Appeal from the Superior Court of the District of Columbia. (F-7307-00) .(Hon. Judith E. Retchin, Trial Judge).
Before SCHWELB and REID, Associate Judges, and FERREN, Senior Judge.
Concurring opinion by Associate Judge SCHWELB, at p. 8.
A jury convicted Derrick Simpson of first-degree murder while armed and related weapons offenses. On appeal, Simpson contends that the trial judge erred in allowing the prosecutor to make so-called "fear-based" arguments during rebuttal argument. We affirm.
Simpson's claims in this court relate to two prosecution witnesses, each of whom provided testimony at trial inconsistent with his prior statements. The first witness, Harold Hymes-Brown (Hymes), testified that he saw Simpson "pull out his gun" and fire it at the decedent. On cross-examination, Hymes was impeached with two separate statements he had previously made to Simpson's Public Defender Service (PDS) investigators, in which he claimed to have been elsewhere at the time of the shooting.*fn1 The second witness, Michael Crawford, presented the converse situation. At trial, Crawford claimed not to know whether Simpson was the perpetrator; he testified that he did not recall whether Simpson had admitted to him that he (Simpson) had killed the victim. In a videotaped statement to the police and in his prior grand jury testimony, Crawford had claimed that Simpson acknowledged having committed the murder.*fn2 Both of these statements were admitted as substantive evidence under D.C. Code § 14-102 (b) (2001).*fn3
The inconsistency of the respective statements made by Hymes and Crawford was the focal point of the defense's closing argument. In rebuttal, the prosecutor addressed Hymes's inconsistent statements:
Think about it from Mr. Hymes' [sic] perspective. This is a 17-year-old man, living in Barry Farms, he is approached by this man, takes the stand and told you. I told him who I was, who I worked for. I went in and talked to him. What do you think [Hymes] is going to tell him? Yeah, I saw that man you represent murder somebody.
I am going to put myself out here so that now you can tell him and everyone that you will know what I said? No. When, he talks to that young man who came in his house, he was under no obligation, he was not under oath, not here sworn in front of the court reporter.
When he went to the grand jury, and when he came here, that's what counts. That's his testimony, under oath. Why wouldn't he want to tell Mr. Simpson's lawyer and investigator what he really saw? Maybe he might have been a little afraid.
Defense counsel's immediate objection was overruled.
Regarding Crawford's testimony, the prosecutor posited that when Crawford testified at trial "he didn't want to tell what he saw or heard from this man [Simpson]. Because this man, unlike in the grand jury, this man wasn't there." Simpson's attorney objected to this statement as well, and after closing argument he made a motion for a mistrial, arguing that the prosecutor was "improperly suggesting that Mr. Simpson [was] somehow affecting Mr. Crawford's testimony" by exercising his right to be present at his own trial. The trial judge "did not hear it that way," and denied the motion for ...