Duvallon v. District of Columbia

property “merely underlying evidenced an DUVALLON, personal Appellant, in

monetary obligation which was Mercedes omitted); (citation nature.” Id. see also Rosenthal, Cal.App. White COLUMBIA, Appellee. OF DISTRICT Remin, found that P.2d 154 In we No. 83-1468. in his Morris Remin’s dower interest wife’s ownership inter- properties was an indirect Appeals. District of Columbia Court of (1981). There- est. See D.C.Code 19-102 22, 1985. Submitted Feb. fore, combined his three condominiumunits 3, 1986. Decided Oct. in the same build- with his wife’s two units ing brought him the ambit of within D.C. holdings light In of our

Code 45-1516. Remin,

in the Commission’s Gibson

interpretation of the term “indirect inter-

est” cannot stand.

Second, ignored the Commission its regulations it found that “indi

own when “something less than

rect interest” meant Regulation ownership.” Order at

... provides:

3407.8 determining whether or not rental exempt coverage under

units are 45-1516(a)(3), following

D.C.Code § apply:

criteria shall

(c) ownership Any individual who has an indirect, (5)

interest, direct or five units,

more rental whether the same structures, is structure or in different Duvallon, pro se. Mercedes all units in subject to the Act as are an interest. Reid, Corp. individual has at the Counsel Inez Smith Suda, filed, Princi- John H. time brief (emphasis D.C.Reg. at the time brief Deputy Corp. Counsel pal has al- regulation, In this the Commission Reischel, filed, Deputy L. Charles “indirect interest” ready defined the term Giuliani, Counsel, Asst. Corp. and Michele ownership. Because to mean an indirect Counsel, were on Washington, D.C. Corp. give the regulations the Commission’s own brief, appellee. narrow construc- term “indirect interest” a not free to dis- tion the Commission is PRYOR, Judge, NEW- Before Chief give term the broader regard it and this Judges. FERREN, Associate MAN and it did here. Dankman construction See Board Elections Columbia NEWMAN, Judge: Associate (“a Ethics, 443 A.2d at 513 supra, charged with arrested and When she was validly promulgated regulation bind- Code of D.C. violation force ing upon the has the Board ... [and] en- 22-1112(a) (1981), Duvallon was Ms. omitted)). (citations and effect of law” Supreme protest in a directed to gaged this case for and remand We reverse because what Court of the United States of her federal proceedings not inconsistent to be the denial further she deemed rights, by the courts constitutional both opinion. this the States and the Florida. Treanor in with courts of Commissioner accordance trial, government ll-1732(c) proved (Supp.1986).3 At the that Du- tri- D.C.Code At § intentionally exposed her bare but- arresting vallon al officers testified all the public tocks to view. She convicted as they was a view of the back could see statute, charged. She as buttocks) the (including contends and sides the the of written, expo- does not public breasts); interdict the (including body the sides of the agree sure of the bare buttocks. We they genitalia see or the front of could not reverse.1 the The officers breasts. also testified or any at no Duvallon make time did lewd undisputed. The facts the case are On gestures. government obscene The called approximately 10:45 October no as other witnesses. She was convicted a.m., approached plaza the at the Duvallon charged. Supreme Court of the United States. She sign wore a cardboard her neck around actions Ms. Duvallon’s offend individual body the front of which covered her propriety, modesty senses of and self-re- the neck below the knees. Duvallon spect. But this court is not decide asked to clothing began walking her removed whether or not Ms. Duvallon no- violated on plaza back and forth the with card- personal modesty propriety. tions of In- sign body. held in front The board of her simply upon apply stead we called are sign following message: contained law and rule of decide whether she Supreme for Rehearing Petition to the question, broke the To answer this law. of the Court United States: we neither our of search own standards alleged is the This “crime” which I morality standards of nor dress but rather facing illegal am an incarceration of the rule law. An deci- of examination of (60) days sixty treatises, in case af- law, no. 82-6534 principles sional and basic of of opinion ter denial certiorari. of inexorably to construction leads Ap- the Florida First of District Court public exposure conclusion of peal firmly my has established inno- bare is not a violation of buttocks D.C.Code Contrary opinion cence. to the 22-1112(a). § Appeals Eleventh Circuit Court of is no by there conflict to be resolved I Supreme