Gant v. United States

years, return his fee for over two con- GANT, Appellant, Ondrae ceding right that he had no to retain it but holding hostage against nevertheless STATES, Appellee. UNITED possibility malpractice of a suit. Neither nor Knox Russell involved violations of No. 84-1495. this nature. Additionally, Landesberg has District of Appeals. Columbia Court of subject been prior discipline neglect for as appears had Knox while Russell not to Argued May disciplined have been before. Decided Nov. mitigating distinction we have

been able to find is that unlike the clients Russell, Knox Germain was not

prejudiced by Landesberg’s neglect

his misrepresentation. It is that absence prejudice prompts us to conclude

that a somewhat suspension shorter is war- Weighing

ranted. facts, the entire mix of

we suspension believe that a days of 60

proper and recommend it to the Court.

addition, we strongly recommend that the

Court order reimbursement to Germain

$900 his fee and interest. This $300

case seems a particularly appropriate one order, include such an Landesberg’s

misrepresentation led Germain to hire a

lawyer hired, he otherwise would not have performed

who no services for him and conceding

who—while right that he has no

to retain the fee—has unilaterally withheld

repayment for a patently unacceptable rea-

son.

BoaRD on Professional Responsibility

By: Jeffrey /s/ Freund

Jeffrey Freund

All members of the Board concur in this

Report and except Recommendation Ms.

Williams participate. who did not

DATE: FEBRUARY Stone,

Christopher Public Defender Ser- vice, Klein, with whom James Public De- Service, fender was on the appel- brief for lant. Simon,

Ann Atty., K.H. Asst. U.S. diGenova, Joseph whom Atty., E. U.S. and Farrell, Atty., Michael W. Asst. U.S. were brief,, appellee. PRYOR, Before Judge, Chief and ROGERS, BELSON and Judges. Associate ROGERS, Judge: Associate Appellant Ondrae convicted jury rape, (1981), D.C. Code 22-2801 § id., knowledge, enticing carnal a minor child, id., 22-3501(b). A new trial was § granted prosecutor’s improper based impeachment of Gant. Gant then moved to prosecu- dismiss the indictment because of torial jeopardy. vindictiveness and double denied, appealed; motion was and Gant this court affirmed denial on double deferred, jeopardy grounds, prema ture, prosecutori a decision on the issue of al vindictiveness. Gant v. United (D.C.1983), denied, 467 A.2d 968 cert. U.S.

(1984). jury again At a second trial Gant rape, knowledge was convicted of carnal enticing appeal a minor child. On (1) assigns as error the denial of the motion clothes, suppress shavings and razor seized from his home after a warrantless search; (2) the motion to strike medical the sexual inter complain course between himself and the ant had rather than consent been forced (3) ing; the in the motion dismiss prosecutorial dictment to sanction the mis during conduct and after the first trial. Upon hold: review of the record we First, clothes, suppress the motion to granted hairs and razor complainant, should have been ful to the the time finished, support bleeding because the record does she not either Gant from her vaginal exigent wipe area. Gant told her to circumstances or view herself paper. wiped with notebook He exceptions to himself as requirement the warrant well, paper threw the out the ear window However, the Fourth Amendment. be- and returned to the front seat.1 James cause the evidence was relevant Harrston, off-duty police officer, an who only issue, to a collateral the error was wearing cap police insignia, was a with beyond harmless a reasonable doubt. Sec- approached complain the car to about ond, the expert testimony motion to strike littering. complainant Gant’s The saw untimely was since defense counsel elicited moment, Harrston for a but at in- Gant’s expert’s testimony on cross-examina- struction, seat, crouched in down the back tion and did not move strike it until two high speed. and Gant drove off at Harr- Therefore, other witnesses had testified. complainant, ston did not see or hear the any objection to the testimony was waived. but identified in line-up Gant a as the driv- Notwithstanding expert testimony that the er of the car. jury’s intruded on the function to deter- issue, mine the ultimate the tactical deci- complainant Gant let the out of the car counsel, by experienced sion defense to at- Upon several blocks from her home. arriv- testimony through tack that home, cross-examina- immediately she told her mother presentation tion and of a defense raped; she had been her mother called the contrary opinion, precludes with a finding police. Detective complain- Clark took the Third, of error. Hospital denial of the ant to Children’s where she was motion to dismiss the pediatric resident, indictment Sibyl was with- examined Dr. range permissible in the of decisions Wescoe. Dr. complain- Wescoe found the restless, in court the reasoned ant somewhat ap- exercise of its withdrawn and prehensive, discretion. in provided ap- The new trial an and constant need of her propriate remedy physical and mother. The point Gant can to no examination re- nothing abnormal, prejudice. during residual vealed but Accordingly, we affirm gynecological judgment examination Dr. Wescoe of conviction. found a two millimeter tear the com- I. plainant’s hymen, “particularly” was opening black and blue and swollen. The The presented by govern- evidence complainant’s vagina and her labia ment showed that Gant forced the twelve- red, bruised, also were swollen and tender. year-old, pre-pubescent complainant female laboratory A routine test confirmed the his car morning September into of presence sperm vagina. of her Dr. nearby and drove to playground opinion, her Wescoe’s based on holding while her hand. He then ordered examinations, gynecological the recent her into the fright- back seat. When experienced by sexual intercourse the com- cried, complainant protested ened Gant plainant had been forced rather than con- gave impression pull her the he would out a senting. knife if she refused. Once the back seat, complainant escape tried to The defense conceded Gant’s factual door, through the choked her Gant guilt knowledge of carnal and did not “cooperate.” enticing both hands and told her to present charge a defense to the of pulled Thus, Then he off her and his underwear a minor child. issue at trial pants, penis vagi- and inserted his into her whether the sexual intercourse had quite pain- against complainant’s na. The sexual intercourse will.2 been fingerprints rape, acquitted intended 1. Gant’s were found on notebook 2. Had Gant been of insanity paper playground. to raise an edge. defense to carnal knowl- recovered from the Street, rape Gant’s defense to was that the com- at 224 50th They N.E. called the plainant in- had consented to have sexual police, who arrived minutes po- later. The him, regretted tercourse with then her deci- Street, lice knocked at the door of 224 50th “rape.” testify sion and cried did not Gant announcing presence their or offer affirmative evidence the com- minutes, but no one answered. After the plainant’s Instead, consent. he elicited unit, police arrival of a canine entered through cross-examination inconsistencies the house and found in a second floor government in the witnesses bedroom where he immediately arrest- (principally and her moth- ed. At the time freshly Gant was shaven er), presented two witnesses who dis- underwear, although his the man at puted complainant’s testimony that she the ice cream truck had been described as previously had not known Gant and that on having wearing facial hair and a blue knit day alleged rape she had been jeans. arresting shirt and blue offi- building unable to enter her school because discovered, cers and the mobile crime unit the door was locked. The defense also seized, subsequently par- a razor hair challenged Dr. through Wescoe’s ticles from a bathroom down the hall and presented cross-examination and a medical description clothing matching the from an- impossible who testified that was other bedroom. to tell from the medical records whether of a Warrantless searches residence are the sexual intercourse had been forced or presumed unless unreasonable fall consenting. carefully exceptions. within delineated Louisiana, 17, 18, 469 Thompson v. U.S.

