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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 17-CO-755, 17-CO-870, & 17-CO-1024
TIMOTHY PARKER, MARCELLUS MCCRAY, AND ANTONIO FORTSON, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CF2-12342-10, CF1-4749-11, CF1-4729-11)
(Hon. Henry F. Greene, Trial Judge)
(Argued January 13, 2021 * Decided July 22, 2021)
Peter H. Meyers for appellant Parker.
David H. Reiter for appellant McCray.
William R. Cowden for appellant Fortson.
* This court originally heard argument in these appeals on October 23, 2018, when the division consisted of Chief Judge Blackburne-Rigsby, Associate Judge Glickman, and Senior Judge Pryor. After that argument, (1) Judge Pryor recused himself and Judge Ruiz was appointed to replace him on the division; and (2) appellants supplemented their appeals to add arguments based on the subsequent rehearing petitions, briefing, and decision in Fleming v. United States, 224 A.3d 213 (D.C. 2020) (en banc). In light of the change in the composition of the division and the expansion of appellants’ claims, this court called for reargument in these appeals, which was held on January 13, 2021. 2
David P. Saybolt, Assistant United States Attorney, with whom Jesse K. Liu, United States Attorney, Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Laura Bach, and Silvia Gonzalez Roman, Assistant United States Attorneys, were on the briefs, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge, and RUIZ, Senior Judge.
GLICKMAN, Associate Judge: After a trial in 2012, a jury convicted appellants
Timothy Parker, Marcellus McCray, and Antonio Fortson of voluntary manslaughter
while armed and other felony offenses.1 In their direct appeals, this court rejected
most of appellants’ claims of error and remanded their cases to the trial court for
further proceedings and rulings on two issues. These concerned (1) whether the
government suppressed favorable evidence in violation of its obligations under
Brady v. Maryland,2 and (2) whether the trial court precluded appellants from
establishing that a government witness suffered from a mental disability that
seriously diminished his credibility. The present appeals are from the trial court’s
rulings against appellants on each of those issues on remand. In addition, for the
1 See McCray v. United States (“McCray I”), 133 A.3d 205 (D.C. 2016). The indictments charged appellants with participating in a series of “shootings, assaults, and murders that occurred in the Benning Terrace Housing complex in the Southeast quadrant of the District of Columbia from 2009 to 2011.” Id. at 210. The jury found appellants guilty of voluntary manslaughter while armed as a lesser-included offense of the charge of second-degree murder while armed. 2 373 U.S. 83 (1963). 3
first time in these appeals, appellants contend that their manslaughter convictions
must be vacated because the trial court gave the jury the “urban gun battle”
instruction that this court subsequently held erroneous in Fleming v. United States.3
We conclude that appellants’ Fleming challenge to their convictions is not
properly before us at this time, because appellants have not shown exceptional
circumstances excusing their failure to raise that challenge in their direct appeals.
Accordingly, appellants first must bring their Fleming claims in Superior Court via
a collateral challenge to their convictions pursuant to D.C. Code § 23-110. We
affirm the trial court’s rulings on remand regarding the other issues.
I.
In Fleming, this court sitting en banc considered a challenge to the causation
instruction regarding a defendant’s potential liability for a homicide committed in
an “urban gun battle.” The instruction informed the jury that:
[A] defendant should be deemed to have caused [the victim’s] death if (1) the defendant was armed and prepared to engage in a gun battle; (2) the defendant in fact engaged in a gun battle; (3) the defendant's conduct was a substantial factor in the death of [the victim]; (4) it was
3 224 A.3d 213 (D.C. 2020) (en banc). 4
reasonably foreseeable that death or serious bodily injury could occur as a result of the defendant’s conduct during the gun battle; and (5) the defendant did not act in self- defense. 4
This court had explicitly approved this causation instruction in Roy v. United States.5
But sitting en banc in Fleming, we overruled Roy and held this instruction inadequate
because it did not convey to the jury that a defendant normally “cannot be held to
have personally caused a death unless an action by the defendant is a but-for cause
of the death, i.e., unless it is true that in the absence of the defendant’s action the
death would not have occurred.”6 Requiring the defendant’s conduct merely to have
4 Id. at 219 (emphasis added). 5 871 A.2d 498, 506–08 & n.8 (D.C. 2005). In doing so, the Roy court explained that
In this jurisdiction we have held findings of homicide liability permissible where: (1) a defendant’s actions contribute substantially to or are a substantial factor in a fatal injury; and (2) the death is a reasonable foreseeable consequence of the defendant's actions. We have defined substantial cause as that conduct which a reasonable person would regard as having produced the fatal effect. Thus, we hold defendants criminally accountable for, “all harms that are reasonably foreseeable consequences of his or her actions.”
