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11/27/90 JOSEPH WILKINS v. UNITED STATES

November 27, 1990

JOSEPH WILKINS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. George H. Goodrich, Trial Judge

Rogers, Chief Judge, and Ferren and Terry, Associate Judges.

The opinion of the court was delivered by: Terry

Appellant was indicted for second-degree murder while armed for the stabbing death of Earl Jones. *fn1 A jury acquitted appellant of that charge but found him guilty of the lesser included offense of manslaughter while armed. *fn2 On appeal from his conviction, appellant contends that the trial court erred in allowing the prosecutor to quote from the grand jury testimony of a government witness in an unsuccessful attempt to refresh that witness' recollection. We agree, reverse the conviction, and remand the case for a new trial.

I

Appellant Wilkins shared an apartment on W Street, N.W., with his girl friend, Mary Helen Bethea, and her daughter, Deborah Pipkin. The decedent, Earl Jones, was a friend of both Wilkins and Bethea, and had been romantically linked with Bethea before she became involved with Wilkins. The government's case against Wilkins was based on the theory that Bethea and Jones were continuing their relationship, and that Wilkins murdered Jones out of jealousy after seeing Jones and Bethea together.

On the afternoon of December 19, 1987, Wilkins and Deborah Pipkin drove to Bethea's place of work with Joseph Tyson, Pipkin's boy friend. Upon learning that Bethea was not at work, they went to two other places and eventually returned to the W Street apartment. Tyson and Pipkin waited in the car while Wilkins went inside to use the bathroom and make a telephone call. While he was inside, Bethea and Jones came walking up W Street and entered the apartment building together. A short time later, Jones and Wilkins became involved in the fight in which Jones received his fatal stab wounds. *fn3

Testifying in his own behalf, Wilkins admitted that he had fought with Jones but denied stabbing him. *fn4 Wilkins claimed that he was acting in self-defense. He said that Bethea came into the apartment alone just as he was leaving to join Tyson and Pipkin in the car outside. He then met Jones in the hallway and told him to leave because he was on his way out. Suddenly, Wilkins testified, Jones rushed toward him with a knife in his hand. After a brief struggle, Jones fell down the stairs and tumbled out onto the front steps of the building. Wilkins followed Jones downstairs and threw him off the front steps because the landlord did not want anyone sitting there. Although Jones died shortly thereafter, Wilkins said he did not realize that Jones was badly injured.

Wilkins denied that he was jealous of Jones and testified that he would not have been bothered if Bethea had been seeing other men. He confirmed that he had heard people say that Jones came to visit Bethea at the apartment when he was not there, but he denied having any actual knowledge to that effect. *fn5

Deborah Pipkin, Bethea's daughter, was called to rebut Wilkins' testimony that he was unaware that Jones had been seeing her mother. Pipkin testified that Wilkins had threatened Bethea, but she did not remember anything Wilkins might have said to Jones. The prosecutor then asked Pipkin if looking at her grand jury testimony would refresh her recollection. Defense counsel objected that the prosecutor *fn6 was trying to impeach her own witness, but the court overruled the objection, whereupon the prosecutor handed Pipkin a copy of her grand jury testimony. After looking it over, Pipkin essentially repeated the testimony she had just given a few minutes earlier.

The prosecutor once again referred Pipkin to her grand jury testimony, directing her attention to particular lines in the transcript. After Pipkin had read the testimony to herself, the following exchange occurred:

Q. And . . . looking at those lines, does that refresh your memory as to whether Joe said anything else to Earl when he slammed him to the ground?

A. You say when -- after work or something?

Q. Well, I'm asking you -- you have now had a chance, have you not, to look at your grand jury testimony. What else did Joe say to Earl that day at the ...


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