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12/29/93 ELTON CARPENTER v. UNITED STATES

December 29, 1993

ELTON CARPENTER, TYRONE SMALLWOOD, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge)

Before Ferren, Steadman, and Wagner, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: A jury convicted appellant Carpenter of assault with a dangerous weapon, D.C. Code § 22-502 (1989), and appellant Smallwood of voluntary manslaughter while armed, D.C. Code § 22-2405 (1989). Judge Ryan sentenced Carpenter to prison for two to six years and Smallwood to life imprisonment under the Youth Rehabilitation Act, D.C. Code § 24-803 (1989). Both appellants challenge their convictions on two grounds: (1) the trial court should not have admitted testimony, over objection, which the government elicited on redirect examination from one of its key witnesses, Chevelle Jackson, to explain her fear of testifying, since that testimony strongly implied -- without any evidentiary foundation -- that appellants, through family members, were responsible for beating up Jackson a few weeks before trial; and (2) the prosecutor improperly commented during closing argument to the jury on this unfounded linkage between appellants and Jackson's beating, and also improperly incited the jurors' passions by urging convictions in order to help make the neighborhood safe for witness Jackson. We agree with these contentions and thus reverse and remand for a new trial. *fn1

I.

On November 10, 1988, Carl Cooper was killed. At appellants' trial, the government presented evidence that Carpenter had assaulted Cooper with a stick and Smallwood had stabbed him twice with a knife. The government's evidence established that the attack apparently occurred as a result of Cooper's sale of a defective telephone to Carpenter a month earlier. Both appellants presented evidence that they were not present at the scene of the crime.

The government relied primarily on the testimony of three eyewitnesses. The first, Chevelle Jackson, testified against both appellants. Jackson testified that she had known Carpenter and Smallwood for a number of years from the neighborhood where she grew up and her mother presently lived. On November 10, 1988, Jackson was on her way to her mother's house when she saw Carpenter and Smallwood talking to Carl Cooper. Jackson continued to walk away, noticing that the -- three men had begun to fight. Jackson saw Carpenter swinging a stick at Cooper. She also observed both appellants hitting Cooper. Before Jackson went into her mother's house, she saw Smallwood holding a bloody knife and heard him telling another man that he had stabbed Carl Cooper in the chest. Several months later, on March 22, 1989, Jackson spoke with Detective James Johnson about the incident and identified both Carpenter and Smallwood in photographs as the men she had seen attacking Carl Cooper. Jackson testified that after the incident, she did not tell anyone what she had seen because she was afraid.

K.B. was the government's second eyewitness to the attack. K.B. testified that he had been on his way to the store with some friends when he saw a man on the ground and Carpenter standing nearby with a stick. That stick was long, with a big tip, and was covered with blood. K.B., a minor, testified that he did not see Smallwood at the scene of the crime. K.B. nevertheless identified both appellants Carpenter and Smallwood in court.

The government's third eyewitness was Taunya Sutherland, who testified only against Carpenter. Sutherland testified that as she came out of a store, she saw Carl Cooper lying on the ground. When the prosecutor asked whether she had seen Carpenter at the scene, Sutherland said she did not remember. The prosecutor then gave Sutherland a copy of the statement she had made to Detective James Johnson and asked her to use it to refresh her recollection. Sutherland then acknowledged that she had told Detective Johnson she had seen Carpenter "out there the day Carl Cooper was killed." *fn2

The government called James Cooper, the decedent's brother, to establish appellants' motive for the attack. He testified that about one month before the stabbing, his brother had sold Carpenter a phone for $20. He further testified that three days before the attack, Carpenter had told him, "When you see your brother tell him that I want my money for the phone or I'm going to F him up." *fn3

II.

A. Cross and Redirect Examination of Chevelle Jackson

A.

On cross-examination, counsel for both appellants questioned Chevelle Jackson repeatedly as to why she had waited so long to talk to the police about the attack on Carl Cooper and why she had never told anyone that she had witnessed the attack. Jackson replied that she had not spoken to the police about the incident for almost five months because she had been afraid. She first told the police about the incident on March 22, 1989, when the police came to speak to her about her boyfriend, Jeffrey Edelin. Jackson also testified that, before trial, she had never told her best friend, her mother, or her boyfriend that she had witnessed the attack. Soon after the incident, in fact, Jeffrey Edelin told Jackson that Carl Cooper had been killed, but Jackson did not tell Edelin that she had been an eyewitness. She feared that if Edelin told anybody she had seen what happened, someone would hurt her. Jackson further testified that she had been afraid of Smallwood, in particular, because she worried that someone might tell him she had witnessed the attack.

Defense counsel also questioned Jackson about her inconsistent statements regarding the number of times she had seen Carpenter hit Cooper and about the information she had provided to defense investigators. *fn4 Jackson answered that her inconsistencies ...


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