Concord attorney requests new trial in Freese hate crime case
A Concord defense attorney has asked that Donald Freese, the first man to be convicted in Merrimack County of a race-based hate crime, be granted a new trial because his original counsel, Ted Barnes, failed to call two key witnesses who would have testified that Freese was acting to protect himself.
Had their statements “even roughly tracked the offers of proof made by Attorney Barnes, it would have been powerful evidence of self-defense,” attorney Nicholas Brodich wrote in a court brief last month.
The witnesses, Nicolette Nicolaides and a teenage male juvenile, had been riding in the same car as Freese in July 2012 when he and the driver, Joshua Peno, exited the vehicle at an intersection in Hooksett and began beating a black man on a moped. At one point, after a brief lull in the brawl, Freese retrieved a knife from the car and tried to slash the man, Alhaji Kargbo.
Both Nicolaides and the juvenile told Barnes from the start that Kargbo had thrown the first punch, and each agreed to testify during Freese’s trial last January on charges of criminal threatening and simple assault. But on the day of their scheduled appearances, neither showed.
Freese, now 23, was convicted of both charges and sentenced to four to 12 years in state prison, an enhanced penalty because he had shouted racial slurs at Kargbo throughout the exchange.
At the time of the trial, Barnes explained to Judge Larry Smukler and county prosecutor Wayne Coull that the two witnesses had been “confused and were going to come in tomorrow,” according to a transcript of the second and last day of trial in Merrimack County Superior Court.
During a hearing Friday, he said he actually assumed at the time that they had consciously decided not to take the stand.
“I certainly said (to Freese) at the time that I felt his friends had abandoned him, which at the time he agreed with,” Barnes said. “That his friends had abandoned him, and that that certainly undercut our self-defense claim.”
In his motion, however, Brodich argues that Barnes never formally subpoenaed either witness. Both Nicolaides and the mother of the juvenile reported never receiving a formal court summons, he wrote.
“Ms. Nicolaides recalls having been informally asked to appear in court on behalf of Mr. Freese,” Brodich wrote. “However, she goes on to claim that she was told the wrong court date.”
During the trial, Barnes portrayed Kargbo as the aggressor, telling jurors Kargbo had chased the car after one of the passengers shouted a racial slur, and had approached the car while it was stopped at a red light and began punching Peno.
But besides Nicolaides and the juvenile, Barnes had no witnesses to substantiate that account. Smukler at one point offered to give him time to try to find the two and get them to court, but Barnes declined. The only other person he could call was Freese himself, and he said he advised against that because Freese had lied previously to the police.
Without testimony supporting the self-defense claim, Smukler told Barnes he had no grounds to present it as a viable option to jurors.
“I’ve got two versions,” Smukler said during a bench huddle, referring to jury instructions. “One with (the self-defense argument) and one without. I was going to print the one without based on what I’ve heard. And I know that’s why you wanted your fact witnesses. I’m not blind to that. And that’s why I was giving you time to try and find them.”
Barnes claimed Friday that he had mailed a court summons to the juvenile’s mother before the trial, and had spoken with her and Nicolaides the night before their scheduled testimony. That was the reason he declined the additional time, he said.
“Because of the fact that I had spoken with them the night before . . . and they hadn’t showed up, I had to conclude – I did conclude – that that was a conscious decision, and that more time would not be of any assistance,” Barnes said.
He added that neither of the witnesses contacted him after the trial with concerns about missing it.
Barnes said he had concerns early on about the credibility of Nicolaides and the juvenile. Both had lied to police officers at the crime scene, and Nicolaides had previously been involved in a racially motivated crime in Hillsborough County.
As for Nicolaides, he said, “I was not comfortable that what was being offered (by Nicolaides) was actually what happened.”
Kargbo, who was 23 at the time of the incident, testified at trial that he had not approached the car looking for a fight. Others who saw the exchange also testified that Freese, of Concord, and Peno, of Nottingham, had jumped out of the car, pulled Kargbo off his moped and began punching and kicking him, shouting “f------ n-----” as they did.
Jurors took two hours to reach a verdict.
One month after Freese was convicted, Peno pleaded guilty to his role in the assault. Now 23, he is serving between one and four years in state prison.
Freese first disclosed his concerns about Barnes in September, writing in a hand-scrawled letter to the court that Barnes had repeatedly told him early on not to take a plea deal because they had a solid self-defense argument.
Freese has appealed the conviction, but that is on hold until Judge Robert McNamara, also of Merrimack County Superior Court, rules on Brodich’s pending motion.
(Jeremy Blackman can be reached at 369-3319, firstname.lastname@example.org or on Twitter @JBlackmanCM.)