II. 409-410, (1984); L.Ed.2d 246 105 S.Ct. 83 Suppress. The Motion to Gant contends 573, York, 585, 445 U.S. Payton see v. New following entry by of his house 1371, 1379, (1980). 100 63 L.Ed.2d 639 S.Ct. police him,3 police to arrest conducted Exigent justifying a circumstances war- general search for evidence under circum- entry rantless and search include “the need excep- stances which did not fall within the protect preserve or life or avoid serious tions to the requirement warrant escape injury,”5 prevent the need to of plain Fourth Amendment for evidence criminal,6 suspected pre and the need to exigent view or The circumstances.4 com- may destroyed, be serve evidence which plainant saw Gant at an ice cream truck through either action7 or natural deliberate days near her home six after he had sexual so, search “a warrantless her, forces.8 Even intercourse with and ran home to tell by exi strictly circumscribed her must be mother and sister. All three watched street, gencies justify its initiation.” Min through Gant walk across the run 5, lot, Arizona, parking supra note 437 U.S. at jump cey a fence and enter a house v. States, App. (quoting Wayne U.S. does Revercomb’s rul v. United 115 3. Gant not contest 205, entry 234, 241, (1963)). by the warrantless of the house 212 D.C. 318 F.2d police justified by exigent him arrest surrounding entry. circumstances United 752, 763, California, U.S. v. 395 89 6. See Chimel Minick, (D.C.), States v. 455 A.2d 874 cert. de Brooks, 2034, 2040, (1969); 685 S.Ct. 23 L.Ed.2d 111, nied, 831, 104 112 464 U.S. S.Ct. 78 L.Ed.2d 1303; 3, Dorman, supra at note 367 A.2d States, (1983); Brooks v. United 367 A.2d 1297 319; 3, App. D.C. at 435 F.2d at note 140 U.S. (D.C. 1976); Dorman v. United 140 U.S. 391. 313, (1970) (en banc). App.D.C. F.2d 385 435 3, 881; Minick, supra note 455 A.2d at 7. See government argue 4. The did not 3, Brooks, supra note 367 A.2d at 1303. a lawful searches and seizures were incident 3, Brooks, supra arrest. See 367 A.2d 757, n. 6. 1304 California, v. 384 U.S. 8. See Schmerber 1835-36, 770-71, 1826, 16 L.Ed.2d 908 86 S.Ct. Arizona, 385, 392-93, Mincey v. 437 U.S. (1966). 2408, 2413-14, (1978) S.Ct. L.Ed.2d 290 (quoting at 2413 in a Terry 98 S.Ct. v. clothed T-shirt and “underwear- Ohio, 1, 25-26, 88 S.Ct. type jockey Although shorts.” Wilson ini- 1882-1883, (1968)). tially This entered the bedroom with the other exigent court determines whether circum officers, arresting stepped into back by examining per stances existed the facts hallway because others had under con- police entry ceived at the time of (Wilson) trol and he did not want be the initiation of the Derrington search. police dog. paid little bitten Wilson (D.C. 488 A.2d Instead, attention to the arrest. he ex- 1985); Minick, supra note 455 A.2d at around, plained, looking he was from his 881; Brooks, supra note 367 A.2d at vantage point hallway, in the for the cloth- ing that Gant had been described as wear- The closely view doctrine also is ing less than an hour earlier. In a second circumscribed. Plain view alone does not up bedroom he noticed some clothes balled “justify the warrantless seizure of evi- on a chair. Because he could not tell if the Coolidge Hampshire, dence.” v. New clothes were those described the com- 443, 468, U.S. mother, plainant and her he walked into the (1971).9 Rather, L.Ed.2d 564 the officers second bedroom for a closer look. He saw lawfully present must be at the site of the jacket a sweater and a dark blue seizure, search and discovery and their chair. Wilson then looked around the room Brooks, evidence must be inadvertent. su- pair jeans and saw a on another chair. pra note at 1305 Cool- jeans had not been visible from the idge Hampshire, supra, v. New 403 U.S. at hallway. touching anything, Without Wil- 466, 2038). at S.Ct. It must also be hallway, son returned to the and remained immediately apparent to the officers that in the house until the mobile crime unit they have evidence before Coolidge them. arrived; police assigned to that unit seized Hampshire, 466, supra, v. New 403 U.S. at clothing. 2038; 91 S.Ct. at Christmas v. United Downs, officer, arresting Officer another 473, (D.C.1974). The noticed that Gant’s chin and the sides of his government prove has the burden to “ashy just face were as if he had shaved.” the circumstances of the search and seizure immediately Downs and officer another fell within the exigency doctrines of or hallway went to the bathroom down a plain Brooks, 3, supra view. See note they where saw hairs in the sink and a A.2d at 1308 Coolidge v. New lying nearby. They razor did not touch Hampshire, supra, 455, 403 U.S. at 464- anything, and the mobile crime unit subse- 2032, 2037-42). 91 S.Ct. at We hold it shavings quently seized the and razor. has failed to do so. The court will reverse the trial court’s Wilson, Officer who discovered Gant’s findings they clearly if are of fact clothing, testified he that was one of sever- Minick, supra erroneous. note See al officers who entered the house to arrest 876; Brooks, 3, 367 A.2d at looking Gant. He was for a man whom the Revercomb found A.2d at and her mother had described male, plain in He that the clothes were view. complexion as “a black dark [with] arresting one of the offi- goatee, wearing mustache and also found that and ... shavings in the jeans.” blue sweater and faded cers had seized the found blue sink, man Wilson that the immediate seizure was observed the bedroom was legal Supreme plain explained: view has 9. As the Court circumstances being significance simply than the nor- rather that, important keep it is in mind in the search, any legal or il- concomitant of cases, mal majority any vast of evidence seized legal. view, police plain will be in at at least origi- (emphasis in Id. at 91 S.Ct. at 2037 problem moment of the seizure. The "plain with the nal). identify view” doctrine has been to necessary preserve Regard- (exigent the hairs. 