Florida Court. is appeal, Insofar as relevant to this D.C. Wherefore, Jehovah, in the name of 22-1112(a) (1981) anyone Code “ forbids § Justice, of God Truth and I move the making] any ... ... indecent [from perform grant court its function and exposure person....” of his or her To my petition. appeal, resolve this we must determine submitted, Respectfully expo- “person”, the term prohibited. Mercedes sure of Duvallon Garcia, charged Duvallon was arrested and Columbia v. (D.C.1975), inde- exposure. Her heard A.2d 217 we held that the indecent case was 22-1112(a) (1981) protesting Supreme provides: Court’s 1.D.C.Code Duvallon was separate in a she denial of certiorari case where per- any person or It not be lawful for shall disturbing peace was convicted in Florida expo- any make sons to obscene or indecent protesting in the same manner. See Duval any person, make sure lewd, his or her or to Florida, (11th Cir.1982). lon v. 694 F.2d 725 obscene, proposal, or or indecent sexual obscene, lewd, or inde- other to commit alia, 11-1732(c) allows, 3. D.C.Code inter in the District of Columbia.... cent act hearing findings to make and rec- commissioner also is un- Duvallon contends that the statute in criminal cases with con- ommendations constitutionally vague applied as and that to her parties. This order sent of the becomes final rights of free it her First Amendment violates approved Superior Court when religion. speech these We do not decide judge. holding. on our issues based 22-1112(a) cent clause of public was a conduct to direct attention to his codification of the common law crime of genitals....” 10 at (emphasis Id. and cited to 50 Am. Lewdness, Indecency Jur.2d and Obsceni The common law the District of Co- ty and 67 Obscenity C.J.S. §§ lumbia consists of the common law of (1950). Garcia, 5 supra, 335 A.2d at 222 § Maryland and the British statutes in force n. 16. This in construction is accordance 1801, Maryland in in unless inconsistent principles long by with this established provisions Perkins, with of our codes. su- court that the of a absence “[i]n 23; pra, 446 A.2d at see also D.C.Code crime, definition of the elements of a the 49-301 Maryland The courts § controlling.” common law definition is have held that authorities ... cited “[t]he States, 19, v. Perkins United 446 A.2d 23 are in substantial accord that at the com- (D.C.1982); v. 418 Clark exposure mon indecent law was the wilful 1059, (D.C.1980); A.2d 1061 United States exposure private and intentional of 208, (D.C.1975); Bradford, 344 v. A.2d 213 parts body public place of one’s in in a also see Saunders v. First National Real State, presence assembly.”4 anof Dill v. 836, (D.C. ty Corporation, 245 A.2d 838 690, Md.App. 24 332 A.2d 1968), grounds, rev’d on other 138 U.S. (1975).5 369, (1970) (“No App.D.C. 428 F.2d 1071 Maryland Neither Dill nor other deci- altering statute is to be construed as “private parts” sions define within the law, import. common farther than its words meaning of the common offense law of making any It is not to be construed as Thus, exposure. indecent we must exam- upon innovation the common law which it ine other common law authorities to define (citations fairly express.”) does not omit this term.6 ted). Jurisprudence, American which Gar- II cites, cia the common law crime of indecent exposure English compel is defined as “the wilful and in- common law cases exposure private parts exposure tentional of the of conclusion that indecent was lim- genitals. body public place presence one’s in a in the ited to the of These repeatedly AM.JUR.2d, assembly_” supra, of an cases state the defendant Secundum, exposed “private parts” “per- her or his Corpus at Juris which or § See, Webb, cites, e.g., Reg. also defines the offense as son.” v. 3 Cox C.C. Garcia (indictment (1848) private parts “the states that did exhibition of those Webb person.... “indecently wilfully expose is to and and purpose of such laws exhibit uncovered, shocking private parts, em- his naked and in protect public and ...”); presence Mary Ann barrassing displays activity....” Reg. of sexual (1978). Thallman, (indict- 9 Cox C.C. 388 Obscenity 67 C.J.S. 10 at 49-50 § Further, charges “[cjonviction of offense re- ment that Thallman did “indecent- by ly expose person private parts quires proof intended [that one] opinions dealing language note that in all of our 4. This is identical to the definition 6.We 17, statute, quoted supra. from 50 Am.Jur.2d where the indecent can be discerned from the conduct involved following L. Hoch- 5. Dill cites to the authorities: See, genitalia present. opinion, exposure of ed., (1st 1897); at Criminal heimer, Law Columbia, e.g., Selph v. District 188 A.2d 344 11.08, & at 779 Clark