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Troy Burner

Other District of Columbia exonerations
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Shortly after 9 p.m. on April 21, 1990, masked gunmen ambushed and shot 27-year-old Michael Wilson while he was walking with his 27-year-old friend Joseph Kinard on 15th Street NE in Washington, D.C. Wilson, who was shot six times, died on May 8 due to complications from his wounds. Kinard escaped unharmed.

Three bullets, two bullet fragments, and 12 shell casings were recovered from the scene. Two more bullets were recovered during Wilson’s autopsy.

Wilson's girlfriend, Gerri Shaw; her brother, Eric Shaw; and their friend, Jesse Howe, had been talking to Wilson just before the shooting. They said they left him and had driven less than half a block away when the gunfire began. They said they saw two gunmen come up from behind Wilson and Kinard and begin shooting. When Wilson and Kinard fled and split up, one gunman followed Wilson and the other followed Kinard. After Kinard ran behind a car, the man chasing him peeled off and joined the gunman chasing Wilson. Both gunmen fled after Wilson was shot multiple times.

Kinard told police that he also saw only two attackers. Additionally, at the hospital shortly before his death, Wilson, who had six gunshot wounds, indicated to Gerri Shaw by writing on a piece of paper that the two people who shot him were “Lewis” and “Little Rick.”

The case was still unsolved in 1991 when police arrested Antonio Johnson and Dirk Wright after raiding their apartment and recovering several guns, including an Uzi, and 500 grams of cocaine. Johnson and Wright reached agreements to cooperate with the prosecution. Johnson pled guilty to possession of a firearm and possession with intent to distribute over 50 grams of crack cocaine. He was then released from jail and went into a witness protection program. Johnson was paid $1,000 per month and housed rent and utility free in a three-bedroom townhouse where he lived with Wright. Ultimately, the two were paid $98,000 for their cooperation.

Johnson ultimately cooperated in more than three dozen different cases. In September 1992, Johnson implicated 20-year-old Francois Bracmort, 19-year-old Louis “Lou” McCoy, 16-year-old Nathaniel “Rick” Harrod, and 17-year-old Troy Burner in the shooting of Wilson and Kinard.

According to Johnson, Bracmort bragged that he got McCoy, Harrod and Burner to shoot Wilson. Johnson said Bracmort told him that McCoy and Harrod used nine-millimeter pistols and that Burner did not fire his gun.

Four months later, on January 25, 1993, Antoine Payton was arrested for the murder of Samuel Glen, which occurred on January 17, 1990 near 16th and Isherwood Streets NE, about two blocks from where Wilson was shot. Payton, who had been released from jail three weeks earlier on drug charges, admitted that he shot Glen. At the time of his arrest for the murder, Payton was in prison for two drug convictions in 1990 and 1991. When he was arrested for the 1990 drug charge, Payton had tried to avoid getting charged with a parole violation for a 1989 drug conviction by saying his name was Troy Burner—a ploy that did not work.

When first questioned about the Glen murder, Payton offered information on the Wilson shooting in the hope of getting his charges reduced.

The information Payton provided primarily was that Bracmort boasted about the shooting. Payton said that before the shooting, Bracmort said that he was going to kill Wilson, who was known as “Bate,” because he thought Wilson was trying to set Bracmort up to be robbed. Payton said he subsequently saw Bracmort and a man named Marquette at a mall where Bracmort bragged that he had McCoy, Harrod and Burner “ready to hit Bate,” and that he was going to pick them up after he heard gunshots.

Payton said he met the group later that night at Bracmort’s apartment. There, Bracmort claimed that “Lou came [at Wilson] from one way, and Rick came from the other way,” but “Troy never showed.” Payton also claimed that Harrod said that “him [Harrod] and Lou came from both side[s] of Bate.”

Payton told police that Harrod and Burner argued that night because Burner had not helped kill Wilson. According to Payton, Burner said he did not get involved because he was worried about getting caught in a crossfire and getting shot himself.

On March 12, 1993, Payton signed a plea agreement admitting to the Glen murder and agreeing to testify in the Wilson case, among others. Under the plea agreement, the government reduced the charges against Payton for the Glen homicide from first-degree murder to second-degree murder. The government also agreed to protect Payton, move him away from certain other individuals, seal the record in his case, drop other charges against him, immunize him for any offense he admitted other than a crime of violence, and delay sentencing until after he testified. The same day Payton signed the plea agreement, he offered a different account. For the first time, Payton claimed to have witnessed the shooting himself—from 16th Street, more than a block away. He said he was in his car with his baby brother and parked so that he could see Wilson and “another individual” standing on the corner of 15th Street.