367 A.2d at 1302 circumstances razor, stated, judge “the razor applied doctrine perceived be suppressed. is not It was within the bath- police officer time entry). at Compare 10 Although judge’s room.” finding Segura 796, 799, v. United about when the hairs were seized was con- (1984) trary to the officers’ (searching premises preserve quo status shavings and razor were seized the mo- obtaining while warrant does not violate unit, bile crime it is the time and circum- Amendment). Fourth Nor did the actions stances discovery of the which are determi- police, waiting unit, for the mobile propriety native of the of the warrantless indicate their belief that “every passing seizures, and not when the seizures occur. jeopardized” moment the possibility of re- Therefore, Id. at 1306. judge since the did covering Minick, the evidence. supra note not supportable findings make of fact 3, 455 A.2d at 881. razor, shavings about the we must de- justify Plain cannot view seizure of termine whether suppress his refusal to the clothes. Officer Wilson’s discovery of shavings supportable and razor is under clothing was not inadvertent. He testi any evidence, reasonable view of the position fied that from his hallway whether his suppress clothing failure to looking clothing. around for the clearly erroneous. Id. at police When the search with the intention Viewing the evidence most favor evidence, finding they may not claim ably government, id. inadvertence. warrantless searches fit within neither the scope extend the of ... an intrusion [T]o exigency view, plain nor exceptions to the objects to the seizure of contraband —not warrant requirement. Exigent circum dangerous nor stolen nor in themselves— stances cannot justify the search of the police which the know in advance bathroom. Gant was found alone in the seize, will find in view and intend to house and immediately arrested. There fly in the face of the basic rule fore, there danger was no that he would probable that no amount of cause can destroy evidence, police and the could justify a seizure. warrantless not search for or seize shavings razor on that basis. Mincey Coolidge See v. Arizo Hampshire, supra, v. New 403 na, 3, supra 392-93, 471, note 437 U.S. at 98 U.S. at 91 at 2041.11 S.Ct. Officer 2413-14; Brooks, at 3, S.Ct. supra note purpose going Wilson testified that his 367 A.2d at Although gather fear of immi into the to second bedroom was evidence; nent destruction natural forces could he did not enter to assure Gant’s search, justify the apprehension none of the presence officers ex or to check for the pressed during others, Brooks, 3, this concern testimony supra their see note 367 Brooks, before the supra Therefore, trial court. note A.2d at 1305 n. 9.12 his subse- suppressed photographs protect Revercomb tinues to house where areas of arrest not 567, ground made); State, (Fla. taken the mobile crime unit on the Adoue v. 408 So.2d 571 exigency 1981). Bradshaw, that were taken after the United States v. 490 F.2d passed. 1097, 895, (4th Cir.), denied, 1100 cert. 419 U.S. (1974) (“officer’s S.Ct. 95 Brooks, supra 11. See also note 367 A.2d at presence vantage point at the from which he ("Satisfaction inadvertency 1307 of the criterion discovers the evidence in view must not require discovery of the stained bed- unjustifiable amount to an intrusion into an ding incriminating and the clothes to have been respect expecta area with to which defendant’s itself, aspect a subordinate of the arrest or the privacy protected by tions of are the [FJourth justifying purpose result of some merely other than [AJmendment”), Brooks, quoted evidence.”). gathering A.2d at 1305 n. 8. See abo Morrison v. 367 App. 104 U.S. D.C. California, supra, 12. See Chimel v. 395 U.S. at (1958). (Fourth F.2d S.Ct. at Amendment con- quent discovery jeans mitted denying of the was an exten- manifest error in the mo- sion of an In addi- tion to strike testimony unreasonable search. Dr. Wescoe’s tion, initially pain when Wilson some cloth- the amount of saw suffered the com- hallway, plainant during from the was not obvious sexual intercourse with him he him. that had evidence front of Gant and the doctor’s conclusion on based Coolidge Hampshire, supra, See v. New pain the intercourse had been (“the ‘plain 403 U.S. at 91 S.Ct. at 2038 forced consenting. argu- rather than His First, may view’ doctrine not be used to extend a ment is argues two-fold. that Dr. general exploratory object testimony incompetent search from one Wescoe’s be- something incriminating to another until cause qualified she was not as either an emerges”). last expert in forensic medicine or an on pain twelve-year-old threshold of vir- Nevertheless, although no reason gins. qualified only The doctor was testimony supports view of the able testify physician, as a medical and in the razor, shavings, warrantless seizure of the findings indicating pain, absence medical clothing, we hold that the admission of argues testimony Gant the doctor’s evidence could not have had a highly prejudicial. inadmissible and Sec- significant impact jury, any and that ond, related, closely argues Gant beyond error was harmless a reasonable testimony impermissibly Dr. Wescoe’s in- Chapman California, doubt.13 province vaded the jury of the when the 18, 21-24, 824, 826-828, 17 L.Ed.2d presented doctor her conclusion that (1967). parties agree All phys that the complainant had been forced into sexual ical evidence was admitted to show Gant’s intercourse and based conclusion guilt, consciousness of identity and not his complaint what the had told her about the (which admitted) complainant’s Gant or the sexual intercourse with Gant. The com- consent, lack of to which consciousness of plainant’s testimony jury, was before guilt indirectly related.14 The jury, argues, capable and the was as physical evidence was cumulative of sub drawing as Dr. Wescoe of a conclusion stantial other evidence which showed testimony based on this about whether guilt, Gant’s including consciousness of intercourse was forced or with the com- flight about his from Officer plainant’s consent. approached Harrston when he the car to complain littering; quick of Gant’s his expert testimony The decision to admit irregular departure when the within broad discretion and her mother saw him at the ice cream ruling admitting court “and a either truck; open his refusal the door to the excluding such evidence will not be dis ” police; attempt change ap and his his ‘manifestly unless erroneous.’ turbed pearance by removing States, 376 A.2d clothing 827, his and fa Dyas v. United 831 denied, cial hair 973, between the time he was seen at (D.C.), cert. 434 U.S. 98 S.Ct. the ice cream truck v. 529, (1977) and found his house. Salem (citing Co., 31, 35, Lines United States

