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DISTRICT 07 COLOMBIA COORT 07 APPEALS ---'- . ~ ~ ~ ~ ~Nos. 92-CF-670 & 96-CO-694

DEMETRIUS N. MCLEAN, f MAR 2 9 EPPEllANT ,F3760-91v.

UNITED STATES,APPEll..EE

Appeals from the Superior Court of theDist r ic t of ColumbiaCriminal Division(Hon. Harriet t R. Taylor, Trial Judge)

(Argued March 4, 1998 Decided March 26, 1998)Before WAGNER, ChiefJudge and STEADMAN and SCHWELB, Associate

Judges.1mK0RAND QH OPINION um JODGHBH l

On February 28, 1992, Demetrius McLean was convicted by ajury of f i rs t -degree murder and related offenses. McLean f i led apost - t r ia l motion to vacate his convictions pursuant to D.C. Code 23-110 (1996), alleging ineffect ive ass is tance of t r i a lcounsel. The t r i a l judge held a hearing on McLean's motion. OnApril 4, 1996, the judge denied the motion in a twelve-pagewrit ten order. These consolidated appeals are from McLean'sconvictions and from the order denying his pos t - t r i a l motion. ~affi rm in both appeals.

I .TBB DIREC J. APPEAL

In his direc t appeal, McLean presents . a nll:!n."''E'r ofc""d:.eiltions, 110ne of which persuades us tha t the t r i a l judgecommitted reversible error . Specif ical ly, we are sa t is f ied tha t1. the t r i a l judge did not commit plain er ror byfai l ing sua sponte to suppress cer ta in ident i f ica t ionevidence; see e.g. United States v Hunter 692 A.2d 1370,1374-77 (D.C. 1997);2. the judge did not abuse her discret ion by denyingMcLean's request for a suspension of the t r i a lfollowing the prosecutor 's belated disclosure of agovernment witness' statement, where defensecounsel was permitted to, and did, re-ca l l the witness

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2for fur ther cross-examination; see e.g. Moore v UnitedStates 657 A.2d 1148, 1150 D. C. 1995); Edelen v UnitedStates 627 A.2d 968, 972 D. C. 1993);3. McLean was not prejudiced by, and i s not ent i t ledto reversal for, the judge's fai lure to ins t ruct thejurors , sua sponte tha t they could consider priorconvictions of prosecution witnesses only in re la t ion tothose witnesses ' credibi l i ty ; see Gilliam v United States _A.2d _, No. 95-CF-537 D.C. Feb. 19, 1998) (en banc) ;4. having fai led to f i l e a pre t r ia l motion to suppressa state:u..entt.hat he wade wllil.:: ih i-iulice custOQj, andhaving fai led to th i s date to proffer any facts fromwhich a finding tha t the statement was involuntarycould reasonably be inferred, McLean was not prejudicedby the judge 's refusal to hold a mid-tr ial suppressionhearing when the prosecution introduced the statementin i t s rebut ta l case. See Duddles v United States 399 A.2d59, 64 (D.C. 1979);1 and5. the t r i a l judge correct ly denied as time-barred,see Super c t . Crim. R. 33, and on the meri ts , seeJobnsonv United States 537 A.2d 555, 562 D.C. 1988), McLean'smotion for a new t r i a l based on a claim of newlydiscovered evidence.

I I .THE COLL TER L TT CK

In her comprehensive order denying McLean's 23-110 motion,the t r i a l judge found tha t McLean had fai led to sa t is fy therequisi tes of Strickland v Washington 466 U.S. 668, 695 (1984).Substant ia l ly for the reasons se t forth by. the judgp.; we ~ ~ l u ~t.ha U le actions and decisions by t r i a l counsel of which McLeancomplains were reasonable rather than egregious andpre judic ia l , and that , in any event, they did not so underminethe proper functioning of the adversarial process tha t the[proceeding] cannot be rel ied upon as having produced an unjustresul t . Stratmon v United States 631 A.2d 1177, 1182-83 D.C.1993) (quoting Strickland supra 466 U.S. a t 686.

Affirmed.

I t i s undisputed tha t McLean signed a r ights card waivinghis r ights under Miranda v Arizona 384 U.S. 436 (1966).

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Oy r PCCiGarland Pinkston Jr.Clerk o the CourtCopies to:Honorable Harr ie t t R TaylorClerk Superior CourtRichard Todd Hunter Esquire801 North Pi t t StSui te 209Alexandria V 22314John R. Fisher EsquireAssis tan t United Sta tes Attorney