Marshall, Crimes, Law of Columbia, (D.C.1963); v. District Hearn (7th 1967); ed. R. Law Criminal Perkins, (D.C.1962); Campbell A.2d 434 v. District of (2d 1969); ed. Criminal Wharton’s Law and Columbia, (D.C.1961); Peyton (Anderson 1957); ed. at 625-27 Procedure Columbia, A.2d 36 Annot., Annot., 94 A.L.R.2d 1353 [1964]. (D.C. Davenport v. United 56 A.2d 851 [1934], A.L.R. 996 A review of these authorities 1948). they properly cited the Dill court. shows are see also naked”); abdomen was not lower W. COM- Blackstone, exposure. wilfully, *169 (“persons openly, MENTARIES today, any me that at It seems to rate lewdly, obscenely exposing per- their Dill v. See Evans ly exposing from insult been were resort with intent Evans’ In his under faced with the view sons 1824. Significantly, Evans, genitals in held to “wilfully, rogues section four exposure of any State, thereof, female.” the the Vagrancy street his constituted be Ewels, supra, Queens openly, question person the word euphemism n. or vagabonds) of his lower to insult Any 2). ^[1954] public highway, the Act lewdly and Bench any place ... with intent indecent of man Vagrancy Md.App. prohibits whether or not 2 All “person” abdomen near for the guilty division (quoted exposure E.R. 22.7 of public obscene- female” a man Act of of this penis. or was has to in person who pose.” port The Evans Evans v. public committed seven In C.C. “how Wood tion lard, 14 Cox quired connection with and indeed Reg. raping Emelia Wild. of urinal, English his C.C. (Emphasis v. Cox C.C. 251 made it a eight Ewells, person_” this assault Orchard holding has had come into goes (1853), “[e]very girls caselaw.9 In supra, All 559 there for a added). sexual the court held that of its down to a marsh and synonym man Wood was convicted (1884), upon (Emphasis considerable word matters own, meaning must Thurtle, In Wild Reg. v. Wellard Reg. E.R. proper pur “person” house, expose testified had ac- v. Wel added). at 24.8 3 Cox Wood, inser penis. took sup in and his in a rogue vaga- and crime “shall be deemed a a add “exposed person_” (Emphasis his ed). boys upon local this The court found that the exhibition When some came bond.” 9. 8. 7. the 29, 1892). the Devonshire Bench law crime of our statute tion in 1892. See support passage support states: sources Sexual Smith nowicz’s (2d tion that common The Evans In Norton However, authority limitation organ" It has is not within this section.” offence —that which is not genital display, opposite ed. arrived at light & declined to Offences Hogan, 1969). and of Sexual Offences and ... been of law offense or that this remains v. on an conclusion. opinion suggests this pre-Victorian indecent on this this Rylands Smith supra examination of Smith this Quarter proposition, is, suggested, applicable language, 27 Stat. "the unlike the a lower court. proposition. follow this point, (1957)). & at 319 unchanged exposure exposure Hogan, [Vagrancy Act] “person” Sessions of In supports that there case law reveals though to the common law Radzinowicz, (quoting it is Vagrancy the court Evans, Nothing Criminal ch. decision, "person" buttocks was not C.L.Y. of the backside significant since means court Criminal the there is the & Act. For in Radzi- quoted its para. common Law came to proposi- Hogan’s Queen’s another "genital offence limited which was a adop- (July that Law no no a that tions that The word cy England general principles at crimes.” exposure female edition, Hogan, mon read this son” broader the “common law definition of a crime edition law definition. ants were indicted Act. lish cases same as its common Cox C.C. at Moreover, It is 726. Act definition. penis contrary, Vagrancy crime C.C. “person" simply: law. implies See also and Criminal completely It should also Smith common at exposure at a much included Reg. the using is limited to ‘person’ Stephens, significant 248; requires Blackstone’s ”[u]nlike it can Act’s had common law crime of indecent & v. Orchard In the absence of Law Reg. the term Hogan law it was used as a supplies a exposure for the common law and a broader definition of means dropped and earlier time. See Significantly, reasonably A is the same as the common a law meaning v. be Ordinarily, History the that in some of specific exposure by not Thallman, leading revised this section noted definition. use (3d common "person” ‘penis’....” under the & of the earlier certain number of the word of Thurtle, supra, ed. the buttocks than the that in be intent "person" is the Criminal Law in definitions in the inferred that supra, Cox 1973). authority to law offence a euphemism their next supra male to a Vagrancy England, statutory crime of at com- Vagran- Smith defend sugges- insult. "per- Eng This and