Id. at 507–08 (citations and footnote omitted). 6 Id. at 217 (citing Burrage v. United States, 571 U.S. 204 (2014)). 5
been “a substantial factor” in the victim’s death “is not remotely equivalent,” we
said, to the requirement of but-for causation. 7
The jury at appellants’ trial received the causation instruction subsequently
held defective in Fleming. Appellants now argue that the instructional error requires
that their manslaughter convictions be vacated. In opposition, the government
argues that this claim of error at trial is not properly before us, because appellants
did not present it on direct appeal of their convictions in McCray I and cannot
demonstrate exceptional circumstances excusing that failure. 8 We agree with the
government.
“It is a general principle of appellate practice that ‘where an argument could
have been raised on an initial appeal, it is inappropriate to consider the argument on
a second appeal following remand.’” 9 Failure to make the argument in the initial
7 Id. at 223. 8 Appellants base their Fleming instructional challenge to their convictions on the record of the trial, not on anything in the proceedings on remand. They do not claim that the instructional error at their trial somehow infected the proceedings on remand from which the instant appeals were taken. Appellants did not challenge the urban gun battle instruction in the proceedings on remand, and the trial court had no occasion to rule or rely on it. 9 Thoubboron v. Ford Motor Co., 809 A.2d 1204, 1215 (D.C. 2002) (citing Hartman v. Duffey, 88 F.3d 1232, 1236 (D.C. Cir. 1996)). This principle applies to criminal as well as to civil appeals. See United States v. Henry, 472 F.3d 910, 913 6
appeal amounts to a waiver. This “rule serves judicial economy by forcing parties
to raise issues whose resolution might spare the court and parties later rounds of
remands and appeals.” 10 An appellate court does have discretion to “waive the
waiver” and excuse a returning appellant’s failure to have raised a claim in an initial
appeal, but courts normally exercise this discretion “only in exceptional
circumstances, where injustice might otherwise result.”11
Appellants argue that they objected to the urban gun battle instruction in their
direct appeals, and that they are renewing those objections in what is now merely a
continuation of those direct appeals. Both parts of this argument are inaccurate.
In their initial appeals of their convictions, appellants did not object to the
instruction on the Fleming ground that it misstated the causation requirement.
(D.C. Cir. 2007) (“It is well-settled that ‘where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.’”) (quoting Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989)); see also, e.g., United States v. Flores, 995 F.3d 214, 223 (D.C. Cir. 2021). 10 Hartman, 88 F.3d at 1236 (citing Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995)). 11 Henry, 472 F.3d at 913 (cleaned up; quoting Crocker, 49 F.3d at 739 and Eli Lilly & Co. v. Home Ins. Co., 794 F.2d 710, 717 (D.C. Cir. 1986)); see also Flores, 995 F.3d at 226. 7
Rather, appellants mainly argued that it was error to give the urban gun battle
instruction in combination with an instruction on aiding and abetting, and that the
instructions “constituted an improper constructive amendment” of the indictment.12
McCray I rejected those entirely different contentions. And while Mr. Fortson
complained in his brief on direct appeal that the urban gun battle instruction allowed
the jury to convict him without finding he had fired the fatal shot, that was a
complaint about the main effect and purpose of the instruction, not an argument for
its invalidity. This objection too was substantively different from an argument that
the instruction improperly dispensed with the requirement of but-for causation in
favor of a substantial factor test. In fact, Fleming confirms that a defendant who did
not fire the fatal bullet may be convicted as a but-for cause of the victim’s death if
his actions instigated the shooting, by another, that led to the victim’s death.13
12 McCray I, 133 A.3d at 226. 13 See Fleming, 224 A.3d at 217 (“[A] defendant cannot be held to have personally caused a death unless an action by the defendant is a but-for cause of the death[.]”); id. at 226 (“To illustrate the point concretely, we hold that a defendant can be viewed as having personally caused death if (1) the defendant, acting with an intent to kill, shoots at another person or takes other actions such as bringing an armed group in search of another person or brandishing a gun at another person[;] (2) the defendant’s acts foreseeably cause the intended target or another person to fire shots in response; and (3) the latter shots fatally wound a victim.”). 8
Appellants also are mistaken in arguing that McCray I’s remand to the trial
court did not end their direct appeals, and that their current appeals from the trial
court’s rulings on remand should be viewed as a continuation of their direct appeals.
