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Murray v. United States

August 12, 2004

ALPHONSO MURRAY, CLIFFORDSTOKES, ANTOINEL. THOMAS, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (F-2584-01, F-2583-01, F-4274-01). (Hon. Michael L. Rankin, Trial Judge).

Before Farrell, Reid, and Glickman, Associate Judges.

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

Argued June 10, 2004

Appellants were each found guilty by a jury of kidnapping while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license.*fn1 Their principal claim on appeal is that the prosecutor engaged in improper and inflammatory bolstering of the credibility of government witnesses by asserting in his closing argument that the witnesses' reluctance to testify stemmed from their fear of appellants. We agree that, although a portion of this argument was supported by evidence before the jury, the prosecutor exceeded the bounds of proper argument in asserting that "these people," the government's witnesses collectively, were scared of appellants and yet had "sacrificed" to come to court and accuse them - a sacrifice, he implied, the jury should vindicate. We nevertheless hold, for reasons to be stated, that this impropriety was not of sufficient gravity when weighed against the strength of the government's evidence to require reversal of appellants' convictions. Since we also reject appellants' other claims of error, we affirm.

I.

According to the government's evidence, on April 23, 2001, fifteen-year-old Charles King went to the Oak Park Apartments in Southwest Washington to look for his school friend "Dray." The apartment he visited belonged to appellant Antoine Thomas (whom King knew by name as "Peetey" or "El"), Dray's uncle. Dray was not there, so King decided to wait for him. He saw appellants Murray, Stokes, and others in the apartment. King waited there for forty-five minutes but his friend did not show up. He saw a 9 mm Taurus pistol lying on the floor, and observing that the others had fallen asleep or were engrossed in a television show, he picked up the gun and left the apartment unnoticed.

Samura Diggs was also in the apartment that day with Stokes, Thomas, and Murray, all of whom she had known for years. Initially, "[t]he little boy" (inferentially King) was also there, but he left before the others and "took a pistol" with him. Shelinda Bryant too was with Stokes, Thomas, Murray, and "a little boy" at the Oak Park apartment. She had known Stokes for some five months, and Thomas and Murray for years. According to Bryant, Thomas and Murray were sitting around and talking, but Stokes was only "hanging [in the apartment] for a minute. He didn't stay." King also left soon after she arrived.

After leaving, King went to Brandywine Street, S.E., and met up with his friends "Putt" and Myles Spires. King showed the Taurus pistol to Spires, then went with his friends to trade the gun to someone named "Tony" for $100 and a smaller, 9 mm Glock handgun. While in the shopping center on Wheeler Road, King gave Spires the Glock for safekeeping because he was afraid the owner of the Taurus gun "was going to ride up on [him] sooner or later."

Meanwhile, soon after King left the Oak Park apartment, Thomas "jumped up and looked under the couch" and saw that his Taurus gun was missing. He looked under the chair and asked Bryant if anyone had been by the couch while he slept. Not finding the gun, Thomas and Murray left the apartment and climbed into a Bronco truck that belonged to Thomas's wife. Although Stokes had not been in the apartment when Thomas woke up, Bryant saw him come down the street as the others were leaving and join them as the driver of the Bronco. Diggs heard Murray remark before leaving that "he hoped the little boy had not taken [Thomas's] gun."

King saw the group pull up to the Wheeler Road shopping center, with Stokes driving; he recognized the Bronco as the one previously parked outside the Oak Park Apartments. Stokes, Murray, Thomas, and two other men jumped out of the vehicle, and Thomas accused King of stealing the gun. All three appellants demanded to know why King had taken the gun, warning him that "[y]ou fucked up man." Murray punched King in the face, whereupon King begged Spires to hand over the Glock 9 mm gun to Thomas, and Spires complied. According to King, appellants now had at least three guns in their possession, the Glock, another 9 mm gun, and a third handgun. Not satisfied with receiving the Glock, appellants forced King into the back of the Bronco where the beating continued. Murray, according to King, "just kept punching me in the face" while threatening to kill him (Murray at one point pulled out a gun), and Thomas added, "[n]o, we're going to take him to the fat man" first, a threat King viewed ominously. Stokes climbed back into the driver's seat and drove the Bronco out of the parking lot and down Barnaby Street to Brandywine Street, as the punching continued in the backseat.*fn2

Saintclair Parks, a bystander in the parking lot, had watched as a "goldish, brownish Bronco" sped up to the parking lot, the doors flew open, and "five guys" got out, two from the driver's side, two from the passenger side, and one out of the back window. Some of the men "posted themselves around the vehicle and on the sidewalk." As "this young man was walking across the walkway," one of the men grabbed him by the neck with his left arm and "pressed up against his body." That man had a "dark object," and Parks "could see from the way his hand was formed that it wasn't his fist . . . [his hand] was molded around something." The man holding the boy - who "seemed . . . real scared, real frightened" - squeezed him harder and said "we['ve] been looking for you." At the same time, the four other men from the vehicle were "scanning" the surroundings, acting as look-outs. Two of the men searched the boy's pockets before the man who held him by the neck pushed him into the Bronco. All five men then climbed back into the car, surrounding the boy. Parks watched through the open rear window as someone struck the boy with a closed fist and "the boy's head just kept jerking and jerking." (Photographs depicting King's bruised and bloodied face on the day of the assault were shown to the jury.) The vehicle backed up, turned around, and drove off.

Parks quickly "walked off because [he knew he] needed to get the [license plate] tag number, . . . because the boy looked real scared." Before the Bronco left he was able to see the number, which he wrote down in pencil on top of a phone booth. He dialed 911 and reported the kidnapping, describing the Bronco and its tag number. Less than a minute later police officers responded to the call, pulled up behind the Bronco on Brandywine Street, and ordered the occupants to exit the vehicle. Before Murray jumped out, King saw him throw a handgun under the driver's seat; he then tried to flee but was caught by the police and arrested. Stokes was also arrested on the scene, while Thomas was able to run away; he was arrested later. Frisking Stokes, an officer found a .25-caliber semi-automatic pistol tucked in his right pocket; though it was unloaded, the hammer was cocked. Stokes's fingerprint matched one later found on the ammunition magazine in a loaded semi-automatic pistol seized from under the driver's seat of the Bronco. King had seen one of the assailants flee with the Glock 9 mm.

II.

Appellants' principal argument on appeal is that the prosecutor in his rebuttal argument made groundless and inflammatory attempts to bolster the credibility of government witnesses by claiming that they were afraid of the defendants when they testified. Appellants contend that there was no evidentiary basis for these imputations of fear, and that this interjection "of unsubstantiated fear of . . . reprisal from [the] defendants . . . 'could very well have aroused the passions of the jury, and suggested a conviction based on their aversion [to such ...


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