Payton claimed he saw McCoy come toward Wilson and Kinard from a school playground and Harrod approach from an alley on Gales Street, which intersected with 15th. Payton claimed that he saw a chase and he saw Wilson fall, but then Payton drove away. Payton said he did not see Burner at the scene.

On March 15, 1993, the grand jury investigation began. It was officially titled United States v. Bracmort, Harrod and McCoy. Burner was not identified as a subject of the investigation—only Bracmort, Harrod and McCoy were, based on the police investigation.

On March 16, 1993, Payton testified before a grand jury and gave a third version. Payton again recounted talking with Bracmort at the mall. For the first time, Payton said Bracmort told him that Wilson would be standing near the corner of 15th and Gales Streets NE. Payton also said for the first time that after he left the mall, he dropped off his baby brother at his grandmother’s, but then reversed course and said he kept his brother with him and drove to 15th Street to “see what they were going to do.”

Payton also changed the location where he parked his car. He now said he parked in an alley near a clinic—a block away from the location he had given in his interview four days earlier. An investigation of both of the locations he gave would later show that it was a physical impossibility to have seen the shooting from either location. Contrary to the eyewitness accounts of Gerri and Eric Shaw and Joseph Kinard, and contrary to the ballistics evidence, Payton told the grand jury that he saw McCoy and Harrod running at Wilson from different directions. Also contrary to the accounts of Gerri and Eric Shaw and Kinard, Payton testified that McCoy and Harrod initially chased and shot at Wilson, and once Wilson fell, Harrod chased Kinard before rejoining McCoy at the spot where Wilson fell.

Payton testified that he “expected to see Troy, but I never seen Troy come.” The prosecutor asked, “And you never saw Troy?” Payton replied, “No, I never seen Troy.” Payton also told the grand jury that at Bracmort’s apartment after the shooting, the group was angry with Burner for not participating and that Burner responded that he did not participate because there would have been crossfire. Payton said Burner then “got his stuff and left.”

However, when a grand juror asked why Burner would have been afraid of getting hit in a crossfire, Payton said, for the first time, Wilson was approached in a “T-shape” formation—with McCoy coming from one end, Burner from the other, and Harrod up the middle. Contradicting his statements to police and the testimony he had given minutes earlier, this was the first time Payton had ever put Burner on the scene. A grand juror followed up, asking if Payton saw Burner. Payton said, “I did see Troy, but when he seen what was happening, he just stopped where he was and just didn’t do nothing.” Payton added that he did not see Burner holding a gun.

A month later, on April 20, 1993, the grand jury indicted Burner, Harrod, McCoy and Bracmort on charges of first-degree murder. Harrod, McCoy and Burner were also charged with assault with intent to kill while armed. All four were also charged with possession of a firearm during a crime of violence and carrying a pistol without a license. Burner was arrested the next day, but District of Columbia Superior Court Judge Herbert Dixon allowed Burner to remain free pending trial, citing the lack of evidence that Burner actually participated in the crime.

All four went to trial in District of Columbia Superior Court on May 20, 1994. The prosecution contended that Burner, Harrod, McCoy and Bracmort sold cocaine together and that Wilson was a threat to their operation.

Payton gave yet another version of events. He now described, for the first time, a meeting at Bracmort’s apartment two or three days before the shooting. Payton quoted Bracmort as saying, “We got to get Bate.” Payton said the word on the street was that Wilson was going to try to rob Bracmort. Payton also testified that he saw McCoy and Harrod chasing Wilson and Kinard and that he saw Burner with a gun in his hand, moving away from the scene. Payton said Burner did not shoot.

Antonio Johnson testified that two weeks after the shooting, Bracmort bragged about having Burner, McCoy and Harrod kill Wilson. Johnson also testified that Bracmort said that Burner did not shoot because his gun jammed. Johnson admitted that the prosecution had given him an outline of its case and wanted his testimony to be consistent with the outline.

A police technician testified that three bullets, two bullet fragments, and 12 shell casings were recovered from the scene. Two more bullets were recovered during the autopsy.

Firearms examiner Cleon Mauer testified that seven shell casings came from one gun and that five came from another gun. The examiner said both guns were nine-millimeter semi-automatic pistols. An autopsy report showed that Wilson was shot from behind at least six times.

Gerri and Eric Shaw testified and said they only saw two attackers.

When first asked if he saw Burner’s hands, Payton said he did not because Burner’s hands were in the pouch of his hoodie. But then, upon further questioning by the prosecutor, Payton—contradicting his three prior statements—said he saw Burner with a gun in his hand.

