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DISTRICT OF COLUMBIA COURT OF APPEALS
No. lS-CF-lOZS
SEAN A. GRADY, APPELLANT,

V.

UNITED STATES, APPELLEE.

 

Appeal from the Superior Court of the
District cf Columbia
(CF2~19000-l4)
(Hc)n. Zoe Bush, Trial Judge)
(Argu`ed October 4, 2017 Decided March 15, 2018)

William Collirzs, Public Defender Service, with Whom Samia Fam and
Sbilpo S. Satoskar, Public Defender Service, Were on the brief, for appellant

Nicholas P. Coleman, ASSiStent United States Attorney, with Whom
Chonrzing D. Phillips, United States Attorney at the time the brief Was iiled, and
Elizabetlz Trosmau, Elizabetb H. Danello, and Ricbord R. Barker, ASSiStant United
States Attorneys, were on the brief, for appellee

Before BLACKBURNE-RIGSBY, Clu'ef Juclge, FISHER, Associote Judge, and
NEBEKER, Senior Judge.

BLACKBURNE»RIGSBY, ClzinJzzdge: Following a jury trial, appellant Sean

Gracly Was convicted of carrying a pistol without a license (“CPWL”) and unlawful

2

possession of a controlled substance (rnarijuana).1 These charges Stem from a
poiice stop in Northwest Washington, D.C., where appellant had dropped a gun in
the street while speaking to a Metropolitan Police Departrnent (“MPD”) officer.
Appellant sought to argue at trial that a high gun-crime rate in the neighborhood
meant that the gun may have been left by someone other than appellant, and that he
Was just at the Wrong place at the wrong time. Appellant sought to introduce
Statistics on the neighborhood’s gun-related crime rates through a subpoena duces
tecum and on cross~exaniination, which the trial court rejected Appellant appeals

the trial court’s denial We affirm

I. Factual and Procedurai Background

A. The Stop

At around 10:45 a.m. on October 27, 2014, MPD Patrol thcer Arrnando

De los Santos Was dispatched to the intersection of Euclid Street and 13th Street,

 

1 ln violation of D.C. Code § 22-4504 (a) (2012 Repi.) and D.C. Code
§ 48~904.01 (d) (2012 Repl.), respectively Appellant was aiso indicted, but
ultimately found not guilty, of one count of unlawful possession of a firearm by a
person previously convicted of an interfarnily offense, in violation of D.C. Code
§ 22-4503 (a)(6) (2012 Repl.); one count of possession of an unregistered firearm,
in violation of D.C. Code § 7-2502.01 (a) (2012 Repl.); and one count of unlawful
possession of ammunition, in violation of D.C. Code § 7-2506.01 (a) (2012 Repl.).

Northwest to investigate a reported domestic incident between a man and a
woman. The man was described as wearing a black shirt and blue jeans. Wben
Officer De los Santos arrived at the intersection, construction workers indicated
that a man matching that description had walked north on 13th Street, so Off`icer
De los Santos drove his police vehicle in that direction From his vehicle, Officer
De los Santos saw the individual, who he believed to be the suspect and later
identified as appellant, walking northbound looking over his shoulder and
appearing “anxious.” Appellant, who Was wearing a “thick coat,” continued down

the street and Officer De los Santos followed hirn in his police cruiser.2

Officer De los Santos attempted to speak with appellant two or three times
until he responded because appellant was evading the officer. Off`icer De los
Santos asked appellant if he had seen anything or if he had argued with anyone
Appellant, who was walking on the sidewalk parallel to the officer in his police
vehicle, appeared apprehensive and responded, “no, what do you want to talk to
me about?” Appellant stopped approximately halfway down the block, in between

two parked cars, at Which point he was standing approximately ten to fifteen feet

 

2 ln its brief, the government admits that appellant’s clothing did not exactly
match the description given during the broadcast, but explains that nevertheless,
appellant’s “anxious” behavior and continual looking back at the officer, made the
officer suspicious of appellant and he decided to find out if he was involved in the

reported fight.