text of of to & scene, boys nothing improper, saw entry Reversed remanded “[the] prisoner as the had turned round on their judgment guilty. not approach, lying and was on his stomach.” easily Id. 560. It can be inferred from PRYOR, Judge, dissenting: Chief this factual statement that Wellard ex- present The circumstances of this case posed penis young girls. See question Thallman, interpretation also new Reg. supra, 9 Cox C.C. (“He naked, at 389 entirely arising almost under the District of Columbia inde- exposed person”) added); (emphasis statute, cent D.C.Code 22- Eliot, Reg. Eng.Rep. 1112(a) (1981). By holding, its the court (defendants public fornicated and “un- employs a narrow anatomical definition of lawfully, wickedly and scandalously did ex- question. I adopt behavior Because pose them”) persons the bodies and standard, a broader I dissent. (emphasis added); Reed, Reg. Cox Duvallon, Appellant, Ms. day- broad (1871)(defendants C.C. unlawfully and light, approached plaza Supreme indecently exposed “their per- bodies and Court, clothed, fully sign hanging awith sons naked and uncovered” in front of la- around complete- her neck. She undressed dies) (emphasis forth, ly, and then walked back in front American common law cases are in ac- Court, Supreme except nude for a cord England. with those of In State v. sign prevented a frontal view her Moore, 232, 238, 455, 194 Or. 241 P.2d 459 genital breasts her area. The sides of (1952), discussing “private term breasts, her as as her entire well buttocks parts” female, applied as to a the court clearly po- were at all times visible to the said: “It is hornbook law that whenever persons lice officers and other the imme- the term ‘privates private parts’ or are vicinity. diate descriptive used as part of a of the human body, they genital organs.” refer to the In Appellant asserts that she cannot be State, 166, N.C.App. Jones v. 171 S.E.2d prosecuted' for this conduct because the private parts the court held that exposure District’s indecent statute is genitals, portions means those of the hu- law, merely a of the common codification man anatomy reproductory pro- used in the latter, prohibition and under Crenshaw, cess. Accord State v. Ha- against exposure purportedly indecent does 68, 69, 13, (1979); waii 597 P.2d Martin preclude person intentionally not from State, 534 P.2d 685 (Okla.Crim.App. v. public exposing his or her buttocks to view. 1975); Dennison, 842, State v. 72 Wash.2d More, urged scope that the specifically, it is (1967); State, 435 P.2d 526 Pendell v. exposure statute is inex- of our indecent 119, Tex.Crim. 253 S.W.2d 426 the most common tricably intertwined with “ Our refers to the indecent statute parts,” “private definition of such that (em- exposure person_” of his or her “private parts” synonymous is deemed phasis exposure It is the indecent genitals. comparable portions of the of the male and of indecent At common law the crime anatomy female that constitutes the crime. exposure any “expo- is defined to include words, In exposure other the indecent of person, parts sure of the entire or genitalia human is the offense. Since Ms. should not be Messina v. expose genitals, Duvallon did not she exhibited.” 22-1112(a).10 State, 602, 605, 578, did not violate 212 Md. 10. To construe the statute as urged by only vague statutory the Dis can result not from vague of language trict Columbia would raise an issue of but also from unforeseeable and retro- Columbia, City ness. See Bouie v. 378 U.S. judicial expansion precise active of narrow and of 347, 352, 1697, 1701, 84 S.Ct. 12 L.Ed.2d 894 statutory language.’’). (1964) (A "deprivation right of the of fair warn- (1957); Borchard, origin see exposure prohibi- State v. Ohio common law App.2d 646, (1970); 264 N.E.2d general purposes tions and the of such 10, (“indecent 67 C.J.S. at exposure is statutes, I nothing long find in the line of private of parts exhibition those requires cited decisions which equate us to person modesty, which instinctive human exposure “person” of one’s as decency, self-respect or requires shall be exposure genitalia. Indeed, of customarily kept presence covered in the represents latter behavior the most ex- others”). The underlying purpose of the treme form of violation. prohibition against is my interpretation view the broader straightforward: protect public the statute is consistent with the common being public annoy- places by confronted law, preserves legislative intent, ing, shocking, embarrassing displays gives adequate notice of the behavior nudity or activity. sexual See Hearn proscribed. Columbia, (D.C.1962); 49; case, II Under the C.J.S. at J. circumstances of this I Bishop, would affirm. New CRIMINALLaw (8th 1892). ed.

