By Dan Morse
Washington Post Staff Writer
Thursday, June 24, 2010; B04
A Germantown man who was shot five times by a Montgomery County police officer was convicted Wednesday of assaulting the officer but was found not guilty of a more serious charge of trying to take his gun.
Ingham "Andre" DeFreitas, 32, who wears a sling to support his right arm, which was injured in the shooting, will be sentenced for the assault charge, a misdemeanor, in September. "He's still scared he's going to jail," said his attorney, Rebecca Nitkin.
The two-day trial centered on an encounter nine months ago outside a home in the Darnestown area west of Gaithersburg, where DeFreitas had gotten his car stuck in mud.
Officer Kurt Colson testified about why he fired five times. Jurors also heard from four neighborhood residents about what they saw from their homes.
Jurors said they thought there wasn't enough consistent testimony about whether DeFreitas was trying to grab the officer's gun or push it away.
"That's what made us unsure," said juror Hoa Huynh.
On Sept. 28, DeFreitas drove a dark green Cadillac Catera through the Indian Run Drive cul-de-sac, continuing up the long driveway of a large home.
He stopped and tried to turn around, but the car got stuck in mud. The more he hit the gas, the more the rear tires sank. Homeowner Patrick Winger walked out and asked what he was doing.
Winger testified that DeFreitas said he was being chased. Winger said he didn't want to meet whoever was chasing DeFreitas.
Winger said he went inside, told his family to stay in the house, locked the doors and called police.
Colson was the first to arrive, about 10 minutes later. The 6-foot-3 officer weighed 150 pounds. DeFreitas, also 6-3, weighed 190.
Colson, who had been on the job less than two years, testified that he pulled his cruiser to within 1 1/2 car lengths of the Cadillac, got out and approached it. The windows were up, but he could see the driver rummaging around.
"Keep your hands where I can see them!" Colson said he yelled. No reaction, Colson said.
Colson said he knocked on the window, motioning for the driver lower it. DeFreitas opened the door.
Colson said DeFreitas got out of the car but kept reaching into his pockets. The officer put his hand on him and moved to frisk him, but DeFreitas spun around, grabbed Colson's collar and the top of his protective vest, and pushed him back.
Colson said he pushed DeFreitas back. DeFreitas started turning sideways and putting his hands in his pockets, Colson said.
Concerned that DeFreitas might have a gun, Colson said that he drew his weapon and that DeFreitas put his hands on his head. As Colson lowered his gun, he said, DeFreitas charged him and reached for the gun. "I had it by the grip, and he had it by the barrel," the officer testified.
Colson said he pulled his gun back twice and fired two rounds. "I didn't want to shoot him. . . . He posed a threat to my life and my safety," Colson said.
DeFreitas kept charging, the officer said. "I had to fire three more shots because the first two hadn't taken any effect," Colson said.
One bullet tore into DeFreitas's right collar bone area, causing nerve damage that causes his right arm to go limp unless he uses a sling. It is unclear how much it might improve.
Two of the bullets hit his left chest, requiring doctors to remove part of a lung. The other rounds hit his groin and grazed his upper right arm.
DeFreitas has a criminal record that includes 2005 convictions for auto theft and drug possession with intent to distribute.
During cross-examination of the officer, DeFreitas's attorney tried to show that during an investigation into the shooting in October, Colson described the gun scuffle differently.
"I don't think he ever got a good hold of it," Colson had said, according to a statement read by Nitkin. "It was more like slapping and swatting at it." But to prove the charge of disarming a law enforcement officer, prosecutors had to show only that DeFreitas was guilty of an "attempt to remove a firearm from the possession of a law enforcement officer."
To try to make that case, they called five other people who witnessed at least parts of the encounter -- four who saw it, and a fifth who heard it.
Winger's wife, Constance, said she and her two sons watched from an upstairs window. She said DeFreitas "leapt" at the officer. Sensing something bad was about to happen, she pulled her sons away from the window before shots were fired.
Her sons, 17 and 14, said they also saw DeFreitas go after the officer. One of them said DeFreitas wore a Wizards jersey; the other said a Lakers jersey.
Another witness, neighbor Marianne Johnson, testified that "the man sort of charged at the officer. . . . His arms were kind of flailing. It looked like he was trying to grab the officer or the officer's gun."
"Did he actually grab the gun?" Nitkin asked during cross-examination.
"Nope," Johnson said.