III. 1119, 1122, (1962) 313 8 L.Ed.2d (which expert Spring Edgar, The motion to strike testi Co. v. 99 relied on 645, (1878)).15 mony. 645, contends com- 9 Otto 25 L.Ed. 487 Smith U.S. rejected comparable "manifestly court has term erroneous” refers to 13. This under 15.The justifica- of of the discretion exer- circumstances the inevitable seizure our standard review States, by Dyas, supra, Douglas-Bey the court. 376 A.2d tion. v. United 490 A.2d cised trial Co., 1137, 831; (D.C.1985). n. 6 Salem v. United States Lines 1139 at see also 35, 1122; Spring supra, U.S. at 82 S.Ct. at 370 658, Edgar, supra, at 658. Co. v. 99 U.S. at 9 Otto ample 14. Gant could have had reason to avoid 1177, States, 486 A.2d But see Noaks v. United police merely the on the basis of the carnal (review (D.C.1985) or is for manifest error 1179 knowledge charge. 110

Accordingly, determine, this Ibn-Tamas, court must not sons could draw. supra from the appeal, record on whether the 16, note 407 A.2d (citing, at 632 n. e.g., 13 trial court failed to its exercise discretion Columbia, v. Casbarian District 134 of reference necessary to all the criteria 488, (D.C.1957) (the A.2d 491 focus is no admitting or excluding expert testimo- expert “special knowledge whether the has Ibn-Tama, 16, ny.16 supra 407 note A.2d experience” or which “would aid the court “Otherwise, very at 635. reason for the jury determining or questions the i.e., op- such the court’s trial deference — issue”)); Lampkins, supra, 401 A.2d at observe, portunity to hear and otherwise (“an exception 970 to the ultimate issue the compro- evaluate witness—will be helpfulness rule where exists the of the mised.” Id. Johnson v. United proffered expert opinion outweighs prej- its States, 354, (D.C.1979)). 398 A.2d 363-67 impact; udicial to the extent admission is evaluating competence addition to the jury, to aid the necessary an invasion of the proffered witness, expert of the and assur tolerated”). jury’s province will be See the witness’ does not Rogers Expert Testimony also on scope qualifica exceed the of expert’s the (3d Benjamin 219 at 502-03 Werne ed. § approved court, tions the court 1941) may (expert testify not whether in his prevent also must an expert witness from opinion injury or her was caused preempting the jury. function of Im intercourse, sexual or the laceration or preemption proper ways: occur in two penetration swollen condition indicated speaks when the directly witness “too However, rape.).17 considering before (i.e., guilt innocence)” the ultimate issue or error, merits of Gant’s claim of manifest speaks or jury “to matters in we must determine whether the motion to just competent expert as the to consider not, timely, any strike if whether weight the evidence and draw the nec objection was waived and our review limit- Ibn-Tamas, essary conclusions.” States, error. ed to Watts v. United 407 A.2d (quoting Lamp at 632 (D.C.1976) banc) (en 362 A.2d 709 v. kins 401 A.2d (plain clearly prejudicial error is error “so (D.C.1979)); Dyas, supra, at 832. rights jeopardize to substantial as to “ultimate facts” rule been some has trial”); very integrity fairness and relaxed in jurisdiction, what this and an Wigmore may expert state a see conclusion on such facts at § Evidence long layper- (Tillers Rev.1983).18 so as the conclusion is one injustice upon discovery expert serious failure defendant’s from which deduces an judgment acquittal renew motion for opinion sufficiently "must be established to evidence). of all the close general gained acceptance particular have in the belongs”) (quoting Frye v. Unit- field in which criteria 16.The are set forth in a three-fold test: States, App. ed D.C. 293 F. (1) subject distinctively matter must be so (1923)). science, profession, related some business occupation beyond or as to be ken 17. Brown United added]; (2) average lay [person] [emphasis (D.C.1979), Although contrary. is not to the skill, knowledge, must have witness sufficient expert testified that medical experience calling in that field or as to intercourse,” vaginal victim of "was the forced appear make it that his or inference concerning appeal no was raised on issue probably aid the search will trier in [the] testimony. added]; (3) [emphasis truth testi- mony perti- is inadmissible if the of the state According Wigmore, to the con- Professor knowledge per- art or nent scientific does not temporaneous objection requires rule that an opinion amit reasonable to asserted even be objection question be is made as soon as the expert. an given, before the Dyas, supra, stated and answer is unless (quoting at 832 McCor- inadmissibility (2d subject of the arises not from the mick on Cleary § 13 Evidence ed. E. 1972); question but answer. from the nature of the see also Ibn-Tamas v. United (D.C.1979), remand, Wigmore, the answer appeal at 797. Where after (1983) (the containing principle unresponsive question, e.g., A.2d 893 scientific