Many of the decisions in this area have questions:

resolved related but different genitals,

whether the specifi-

cally, law, was a violation of Davenport see

v. United 56 A.2d 851 State,

Truet Ala.App. 57 So. 512

(1912); whether the offensive conduct was sufficiently open view, public LANGLEY, Messina v. Appellant, Wade A. State, supra; State, Gilmore v. 118 Ga. (1903); 45 S.E. 226 lastly whether STATES, Appellee. UNITED intent, conduct requisite involved the Davenport v. United supra, 56 No. 84-1092. 852; A.2d at Commonwealth, Case v.

Ky. (1950). 231 S.W.2d 86 Appeals. of Columbia Court of Further, it should be noted that in con- Argued July 9, 1986. trast to the interpreted statutes in most of Decided Oct. cases, 22-1112(a) these D.C.Code does all, not speak “private parts” but language

its prohibits an individual’s mak- “any obscene or indecent

of his or person” (emphasis

Thus, presents, this case for the first Columbia,

time in ques- the District of

tion parts whether the naked exhibition of body, genitalia, other than consti-

tutes unlawful within the mean-

ing of our statute. reflect, opinions

As the in this instance may

reasonable minds differ as to how our

statute interpreted. should be Given the provisions

1. The common law of the District of Columbia unless inconsistent with of our Maryland consists of the common law of code. Perkins v. United (D.C.1982); Maryland the British statutes in force in see also D.C.Code § 49-301 impeach him with evidence of guilty

verdicts yet which had not been reduced to judgments final of conviction. It is uncon- that, tested as consequence, appellant declined testify. We conclude the evi- dence of the assaults with intent to commit rape conviction, was sufficient for but we reverse and remand for a new trial because agree we appellant impeach- with on the ment issue. disposition, view of our we need not appellant’s address lesser-includ- argument. ed-offense I. government’s evidence showed that

on appellant June and his two co-defendants, West, Miles and abducted complainants the two on Martin Luther Avenue, King complainants S.E. The Kessel, D.C., Philip Washington, J. waiting been to cross the street when a car appellant. pulled up next to them and the driver asked Seikaly, Atty., Daniel S. Asst. U.S. one of the women for a match. When she DiGenova, Joseph whom Atty., E. U.S. pass tried to through a book of matches Tourish, Michael W. Farrell and Thomas J. window, driver, passenger Miles, front Jr., Attys., Washington, D.C., Asst. U.S. opened told her it was broken. He brief, appellee. were on passenger front door on the side. As this complainant waiting first was PRYOR, Before Judge, Chief and FER- matches, return of the she noticed that a BELSON, REN and Judges. Associate fight nearby. had broken out dis- While FERREN, tracted, Judge: Associate she reached into the car to retrieve matches, pulled she but into the Appellant challenges his convictions on sped front seat. The car off. The com- two counts kidnapping, each of D.C.Code out, plainant begged to be let to no avail. assault with intent sharply, As the car turned a corner she rape, 22-501, simple commit id. as- Miles, against was thrown who still sault, id. 22-504.1 He claims the evi- holding her arm. She then saw that the dence support was insufficient to his con- seat, complainant second inwas the back viction for intent to assault with commit West, sitting held down one of two men rape. He also maintains the trial court there. denying request erred in for an instruc- simple tion on sped assault as a lesser-included As the car down Interstate complainant offense of intent to pleaded assault with commit first with Miles to let rape. Finally, appellant point, pulled contends the trial them out. At one Miles over ruled, limine, court erred comply, when it to the side of the road as if to but though appellant shouted, “No, Roland,” even not had been sen- when West Miles jury sped up again. tenced for a repeatedly two felonies of which West said to recently guilty, they going had found him D.C.Code both women that “were to government began beating authorized the fuck” and the second com- appellant rape 1. The court sentenced to concurrent commit and of twelve months for each assault, prison years simple terms of three to ten for each count count of all sentences to run kidnapping consecutively being and of assault with intent to to other served. plainant complainant with his fists because the women the second identified while Miles as the driver. refused. processed A crime scene search officer Appellant was the other man in the back the car for evidence. He testified that he began pulling seat. He the second com- found a strap had white bra on the front

