Marcellus McCray, Lamonte Henson, Antonio Fortson, and Timothy Parker v. United States (decided March 10, 2016)
The Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by Judge Reid. Stephen Domenic Scavuzzo for Mr. McCray, Thomas T. Heslep for Mr. Henson, William R. Cowden for Mr. Fortson, Peter H. Meyers for Mr. Parker. Trial Judge: Henry F. Greene.
Facts: This case involves multiple shootings that stem from a long-standing feud between two rival groups of young men from the Benning Terrace housing complex in Southeast D.C. Men from “the circle” and from “the Avenue” quarreled over drugs and respect. McCray, Henson, Fortson, and Parker, alleged members of “the circle,” were charged with two separate shootings which took place on May 30, 2011. The violence of the day culminated in the shooting death of Antwan Buckner.
After a two-month trial in 2012, the jury found guilty McCray of AWIKWA, voluntary manslaughter and associated weapons charges; Fortson guilty of voluntary manslaughter, ADW and weapons charges; Parker guilty of voluntary manslaughter and weapons charges; and Henson guilty of CPWL.
Issue 1: Did the trial court deny Fortson the Sixth Amendment right to an impartial jury when it allowed a juror to continue serving without properly investigating a claim that the juror had “pre-decided the case at the outset of the trial, and possibly spoken about her decision with even more jurors”?
Background: On a Thursday afternoon during deliberations, the judge received two jury notes from the foreperson, one of which requested a “private conversation” about an allegation that a specific juror “had their mind made up on the first week,” while the other note indicated a deadlocked jury. The judge excused the jury for the weekend. The following Monday, the parties met with the foreperson who clarified that the juror in question had made up his/her mind in the “first week of trial” when the juror expressed the opinion in a single conversation with the foreperson, out of the presence of the other jurors. After much discussion among the parties, and without objection from any defense counsel, the trial court instructed the foreperson to not discuss the matter with other jurors rather than seek further information as to the potential impact of the juror’s thoughts.
The entire jury was brought back into the courtroom where the judge addressed the “hung note.” Within the judge’s instruction, it acknowledged the difficulty of the jury’s job, asked the jury to maintain civility and an open mind, and specifically charged the jury:
Fortson argued that the judge proceeded too cautiously in its investigation of the juror’s misconduct and that it abused its discretion by only instructing the jurors to advise the court if they “were unable to follow the court’s instructions.”
Holding 1: The judge did not abuse his discretion in handling the juror’s misconduct because (1) the conversation between the foreperson and the juror happened during the first week of the two-month trial; (2) the conversation did not occur with any other juror present; (3) the jury was apparently deadlocked on only one count; and (4) the judge’s instruction was “thorough and balanced.”
Issue 2: With respect to McCray, Fortson, and Parker, did the trial court err by giving the jury urban gun battle and aiding and abetting instructions pertaining to a murder count in the indictment, and did this constitute a constructive amendment?
Holding 2: No. First, any potential error in providing the jury with both the urban gun battle and aiding and abetting instructions in conjunction with the murder count would have been harmless. The government did not make an aiding and abetting argument to the jury. The evidence was sufficient to convict the defendants of voluntary manslaughter as co-principals. The record reflects thoughtful consideration by the jury in convicting Parker, Fortson, and McCray of manslaughter and acquitting Henson.
Second, there was no constructive amendment because “the prosecution did not rely at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment” by stressing an urban gun battle theory and not arguing aiding and abetting during closing.
The entire jury was brought back into the courtroom where the judge addressed the “hung note.” Within the judge’s instruction, it acknowledged the difficulty of the jury’s job, asked the jury to maintain civility and an open mind, and specifically charged the jury:
Now, if any of you feel for any reason that you have not been able to, or are not able to follow the instructions I have given you, please let me know in a written note, but do not discuss any personal concerns you may have in this regard with any of the other jurors. You can send me a note in writing if you have a concern about whether you can follow the instructions I have given you.Defense counsel did not object to the judge’s instructions.
Fortson argued that the judge proceeded too cautiously in its investigation of the juror’s misconduct and that it abused its discretion by only instructing the jurors to advise the court if they “were unable to follow the court’s instructions.”
Holding 1: The judge did not abuse his discretion in handling the juror’s misconduct because (1) the conversation between the foreperson and the juror happened during the first week of the two-month trial; (2) the conversation did not occur with any other juror present; (3) the jury was apparently deadlocked on only one count; and (4) the judge’s instruction was “thorough and balanced.”
Issue 2: With respect to McCray, Fortson, and Parker, did the trial court err by giving the jury urban gun battle and aiding and abetting instructions pertaining to a murder count in the indictment, and did this constitute a constructive amendment?
Holding 2: No. First, any potential error in providing the jury with both the urban gun battle and aiding and abetting instructions in conjunction with the murder count would have been harmless. The government did not make an aiding and abetting argument to the jury. The evidence was sufficient to convict the defendants of voluntary manslaughter as co-principals. The record reflects thoughtful consideration by the jury in convicting Parker, Fortson, and McCray of manslaughter and acquitting Henson.
Second, there was no constructive amendment because “the prosecution did not rely at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment” by stressing an urban gun battle theory and not arguing aiding and abetting during closing.
Issue 3: McCray, Fortson, and Henson independently raise sufficiency claims.
