Gray v. US

• Decision Date: 18 April 1991
• Docket Number: No. 88-728.,88-728.
• Parties: Frederick Lee GRAY, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

589 A.2d 912

Frederick Lee GRAY, Jr., Appellant, v. UNITED STATES, Appellee.

No. 88-728.

District of Columbia Court of Appeals.

Argued February 20, 1991.

Decided April 18, 1991.

Hiram Puig-Lugo, Public Defender Service, with whom James Klein and Page Kennedy, Public Defender Service, were on the brief, for appellant.

Frederick W. Yette, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas C. Black, and Daniel M. Cisin, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, BELSON and SCHWELB, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of manslaughter while armed, D.C.Code §§ 22-2405, —3202 (1989), for strangling Damon Chase to death with a belt after a prolonged fist fight. Appellant was sentenced to prison for not fewer than seven nor more than twenty-one years. On appeal, he contends: (1) the trial court erred in refusing to permit appellant's trial counsel to impeach a government witness with a prior inconsistent statement, and (2) the prosecutor engaged in misconduct during closing and rebuttal arguments when he commented on appellant's failure to testify, shifted the burden of proof to the defense, and misstated medical testimony. We affirm.

I. FACTS

According to appellant's written statement given to investigating detectives five hours after the incident,¹ appellant was sitting in his apartment with three others watching a football game. He had drunk three six-packs of beer by the time Chase entered the apartment "talking shit"² and telling appellant "he would whip my ass." Appellant told Chase to leave and said he did not fear Chase. Chase, he said, then "started swinging on me and hit me in the mouth." Appellant tackled Chase, threw him on the floor, began hitting him, and told Chase he "was going to kill him." Appellant described the remainder of the fight:

I was on top of him hitting him, then he was on top of me hitting me, and then I flipped him back over and hit him some more. Then I took my belt from my pants and put it around his neck and started choking him. He started saying, "No," and then I let him go. I said to him that I was going to kill him today, and I meant to do it. I choked him some more and then I got off him and he was laying there. I then got off him."

George Nickens, who owned the apartment, died before trial. Defense counsel read into evidence Nickens' grand jury testimony, including the signed statement he had given to the police. That statement substantially corroborated appellant's statement: Nickens added that appellant held the belt around Chase's neck "from 5 to 10 minutes." Nickens also said that during the fight appellant was fighting for his life because "if Chase had had the leverage on him, he'd have killed appellant."

According to Metropolitan Police Officers Beckwith and Williams, when they arrived appellant explained that Chase (who was on the floor motionless, his face turning blue) was not dead; he was only faking. Appellant grabbed Chase's feet and dragged the body across the floor attempting to revive Chase. When Chase did not recover, appellant became nervous, began pacing, and said: "Yeah. I killed him. I choked him."

Not surprisingly, appellant claimed self-defense, arguing that at the time appellant choked Chase, Chase still posed a threat from which appellant had to use deadly force to protect himself.

II. REFUSAL TO PERMIT IMPEACHMENT WITH PRIOR INCONSISTENT STATEMENT

Appellant contends the trial court erred in precluding defense counsel from using a prior inconsistent statement to impeach the principal government witness, Thomas Frederick.³ Frederick had known both Chase and appellant for a number of years. At trial, Frederick testified that he had opened the door and let Chase into Nickens' apartment. Chase then told Delores Henry (the other visitor in the apartment) that she had a phone call at another apartment in the complex. Frederick returned to the kitchen and heard (but did not see) Chase and appellant arguing and beginning to fight. Frederick watched the last part of the fight from the kitchen. Frederick testified that he had drunk a "half pint" and some beer that afternoon and that his drinking impaired his memory of the fight.

Defense counsel perceived that Frederick's testimony contradicted a written statement he had given to the police the day of the fight. In that statement,⁴ Frederick declared that Chase had come to the apartment to challenge appellant to fight, not to tell Henry she had a phone call. In the statement, moreover, Frederick described Chase as a "pain in the ass" and claimed—in contrast with his trial testimony—that he had been present when the fight started.

At trial, counsel attempted to impeach Frederick with this written statement. Frederick remembered making the statement but could not recall what he had told the police or whether he had signed the statement. Counsel attempted—but failed—to refresh Frederick's memory with the statement.