plainant’s pants down. recalled that She seat, passenger right a white on the blouse got angrier fought West as she back and seat, rear and a laminated identification gonna claimed “that he me was fuck or he belonging complainant. card to the first gonna was kill me.” West hit her in the Appellant present any did not evidence. liquor face with a com- bottle. first He relied instead on the testimony of his plainant then appellant heard West ask co-defendants, who claimed that the two gun, complain- a followed the second women had entered the car voluntarily and “Oh, God, saying, got ant’s gun.” a he[’s] jumped only out after West noticed West then hit the complainant second money missing pocket. from his gun. thereafter, Immediately appel- began lant reached the front seat and over II. pulling complainant’s off the first clothes. Appellant claims that the evidence was tearing He succeeded in off her blouse and support insufficient as a matter of law to trying pull pants bra and her to off his convictions for assault with intent to began hitting when she him and Miles. rape. Specifically, argues commit he time, By this Miles had taken the Ben- jury was “no evidence on which the there 1-295, ning Road exit off made another beyond could have concluded a reasonable turn, and driven a short distance. West [appellant] doubt that either or his co-de- continued to complainant, beat second possessed fendants state of mind who pushed continued resist until he required for conviction.” moving later, out of the car. A half block evaluating insufficiency, a claim of we turn, quick Miles made a' and the front light review the evidence most favor passenger open. Working door flew to- government, giving play able to the full gether, appellant pushed and Miles the first right jury to determine credibili complainant moving out of the car. When evidence, ty, weigh justifiable and draw ground, she hit the up she saw the car back States, inferences of fact. Hall v. United as if the trying driver were to run her over. Curley v. way She rolled out of the and ran toward a App.D.C. 81 U.S. nearby apartment building help. denied, 160 F.2d cert. 331 U.S. complainant sought help The first 837, 67 1511, 91 from a L.Ed. 1850 We S.Ct. man on landing may government the second floor reverse when the has Davis, building, produced Bobby gave her no evidence from which a reason who might fairly guilt beyond shirt. able mind infer She then saw her abductors’ car reasonable doubt. Frendak v. United come down the street and identified it to (D.C.1979). Davis and others who had come out building. later, police Moments car ar- appellant’s To sustain convictions as- complainant. rived with the second Her rape, sault with intent to commit the evi- torn, bleeding clothes were and she was permit person dence must reasonable face, arms, from her and hands. As the beyond appel- find a reasonable doubt that complainant began describing first her ab- (1) (2) complainants, lant assaulted the two police, say, duction to the she heard Davis specific did so with the intent to have sexu- intended, police “That like the car.” The them, look[s] al intercourse with and promptly acted the apprehended and three penetration of their to achieve sexual or- complainant using men. The first identified all gans against “by their will such scene, showup might three at a the conducted at force or threat of force as be neces- sary accomplish to sary despite overcome resistance or make fur to it their resist- ther resistance Bryant, U.S.App.D.C. useless.” United States v. ance. at 124, 133, Bryant, U.S.App.D.C. F.2d at 1336. (1969); F.2d Jury Criminal In Appellant argues contrary, to the citing Columbia, structions for the District of No. 131-32, Bryant, id. at 420 F.2d at 1334-35. (3d 1978). 4.75 ed. necessary element He asserts the reasonable inference proved directly intent need not be “but from the evidence is that he and his cohorts may be totality inferred from the their rape abandoned effort to —that presented jury.” circumstances to the they manifestly had not intended to use the Jackson, U.S.App. United States v. necessary force to accomplish purpose that 270, 273, (1977); D.C. 562 F.2d because, they resistance, when encountered U.S.App. Higgins v. United they pushed complainants out of the D.C. 401 F.2d Specifically, appellant car. claims The evidence that established brief that the third element of the crime by appellant forcibly women were abducted was not established because the evidence and his co-defendants and driven from Mar showed, most, at complaining “that the wit- Avenue, King S.E., tin Luther to the area nesses were assaulted inside the car and Streets, Eye of 26th and N.E. The first that the initial motivation of this behavior complainant that, testified as Miles was was to obtain their consent to sexual inter- 1-295, driving saying down West “was that light course In with men. of the resist- going just kept say we were to fuck. He encountered, however, any original ance over, no, saying, over and and we were was, intention to have sexual intercourse we weren’t.” At about the time Miles fact, abandoned without outside inter- Road, Benning appel turned off 1-295 onto disagree. ference.” We began lant reached over the front seat and portion Bryant appel- on which tearing complainant’s at the first clothes. relies, lant the court is no stated there tearing He succeeded in off her blouse and rape intent to commit a defendant “[w]hen attempting pants bra and was to take her intends to use the kind of ‘force’ that is just appellant pushed off before and Miles enough in his mind to test the existence or her out of the car. persistence complainant’s inten- true Similarly, complainant the second testi- tions, enough but not to achieve sexual that, fied from the moment she had been ‘really’ rejects intercourse if she him.” Id. car, dragged ap- into the back seat of the 420 F.2d at 1334. this is not to But. pellant Angered and West held her there. that, say if an assailant fails to commit resistance, her, began West to beat rape because the victim’s resistance is es- bottle, fists, first with his and then with a fierce, pecially his abandonment manifests finally gun. with a At about the time West forcefully accomplish lack of intent to gonna told her “he was me or he fuck purpose. may The assailant’s failure gonna me,” appellant trying kill “was merely ability victim’s mean down, kicking pull my pants kept I but superior fend off attack was to the assail- him.” accomplish objective. ability ant’s here, jury, testimony From this the corroborat- On evidence which was instructed, ing physical bleeding, properly reasonably torn could have evidence— clothes, appellant clothing from the found that and his co-defendants recovered manifestly rape jury easily car—the could have found that intended evidenced —as accelerating appellant’s complain- their attacks on the assaults were committed he, (whom specific complainants that the were sim- intent that or West ants —but abetted), both, appellant ply jury too much them. The need aided and have not against appellant inferred intercourse with the two women have others will, using simply testing complainants’ their whatever force was neces- were intentions,” id., “true ceased their at- B. complainants reject-

