson and Bracmort had argued sometime in April 1990. As a result of this argument, Bracmort believed that Wilson might try to rob him and told Johnson that he would try to take some preemptive action. In addition, Bracmort told Johnson that he "was going to get something done to [Wilson]." On the afternoon of the shooting, Johnson was visiting Bracmort. Johnson said that while there, he saw Burner, Harrod and McCoy getting dressed in black "hoodies" and black jeans, although he did not see anyone with guns. He testified that Bracmort informed him that they were "getting ready to do something," but he did not say exactly what.

Later that day, while visiting a friend who lived in one of the Pentacle apartments, Johnson saw Wilson walking with two other individuals towards 15th Street. Approximately ten to fifteen minutes later, Bracmort arrived at the apartment.⁸ Some fifteen minutes after Bracmort's arrival, they heard gunshots. Bracmort and Johnson ran outside where Johnson saw Wilson lying wounded on the ground. Johnson testified that he saw Bracmort walking off in the direction of his car.

Johnson testified that about a week after the shooting, he was at Bracmort's apartment and that Bracmort said that he had something to tell him. However, before Bracmort could say anything further, McCoy pulled Bracmort aside, and Bracmort told Johnson that he would talk to him later. A week later, Bracmort told Johnson that McCoy had told him not to talk to Johnson because McCoy was concerned that Johnson might say something to his buddy, Dirk Wright, who could not keep a secret. Bracmort then told Johnson how he, McCoy, Harrod and Burner had shot Wilson. Johnson testified that Bracmort told him that McCoy had a "Glock," Harrod a "nine," and Burner a ".380." Johnson further testified that Bracmort told him that Burner said he did not fire his gun because it had gotten jammed, but that Burner really "didn't want to do it anyway."

While investigating the crime scene that night, Officer Michael Gabor recovered twelve shell casings, three copper-jacketed bullets, and two bullet fragments. At trial, Cleon Mauer, a qualified expert in firearms identification, testified that the bullets and shell casings recovered at the scene were all fired from nine-millimeter, semi-automatic weapons. Mr. Mauer further testified that two of the bullets and fragments were fired by a single weapon, but the shell casings were fired by two different semi-automatic pistols, including a Glock. Mr. Mauer was unable to identify three of the bullets.

II. Exclusion of Third-Party Culpability Evidence

Appellants McCoy, Burner and Harrod argue that the trial...