As this court explained in Bell v. United States,14 there are two types of remand. On
“a record remand, this court retains jurisdiction over the case . . . [but] the record is
returned to the trial court . . . to make additional findings, to hear further testimony,
or to explain a ruling. The record is then returned to this court for decision.”15 In
contrast, a case remand “returns the case to the trial court for all purposes. This court
retains no jurisdiction over the case and the [first] appeal is terminated.”16
McCray I expressly ordered a “case” remand, not a record remand. 17 Our
opinion did not direct that the record be returned to us after the proceedings on
remand; it specified that, after holding a hearing, the trial court itself should “enter
an order” determining the outstanding “mental disabilities issue” and whether that
issue entitled appellants to a new trial. 18 It follows that we are dealing now with “a
14 676 A.2d 37 (D.C. 1996). 15 Id. at 41. 16 Id. 17 133 A.3d at 240. 18 Id. Our opinion did not address the Brady issue because, we explained, “that issue [was] still pending in the Superior Court” and appellants had “asked that 9
new appeal, separate from the [direct] appeal that was terminated when the case was
remanded.”19
That McCray I ordered a case remand also explains why this case is not in the
same posture as Fleming when the en banc court decided it could hear a challenge
to the urban gun battle instruction that had not been presented in the initial appeal
heard by a division of the court. When the en banc court considered the claim in
Fleming, there had been no intervening case remand; the case still was on direct
appeal in this court.
In sum, the present appeals are not a continuation of appellants’ initial direct
appeals in this court. McCray I terminated appellants’ direct appeals. The Superior
Court proceedings on remand resolved a collateral attack by appellants on their
convictions. Appellants were, of course, allowed to appeal the judge’s adverse
rulings against them in those collateral proceedings (the rulings on their Brady and
witness-confrontation claims, the only claims before the judge). But that did not
entitle appellants to include in their appeal a separate claim (of instructional error at
this court allow the trial court to address the Brady issue in the first instance.” Id. at 234 n.22. 19 Bell, 676 A.2d at 41. 10
trial), which they never presented on remand and on which the remand judge never
ruled. This court repeatedly has held that, in an appeal from the denial of a collateral
motion to set aside a criminal conviction, we will not consider claims the movant
did not present in the proceedings below.20
Thus, we must conclude that appellants waived their current claims of
instructional error at their trial. The question is whether there are exceptional
circumstances present here raising a concern that injustice might result if this court
does not exercise its discretion to excuse the waiver. Courts have recognized that
an intervening change in the law may constitute such an exceptional circumstance,
depending on the nature and significance of the change. 21 This is a pertinent factor,
because this court rendered its en banc opinion in Fleming in January 2020, well
after it decided McCray I in 2016, and after the proceedings on remand from that
case. While appellants could have urged this court to overrule Roy in their direct
appeals (just as Mr. Fleming ultimately did), we would not say that appellants should
20 See Bradley v. United States, 881 A.2d 640, 646 n.5 (D.C. 2005) (citing Miller v. Avirom, 384 F.2d 319, 321–22 (D.C. 1967); Southall v. United States, 716 A.2d 183, 188 (D.C. 1998) (citing D.D. v. M.T., 550 A.2d 37, 48 (D.C. 1988) and Veney v. United States, 681 A.2d 428, 435 n.10 (D.C. 1996) (en banc)). 21 See Flores, 995 F.3d at 226; Henry 472 F.3d at 914. 11
have anticipated the holding of Fleming and done so.22 Nevertheless, we conclude
that waiving appellants’ waiver is unwarranted in this case, for three reasons.