from the officer. Appellant then backed up toward “either a large station wagon or
a small SUV[,]” such that the vehicle was between him and the officer. Off`icer De
los Santos could “see [appellant’s] waist up to almost his neck . . . [t]hrough the
windows of the [SUV]” and “[appellant’s] head from the top of the [SUV].”
Through the vehicle’s windows, Officer De los Santos saw appellant put one of his
hands inside a middle zippered pocket of his coat and “fumbl[e]” with something
inside for about three to five seconds when the officer suddenly heard the sound of
a hard or heavy object hitting the ground where appellant was standing A second
patrol officer, Martin Fosso, arrived around the same time, pulled up, and parked

his police vehicle in front of Officer De los Santos’s vehicle

Officer De los Santos got out of his vehicle, went to the spot where
appellant was standing, and saw a gun lying on the ground there. Officer De los
Santos told Ot`f`lcer Fosso about the gun and Offlcer Fosso apprehended appellant
and placed him under arrest. Officer De los Santos searched appellant incident to
the arrest and found a bag of what was later determined to be about 333 ounces of

marijuana in appellant’s coat pocket.

B. Tbe Trial

During the trial, appellant sought to elicit testimony regarding neighborhood
gun»crime statistics from Officer De los Santos. On cross-examination, Off`lcer De
los Santos stated that he had been a patrol officer in the Third District for about
seventeen years and was familiar with “Police Service Area 304” (“PSA 304”),
where the gun was found. Appellant then tried to ask Officer De los Santos
whether during the “last few years, there ha[d] . . . been a number of gun»related
crimes reported in” PSA 304. The government objected on relevance grounds and
the trial court sustained the objection and held a bench conference At the bench,
appellant argued that the number of gun-related crimes in PSA 304 was relevant to
show “how a gun could possibly end up there[,]” because “there [wa]s crime that
. . . [was] occurring in that vicinity with guns where individuals m[ight] be walking
[and] discarding them.” The trial court ultimately found that the number of
gun-related crimes in PSA 304 over the course of a few years was not relevant and
not sufficiently specific to show how a gun came to be at a specific location on a

specific date

During redirect examination, the government asked Off`icer De los Santos

“how frequently” during his twenty-two years of experience he had “seen guns just

lying on the ground in the dirt or on the street.” Withont objection from appellant,
Officer De los Santos replied that he “ha[d] never found a gun without someone
calling it in.” Appellant then sought to recross-examine Officer De los Santos
about the prevalence of gun crime in the neighborhood, arguing that allowing the
redirect “testimony without any testimony with respect to gun crimes occurring in
that vicinity puts . . . [appellant] in an extreme disadvantage.” Appellant further
argued that the govermnent’s question about finding guns “opened the door to that
kind of cross-examination” that the court had prohibited earlier. The trial court
denied appellant’s request, stating that appellant failed to object during
questioning, and should not have assumed that the court would permit

recross-examination

Appellant then tried to inform the trial court that he had erred in failing to
object to the government’s question on finding guns, and he moved to strike the
government’s question and the witness’ answer. "l`he trial court responded that the
officer’s testimony was not an expert opinion but rather being offered as his
personal opinion based on his knowledge and was a proper response to
cross-examination about the gun. Appellant argued that if statistics on gun crimes
for the past several years were not relevant to the gun’s presence on the date at

issue, it could not be relevant whether the officer had seen guns lying around for

the past twenty-two years. The trial court disagreed, denied the motion to strike,
and ruled that the government’s question was based on the officer’s experience and

“specific to abandoned guns lying in the street.”

Officer Fosso, the arresting officer, testified on cross-examination that it was
“commonplace” for him to arrive at a scene and process a firearm and that there
were times when he arrived at a scene and there was “no one there being
arrested[,]” because the gun had “just [been] found there.” ln some cases, Officer
Fosso testified, he processed guns that were simply found and reported by citizens
to the police but he could not remember a time where hc, himself, found a gun

while walking on a street.

