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Thomas v. United States

May 22, 2003

NATHANIEL THOMAS, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F-5631-99) (Hon. Judith E. Retchin, Trial Judge)

Before Schwelb, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Per Curiam

Argued December 12, 2002

Concurring opinion by Associate Judge SCHWELB

Concurring opinion by Associate Judge FARRELL

Dissenting opinion by Associate Judge RUIZ

The judgment is affirmed for the reasons stated in Judge Schwelb's lead concurring opinion, except with respect to the issue discussed in Judge Farrell's concurring opinion and in Part I of Judge Ruiz' dissenting opinion. As to that issue, the judgment is affirmed for the reasons stated in Judge Farrell's opinion and in footnote 13 to Judge Schwelb's opinion.

Affirmed.

SCHWELB, Associate Judge, concurring: Nathaniel Thomas was convicted by a jury of simple assault. *fn1 He was found not guilty of the more serious charges of aggravated assault, *fn2 attempted malicious disfigurement, *fn3 and assault with a dangerous weapon, *fn4 namely, a hot liquid. On appeal, Thomas presents several contentions, none of which warrants reversal of his conviction; any possible trial court errors, considered individually or cumulatively, were harmless. Accordingly, I concur in the affirmance of the judgment.

I. THE EVIDENCE

This case arose out of a quarrel between the defendant and Clarice Johnson, the mother of his four-year-old son, Tevin. According to Ms. Johnson, Thomas came to her home on May 25, 1999, ostensibly to give her some money in connection with Tevin's pre-school graduation. Later in the evening, Thomas began to interrogate Ms. Johnson regarding whether she had been seeing another man. Thomas appeared to Ms. Johnson to be "tripping" on crack cocaine; she denied, however, that she used cocaine on the evening of the incident. Ms. Johnson testified that Thomas became angry, went to the kitchen, came back to the bedroom with a bowl in his hand, and threw some hot liquid at her, scalding her face, neck, and arms. Ms. Johnson sustained second degree burns on her face and arms.

Thomas' account of the incident was quite different. According to Thomas, Ms. Johnson had asked him to bring her some crack cocaine. Thomas purchased some crack and brought it to Ms. Johnson's home, together with a bottle of gin and, somewhat incongruously, some carrot juice. Thomas testified that the quarrel began while the two principals were smoking crack and drinking liquor together in the bedroom. According to Thomas, Ms. Johnson complained that "the shit wasn't no good" and demanded that Thomas give her more cash. Thomas refused and Ms. Johnson, who is bigger than Thomas, became angry, pulled him onto the bed, and began to berate him. Thomas retreated to the kitchen and began washing dishes at the sink. When Ms. Johnson continued to ask for money, Thomas told her she should "go out in the street and get it the way she has been," i.e., by "tricking." Ms. Johnson, apparently displeased by this suggestion, "reached at the stove, grabbed a pan, and swung at [him]." Thomas testified that he raised his arm to protect himself, and that the liquid in the pan "spilled back onto Clarice" and burned her. Thomas himself was burned by the lower part of the pan.

There were no other witnesses to the scalding incident. Ms. Johnson's eighteen-year-old daughter, Celeste, testified that two of Thomas' sisters subsequently telephoned her several times to urge that the charges against their brother be dropped. Ms. Johnson testified that Thomas told her that he was sorry for what he had done. He also wrote to her from jail, declaring his love and inquiring whether she would press charges. There was no claim that either Thomas or his sisters threatened Ms. Johnson to dissuade her from testifying.

Ms. Johnson was impeached with some arguably minor contradictions between her trial testimony and her grand jury testimony. After being given immunity, she admitted that she had threatened another woman ...


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