First, appellants have not argued that Fleming created an exceptional
circumstance excusing their failure to challenge the urban gun battle instruction on
causation grounds in their direct appeals. Indeed, despite the fact that the
government challenged appellants to show exceptional circumstances sufficient to
overcome the waiver and allow them to pursue their Fleming argument in these post-
remand appeals, appellants have not attempted to do so. Instead, in response to the
government’s invocation of waiver, appellants have advanced only the arguments
22 See Fleming, 224 A.3d at 219 (“A division of the court cannot overrule a prior decision of the court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). It is difficult to see why a litigant should be required to present an argument to a division of the court that the division of the court would be required to reject. . . . The United States cites no case holding that a litigant is required to present to a division of the court the argument that a prior holding of the court should be overruled, and we are aware of no such case.”). The United States argues that appellants should have anticipated Fleming and raised a Fleming challenge to the urban gun battle instruction in their direct appeals because Fleming “was presaged by” the Supreme Court’s 2014 decision in Burrage v. United States, 571 U.S. 204 (2014). But although the Fleming court found Burrage’s discussion of the usual requirement of but-for causation in criminal cases to be “persuasive” with respect to the causation issues before it, see 224 A.3d at 221, Burrage did not preordain the outcome in Fleming. In Burrage, the Supreme Court construed the phrase “results from” in the federal Controlled Substances Act; it did not have occasion to address causation under the (arguably atypical) urban gun battle theory of homicide liability and the differently worded murder statute in the District of Columbia. 12
we rejected above — that they did object to the urban gun battle instruction in their
direct appeals, and that the present appeals are continuations of their direct appeals.
As a general matter, this court will not substitute its own reasoning on a point that a
party has failed to address.23
Second, it is difficult to see why not exercising our discretion would work an
injustice in this case, as appellants have not even tried to show any likelihood that a
jury instruction comporting with Fleming would have resulted in their acquittals of
manslaughter or otherwise altered the outcome of their trial in their favor. Instead,
appellants have insisted the burden is on the government to show that the
instructional error was harmless beyond a reasonable doubt. This contention does
not withstand scrutiny, and not only because it mistakenly presupposes these appeals
to be continuations of the direct appeals rather than collateral challenges. As we
discuss below, a defendant must make a showing of prejudice to raise a new claim
in a collateral challenge to a conviction after a direct appeal has concluded. But the
government would not have borne the burden of showing harmlessness in this case
even if appellants were making a Fleming claim of instructional error in their direct
23 See Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (Court of Appeals does not “do counsel’s work, create the ossature for the argument, and put flesh on its bones.”) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations omitted)). 13
appeals — had they done so, the claim would be subject to the strictures of plain
error review on account of appellants’ failure to raise it at trial. Under plain error
review, the government does not have the burden to disprove prejudice. Rather, it
is on appellants to show prejudice affecting their substantial rights, i.e., in cases like
this, a reasonable probability of a more favorable outcome if the jury had been
instructed properly. 24 As appellants have not made, or even attempted to make, such
a showing, they have not shown that waiving their waiver is necessary to avoid their
suffering an injustice. The error in the urban gun battle instruction given at
appellants’ trial might have been innocuous, and if so, there is no injustice in
sustaining their convictions.
The D.C. Circuit’s recent decision in United States v. Flores is instructive
here.25 Mr. Flores was a member of a hit squad that attacked two ICE special agents
in Mexico City, killing one and seriously wounding the other.26 After Mr. Flores
entered a guilty plea to reduced charges that included accessory to murder and
24 See, e.g., Perry v. United States, 36 A.3d 799, 818 (D.C. 2011) (explaining that where a party did not object to a jury instruction at trial, “it is appellants’ burden to show a ‘reasonable probability’ of a different outcome if the jury had been properly instructed.”). 25 995 F.3d 214 (D.C. Cir. 2021). 26 Id. at 218. 14
attempted murder in violation of 18 U.S.C. § 1114, the federal district court of the
District of Columbia sentenced him to twelve years’ imprisonment. 27 He took a
direct appeal, arguing the district court had erred in calculating his Sentencing
Guidelines range.28 The D.C. Circuit agreed and remanded for resentencing.29 On
remand, the district court again imposed a twelve-year sentence, and Mr. Flores took
a second appeal.30 In it, he argued for the first time that his convictions for being an
accessory to murder and attempted murder had to be vacated under the Circuit’s
intervening decision, in United States v. Garcia Sota, 31 that § 1114 does not apply
extraterritorially. The government countered that Mr. Flores had forfeited this
argument by failing to raise it in his initial appeal. 32
Acknowledging the “general” rule that “an appellant who fails to raise an
available issue in an initial appeal may not raise that claim in a second appeal after
27 Id. at 219. 28 Id. 29 Id.; see United States v. Flores, 912 F.3d 613, 622 (D.C. Cir. 2019). 30 Flores, 995 F.3d at 219. 31 948 F.3d 356 (D.C. Cir. 2020). The D.C. Circuit issued this decision after the district court resentenced Mr. Flores. See Flores, 995 F.3d at 226. 32 Flores, 995 F.3d at 223. 15
remand because such claims are forfeited,” 33 the D.C. Circuit (with one judge
dissenting) nonetheless granted Mr. Flores the vacatur he sought. The majority
opinion perceived Garcia Sota to be “an intervening change in the law,” making it
“now plain that courts in this circuit lack the power to convict and punish [Mr.]