On May 31, 20l5, appellant filed a motion to reconsider the trial court’s
decision to preclude the proposed cross-examination of Officer De los Santos on
the prevalence of gun crimes in the area of appellant’s arrest during the “past
several years.” Appellant clarified that he now wanted to ask Officer De los
Santos. to confirm that there had “been a number of gun-related crimes” in the
vicinity of appellant’s arrest location Appellant further argued that the gun-crime
rate was not only relevant but that it was “central to [appellant’s] defense” and, if

precluded, would prejudice his case The government argued that appellant’s case

 

was not prejudiced by the preclusion of the proposed cross-examination because it
was cumulative of Officer Fosso’s testimony about recovering abandoned guns
across the city. Appellant then invoked his Sixth Amendment right to confront

Officer De los Santos.

The trial court addressed appellant’s motion the following day, deciding that
it would not permit appellant’s additional line of questioning because, although it
may be relevant, it was more prejudicial than probative The trial court further
reasoned that the questions could invite the jury to speculate that, just because
there may have been a lot of gun violence in the neighborhood, that it was more
likely that someone else left the gun at the location, when there was no evidence
that someone else left the gun there. The jury ultimately convicted appellant and

this appeal foliowed.

II. Analysis

Appellant raises two claims on appeal First, he argues that the trial court
abused its discretion when it quashed appellant’s two subpoenas duces tecum
because they were overbroad Second, appeliant contends that it was a violation of

the Confrontation Clause of the Sixth Amendrnent for the trial court to preclude

him from cross-examining and recross-examining Officer De los Santos on his
knowiedge of gun-crime rates in the neighborhood where appellant was arrested.

These two contentions are without merit.

A. Subpoenas Duces Tecum Claim

The morning before jury selection, appellant served a subpoena duces tecum
on l\/IPD Chief Cathy Lanier “and/or [the] Custodian of Records, l\/lPD Office of
Research and Analytical Services[,]” for:

All data pertaining to reports or arrests of individuals
unlawfully possessing a firearm, including but not
limited to arrests for carrying a pistol without a license
(CPWL), possession of an unregistered firearm, unlawful
possession of a firearm and/or ammunition and felon in
possession of a firearm in the l\/[PD Third District Police
Service Area (PSA 304) from 10/27/2010 to lO/27/2014.
Later that day, the government moved to quash the subpoena and, at the pretrial

hearing, argued the subpoena was untimely, overhroad, and sought information

that was irrelevant to appellant’s own case.

Appellant argued that MPD had a “whole statistical department” that
compiled crime statistics so it was their “job to do this,” and thus, it could not be

“burdensome” on MPD. Sorne statistics for crimes against people and property

10

were available through MPD’s website but appellant sought neighborhood-specific
data for CPWL and gun-possession offenses The trial court granted the
government’s motion to quash the subpoena holding that the evidence sought was
inadmissible and that the subpoena was too broad for MPD to comply with. The
trial court reasoned that it was unclear whether l\/IPD could even retrieve the data
that appellant requested and if so, the way the subpoena was written was so
overbroad that it could potentially include “every 9-1-1 call, every citizen walk-in
compiaint, substantiated or not, for an extended period of time, from 2010 to

2014.”

The following clay, appellant stated that he served a second subpoena3 The
government moved to quash the second subpoena, offering the same arguments
that it had for the first subpoena. The government acknowledged that it had not
seen the contents of the second subpoena but argued that “at th[at] juncture in the
. . . proceedings,” the subpoena was both untimely and probably overly broad or

vague, and not relevant since it, like the first subpoena, sought to support the

 

3 Neither the second subpoena, nor its contents, are part of the record At
oral argument, appellate counsel stated that he did not know the contents of the
second subpoena

il

gun-crime statistics line of questioning The trial court ultimately decided that it

had “rnade [its] ruling on that subpoena yesterday.”

