McClellan v. United States

706 A.2d 542, 1997 D.C. App. LEXIS 136, 1997 WL 353423
CourtDistrict of Columbia Court of Appeals
DecidedJune 19, 1997
Docket92-CF-1522
StatusPublished
Cited by25 cases

This text of 706 A.2d 542 (McClellan v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClellan v. United States, 706 A.2d 542, 1997 D.C. App. LEXIS 136, 1997 WL 353423 (D.C. 1997).

Opinions

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 ease. The other [544]*544claimed 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 collarf,] ... 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 ear 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 ears 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 armed [545]*545with 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 Shan-tia Moore, Wayne Smith, and Leonard Cole were driving around in her mother’s white Hyundai Excel.

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McClellan v. United States
706 A.2d 542 (District of Columbia Court of Appeals, 1997)

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Bluebook (online)
706 A.2d 542, 1997 D.C. App. LEXIS 136, 1997 WL 353423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclellan-v-united-states-dc-1997.