m initially objected then to Dr. Wescoe’s Defense counsel asked whether the changed testimony testimony. on direct examination when the doctor had her She prosecutor asked the doctor whether she admitted she had. When defense counsel conclude, get why tried to the doctor to could based on her examination elaborate testimony changed, prosecutor her complainant, that sexual “the recent objected and at a bench conference penetration had been forced.” At the mispercep- Smith told counsel there is “a conference, Judge bench asked if Smith tion saying”; of what the doctor is object prose- defense counsel to judge using said the doctor force was ask, rephrasing question cutor required mean the force for the gynecological “based on her ... examina- penis penetrate vagina, and not non- alone, you tion render an as to consenting Thereafter, contact. when de- whether or not this was forced or consen- fense counsel asked the doctor about replied sual Defense counsel [sic]?” scope opinion, nature and of her she elabo- object could not and would not to such a rated: asked, question. question and Dr. replied,

Wescoe “The extent of the trauma explain Let me a little bit further. The suggests that it was forced.” Defense suggests extent of the trauma that there answer, counsel did not move to strike the pain was a lot of and tenderness that prosecutor immediately and the area, moved as evidenced I when tried to another questioning shortly area of complainant] examine and collect the [the thereafter concluded his direct specimens examina- that we talked about before. tion. very It was tender to the touch of a cotton swab we use for the collec- The first clear indication that Dr. Wescoe specimens. tion of the longer referring was no to force in terms I my findings What base and conclu- of the physical force needed to achieve something sions on is the fact that penetration, referring but was to force painful was that tender and normally ... meaning nonconsenting contact, occurred person would not submit to that kind of on crossexamination. Defense counsel pain unless were scared. I’m not asked the doctor whether she explain could back, saying fought saying she Ibut am her at Gant’s first trial that she there a lot of force used. could not conclude whether “there was more than the pen- force needed for proceeded Defense counsel to ask Dr. responding etration.” In the doctor stated questions additional her Wescoe testify- further reflection opinion, qualifications “[o]n [after and to attack her trial], quite at the first I felt comforta- response and bias. the doctor admitted saying ble that the extent of the trauma that she was not a forensic and that indeed does show that force rape. was used.” she had concluded this was a case of evidence, obvious, objection upon Wigmore party inadmissible an made comments that the timely, properly greater claiming answer is made in the the error carries a far burden error, form of a motion to convincing appellate strike out the answer. Id. an court that the Further, objection obvious, (Id. at 800. prejudicial. where an to evidence even if at 796 Fed.R.Crim.Evid., appears 52(b), is overruled and "afterwards it that the Rule n. inadmissible, strike, 21) (the rule)). evidence was i.e., a motion to prejudice-plus § objection a renewal of the must be made.” tardy by Judge qualified Id. at 817. "[T]he motion to strike out is 19. The doctor had been Medicine,

