106 A.3d 1051
D.C.2015Background
- Darweshi McRoy was indicted on multiple counts of first- and second-degree child sexual abuse for acts alleged between 2004–2010 against several children who lived with him; jury convicted him on 13 counts, deadlocked on 2, and two were dismissed.
- Victim D.J. gave a videotaped forensic interview (CAC) in 2010 describing an initial abuse in 2005 but was reluctant and evasive at trial; the government played the CAC video after limited in-court questioning and D.J. later affirmed the truth of the CAC statements.
- M.J. and another victim (E.W.) testified in detail about separate instances of abuse; M.J. tied breast-touching to a 2009 residence on Shepherd Street at trial.
- The trial court admitted D.J.’s CAC interview (initially for impeachment/demeanor, later treated as substantive after D.J. adopted it); defense objected to the impeachment foundation.
- The mother briefly mentioned McRoy had been released from jail in 2000; defense moved for a mistrial which was denied, and the court gave a curative instruction.
- On appeal the court reviewed: (1) admissibility of the CAC videotape, (2) mistrial motion over jail reference, and (3) sufficiency of evidence for count two (breast contact charged 2005–2007 at E Street).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CAC videotape of D.J. was admissible as prior inconsistent statement/substantive evidence | Gov: D.J. evaded/refused to testify about the first incident, making her CAC statements inconsistent and admissible under D.C. Code §14-102(b)(1) | McRoy: D.J. did not give trial testimony on the first incident; no prior inconsistent statement; gov’t did not exhaust options to secure live testimony | Erroneous admission for impeachment/substantive purposes: video should not have been admitted because gov’t failed to establish a firm foundation that D.J. was refusing to testify; convictions based on D.J. reversed where video was outcome-determinative |
| Whether brief reference to defendant’s prior jail time required mistrial | Gov: reference was inadvertent/non-specific and curable by instruction | McRoy: statement was prejudicial and warranted mistrial | No mistrial: curative instruction adequate; brief, non-specific, not elicited by prosecution and not tied to credibility central issue |
| Whether evidence supported count two (breast contact between Aug 2005–Nov 2007 at E St.) | Gov: time periods for child witnesses can be imprecise; location/time alleged on verdict form was permissible | McRoy: M.J. testified breast-touching occurred at Shepherd Street in 2009—not within charged time/place | Conviction reversed for failure of proof: trial evidence placed the act in 2009 at a different location, not reasonably close to the indictment’s alleged period/place |
Key Cases Cited
- Diggs v. United States, 28 A.3d 585 (D.C. 2011) (standard for prior inconsistent statements and memory/evasion impeachment)
- Williams v. United States, 859 A.2d 130 (D.C. 2004) (CAC videotapes may be substantive when properly used to impeach and later adopted)
- Battle v. United States, 630 A.2d 211 (D.C. 1993) (limits on prior consistent statements and permissible content for demeanor evidence)
- Perritt v. United States, 640 A.2d 702 (D.C. 1994) (common-law rule requiring inconsistency before using a prior statement for impeachment)
- Crawford v. Washington, 541 U.S. 36 (2004) (preference for live, cross-examinable testimony underlies hearsay rules)
- Kotteakos v. United States, 328 U.S. 750 (1946) (harmless-error standard applied to erroneously admitted hearsay)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency-of-the-evidence standard)