Flores under Section 1114 for extraterritorial conduct.”34 This constituted an
exceptional circumstance justifying the court’s discretionary consideration of an
issue that Mr. Flores could have raised in his initial appeal, the court reasoned,
because “injustice might otherwise result if [Mr.] Flores continues to be punished
for conduct that does not constitute a crime pursuant to the law under which he was
convicted.” 35
But that is not this case. Fleming did not confirm that the Superior Court
“lack[ed] the power to punish and convict” appellants for manslaughter, or that the
evidence at their trial was insufficient as a matter of law to support their convictions.
Fleming simply held that one of the instructions given at appellants’ trial was
erroneous. Without having some sense of whether and how the instructional error
33 Id. 34 Id. at 226. 35 Id. (cleaned up). 16
might have prejudiced appellants — who were acquitted of murder but found guilty
of manslaughter as a lesser-included offense after a lengthy proceeding involving
over 60 witnesses and 500 exhibits36 — we cannot say appellants have demonstrated
that we should address their claim to prevent an injustice.
Third, appellants are not without a potential remedy if this court declines to
address their Fleming claim in the present appeals from the decision of the Superior
Court on remand. Appellants may pursue their Fleming claim in Superior Court via
the established route of collateral attacks on their convictions pursuant to D.C. Code
§ 23-110. To be sure, if they do so, appellants may have to surmount procedural
barriers by showing cause for their failure to raise the claim previously (during the
pendency of their direct appeals or in the post-remand proceedings) and prejudice as
a result of that failure. 37 But appellants would have faced those same procedural
36 McCray I, 676 A.2d at 220. 37 See, e.g., D.C. Code § 23-110(e) (2012 Repl.) (“The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”); Washington v. United States, 834 A.2d 899, 902 (D.C. 2003) (“Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.”) (citing Head v. United States, 489 A.2d 450, 451 (D.C. 1985)); id. at 906 (“[A] claim not raised in a previous collateral attack is procedurally defaulted.”). We express no view as to whether appellants can succeed in showing cause and prejudice. 17
barriers if they had raised the Fleming claim in the Superior Court proceedings on
remand from McCray I; we see no reason they should be excused from doing so
now.38 This is another reason appellants have not demonstrated the existence of an
exceptional circumstance calling upon this court to address their untimely challenge
in order to avoid injustice.
For the foregoing reasons, we conclude that appellants’ Fleming challenges
to their manslaughter convictions are not properly before us in these appeals, and we
decline to address those challenges.
II.
Appellants contend that the trial court erred on remand in denying their post-
trial Brady claim without an evidentiary hearing. The claim relates to an audio
38 In Flores, the D.C. Circuit rejected the government’s argument that Mr. Flores was required to bring his claim of error as a collateral attack on his conviction in the district court by motion pursuant to 28 U.S.C. § 2255 (the federal law counterpart of D.C. Code § 23-110) rather than by his appeal from the resentencing on remand. See 995 F.3d at 226–27. This reflected the fact that Mr. Flores’s claim was one of error infecting the resentencing proceeding itself, which involved the re- imposition of a judgment of conviction that the district court had no authority to impose under the law in effect at the time of the resentencing. With respect to their Fleming claim, however, appellants do not claim any error in the Superior Court proceedings on remand from McCray I. 18
recording of a 911 call made by a government witness named Shunedia Rajah. Ms.