justified,” Wigmore testify Physician explains, Professor "not Smith to "as a merely non-responsive because ask the answer is Medical Doctor." Defense counsel did not qualifications. but because it is inadmissible in its tenor.” Id. to voir dire Dr. Wescoe on her year timely at strike, of a 818. In the absence of a motion to She testified that she was in the second error, pediatric residency the error is reviewed for when she examined the quite complainant. which event the error must be clear and testified,20 only After two had other witnesses if it been had made at point. this See defense moved counsel to strike Dr. Wes- Clearly, note 18. had the doctor person testimony coe’s about a “how would testified direct on examination that this or pain they react much how would en- a rape, was case of imper- she would have dure,” grounds the doctor’s missibly preempted jury’s the role.21 Fur- testimony prior was inconsistent with her thermore, if, examination, on direct the doc- testimony, beyond qualifications her as thresholds, pain tor had focused on the a physician. testimony contrary would have been to the judge The trial the denied motion to trial court’s instructions about the basis on strike, ruling that Dr. testimony Wescoe’s express which she an opinion. could Even meant no than more that there was forced if the trial court had denied motion to intercourse in the sense of sexual contact basis, on strike the latter Baerman v. cf. an adult and pre-menstrual between a fe- Reisinger, App. D.C. However, by male. the time the doctor (1966), F.2d 309 approvel cited with in Gra- explicitly changing testified that she was dy v. 438 n. 1 more, her testimony saying and cer- (D.C.1977); McCoRMick on Evidence tainly the time she said this was case 33-34, the relaxation of the ulti- § rape, stating the doctor was that there rule mate facts would not extend to Dr. was forced intercourse in the sense that it testimony Wescoe’s on ultimate issue accomplished was without Dr. consent. However, jury. before the the doctor’s she relying, contrary Wescoe admitted was testimony on direct examination was some- instruction, to trial court’s on con- her cryptic altogether what not inconsist- nature,” clusions opining about “human judge’s ent with the trial view that that no one pain could withstand the associ- saying only penetration doctor was ated with the com- trauma sense, forced in a was medical as distinct plainant’s vagina and engage continue complainant or from not the had whether being sexual intercourse she unless suggest consented. The record does not addition, raped. In both counsel indicated parties thought or Smith they thought testimony the witness’s had on changed: prosecutor indirectly through testimony Dr. Wescoe’s direct examina- objections directly his counsel expressed defense noncon- opinion tion an through his bench conference comments senting intercourse.22 Defense counsel’s differing judge’s interpreta- with the trial original objection prosecutor’s ques- to the testimony. tion of Dr. Wescoe’s assuring on tion focused that Dr. Wescoe rely would on more the medical evi- than Dr. on

Since Wescoe testified direct ex- (here, physical exami- amination, dence limited to the question in response to a wheth- nations) judge giving opinion. her The penetration er the was forceful or with consent, penetration forceful, question rephrased accordingly. that the ad- dition, normally timely motion strike be to the would defense counsel consented Harrston, genital organs; two witnesses were Officer also refused to let a court off-duty police objected thought officer who to Gant’s defense doctor answer whether Gant's, littering, co-employee of occurred, and a who rape prosecutor’s closing and the driving owned car that Gant was when he argument proven quoted opinion its doctor’s complainant playground. took the fact). Schultz, People 260 Ill. 102 N.E. 22.Contrary government’s contention at (1913) (reversible deny error to motion to argument, prosecutor’s opening oral state- testimony, doctor's strike admitted over defense jury did ment to the not alert defense counsel objection, thought that doctor this was a case of testimony judge on the trial that Dr. Wescoe’s rape, being where his told based at the force differ from her raped, had been and the doctor first trial. identify was otherwise unable to the external violence which caused the inflammation to the