tacks because the Luce, that, Supreme in Court held the overtures. ed preserve “to raise and order review improper impeachment pri-

claim of with a conviction, testify.” a defendant must III. 43, 469 U.S. at 105 S.Ct. at 464. The Appellant argues also that the trial court decided Luce after appellant’s trial. Court motion in limine ruling in erred on Even Luce were otherwise if applicable— that, testified, government if issue we do not conclude he could an address—we that Luce would only apply prospectively. impeach jury him with evidence that a v. Robinson adopt reasoning We guilty found him of two felonies for which States, 218, 222, 223-24 United yet he had not sentenced. This been (D.C.1986)(Ferren, J., dissenting).3 error, prejudicial says, he for as a conse- quence ruling Accordingly, questions of that since no one he decided not to appellant testify declined to because of the government testify. responds, The initial- ruling, may challenge ruling court’s he ly, principle in that under announced appeal jurisdiction under the this on law of States, v. 38, Luce United U.S. motion. Johns presented time he at the 460, (1984),appellant’s L.Ed.2d 443 S.Ct. States, 463, v. United 467-68 testify precludes reviewing failure to our (D.C.1981); Lipscomb, United States v. appeal. government this issue on also 312, 332-33, U.S.App.D.C. 702 F.2d that, event, asserts in rul- the court’s 1049, (1983). 1069-70 proper.

c. jurisdiction, In this the courts have un A. derstood, by reference to the lan 11, 1984, February jury ap- On found guage, purposes that a “conviction” pellant guilty rape on two counts of impeachment statutes has sequence one count of assault with intent to commit on a judgment meant a of convictionbased sodomy in Criminal F 3666-82. He No. States, Godfrey v. United sentence. 13, was not April sentenced until 1984.2 United States 293, A.2d 29, 1984, On March the trial court in the 400, Lee, 67, 72, 509 F.2d U.S.App.D.C. present argument ques- case heard on the denied, 1006, cert. 420 U.S. whether, trial, appellant tion if testified at Thomas (1975); 43 L.Ed.2d 765 S.Ct. government jury could use the verdicts States, U.S.App.D.C. v. United impeach the earlier case to his credibili- (1941); 121 F.2d Crawford ty. The trial court then ruled that 356, 357, States, U.S.App.D.C. government could ask appellant if he had Because this inter 41 F.2d felony Superi- been convicted offenses in dicta, expressed in how pretation has been February on or Court but could impo ever, question whether there is still not elicit the nature of those offenses. prerequi is an sentence absolute sition of later, Some time defense counsel an- of “conviction” to the site that, ruling, purposes nounced because of the court’s under D.C.Code impeachment (1981).4 appellant testify. would not 305(b)(1) (1981) provides currently appeal 2. This conviction on to this 4.D.C.Code 14— part: Langley court. v. United. No. 84-467. credibility attacking the purpose of [F]or majority witness, 3. The Robinson United that the witness has evidence of a (D.C.1986) this issue. It A.2d 218 did not reach shall be of a criminal offense been convicted offered, upon refer- the case on the merits without cross-ex- "decide[d] either admitted if ali- ence to Luce." Id. at 221 n. 7. the witness or evidence amination of 734 In Godfrey, guilty plea mind, we held that a is inition of conviction in 14- §