Rajah testified at trial that she saw and heard appellant Parker shooting. In her 911
call, however, when asked by the emergency dispatcher if she “s[aw] the person who
was shooting[,]” Ms. Rajah responded that she did not. Although the government
turned the recording of Ms. Rajah’s 911 call over to the defense prior to trial, as an
attachment to an email to defense counsel, appellants did not make use of it to cross-
examine her. They subsequently claimed that the government violated Brady by
failing to disclose the 911 call in time for them to appreciate its significance and
make use of it at trial.
The parties addressed this claim in the proceedings below through written
pleadings and oral argument. Ruling from the bench, the court stated it “d[id] n[o]t
believe [an evidentiary] hearing [was] necessary . . . in view of the representations
[it had] heard from counsel.” The court held there was no Brady violation, and that
the claim “border[ed] on the frivolous,” given that the government concededly
apprised appellants’ trial counsel of the 911 call twenty-nine days before Ms. Rajah
testified, and that counsel never sought additional time to explore the matter.
An evidentiary hearing on a Brady claim is not required when the defendant
fails to proffer evidence that the government suppressed material, exculpatory 19
information in its possession. 39 We will uphold the trial court’s decision to deny a
Brady motion without an evidentiary hearing where “under no circumstances could
the petitioner establish facts warranting relief.”40 Claims that consist of “(1) vague
and conclusory allegations, (2) palpably incredible claims, and (3) assertions that
would not merit relief even if true” do not warrant a hearing. 41
Here, the trial court did not err in deciding that appellants failed to proffer
evidence sufficient to require an evidentiary hearing on their Brady claims. In their
pleadings, appellants charged that the government had violated its Brady obligations
by waiting until the eve of trial to send the 911 recording to defense counsel in a mix
of “several additional emails.” 42 In oral argument before the trial court, however,
appellants’ counsel reframed their objection. Counsel asserted that the disclosure
was not untimely, but that it had occurred as part of a “document dump of hundreds
39 See Bellinger v. United States, 127 A.3d 505, 519 (D.C. 2015). 40 Pettaway v. United States, 390 A.2d 981, 983–84 (D.C. 1978) (internal citations and quotation marks omitted). 41 Ramsey v. United States, 569 A.2d 142, 147 (D.C. 1990). 42 Appellants also asserted that the audio of the call was difficult to understand without a transcript (which the government did not provide). But defense counsel never complained of this problem with the call at or during trial, and the claim is inconsistent with appellants’ claim that their counsel never located the tape during the course of trial. 20
of different materials,” rendering the email containing the 911 call a “needle in the
haystack” that was too difficult for the defense attorneys to find in time to use.
Specifically, defense counsel stated:
[M]y argument is not, Your Honor, that they didn’t have enough time to deal with it, which is what some of the other cases have dealt with; that is, the government gives partial or limited disclosure too late for the defense to effectively use it, that is not the claim I’m making here. My claim is it’s a document dump, Your Honor. It’s a needle in the haystack that none of these four lawyers were able to discover that it even had been given to them.”
Nothing in the record, however, supports the claim that the 911 call was a
“needle” in a documentary “haystack” not provided until shortly before trial.
Appellants proffered only that “several” messages arrived on the eve of trial. This
hardly amounts to a document dump. The email with the 911 call was entitled
“Audio File attached,” it contained only one attachment (the 911 recording), and it
specifically stated “[a]ttached is an audio file of a 911 call made by witness Shunedia
Rajah.” This indicates that the 911 call, contrary to appellants’ unsupported
assertion, was not buried in such a manner that appellants’ counsel could not have
found it in the twenty-nine days preceding Ms. Rajah’s testimony. On these facts,
the government did not suppress the 911 call or impair appellants’ ability to make
use of it at trial. 21
Having failed to proffer facts warranting relief, appellants also failed to
indicate to the trial court, either in pleadings or during oral argument, what purpose
an evidentiary hearing would serve. At the oral argument on the motion before the
trial court, appellants’ only reference to an evidentiary hearing was a statement by
one of their counsel that the purpose of the argument was to determine “whether
[they] should have a hearing on [the Brady claims].” Counsel did not mention an
evidentiary hearing again, even when the judge gave him the opportunity to make
further representations after he had concluded his remarks. The trial court had no
reason to think an evidentiary hearing would serve any useful purpose.