113 male, an question.23 Further, sexual intercourse with adult rephrased at a bench has opinion the cross-examination, proceeded give to her about and during conference was objection- threshold. The answer pain he and de- Smith commented that extent that it was inconsistent able to the genuinely surprised fense counsel were instructions the trial court’s with changed testimony. Accord- the doctor’s competent was to on which the doctor basis it the ingly, since did not become clear until unresponsive it was also to the testify; on cross-examination that doctor testified impermissibly prov- it invaded the extent penetration non- saying she the was was Therefore, jury. the had defense ince of consenting, a to strike have motion would pain made a motion to strike the counsel v. State timely on been cross-examination. immediately testimony after the threshold Cain, (Mo.1931) (“It 418 is 37 S.W.2d answer, completed her the motion doctor only [objectionable] the nature of when ... timely, have been and have should testimony apparent the has become that Schultz, People v. granted. been may to object failure constitute a waiv- the 21, 102 N.E. at Since defense omitted)). objection” (quotation of er did not counsel move to strike the doctor’s questions The defense on cross-examina- answer, testimony upon completion of her began clarify in to tion an effort whether explored instead the doctor’s using doctor was term “force” force, bias, on her ulti- focused and testimony same sense as she had her testimony rape mately elicited her that a first at the trial. The doctor answered that occurred, any objection to the defense saying gynecological she was examina- testimony Accordingly, we waived.24 tion showed more than the trauma testi- the admission of the doctor’s review error,25 expected 12-year-old virgin plain be for and find none. mony to when a unpersuaded upon objection are 23. We contention at direct examination without or Gant’s argument challenge amplified and it had oral defense consented much of been counsel prosecutor inquiring And the to the or not in the course of cross-examination. whether waived, objection having it not error opinion, Wescoe to re- been Dr. had an which the permit sponsive yes the court to decline to further if for answer would be or no. Even consent, pur- witness cross-examination of the for was the extent of the defense coun- laying predicate pose for motion to obliged of object sel was an- to ask that the challenging or of it in strike the evidence beyond swer be if the answer stricken went some other manner. given. consent Id. (10th O’Dell United v. 251 F.2d Cf. error, examining plain of Allen 25.In the nature Cir.1958). O’Dell, agent an FBI on testified (D.C.1985) United v. three direct examination about interviews banc), (en quoted the Su- the en banc court jail. objec- was in the defendant while he No description plain error preme Court’s ground tion was raised on the that the state- noting by entailing sponte the sua standard ments were in the absence of counsel. made circumstances, courts, exceptional appellate cross-examination, During agent after testi- exception was taken in of error to which no during about the made the inter- fied views, statements obvious, are or if errors trial court where “the inquired defense counsel whether fairness, seriously in- affect otherwise agent time of had known at the the second judicial proceed- tegrity public reputation of or repre- third interviews that the defendant was Atkinson, (quoting ings.” States 391, 392, United The trial court held that sented counsel. 80 L.Ed. 555 U.S. ground "any objection upon the (1936)). that this is similar The court observed during the absence that the interviews occurred plain expression error rule our to waived that further of counsel had been Watts, explain” why supra, "helps certain designed lay predicate cross-examination errors, will not be disturbed if not raised at trial objection proper.” at 708. such was not Id. appeal. Among which do not consti- errors agreed: The Tenth Circuit error, pointed to court the en banc tute guilt over- objection clear to the evidence which the evidence It is that if cases in whelming object be upon ground took failure interviews "counsel’s Allen, supra, 495 during ever as a tactical choice.” place of counsel was viewed the absence States, 477 effectively Jones v. appellant, A.2d at available to (D.C.1984) (failure request cau- evidence had been adduced waived after the Defense experienced counsel was an testimony, threshold plain we find no error attorney. At no request time did he to voir affecting the integrity fairness and dire qualifications. Dr. Wescoe on her His trial. disagreement during bench conferences judge’s with the trial interpretation of the IV. testimony doctor’s makes clear that he was aware of the basis for objecting to the Finally, Gant Judge contends that pain doctor’s testimony. threshold Hence Revercomb erred in refusing to dismiss the we conclude that his failure to move to indictment to sanction the prose- extensive strike until after Dr. Wescoe completed had cutorial surrounding misconduct the first her testimony was a conscious tactical deci- trial, or alternatively, ruling erred in such, sion. As hardly be maintained motion holding without an evidentiary that an alleged error which is based on that hearing on the issue of statements made to tactical choice miscarriage constitutes a press after the first trial the United justice. Allen, supra 495 A.2d Cf. Attorney’s States Office. (quoting at 1152 States, Adams v. United In his appeal points brief on Gant to the 302 A.2d (D.C.1973). following alleged prosecutorial instances of addition, defense permit- counsel was misconduct in the first trial: ted to ask the expert defense medical if he First, during ap- cross-examination of opinion, had an based on the medical pellant, prosecutor gestured to his records, whether the intercourse between gallery law clerk in the to indicate his and Gant was forced as appellant Second, belief that lying. was opposed consenting. Rudiger Briep- Dr. in cross-examination, the same he elicited eacker, the Director of Rape Baltimore’s a series of appellant denials from that he experienced Center and an patholo- forensic had complainant] forced into the car [the gist, responded that the medical records her, and forcibly raped immediately then were compatible consenting with inter- impeached him with robbery conviction. contact, course as with forced and that it Third, although the judge specifical- anyone “ridiculous” for to think they ly directed that he not refer to the man- could tell complaining from the witness’ datory injuries penalty rape, prosecutor for whether or not the sexual inter- appellant course was asked if get forced or had knew that he could occurred with her consent. The expert opinions probation clash of knowledge for carnal closing reviewed in arguments go prison rape. have to for jury. The trial jury court instructed the Fourth, closing argument, prosecu- that it duty had the “exclusive to decide all deliberately argued tor evidence outside questions fact,” that it had to decide Fifth, argued the record. he that [the “where the truth lies” when there was a complainant] sympathy was entitled to evidence, conflict in the and further that it because, in having addition to at- been was not bound expert. of an tacked, she had questions to be asked on finally, witness stand. And

Accordingly, clos- defense having counsel ing, argued he guilty made a tactical choice to that a verdict of use cross-exami- nation knowledge and a defense carnal victory attack Dr. “would be a Wescoe’s moving rather than Mr. Gant and a loss for the Government promptly pain to strike Dr. complainant].” Wescoe’s and a loss for [the instruction)). tionary (D.C.1978) The en banc court also 387 A.2d (en banc) observed (objections jury error exists "if the error that to instructions to simply occurred require- at trial could not have been conform must well-settled "[t]he Allen, objection.” cured supra, objected an immediate ment that trial errors must be to at the they at 1153 Fields v. United time occur if are to be considered on (D.C.1978)). appeal"). Johnson v. Cf.

