*1 Comm’n, 935, 143 F.2d Co. v. Fed. Trade Cir.1944) (citation omitted). (2d Applying the
III. Statute may that bolt cutters agree
We there
be used to commit a crime and that car appellant
was abundant evidence that Thus, curso purpose.
ried them for that title of
ry comparison of these facts to the “possession implements
the statute — lead to the conclusion that might
crime”— charged. appellant guilty of the crime
However, title of significance of the “[t]he exaggerated.” not be statute should
Mitchell v. United A.3d
(D.C.2013). “[H]eadings are not and titles place
meant to take the of the detailed
provisions text.” R.R. of the Bhd. of Co., &
Trainmen v. Balt.
Ohio R.R.
1387,
519, 528,
67 S.Ct.
(1947). analysis therefore focus our We statute,
the text of the which limits its implements picking
reach to “for tools cutters pockets.”
locks or Because bolt
are not tools” within defi “lock-picking adopted,
nition we have there insuffi adjudica
cient sustain evidence to J.W.’s
tion. vacate adjudication We therefore
for possessing implements of crime.
It is so ordered. WORTHY, Appellant,
Julius L.
v. STATES, Appellee.
UNITED
No. 13-CF-741.
District of Appeals. of Columbia Court
Argued April 2014.
Decided Oct. *2 case, the consistent of this
stances into properly admitted evi- statement was dence.
Facts family quarrel This case arose out sister, and his older Alex- Worthy between Green, shortly midnight after on sandra Green testified that after January “going whoop he was to Worthy said that butt,” apartment from the she ran [her] building security guard to call and asked a her, argu- police. Worthy followed continued, Worthy Green hit several times. testimony parties challenged
Both
this
statements made
with
inconsistent
introduced
by
government
Green. The
testimony, given twelve
Green’s
incident,
after the
in which she had
days
Worthy
had threatened that “[h]e
said
defense,
kill
The
for
going
[her].”
Service,
Murray,
Justin
Public Defender
state-
part, impeached
its
Green with her
Klein,
whom James
Public Defender
with
January
Ricks on
ment to Detective
Service,
brief,
appellant.
was on the
for
incident, that her brother
day following the
Barr,
Margaret
Assistant United States
anything
not do
to [her].”2
“did
Attorney,
Ronald C. Machen
with whom
called De-
rebuttal
Jr.,
Attorney,
States
and Elizabeth
United
objection
Over the
tective Derek Bell.
Marando, Assistant
Trosman and Michael
counsel, Bell testified to a tele-
defense
were on the
Attorneys,
States
United
Worthy
morning
phone interview
brief,
appellee.
interview,
During
of the incident.
Worthy “began
told Bell that
Green
Before
BLACKBURNE-RIGSBY
her,
striking her several times
assault
BECKWITH,
Judges,
Associate
face,”
also made
point,
and “at some
he
STEADMAN,
Judge.
Senior
her, stating that he will
threats towards
is whether
appeal
kill her.” The issue
STEADMAN,
Judge:
Senior
statement was admis-
Appellant
Worthy,
Julius L.
convicted
against
to the rule
exception
sible as an
attеmpted
a bench trial of assault and
hearsay.
threats,1
the introduction of a
challenges
Analysis
by
made
prior consistent statement
rule,
relating
appel-
victim
to threats made
As
are not admissible to bolster
lant.
conclude that under the eircum-
statements
We
(2012
(assault)
appears
been made
Repl.)
2. This statement
to have
1. D.C.Code
protesting
the arrest
(attempted
§§
Green when she
and D.C.Code
threats).
taking
place at the time.
that was
Worthy in
argues
Rease v.
essence
credibility of
witness.
(D.C.
situations,
these two
apart
from
the intro
1979).
excluding such
The rationale for
duction of
statements is
relevance.
is lack of
agree.
govern
barred.
cannot
As the
We
*3
veracity.”
repetition
imply
does not
“Mere
asserts,
correctly
overriding
the
States,
364,
373
v. United
Scott
that
principle
prior
is
consistent state
(D.C.1980). However, once a witness has
a
ments are
tо rehabilitate wit
admissible
into
impeached,
come
exceptions
been
facts and
of
ness when the
circumstances
play.
particular
have
in
the statement
relevance
theory of
that
refuting
the
codi
exception
One such
has been
14-102(b)(2)
very
has been
This
principle
advanced.
providing
in D.C.Code
fied
a proposed
consistent
reflected in
amendment to the
admission of a
for the
Evidence,
an ex
statеment
“is offered to rebut
of
Federal Rules
which the Su
the wit
implied charge against
or
press
recently
preme Court
submitted to Con
in
improper
recent fabrication or
ness of
gress,
that would add a subsection
or motives.” Such a statement is
fluences
801(d)(l)(B)(ii). The proposed amendment
sub
nonhearsay and constitutes
deemed
admissibility
would
the
allow
of a
provision dupli
evidence. This
stantive
as
consistent statement
substantive evi
Feder
idеntically
cates the almost
worded
dence
the
when
is offered “to
801(d)(1)(B).
of
See
al Rule
Evidence
the
as
credibility
rehabilitate
declarant’s
a
States,
150, 156,
United
513
Tome v.
witness when
attacked
on another
696,
(1995);
130 L.Ed.2d
115 S.Ct.
ground.”3
States,
1084,
v.