On appeal, appellant argues that the trial court erred when it determined that
evidence of neighborhood gun-crime was inadmissible, and when it subsequently
ruled to quash appellant’s subpoenas seeking l\/[PD statistics Appellant further
argues that the trial court violated Super. Ct. Crirn. R. 17, and appellant’s right to

admit defense evidence under the Compulsory Process Clause.“

 

Appellant fails to make a complete argument as to how the trial court
violated the Sixth Amendment’s Cornpulsory Process Clause. We address the
claim summarily ”l`he Compulsory Process Clause “guarantees a criminal
defendant a fair and meaningful opportunity to present a complete defense.”
McDonald v. Unz‘ted States, 904 A.2d 377, 380 (D.C. 2006) (internal citation
omitted). Although this is a constitutionally protected right, it is not unlimited and
it is within the trial judge’s discretion to limit or exclude evidence that may be
more prejudicial than probative, or that may “lead to a confusion of the issues,
mislead the jury[,]” or that is cumulative of the evidence admitted at trial. Jolmson
v. United States, 960 A.2d 28l, 293 (D.C. 2008) (internal quotation marks and
citations omitted); Scott v. Um`ted States, 975 A.Zd 831, 838 (D.C. 2009) (internal
citations Omitted); Harris v. Uliited States, 834 A.2d 106, 124 (D.C. 2003)
(intemal citations omitted). To show that a defendant was deprived of this
constitutional right, he, at a minimum, must offer an explanation for how the
excluded evidence was important to his defense. Heath v. Um`ted States, 26 A.3d
266, 277 (D.C. 2011).

The proffered evidence would have been irrelevant and highly prejudicial, as
it would have confused and distracted the jury from the relevant evidence, and was
therefore, properly excluded Further, the gun-crime statistics evidence that
appellant sought to elicit would have been cumulative of Officer Fosso’s

(continued . . .)

12

We review the trial court’s denial of a subpoena request for abuse of
discretion Featherson v. Educ. Diagnostics litst., luc., 933 A.2d 335, 338 (D.C.
2007). The trial court abuses its discretion when its “ruling on a discovery matter
is based on erroneous legal reasoning or mistake of fact.” [d. (intemal citation
omitted). Before obtaining a subpoena duces tecum for documents:

[A] party must show (l) that the documents are

evidentiary and relevant; (2) that they are not otherwise

procurable . . . by exercise of due diligence; (3) that the

party cannot properly prepare for trial without such

production . . . and (4) that the application is made in

good faith and is not intended as a ‘fishing expedition.’
Tyer v. Urzited States, 9l2 A.2d 1150, 1156 (D.C. 2006) (internal citations
omitted). The government may “promptly” move to “quash or modify the

subpoena if compliance would be unreasonable or oppressive.” Super. Ct. Crim.

R. 17 (c)(z).

We conclude that it was not an abuse of discretion for the trial judge to
quash appellant’s first subpoena and refuse to enforce the second one for
substantially the same reasons as they sought the same information The first

subpoena, which was filed the morning of the first day of trial, requested statistics

 

(. . . continued)
testimony, which was that there had been times when he collected and processed
guns that were found and reported by citizens

13

of gun-related crimes in PSA 304 from 2010 to 2014, potentially encompassing an
extremely large number of civilian calls and unsubstantiated claims. The trial
judge noted, and the record supports the assessment, that the subpoena was
confusing and likely too broad for the department to comply with. See Tumer v.
United States, 443 A.2d 542, 547 (D.C. 1982) (Appellant’s subpoena, which
sought all search warrants for a building during a two-year period leading up to an
incident to show “that there was a significant likelihood that other ‘guests’ might
have had the motive” to commit the crime appellant was charged with, was
quashed because it was irrelevant and overbroad.). Further, when given the
opportunity to make a proffer in opposition to quashing his first subpoena,
appellant failed to explain how it could be more narrowly tailored See Wiggins v.
United States, 386 A.Zd ll7l, ll76 (D.C. 1978) (Ferren, l., concurring) (in
seeking discovery, “[a]ppellant initially has the burden of proving that the
discovery request, denied by the trial court, was ‘material to the preparation of his
defense and that the request (was) reasonable’ (i.e., not unduly burdensome on the

government)”).5

 

5 Appellant also argues that the trial court erred in quashing his first

subpoena outright, instead of modifying it. However, appellant did not make a
specific request for the court to reframe the subpoena, and instead, simply stated
that appellant could “narrow it” and led the court to believe he would “be filing
another subpoena [that evening].” It is not the court’s statutory obligation to, sua
sponte, modify a subpoena without appellant first moving for it to do so.