Thus, we hold that the trial court did not err in finding that appellants failed
to proffer evidence sufficient to warrant a hearing on their Brady claim. 43
43 The government also has disputed the materiality of the 911 call, but we need not reach that issue here. 22
III.
A.
At trial, the government presented testimony from a witness named Curtis
Faison. Mr. Faison originally was a co-defendant with appellants, before he entered
a guilty plea and agreed to testify for the government.44 In reviewing Mr. Faison’s
juvenile medical records (to which the defense had been given access), appellants’
defense counsel learned he once had been diagnosed with bipolar disorder.45 On
that basis, appellants requested that the trial court allow a defense expert to evaluate
Mr. Faison “to determine the impact of mental illness on Mr. Faison’s credibility.” 46
The trial court refused, concluding that an outdated medical report did not provide
sufficient reason to delay the then ongoing trial proceedings.47 When appellants
challenged this ruling on appeal, this court in McCray I reversed and remanded
“solely to provide these appellants with an opportunity to show at a hearing and
through expert opinion whether at the time of his trial testimony, Mr. Faison’s
44 McCray I, 133 A.3d. at 231. 45 Id. at 231. 46 Id. 47 Id. 23
mental disabilities seriously impacted his credibility.” 48 If the trial court found that
to be so, we held, it would then need to “determine whether it can say with fair
assurance that Mr. Faison’s testimony did not sway the outcome of the verdicts
against [appellants].” 49
On remand, appellants and the government relied on the written reports and
testimony of expert witnesses who had examined Mr. Faison, reviewed his medical
records, and come to conclusions about his mental health status at the time of trial.
Although this court remanded on the understanding Mr. Faison might have been
suffering from a bipolar disorder that impaired his testimony, neither expert witness
found that to be the case.
The government’s expert, Dr. Patterson, testified that Mr. Faison was not
suffering from symptoms of bipolar disorder, clinical anxiety, or depression when
he testified at trial. Dr. Patterson diagnosed Mr. Faison with Antisocial Personality
Disorder (“ASPD”). He testified that ASPD is not equivalent to a mental illness or
disability, and he did not believe it affected Mr. Faison’s credibility at trial, i.e., his
ability or willingness to testify truthfully.
48 Id. at 240. 49 Id. at 234. 24
Appellants’ expert, Dr. Gupta, agreed with Dr. Patterson that Mr. Faison’s
bipolar disorder was inactive at the time of trial; she opined, however, that Mr.
Faison suffered from depression and anxiety that affected his trial testimony.
Although she agreed with Mr. Faison’s ASPD diagnosis, Dr. Gupta did not base her
opinion on that diagnosis or opine that it impaired Mr. Faison’s credibility.
In its oral ruling, the trial court “credited and gave great weight to the reports
and testimony of Dr. Patterson,” but did not credit Dr. Gupta’s opinion, finding it to
be “conclusory” and not supported by “persuasive analysis.” The court concluded
that Mr. Faison’s credibility was not seriously impaired by mental disability or
mental illness. It therefore found it unnecessary to decide whether his testimony
swayed the jury’s verdict.
B.
Where, as here, a trial judge “presided over [a] factfinding hearing and was
able to observe and assess the demeanor of the witnesses,” we take care to avoid
“usurp[ing] the prerogative of the judge, as the trier of fact, to determine credibility
and weigh the evidence.” 50 We must uphold the trial court’s determination to credit
50 In re S.G., 581 A.2d 771, 775 (D.C. 1990). 25
Dr. Patterson, and the court’s consequent finding that Mr. Faison’s mental
disabilities did not seriously affect his testimony at trial, unless those determinations
are clearly erroneous or devoid of support in the evidence.51
C.
