Freeman v. US

Decision Date13 February 1997
Docket Number94-CF-804 and 94-CF-896.,No. 94-CF-769,94-CF-769
Citation689 A.2d 575
PartiesMichael A. FREEMAN, Michael E. Gaither, and Alan Colter, Appellants, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Lynne A. Green, for appellant Michael A. Freeman.

Joseph H. Green, Jr., submitted on the brief for appellant Michael E. Gaither.

Daniel J. McGuan, Rockville, MD, for appellant Alan Colter.

Richard E. Dominguez, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas C. Black, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and FARRELL and RUIZ, Associate Judges.

RUIZ, Associate Judge:

A jury found appellants Michael Freeman, Michael Gaither, and Alan Colter guilty on charges arising from an altercation on May 3, 1993, with the complaining witness, Mr. Cousart. Appellant Freeman was convicted of assault with intent to murder while armed with shod foot in violation of D.C.Code §§ 22-503 and -3202 (1989). Appellant Gaither was convicted of assault with intent to kill while armed with shod foot in violation of D.C.Code §§ 22-501 and -3202. Appellant Colter was convicted of assault with intent to kill while armed with a knife and shod foot in violation of D.C.Code §§ 22-501 and -3202. Appellants Freeman and Gaither were each sentenced to not more than twelve years under the Youth Rehabilitation Act and Colter received five to fifteen years' incarceration.

Appellants raise essentially the same arguments on appeal: Freeman and Colter allege that the trial court erred in admitting motive evidence claiming it was irrelevant and prejudicial;1 Colter and Gaither claim reversible prosecutorial error;2 and, Freeman and Gaither contend that the trial court erred in not admitting Cousart's medical records. We affirm in all respects.

I.

Cousart testified that on May 3, 1993, he took the bus to North Capitol Street and Florida Avenue with a friend, Mr. Telefair, in order to visit his son. Cousart admitted drinking two beers before commencing his bus ride to North Capitol Street. Being a former resident of the neighborhood, Cousart stopped along the street to converse with two acquaintances, Ms. Doris Hawkins and Mr. Larry Nellins.

According to Cousart, Gaither then approached and stated "What are you looking at, you bitch motherfucker?" Next, Freeman choked Cousart from behind as Gaither struck Cousart in the face. Cousart testified that he saw Colter approach while swinging what appeared to be a knife with a blade approximately four to five inches long.3 Colter struck Cousart's left side as Gaither continued to strike his face. Cousart fell to the ground while Gaither and Colter continued the beating and Freeman continued the choke hold. While on the ground all the appellants commenced kicking Cousart. At some point during the beating, Gaither stated, "We are going to kill your motherfucking ass this time, nigger." When Telefair intervened, appellants stopped the beating and fled. As Cousart walked to his son's house he noticed that he was bleeding and that he had been stabbed three times in the side. Cousart again saw appellants on the street and at that point ran to his son's house where the police were called and he was taken to the hospital.

Ms. Hawkins testified for the government that Colter and "a whole gang of boys" approached Cousart. She heard Gaither ask Cousart "what's up, bitch motherfucker." From approximately ten feet away, she saw Gaither strike Cousart while Freeman held him. As Gaither struck Cousart, Hawkins testified that Colter had his hands in his pockets. She testified she was trying not to watch the fight, but when she looked back at the group, Gaither was fighting with Cousart who was on the ground. She did not see a knife, or the movements that Colter made, if any.

Detective Payne of the Metropolitan Police Department interviewed Cousart shortly after Cousart arrived at the hospital. According to Payne, Cousart's description of the parties and events on the night of May 3, was consistent with his trial testimony.4

The government presented evidence that the fight and stabbing of Cousart were motivated by the desire to retaliate against Cousart for testifying against Mr. Timothy Doyle, a friend of appellants'.5 In the present case, Cousart testified that he was shot five times in August, 1991, by Doyle. On direct, the government elicited that Cousart subsequently testified against Doyle in January, 1992, and that Doyle was convicted of the shooting.