H5 misconduct, Assuming allegations presented the behavior on All of these were part Attorney’s of the United States Judge motion for a Revercomb Gant’s prejudice did not Office Gant’s second trial. granted trial. new Revercomb selected, jury A does new prosecutor’s improp- new trial based on the inadequate not contend the voir dire was prior his impeachment er of Gant with rob- respect. any Nor any does contend that bery deciding Without whether conviction. prosecutorial misconduct occurred at the allegations Gant’s other of misconduct Therefore, second trial. we hold that dis- granting would have formed the basis for of the indictment under these cir- missal trial, they new we are satisfied that do not remedy, cumstances would be a drastic necessary justify to the to rise level dismis- which would “increase to an intolerable indictment,26 sal of the and that a new trial degree public interference with the interest any prejudice was sufficient to cure suf- having guilty brought in the to book.” govern- fered as a result of the Blue, 251, 255, United v. 384 U.S. States during mental misconduct the first trial. 1419, (1966). 1416, 86 S.Ct. Morrison, United 449 U.S. See States in We also find no reversible error the 361, 364-66, 665, 667-69, 101 S.Ct. 66 evidentiary hearing denial of an the about (1981) (“The remedy L.Ed.2d 564 [should prosecutor’s circulation of the inter-office denying prosecution to limited the the be] memorandum while Gant’s motion for a transgression.”). fruits of its pending.27 new trial was still This court has, effect, already regard in held that in Regarding post-trial misconduct prosecutor’s motives the memoran- first, government, the Gant relies on the itself, Gant, speaks supra, 467 dum prosecutor’s circulation of an inter-office therefore, 969-70; hearing A.2d at a “sharply memorandum which the criticized addition, superfluous. it have been judge appellant’s trial counsel for their Judge likely seems Revercomb either as- during actions the course of the trial.” prosecutor spoken sumed to Gant, supra, 467 A.2d at 969. The memo newspaper reporter that the or found Judge randum was before Revercomb prosecutor’s personal issue of the involve- deciding grant when was whether to the ment, legally any, if irrelevant. Such a motion for new trial. Gant also relies on decision, judge made who had newspaper story published in the Wash familiar tried the case and was ington February shortly Post on record, argu- entire and heard counsel’s granted after Revercomb a new tri ments, within the ambit of his was well al, following in reference to the which Pennington discretion. v. United See Attorney’s appeared: (tri- (D.C.1983) United States Office A.2d 252-53 rulings concerning possibility of judge’s al yesterday lawyers Some veteran called great given misconduct prosecutorial ruling unprecedented, say Revercomb’s weight judge was able to eval- because goes beyond previous far court trial).28 prosecutor’s conduct at uate prosecutors decisions on what can tell a judgment. Accordingly, we affirm jury a defendant’s criminal record. charged trial and so is not is extraneous to the 26. Hence we need not decide if this court "has (citations omit- power, supervisory jurisdiction, in the trial record under its to documented ted). prosecutorial v. United miscon Gibson hold that some level of Cf. (motion (D.C.1978) Code trigger under D.C. double 1215-16 duct short of that sufficient to bar, (1981)). jeopardy justify 23-110 § dismissal of an indict prejudice...." ment with See United States v. by appel upon principally relied 28.The case (D.C.1978) (en Harvey, (3d Criden, lant, 633 F.2d 346 States v. banc). denied, Cir.1980), cert. (1981), is not to the con Kelly, 66 L.Ed.2d 27. See United States v. 790 F.2d Circuit, There, passing (D.C.Cir.1986) (factual trary. findings particularly the Third are discretionary to hold an governmental decision important misconduct trial court’s where the PRYOR, Judge, concurring: safety. warrant, Chief they Without were not “general” free conduct a search. How- convictions, I vote to affirm the do ever, Coolidge requirement of inadvert- join not in II majority Part opinion. police ence does mean not must be I do not judge think that the trial erred inattentive pertinent evidence in the area applying “plain in view doctrine” of arrest which observe without ob- uphold the seizure items taken from ruled, judge struction. Here the trial residence in appellant was arrested. effect, that the officers observed the items Relying upon the same decisions cited intrusions, in the course of their lawful majority opinion, my difference can be as a not result a broad search. I find no simply stated. Given the cir- fast-moving ruling. error surrounding cumstances sighting of a attack, suspect police a sexual en-

tered the appel- house arrest him. After custody

lant taken into on the second

floor, an officer observed certain clothes in adjacent

a chair in an room. Still another

officer particles observed razor and hair upstairs

in an bathroom.

A question critical then is whether the consequence

items seized are the of an

exploratory search? We start with the premise scope that aof warrantless PORTLOCK, Appellant, Wilma E. time, search is place, limited as to situation, here, circumstance. In a law assume,

enforcement officers need not PORTLOCK, Phillip Appellee. L. reasonably assure themselves no that No. 85-244. danger unknown lurks within a house being is security searched. Aside from the District of Appeals. Columbia Court of factor, I read California, Chimel v. U.S. S.Ct. L.Ed.2d 685 Argued April (1969), as rejecting rummag a warrantless Decided Nov. will, contemporaneous at but to allow a search of the immediate area where an

arrest occurs. I would Coolidge offer that Hampshire,

v. New (1971), L.Ed.2d instructs police place

if the in a they are where have be, right they may they act what

happen to see. A further limitation is that discovery must be inadvertent in know, police

sense cannot in ad

vance, location items which undertaking

intend to seize before

search. instance, police legitimately

In this house, suspect,

entered the arrested the premises

and secured their own hearing, evidentiary stated "the better course a concrete evaluation of defendant’s motion.” development added). to allow of a record to the (emphasis extent Id. necessary permit in the court's discretion to

Case Details

Case Name: Gant v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Nov 20, 1986

Citation: 518 A.2d 103

Docket Number: 84-1495

Court Abbreviation: D.C.