Appellant's counsel then tried to call as a witness the detective who had taken Frederick's statement, but the trial court denied permission to do so. The court did so because Frederick "didn't remember anything he told the police in that statement, and he didn't know anything more about how the fight started than he testified on direct, and ... indeed, he had been drinking, which leaves serious doubts respecting whatever it was he told the police in that statement is accurate or true." The trial court also refused to admit Frederick's statement into evidence.

We agree with appellant that the trial court erred in refusing to permit the proffered impeachment and the extrinsic evidence of Frederick's prior statement. We note, first, that as a general proposition prior inconsistent statements are admissible, upon request, for purposes of impeachment (but not for the truth of the statement itself). See Jefferson v. United States, 328 A.2d 85, 86 n. 6 (D.C.1974); Williams v. United States, 131 U.S.App. D.C. 153, 156, 403 F.2d 176, 179 (1968). We have held in a civil case, moreover, that the statement is admissible for impeachment even if the witness does not recall making the statement or remember its contents. See Fireman's Ins. Co. v. Henry Fuel Co., 245 A.2d 127, 128 (D.C.1968). We perceive no basis for a different rule in criminal proceedings. In either context, if a witness might be impeached by a prior statement he does recall, that witness should not be able to avoid the impeachment simply because he cannot remember (or perhaps chooses not to remember) his prior testimony. Commenting on a witness who purportedly failed to remember his deposition testimony, we have said:

When the witness denies giving the answer, or does not remember doing so and his recollection is not refreshed upon the reading of the questions and his answers, the deposition should be offered and received as evidence that the statements were made, again only to affect credibility and not as affirmative evidence.

Id. at 128 (footnote omitted). That rule should apply in all cases, civil and criminal, with respect to all prior inconsistent statements, whether depositions, statements to the police, or other earlier utterances.

The trial court accordingly erred in ruling Frederick's prior statement inadmissible for impeachment. We now determine whether the error was harmless. See Jefferson, 328 A.2d at 86 n. 5. Appellant argues the error could not have been harmless: if the jury believed Frederick's unimpeached trial testimony—that Chase entered the apartment as a benign visitor summoning Henry for a phone call—the jury would not have accepted appellant's self-defense claim. We cannot accept that argument.

The ultimate issue is whether appellant acted with reasonable force approximately thirty minutes after Chase had entered the apartment, i.e. at the time, after a prolonged fistfight, when appellant took off his belt and choked Chase to death over a period of five to seven minutes. Frederick's apparent inconsistencies about Chase's entry into the apartment did not directly pertain to this crucial time. The possibility that Chase did not come to the apartment as a benign visitor may have enhanced appellant's claim that he responded to Chase initially in self-defense and, in Nickens' words, "was fighting for his life." But even if Chase entered the apartment in a threatening manner and started the fight—as Nickens and appellant himself stated without contradiction—this does not necessarily imply that appellant was still acting in self-defense thirty minutes later, when appellant killed Chase. Any impeachment discrediting Frederick's "benign visitor" testimony, while reinforcing Nickens' and appellant's statements, was only marginally relevant to the issue of self-defense later, when appellant choked Chase over a substantial period of time. At that time appellant was clearly in control of the situation and appeared not to be in imminent danger. By his own admission, after he started to choke Chase and Chase exclaimed "No," appellant "let him go." But then appellant told Chase he "was going to kill him today" and "choke him some more" —to death.

Furthermore, Frederick's unimpeached trial testimony was not inconsistent with appellant's self-defense theory. Even if the jury credited Frederick's testimony— that Chase had entered the apartment as a benign visitor—Chase still could have started the fight later by throwing a punch at appellant (as both Nickens and appellant said Chase did) and thereby triggered appellant's right of self-defense.⁵

In sum, the court's error was harmless because the proffered inconsistencies did not relate to the crucial time during the fight or otherwise substantially affect appellant's claim of self-defense.

III. PROSECUTORIAL MISCONDUCT

Appellant also contends the prosecutor tainted the verdict with impermissible comments during closing and rebuttal arguments. In reviewing alleged prosecutorial...