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KEARNEY v. U.S.

March 19, 1998

AARON D. KEARNEY, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, ERIC T. WASHINGTON, J. [708 A2d Page 263]

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

Aaron D. Kearney was convicted at a bench trial of simple assault, in violation of D.C.Code § 22-504(a) (1996). On appeal, he contends that he was denied a fair trial because, according to Kearney, the trial judge prevented Kearney's attorney from presenting a closing argument. We affirm.

I.

In the early morning hours of July 5, 1996, Kearney and a female friend, Phouthavone (Pat) Sayasithsena, were at "The Sports Fan," a club located in the Georgetown section of northwest Washington, D.C. At the bar, Ms. Sayasithsena struck up a conversation with an unidentified young man in a white shirt whom Kearney described as "cool." When closing time approached, Kearney, Ms. Sayasithsena and the white-shirted man walked out of the club together. Suddenly, Ms. Sayasithsena's new acquaintance began to urinate directly in front of the service entrance of The Sports Fan.

Kevin Dyels, a sign-language interpreter by day and a disc jockey at the club by night, saw the "gentleman peeing on the glass door to the exit." Dyels testified that he told the man that he should use the bathroom downstairs, and not "the bathroom . . . on the street." The two men exchanged uncomplimentary [708 A2d Page 264]

four-letter epithets. Dyels then walked away, together with his girlfriend, Ellen Sufranic, and another female friend. It appears to be undisputed that, after having relieved himself, the white-shirted man followed Dyels and assaulted him.

The parties' accounts diverge as to Kearney's role in these events. According to the prosecution witnesses, Kearney participated on the urinator's side in the exchange of insults with Dyels, and he then helped the man to beat up Dyels. In fact, Ms. Sufranic claimed that Kearney threw the first punch. Kearney testified, on the other hand, that he suspected that the white-shirted man might attack Dyels, that he remarked, "I got to stop him," and that he then followed the white-shirted man in order to prevent him from assaulting Dyels. Kearney claimed that he was trying to separate Dyels and Dyels' assailant when the police arrived and arrested Kearney. Ms. Sayasithsena did not see the fight, but she confirmed that Kearney had declared his intention to "stop" the white-shirted man from attacking Dyels.

At the conclusion of the case for the prosecution, Kearney's attorney made an oral motion for judgment of acquittal (MJOA), and she presented a brief argument in support of her motion. The judge denied the motion. Defense counsel renewed her MJOA at the conclusion of the defense case, and the judge again denied it. The prosecutor announced that he had no rebuttal witnesses. The judge then stated:

All right. That being the case, the court is going to — we're going to stand in brief recess so that the court can consider the evidence, and then I will come back and render my decision. I don't think closing arguments will be necessary; the evidence is fairly clear, and the question is one of credibility. All righty?

All right, then we will stand in brief recess, probably about five minutes.

Neither attorney responded to the question "All righty?", and the judge took a brief recess. A few minutes later, the judge resumed the bench and delivered his oral decision. The judge stated that he credited the prosecution witnesses and that he did not believe some of the defense testimony. The judge found Kearney guilty of simple assault. This appeal followed.

II.

Kearney had the right, under the Constitution and under the Superior Court's rules, to present a closing argument through counsel. Herring v. New York, 422 U.S. 853, 856-65, 95 S.Ct. 2550, 2552-57, 45 L.Ed.2d 593 (1975); Thomas v. District of Columbia, 67 App. D.C. 179, 183, 90 F.2d 424, 428 (1937); Super. Ct.Crim. R. 29.1. This is an important right, and it applies in full force even to relatively uncomplicated cases such as this one, in which the result turned on the judge's assessment of the ...


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