not a impeachment pur- 305(d) “conviction” for provides part: pendency “The poses. appeal It “lacks the trustworthiness an from a conviction does not render finality because, of a conviction” evidence of that “before conviction inadmissible un- sentencing, may it der this section.” There can any appeal be withdrawn for be no ” just.’ reason that is from a “conviction” judgment ‘fair and 454 absent a A.2d at (citations omitted). 4(b)(1).6 305 based on a sentence. D.C.App.R. & n. 36 We ex- pressly open, however, left question recognize We that several of the federal whether, impeachment purposes, “to appeal permitted circuit courts of have im jury guilty treat a verdict in the same peachment jury verdicts, before sen way plea that we a Id. guilty.” treat tencing, 609, under provided Fed.R.Evid. 305 n. 37. jury is told “judgment has not been entered” and is informed about “the question That is squarely presented pendency of acquittal motions for and for a that, here. We hold under 14- D.C.Code § sentencing new trial before the court.” (1981), (or defendant other wit Vanderbosch, United States v. 610 F.2d ness) may impeached not be prior with a 95, (2d Cir.1979); accord United States guilty verdict unless and until there is a Smith, 627, (9th 623 F.2d 630-31 Cir. judgment premised of conviction on a sen Duncan, 1980); United States v. 598 F.2d tence. interpreta We so hold because this denied, 839, (4th Cir.), cert. 864-65 tion reflects the meaning 871, 148, U.S. 100 S.Ct. L.Ed.2d language as the jurisdiction courts of this Klein, (1979); United States v. 560 F.2d have understood it for years.5 That under denied, 1236, (5th Cir.1977), 1239-41 cert. standing premised on the traditional view 1073, 1259, 434 U.S. 98 S.Ct. 55 L.Ed.2d 777 final, that a appealable judgment of convic Rose, (1978); United States v. 526 F.2d tion means the sentence. Berman Unit 745, denied, (8th Cir.1975), cert. States, ed 164, U.S. 58 S.Ct. 905, 1497, U.S. 96 S.Ct. 47 L.Ed.2d 755 165, (1937); McDonald v. 82 L.Ed. 204 (1976). States, United 538, (D.C. 415 A.2d States, 1980); Butler v. however, 379 A.2d are, significant There differ- 948, Thomas v. United ences between federal court administration States, (D.C.Mun.App. Superior appli- of Rule 609 and the Court’s 1957); see 4(b)(1). Indeed, D.C.App.R. cation of D.C.Code 14-305 Under § impeachment strongly implies (a) (1), statute itself applied Rule the cases cited legislature that the above, had this traditional def- court district has discretion to unde, (A) Hinkle, reasoning but if the criminal offense was of United States v. punishable imprisonment death or U.S.App.D.C. pred- in ex- 492 F.2d year cess understanding of one under the law under which icated on our "conviction" convicted, (B) he presupposes [or or she] involved D.C.Code 14-305 under dishonesty (regardless noting application false statement sentence. After Act, punishment). 5005-5026, 18 U.S.C. §§ Youth Corrections II, 98-473, repealed, Pub.L. No. Title apparently 5. The trial court was aware of this 218(a)(8), neatly did not corre- Oct. understanding, traditional obviously it sentencing spond to the scheme in the usual sought compromise by permitting to work a case, criminal we concluded that interim con- study impeachment by guilty reference to verdicts in a 5010(e) finement for a under of the Act felony allowing case without reference to the sentencing requirement impeach- met the for an themselves, nature of the crimes which other under § able "conviction” 14-305. Such con- See, permitted wise would be under 14-305. finement “has been deemed so interconnected States, e.g., (D.C. Dorman v. United 491 A.2d 455 sentence, with the final Youth Corrections Act 1984) (en banc); Baptist v. United during that the time served the interim confine- (D.C.1983). A.2d 452 spent ment counts as time under the sen- final computing purposes tence for an offender's Stewart, 6. Our recent decision in Stewart v. United maximum sentence.” 490 A.2d at 626 (D.C.1985), (citations adopt- omitted).

Case Details

Case Name: Duvallon v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Oct 3, 1986

Citation: 515 A.2d 724

Docket Number: 83-1468

Court Abbreviation: D.C.