This court has emphasized that “[o]ne’s psychiatric history is an area of great
personal privacy which can only be invaded in cross-examination when required in
the interest of justice.” 52 Although expert evidence concerning a witness’s mental
health history may be relevant to credibility under some circumstances, its “use . . .
for impeachment is greatly disfavored and is allowed only where it is shown that the
evidence casts substantial doubt on the witness’ capacity to comprehend and relate
51 See, e.g., Wilkins v. Ferguson, 928 A.2d 655, 666 (D.C. 2007). 52 Velasquez v. United States, 801 A.2d 72, 79 (D.C. 2002). See also Collins v. United States, 491 A.2d 480, 484 (D.C. 1985) (explaining that there is a presumption against ordering “psychiatric examination[s] of a witness to determine [their] competency or aid the jury’s assessment of credibility . . . [b]ecause such an examination has the potential to impinge upon a witness’ right to privacy and to harass a witness”) (emphasis added) (citing Rogers v. United States, 419 A.2d 977, 980 (D.C. 1980)); Hilton v. United States, 435 A.2d 383, 387 (D.C. 1981) (noting that the trial court, in deciding whether to “order a . . . psychiatric examination for the purpose of . . . aid[ing] the jury in its assessment of a witness’ credibility . . . must weigh the potential evidentiary advantage of the examination against the dangers of an unwarranted invasion of privacy[,] . . . the potential harassment resulting therefrom or the likelihood that the witness may be deterred from coming forward.”) (citing United States v. Benn, 476 F.2d 1127 (1972)). 26
the truth of pertinent events.”53 Admitting such evidence when it has not been shown
to have a serious impact on credibility is “manifestly unfair and unnecessarily
demeaning of the witness,” and risks “introduc[ing] . . . a collateral issue which
would confuse the jury . . . .” 54 We have approved the exclusion of expert testimony
concerning a witness’s mental health that “would have been of only “marginal
relevance” to the witness’s credibility. 55 McCray I thus properly framed the issue in
terms of whether appellants could show that Mr. Faison’s mental disabilities
“seriously impacted his credibility” 56 by casting substantial doubt on his “ability or
willingness” to tell the truth. 57
53 Jackson v. United States, 940 A.2d 981, 995 (D.C. 2008). See also Bennett v. United States, 876 A.2d 623, 632–33 (D.C. 2005); Bryant v. United States, 859 A.2d 1093, 1102 (D.C. 2004) (declaring that the mere fact of testifying “did not make it open season on a witness’ entire mental history.”); Roy v. United States, 871 A.2d 498, 510 (D.C. 2005) (overturned on unrelated grounds by Fleming, 224 A.3d at 217). 54 Velasquez, 801 A.2d at 79. 55 Id. at 79–80; Bennett, 876 A.2d at 635 (D.C. 2005). 56 133 A.3d at 240 (emphasis added). 57 Id. at 233 (quoting United States v. Baxter, 761 F.3d 17, 24 (D.C. Cir. 2014)); see also Tyer v. United States, 912 A.2d 1150, 1156 (D.C. 2006) (citing United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996)). 27
We are not persuaded that the trial court clearly erred in finding that appellants
did not make that showing. Appellants have not provided any reason to conclude
that the trial court erred in crediting Dr. Patterson’s testimony over that of Dr. Gupta.
We defer to that credibility determination.58 And Dr. Patterson’s hearing testimony
plainly supported the trial court’s conclusion that Mr. Faison’s ASPD did not have
a serious impact on his ability or willingness to testify truthfully.
We express no opinion on whether an ASPD diagnosis can ever have a
sufficiently serious impact on a witness’s credibility such that expert evidence on
that witness’s mental condition would be admissible at trial. Dr. Patterson conceded
that possibility. We hold only that the evidence in this case supports the trial court’s
finding that ASPD did not have such an impact on Mr. Faison.
58 See Rock Creek Plaza-Woodner Ltd. Partnership v. District of Columbia, 466 A.2d 857, 859 (D.C. 1983) (“In resolving factual issues presented by conflicting expert testimony, the trial court is in the best position to evaluate the experts' qualifications, demeanor, experience, reasoning, and testimony. . . . Thus, as a general proposition, when faced with conflicting expert testimony, the trial court may credit one expert over the other”). See also In re. T.W.M., 18 A.3d 815, 821 (D.C. 2011) (per curiam) (“The trial court, when acting as fact-finder . . . is entitled to credit the testimony of one expert witness over that of another.”); Nest v. Totah Venture, LLC. V. Deutsch, 31 A.3d 1211, 1222 (D.C. 2011) (same). 28
IV.
For the foregoing reasons, we affirm the judgment of the Superior Court.