To show motive and a connection between appellants and Doyle, the government put on evidence of appellants' relationship with Doyle. Detective Payne testified for the government that he was familiar with Cousart because he had investigated the case against Doyle. As part of the shooting investigation, Payne interviewed Gaither and Colter who stated they grew up with Doyle and were close friends. During the investigation Payne learned about a verbal altercation between Cousart and Doyle that took place in a barbershop a few months prior to the shooting. Doyle, Gaither and Colter and a couple of other individuals, but not Freeman, were in the barbershop when Cousart entered. Payne testified that Gaither had stated during the interview that Cousart was preaching to Doyle and the group about getting jobs and doing something productive with their lives. Gaither told Payne that he was annoyed with Cousart for preaching what he characterized as "foolishness." Payne also testified that in 1991 he saw all of the appellants in the 1400 block of North Capitol Street "hanging out" with Doyle. Payne continued to see appellants together in the same area after Doyle was convicted in 1992.

Freeman and Gaither each testified about the events of May 3, 1993. Freeman testified that as he was exiting a drugstore he saw Gaither fighting with Cousart. In an effort to break up the fight, Freeman grabbed Cousart from the front while Telefair grabbed Gaither.6 When an unidentified person sitting on a nearby vehicle pulled out what appeared to be a gun, the other parties fled. According to Freeman, Cousart then walked over to a vehicle and pulled out a gun. Freeman and Gaither met up after seeing Cousart with the gun and began walking together towards Gaither's house. When they reached the house, Cousart was waiting and pulled out a gun from a black bag. Freeman testified that at this point he ran to his grandmother's house. At no point did Freeman see anyone stab Cousart. Freeman testified that he had known Doyle for approximately four years, but did not "hang out" with Doyle, and did not know that Cousart had testified against Doyle in the shooting incident.

Gaither testified that on May 3, 1993, he saw Cousart and asked Cousart if they could talk about why Cousart was looking for him with guns and why Cousart was telling people he was going to kill him. According to Gaither, an argument ensued and a fight broke out. After Freeman and Colter broke up the fight, Cousart stated "I'm going to kill y'all." After the fight, Gaither and Freeman met on the way to Gaither's house and when they arrived Cousart was waiting. Like Freeman, Gaither testified that Cousart reached into a black bag and pulled out a gun. Gaither then fled. Gaither testified that he never called Cousart any names, that at no point was anyone on the ground fighting, and that he did not see anyone stab Cousart.7 On cross-examination, Gaither testified that he had known Cousart for six years and had an "all right" relationship with him until the incident at the barbershop. Colter did not take the stand.

Appellants raise three issues on appeal: 1) the trial court erred in admitting the motive evidence, 2) the trial court erred in not admitting Cousart's entire medical record, and 3) the government committed reversible prosecutorial error.

II.

We address first appellants' allegations that the trial court erred in admitting the motive evidence regarding the Doyle-Cousart shooting.8 To be admissible, evidence must be competent and relevant, and it should not be admitted if countervailing factors, such as prejudice, outweigh its probative value. Keene v. United States, 661 A.2d 1073, 1076 (D.C.1995) (quoting Johns v. United States, 434 A.2d 463, 473 (D.C.1981)). Questions concerning the relevance or materiality of evidence rest within the sound discretion of the trial court. Street v. United States, 602 A.2d 141, 143 (D.C.1992) (citing United States v. Mosby, 495 A.2d 304, 305 (D.C.1985)). The admission or exclusion of evidence will be disturbed only upon a finding that the trial court abused its discretion.9 Keene v. United States, 661 A.2d 1073, 1076 (D.C.1995) (quoting Brewer v. United States, 559 A.2d 317, 320 (D.C.1989); Street, supra, 602 A.2d at 143; Reavis v. United States, 395 A.2d 75, 78-79 (D.C.1978)).

This court has previously set out a three-part inquiry to determine whether evidence is relevant:

First, the evidence, to be relevant, must relate logically to the fact that it is offered to prove. This logical relationship is described as a "tendency of evidence to establish a proposition." Second, the fact sought to be established by the evidence must be material, which is to say that the party must establish that fact as a condition to prevailing on the merits of his case. Finally, the evidence must be adequately probative of the fact it tends to establish. This does not mean that the evidence, standing alone, must be sufficient for the court to permit the case to go to a jury, but it must tend "to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence."

Reavis, supra, 395 A.2d at 78 (citations omitted). Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. (George) Jones v. United States, 625 A.2d 281, 284 (D.C.1993)...

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