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04/18/91 FREDERICK LEE GRAY v. UNITED STATES

April 18, 1991

FREDERICK LEE GRAY, JR., APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Joseph M. Hannon, Trial Judge

Ferren, Belson, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

A jury convicted appellant of manslaughter while armed, D.C. Code §§ 22-2405, -3202 (1989), for strangling Damon Chase to death with a belt after a prolonged fist fight. Appellant was sentenced to prison for not fewer than seven nor more than twenty-one years. On appeal, he contends: (1) the trial court erred in refusing to permit appellant's trial counsel to impeach a government witness with a prior inconsistent statement, and (2) the prosecutor engaged in misconduct during closing and rebuttal arguments when he commented on appellant's failure to testify, shifted the burden of proof to the defense, and misstated medical testimony. We affirm.

I. FACTS

According to appellant's written statement given to investigating detectives five hours after the incident, *fn1 appellant was sitting in his apartment with three others watching a football game. He had drunk three six-packs of beer by the time Chase entered the apartment "talking shit" *fn2 and telling appellant "he would whip my ass." Appellant told Chase to leave and said he did not fear Chase. Chase, he said, then "started swinging on me and hit me in the mouth." Appellant tackled Chase, threw him on the floor, began hitting him, and told Chase he "was going to kill him." Appellant described the remainder of the fight:

I was on top of him hitting him, then he was on top of me hitting me, and then I flipped him back over and hit him some more. Then I took my belt from my pants and put it around his neck and started choking him. He started saying, "No," and then I let him go. I said to him that I was going to kill him today, and I meant to do it. I choked him some more and then I got off him and he was laying there. I then got off him."

George Nickens, who owned the apartment, died before trial. Defense counsel read into evidence Nickens' grand jury testimony, including the signed statement he had given to the police. That statement substantially corroborated appellant's statement: Nickens added that appellant held the belt around Chase's neck "from 5 to 10 minutes." Nickens also said that during the fight appellant was fighting for his life because "if Chase had had the leverage on him, he'd have killed ."

According to Metropolitan Police Officers Beckwith and Williams, when they arrived appellant explained that Chase (who was on the floor motionless, his face turning blue) was not dead; he was only faking. Appellant grabbed Chase's feet and dragged the body across the floor attempting to revive Chase. When Chase did not recover, appellant became nervous, began pacing, and said: "Yeah. I killed him. I choked him."

Not surprisingly, appellant claimed self-defense, arguing that at the time appellant choked Chase, Chase still posed a threat from which appellant had to use deadly force to protect himself.

II. REFUSAL TO PERMIT IMPEACHMENT WITH PRIOR INCONSISTENT STATEMENT

Appellant contends the trial court erred in precluding defense counsel from using a prior inconsistent statement to impeach the principal government witness, Thomas Frederick. *fn3 Frederick had known both Chase and appellant for a number of years. At trial, Frederick testified that he had opened the door and let Chase into Nickens' apartment. Chase then told Delores Henry (the other visitor in the apartment) that she had a phone call at another apartment in the complex. Frederick returned to the kitchen and heard (but did not see) Chase and appellant arguing and beginning to fight. Frederick watched the last part of the fight from the kitchen. Frederick testified that he had drunk a "half pint" and some beer that afternoon and that his drinking impaired his memory of the fight.

Defense counsel perceived that Frederick's testimony contradicted a written statement he had given to the police the day of the fight. In that statement, *fn4 Frederick declared that Chase had come to the apartment to challenge appellant to fight, not to tell Henry she had a phone call. In the statement, moreover, Frederick described Chase as a "pain in the ass" and claimed -- in contrast with his trial testimony -- that he had been present when the fight started.

At trial, counsel attempted to impeach Frederick with this written statement. Frederick remembered making the statement but could not recall what he had told the police or whether he had signed the statement. Counsel attempted -- but failed -- to refresh Frederick's memory with the statement.

Appellant's counsel then tried to call as a witness the detective who had taken Frederick's statement, but the trial court denied permission to do so. The court did so because Frederick "didn't remember anything he told the police in that statement, and he didn't know anything more about how the fight started than he testified on direct, and . . . indeed, he had been drinking, which leaves serious doubts respecting whatever it was he told the police ...


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