Appeal from the Superior Court of the District of Columbia (DVM 2658-07) (Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Washington, Chief Judge:
Before WASHINGTON, Chief Judge, and KRAMER and OBERLY, Associate Judges.
Jerome Gay appeals from his conviction on a single count of simple assault, in violation of D.C. Code § 22-404 (2001), arising out of an altercation with complainant Allen Johnson. Gay asserts on appeal that the trial court committed three errors requiring reversal of his conviction: (1) it wrongly prevented an unnamed witness from testifying because it improperly ruled that the witness' testimony would be cumulative; (2) it improperly granted a blanket Fifth Amendment privilege from testifying to defense witness Antonio Sparks; and (3) it wrongly denied Gay's motion to have a psychiatric expert appointed to examine Johnson's medical records and testify about the effects of Johnson's mental illnesses and medications on his actions on the day of the assault and his ability to testify at trial.Because we hold that the trial court erred both by excluding the unnamed witness' testimony and by ruling that Gay used excessive force in defending himself as a matter of law, we reverse and remand for a new trial.
The central issue in this case is the determination of whether appellant Gay or complainant Johnson was the initial aggressor in an altercation that took place between the two men on December 1, 2007. Their recollections of the events that occurred that evening are wildly different. Gay and Johnson had been dating for approximately a year and a half. Johnson testified that on the night of the assault, Gay arrived unsolicited at Johnson's apartment, where Johnson was alone watching television. According to Johnson, Gay demanded money from Johnson, and when Johnson refused to pay him, Gay "started to attack [Johnson]" and "hit [him] in [his] face a couple of times," resulting in a cut over his eye that was bleeding when emergency responders arrived.
While Gay admitted that he punched Johnson on the night of December 1, 2007, his version of the events leading up to that punch contradicts Johnson's testimony. Gay testified that Johnson and his friend, Dominique Glover, drove to Gay's apartment, picked him up, and brought him to Johnson's apartment, purportedly so that Gay could obtain drugs from Johnson. Once Gay was in the apartment, however, Johnson told Gay that he would not give him anything. When Gay then tried to leave Johnson's apartment, Johnson became violent, latching himself onto Gay's legs and biting him over Gay's protests to leave him alone. Because Johnson refused to let go of Gay's legs, and because Gay was afraid Johnson would bite or grab his genitals, Gay punched Johnson once across the face and left the apartment. Police eventually arrested Gay at his own apartment after Johnson called 911 and told them about the assault.
During the defense case, in which Gay argued that he punched Johnson in self-defense, Dominique Glover testified about her recollection of the events of that evening. She explained that she was Johnson's brother's former girlfriend and hung out at Johnson's house frequently, but that she no longer hung around with Gay. Glover said that she had "picked Jerome Gay up for Allen Johnson" that evening and that the three of them had driven to Johnson's house, where Glover left the two men in the living room and went into the kitchen. She then testified that, "all of a sudden [she] heard Mr. Gay saying that he wanted to leave . . . and he was telling Allen, Mr. Johnson, to open up the door so he could leave." She was less than five feet from where they were arguing, and though she did not observe the start of the altercation, she did see "[Gay] leaving out the door and Mr. Johnson grabbing his leg, telling him, don't leave, and he was going out the door, and Mr. Johnson was basically hanging onto his leg. So he was going out the door, too." When she then saw Johnson come back into the house, "his face was bleeding." Glover did not see Gay strike Johnson, but she did testify that she heard the sound of "hits" coming from outside of the front door.
Gay also presented the testimony of Bryant Brooks. Brooks was the complainant in a criminal case against Johnson based upon an alleged altercation that was remarkably similar to the altercation between Johnson and Gay. Brooks testified that when he refused to continue having sex with Johnson and attempted to leave Johnson's apartment, Johnson grabbed Brooks and prevented him from leaving, resulting in a "tussle" by Johnson's door. At that time, Brooks called 911, and Johnson thereafter "attacked" Brooks again; this secondary attack was overheard by the police because although Brooks had dropped his phone while calling 911, the call had not disconnected. Brooks testified that he could not remove Johnson from his body during the attack, and the police arrested Johnson once they arrived on the scene.
The trial court excluded the testimony of two defense witnesses -- an unnamed man and Antonio Sparks -- and also denied Gay's motion for a court-appointed psychiatric expert to testify as to the effects of Johnson's alleged mental disorders and the medications used to treat them. The exclusions of these three witnesses provide the grounds for Gay's three challenges to his conviction.
After the two-day bench trial, the trial court ultimately held that Gay had not acted in self-defense and convicted him on a single count of simple assault. It credited Johnson's version of the events and discredited Gay's. The trial court's entire findings with regard to Gay's other witnesses noted that "the Court heard from various other witnesses on behalf of the defense, specifically Bryant Brooks, who had at least prior convictions," and "Dominique Glover, who indicated that she was there and she saw portions of what was happening inside [Johnson's apartment], [but] did not see the entire events as they unfolded." As an alternative ruling, the trial court also indicated:
Assuming arguendo [Gay's] version, the Court cannot find that as depicted or as testified to, the grabbing of Mr. Gay's legs was an aggressive act or an act which would cause Mr. Gay to do what he actually did. Assuming arguendo that this Court believes it, which it doesn't, it would be excessive force even from that viewpoint. But the Court does not credit [Gay's] version of the events.
In effect, the trial court concluded that, on the facts shown -- hypothetically -- by Gay's own testimony, self-defense would have been unavailable to him as a matter of law. Thereafter, the trial court found Gay guilty and sentenced him to 180 days, with all but forty-five ...