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Attorney in hate-crime case argues N-word just a handy insult

Donald Freese faces charges of accomplice to simple assault and criminal threatenting with a knife in aJuly 2012 attack on Route 3A in Hooksett, January 14, 2013.

(ALEXANDER COHN / Monitor staff)

Donald Freese faces charges of accomplice to simple assault and criminal threatenting with a knife in aJuly 2012 attack on Route 3A in Hooksett, January 14, 2013. (ALEXANDER COHN / Monitor staff) Purchase photo reprints at PhotoExtra »

As Donald Freese allegedly beat a man on a Hooksett road last summer, he wasn’t motivated by the racial hate ingrained in the word witnesses heard him scream over and over, his lawyer argued yesterday in court.

If Freese called Alhaji Kargbo, a black man, a “f------ n-----,” he was only reaching for a handy insult, his lawyer said.

“If you are mad at somebody, if you are trying to insult someone, . . . you go for what you’ve got. Now had it been me sitting on that moped . . . the comment may have been ‘Hey, you’re fat and you’re old,’ ” Ted Barnes said.

But Assistant County Attorney Wayne Coull, prosecuting the first racially motivated hate crime charged in Merrimack County, told the jury there was no mistaking what 21-year-old Freese meant.

“The defense would like you to think there could be some other meaning to the word n-----,” he said. “Folks, you know what that word meant in the context of this assault. It means one thing. And it means just blind, stupid hate.”

Freese, of Concord, is one of two men facing charges stemming from the July 31 fight in front of the Hooksett Market Basket. Prosecutors say Freese and 21-year-old Joshua Peno jumped out of a car, pulled Kargbo off his moped while punching him, then continued kicking him when he was on the ground. After a short break in the fighting, Freese allegedly brandished a knife and slashed it at Kargbo, who witnesses said escaped being cut only by dodging the blade.

Jurors did not return a verdict yesterday, being sent to deliberate about 10 minutes before the court closed. They will return this morning.

Barnes attempted to show the group at trial that Kargbo was the aggressor, saying he chased the car – occupied by Freese, Peno, Peno’s girlfriend and a 15-year-old juvenile – for more than a mile down Route 3A from where the first racial slur was allegedly yelled by someone in the vehicle.

Barnes appeared ready to call both the juvenile and Peno’s girlfriend, Nicolette Nicolaides, to the stand yesterday. But neither showed up at the courthouse to testify.

Kargbo, who spoke during the trial’s first day, testified that after he was first called a “n-----,” he drove down the road intending to ask the people why they had called him the name. He denied, though, that he planned to start a fight when he stopped at the red light in front of Market Basket or that he had kicked the vehicle and punched one of the men through the window, as Barnes suggested.

But Coull said even if Kargbo had approached the men first, he didn’t deserve what came next.

“Let’s just assume that what (Barnes) wants you to think is true,” Coull said. “With that assumption in mind, what you have is a situation where a 25-year-old black man has the audacity to ask a car full of white kids why they called him a f------ n-----.”

According to Coull, Kargbo suffered serious injuries in the incident, including a burn on his leg when his moped fell on him. Kargbo testified he also had pain in his neck, where the men had hit him, and in his sides, where they had kicked him.

Barnes yesterday attempted to show the jury that Peno and Freese’s injuries were worse than Kargbo’s.

Mark Roy, a physician at Elliot Hospital who treated Kargbo, confirmed his injuries. But he said there was no open wound to Kargbo’s head and described the burn as “worse than a sunburn,” resulting from direct heat applied to the skin.

The jury also heard testimony from a physician’s assistant at the state prison, where Peno and Freese were taken after the incident, who testified that records show the men had cuts and bruises all over their bodies. But their knuckles, she said, showed no such marks.

Coull then asked the woman, Patricia Lee, if records showed whether those injuries appeared fresh or could have been from a previous incident, to which she said it wasn’t clear. Coull then asked her whether bruises can take a few days to surface.

Lee agreed that they could.

“So if there had been an altercation the day before, the visible bruises or lack thereof really don’t tell us anything?” Coull asked.

Lee agreed, prompting Barnes to ask her whether it is “unusual” for bruises to take several days to appear.

The woman said that it would be “highly unlikely” for no markings, such as cuts, to be seen if someone was in a fight shortly before an exam. Appearing satisfied with the answer, Barnes sat down. Coull, though, had another question.

“But you can’t tell us for sure one way or another that this defendant was involved in an assault or not the day before, can you?”

Lee said she couldn’t.

“Wouldn’t it be fair to say the best source of that information might be an eyewitness who saw what happened the day before?” Coull asked.

The woman paused, hesitating to answer a question outside of her expertise. Judge Larry Smukler then looked up to Barnes, and when the lawyer raised his arms in a shrug, Smukler smiled and took it as an objection before one was voiced.

“Sustained,” Smukler said.

“Yeah, thank you,” Barnes said.

The victim, who is originally from Sierra Leone and moved to the United States in 2004, came to court only to testify on the trial’s first day. He was offered the opportunity to watch the other witnesses speak but declined.

Freese has been charged with being an accomplice to simple assault and criminal threatening. If a jury agrees the crimes were motivated by racism, he will face a harsher sentence. Peno, the other man charged in the incident, is scheduled for a trial in March.

(Tricia L. Nadolny can be reached at 369-3306 or or on Twitter @tricia_nadolny.)

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