On May 27, 1994, the jury convicted all four men of first-degree murder, possession of a firearm during a crime of violence, and carrying a pistol without a license. Harrod, McCoy, and Burner were also convicted of assault with intent to commit murder.

Burner was sentenced to 30 years to life, which was later reduced on appeal to 25 years to life. Harrod and McCoy were each sentenced to 25 years to life, later reduced on appeal to 20 years to life. Bracmort was sentenced to 20 years to life.

Their convictions were upheld on appeal, except for the convictions for possession of a firearm during a crime of violence and for carrying a pistol without a license, all of which were vacated. The court ruled that the crime of possession of a firearm during a crime of violence was not a crime at the time of the shooting. The court also held that there was insufficient evidence to sustain the convictions for carrying a pistol without a license. The court also ruled that the trial court had violated Burner’s Sixth Amendment rights by admitting Johnson’s double hearsay testimony about Bracmort’s assertions after the crime. The court said, however, that the admission of the testimony was harmless error.

In 2015, Burner, acting without a lawyer, filed a motion under the Innocence Project Act. The motion asserted Burner’s innocence based upon newly discovered evidence.

That evidence included a recantation by Antoine Payton in 2009 saying that Burner was not present during the shooting. His testimony, he said, was “a complete fabrication.” The motion also contained an affidavit from Harrod saying that only he and McCoy chased Wilson and Kinard. “Troy Burner was not with us,” the affidavit said.

In 2017, Burner, represented by Frances Walters, legal director of the Mid-Atlantic Innocence Project, and attorneys Seth Rosenthal and Lauren Stocks-Smith from the law firm of Venable LLP, filed an amended Innocence Protection Act motion, which included a declaration from Louis McCoy confirming that Burner was not involved in the Wilson shooting, a declaration from alibi witness Michael Tanner, and a detailed recantation from Antoine Payton. In his sworn statement, Payton stated that he testified falsely at trial because of “government pressure” as part of his plea agreement. And, he said, he was angry because Burner had failed to help Payton out in 1990 when police arrested Payton on a drug charge. Payton believed that Burner could have helped him cut time off his sentence by telling the police about a homicide that Payton told the police Burner had witnessed.

An evidentiary hearing was held in October 2018. At the hearing, Harrod and McCoy both testified that they acted alone in the shooting and that Burner was not involved. McCoy said that Bracmort was “paranoid scared” that Wilson was going to kill him. However, the shooting was not planned. McCoy said he and Harrod were on the balcony of Harrod’s mother’s apartment when they saw Wilson walking on the street, so they decided they would get him immediately. Harrod said that Burner occasionally hung out with them to socialize and was never involved in the violent activities in which he and McCoy and Bracmort were engaged.

Michael Tanner and Ronnel Lewis testified that on the night Wilson was shot, they were shooting dice with Burner at the bottom of the stairs of an apartment complex when they heard gunshots.

On November 5, 2018, Burner was released after successfully moving for a reduced sentence under D.C.’s Incarceration Reduction Amendment Act of 2016. He had spent more than 24 years in prison since his conviction.

On March 26, 2020, District of Columbia Superior Court Judge Robert Rigsby granted the amended motion and vacated Burner’s convictions. The judge said that the testimony of the witnesses “demonstrates that Burner is actually innocent, as he was not present at the scene of the crime and did not shoot.” The judge said that Payton’s recantation provided “minimal” value due to his prior inconsistencies, “but it weighs in favor of Burner’s innocence.”

Judge Rigsby noted, “It was not until he was offered generous compensation for his testimony inculpating Burner that Payton’s story solidified and placed Burner at the scene.”

The judge added, “The new testimony by co-defendants that Burner was not present and did not participate in Wilson’s shooting supports Burner’s claim of innocence. The testimony of alibi witnesses Tanner and Lewis also weighs in Burner’s favor.”

On August 6, 2020, the prosecution dismissed the charges.

– Maurice Possley

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Posting Date: 9/17/2020
Last Updated: 9/17/2020
State:District of Columbia
County:
Most Serious Crime:Murder
Additional Convictions:Attempted Murder, Gun Possession or Sale, Illegal Use of a Weapon
Reported Crime Date:1990
Convicted:1994
Exonerated:2020
Sentence:30 to life
Race/Ethnicity:Black
Sex:Male
Age at the date of reported crime:17
Contributing Factors:Perjury or False Accusation
Did DNA evidence contribute to the exoneration?:No