Background: Curtis Faison initially was a co-defendant in the case, but pleaded guilty during the trial and agreed to testify on behalf of the government. Defense counsel collectively obtained Faison’s juvenile records, which revealed a 2006 psychiatric evaluation which showed a diagnosis of bipolar disorder. Trial counsel also proffered a recent episode in which Faison threw feces and urine at a guard at the D.C. Jail. Parker sought an expert to evaluate Faison and determine the impact of his mental illness on credibility.
During the ensuing litigation, the trial court admonished the government for putting a person with “serious questions regarding credibility, in terms of his history, on the stand in the last minute in the trial” when “the defense has no chance to investigate him.” The judge also showed skepticism in Faison’s credibility, but recognized the “powerful” nature of his testimony if the jury were to believe him.
The judge ultimately denied Parker’s request.
- McCray: Was there sufficient evidence to convict McCray of AWIKWA, its related PFCV count, and also of separate murder count?
- Holding: Yes. McCray claims that the government failed to prove the specific intent to kill for AWIKWA because the government did not establish the distance between the shooter and the individuals who were assaulted. Case law “does not require the government to prove specific intent by establishing the exact distance between the shooter and the unknown persons who were assaulted.” The DCCA affirmed primarily on McCray’s own statements to witnesses that he had been shooting at people. The Court also found sufficient evidence for murder given that, immediately after the shooting, McCray was seen walking in an area where shell casings were later found.
- Henson: Was there sufficient evidence to convict Henson of CPWL?
- Holding: No. The government failed to prove that Henson carried a “gun with a barrel less than 12 inches in length.” No witness could identify the type of firearm Henson possessed. Testimony that Henson used handguns on other occasions did not suffice.
- Fortson: Was there sufficient evidence to convict Fortson of ADW and PFCV?
- Holding: Yes. A witness testified that he saw Fortson, gun in hand, go behind a building where “a whole lot of shooting” took place. After the shooting, Fortson said “my bad” or “my bag.” This evidence was sufficient.
Background: Curtis Faison initially was a co-defendant in the case, but pleaded guilty during the trial and agreed to testify on behalf of the government. Defense counsel collectively obtained Faison’s juvenile records, which revealed a 2006 psychiatric evaluation which showed a diagnosis of bipolar disorder. Trial counsel also proffered a recent episode in which Faison threw feces and urine at a guard at the D.C. Jail. Parker sought an expert to evaluate Faison and determine the impact of his mental illness on credibility.
During the ensuing litigation, the trial court admonished the government for putting a person with “serious questions regarding credibility, in terms of his history, on the stand in the last minute in the trial” when “the defense has no chance to investigate him.” The judge also showed skepticism in Faison’s credibility, but recognized the “powerful” nature of his testimony if the jury were to believe him.
The judge ultimately denied Parker’s request.
Holding 4: Yes, the trial court did err, but only enough to warrant a remand. The DCCA stated:
Issue 5: Did the trial court err in failing to suppress McCray’s videotaped statement on voluntariness grounds?
Holding 5: The trial court did not err because McCray’s statements were voluntary. At the time of his statement, (1) McCray was seventeen years old; (2) detectives threatened that his family would face eviction; and (3) detectives threatened that his mother, brother, and sister – who were in the room where a gun was found – would be “locked up.” The Court reasoned that McCray’s admission that he participated in one of the shootings was not the product of coercion.
Issue 6: Did the trial court err in failing to grant McCray’s severance motion so that he could be tried with only co-defendants Hebron and Mungo, who were ultimately tried separately, and were the only other defendants charged with AWIKWA in Counts 8 and 9 of the indictment?
Holding 6: No. McCray argued that evidence of a conspiracy was “very weak” and that the evidence against the other defendants with whom he was tried “was much stronger” than the evidence against him. The DCCA rejected this argument and noted that McCray was tried with three individuals who were also charged with the murder of Antwan Buckner. JW
[I]n light of defendant’s right to present a defense, and given the seriousness of the bipolar disorder and the proffer about Mr. Faison’s recent episode of throwing urine and feces at a prison guard, we believe Mr. Parker and Mr. McCray were at least entitled to an opportunity to show what an expert might contribute in an effort to determine any impact of Mr. Faison’s mental disabilities on his credibility.On remand, McCray and Parker will have the ability to call experts. The judge will then determine “whether at the time of his trial testimony, Mr. Faison’s mental disabilities seriously impacted his credibility.” Applying the Kotteakos standard for harmless error, the judge will either affirm the convictions or order a new trial.
Issue 5: Did the trial court err in failing to suppress McCray’s videotaped statement on voluntariness grounds?
Holding 5: The trial court did not err because McCray’s statements were voluntary. At the time of his statement, (1) McCray was seventeen years old; (2) detectives threatened that his family would face eviction; and (3) detectives threatened that his mother, brother, and sister – who were in the room where a gun was found – would be “locked up.” The Court reasoned that McCray’s admission that he participated in one of the shootings was not the product of coercion.
Issue 6: Did the trial court err in failing to grant McCray’s severance motion so that he could be tried with only co-defendants Hebron and Mungo, who were ultimately tried separately, and were the only other defendants charged with AWIKWA in Counts 8 and 9 of the indictment?
Holding 6: No. McCray argued that evidence of a conspiracy was “very weak” and that the evidence against the other defendants with whom he was tried “was much stronger” than the evidence against him. The DCCA rejected this argument and noted that McCray was tried with three individuals who were also charged with the murder of Antwan Buckner. JW
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