14

B. Col'zfrontation Clause Claim

Appellant’s second claim is that he was prejudiced by the trial court’s
decision to preclude him from cross-examining and recross-examining Officer De
los Santos on gun-crime rates in PSA 304. Appellant contends that the testimony
he sought to elicit was highly probative and would have helped convince the jury

that the gun was left by someone other than appellant6

A defendant has a Sixth Amendment right to confront the witnesses against
him. Bl'yant v. United Smtes, 148 A.3d 689, 696 (D.C. 2016). But the trial court
has broad discretion to institute reasonable limits on cross-examination based on
concerns about, among many things, prejudice, confusion of the issues, or
interrogation that is repetitive or only somewhat relevant Gardner v. United

States, 140 A.3d 1172, 1191 (D.C. 2016) (intemal citations omitted).

The court correctly concluded that the testimony regarding gun-crime rates

appellant sought was irrelevant Nothing in the record nor anything proffered by

 

6 In his reply brief, appellant clarifies that, in eliciting Officer De los

Santos’s testimony on the prevalence of gun crimes in PSA 304, he was not
seeking a third-party perpetrator theory of defense To the extent he does raise this
defense, we consider it waived Bean v. Gutz'errez, 980 A.2d 1090, 1094 (D.C.
2009).

15

appellant suggests that someone other than appellant had either the motive or the
opportunity to drop the handgun where appellant stopped See Turner, szrpra, 443
A.2d at 548. Officer De los Santos saw appellant move to conceal himself behind
the parked vehicle, saw his hands fumble in his pockets, and heard a heavy object
hit the ground See id. Both officers witnessed the gun on the ground in the exact
spot that appellant was standing See id. Therefore, the trial court correctly
concluded that the non-probative nature of the proposed line of questioning
outweighed the potential prejudicial effects of disallowing it, and there was thus an

adequate basis for precluding it.

Appellant also argues that the proposed line of questioning would have
minimized the incriminating effect of Officer De los Santos’s testimony We agree
with the trial court’s conclusion, however, that introducing the officer’s isolated
testimony on gun-crime statistics would provide the jury with an incomplete
account of the actual likelihood that someone other than appellant left the gun at
the spot where he was stopped and arrested The trial judge stated that it “would
invite the jury to speculate about whether or not, just because there’s been a lot of
gun violence or may have been some gun violence or some identifiable gun
violence over the years in this neighborhood that someone else left the gun.” “[A]

statistical showing alone, without some analysis of the particular [neighborhood]

16

involved, is insufficient to prove a systematic [pattern]” and would pave the way
for speculation See Diggs v. Um'ted States, 906 A.2d 290, 298 (D.C. 2006)
(internal citation and alteration omitted). lf Officer De los Santos had been
permitted to testify regarding the prevalence of gun-crime rates in PSA 304, the
jury, without hearing statistics of other neighborhoods as a comparison, could have
idly speculated that another person left the gun, even if the rate was low, relative to
other neighborhoods in Northwest or the other three quadrants of Washington,
D.C. Appellant tried to show that the rate of gun crimes is tied to the frequency
with which people discard guns, but he failed to introduce any evidence to support
his claim. See Gi`ordano v. Sherwood, 968 A.2d 494, 494-98 (D.C. 2009) (“The
jury . . . may not be allowed to engage in idle speculation Speculation is not the
province of a jury, for the courts . . . have emphasized the distinction between

logical deduction and mere conjecture.”) (internal citations omitted).

Ajj‘irmed.