Mason
United
case law
recognized
Our own
has
(D.C.2012).
exception
A
ex
second
ground
admissibility
of
of a
consis-
testimony
where a
has
ists that
witness’s
Rease,
early
supra,
tent statement. As
as
a
impeached by a
of
statе
portion
been
403 A.2d at
we noted that
ment,
remainder of the statement can
consistent statements could be admitted
the force
be introduced insofar as it meets
purposes”
they
“for rehabilitation
where
Musgrove v.
impeachment.
of the
See
(D.C.
States,
very
980,
help
“can be of
clear
to the factfinder
A.2d
United
1982).
determining
in
whether
witness
3. The Judicial Conference of the United
duction of
consistent statements
before,
Advisory
Appellate,
States'
Committees on
”[a]s
Criminal,
Bankruptcy,
and Evidence Rules
may
brought
under the amendment
be
before
specifically
existing
noted that the
rule dealt
only
they
if
properly
the fact finder
rehabili-
only
one
of a
basis
admission
credibility
tate a
whose
has
chal-
witness
been
statement as substantive evidence.
Fitzwater,
Sidney
lenged.”
Report
A.
See
of
change
advisory
This
reflects the
committee’s
Advisory
Committee on Evidence Rules
recognition that such
be ad-
statements could
3, 2012),
(May
in
Preliminary
Pro-
Draft of
solely
on other bases
for “rehabilita-
mitted
posed
to the
of
Amendments
Federal Rules
tion,”
inconsistency
explain
as to
or
such
Bankruptcy,
Procedure,
Appellate,
and Criminal
memory.
of bad
The com-
to rebut
Evidence,
and the Federal Rules of
Committee
concluded that
between
mittee
the distinction
on Rules of Practice
Procedure
of
only
use and that
substantive
of rehabilitation
Judicial Conference
of the United States
confusing
signifi-
practical
without
(Aug.2012);
Judicial Conference of
cance. The committee thus recommended
States, Summary
Report
the United
of
application
expanded
of the
In do-
rule.
the Judicial
Committee on Rules
Conference
so, however,
ing
it
amend-
stressed that the
(Sept.2013).
Procedure
Practice and
change existing
on intrо-
ment did not
limits
proposed
evidence
falls within the limited
truthful” and where
conditions for ad-
only
particular impeach-
at the
missibility
“is directed
to rehabilitate
in
propounded
Subsequently,
ment that occurred.”4
credibility
significant-
Rease. Green’s
v.
Green’s stаtement
to Detective Bell on
trial.
short,
very day
comfortably
of the incident
the trial court did not err or abuse
Rease,
ment,
supra,
It
point
is true that in
403
A.2d
we made clear in Rowland v.
States,
664,
thought
(D.C.2004).
we
that this would be an
840 A.2d
"exceptional situation” and sustained
subsequently distinguishing
the trial
As we noted in
Johnson,
proffered
court’s
imposed by
exclusion of the
the limitations
Rease
statement.
effectively
While a footnote in Rease ob
were
met
in thаt case. See
States,
562,
“generally recognized excep
served that the
McClain v. United
570 n.
(D.C.1983).
prohibition against
tions” to the
use of
already
were the
statements
two
above,
any
noted
we do not read Rease or
6.We
thus take issue with the dissent’s asser-
subsequent
holding
excep
cases as
that these
tion that "Ms. Green's statement is not rele-
subsequent
tions are
Several
all-inclusive.
impeachment
meet
vant to
the force оf her
generally
analy
cases have
recited the Rease
through
"repetition implies
other than
States,
sis.
Battle v. United
veracity” inferential chain.” However one
211,
(D.C. 1993).
government's
reads the
assertions in the brief
trial,
dialogue at
the issue before us is wheth-
5. While we found that both conditions existed
er the trial court itself at a bench trial errone-
Johnson,
And,
opinion by
ously
the facts of
use of
admitted the evidence.
as we have
disjunctive
suggests
already
reject any
"or”
that either
stated in footnote
we
ground
suggestion
alone would have
been sufficient. To
with a
in-
clear,
open
be
enough
Johnson does not
the door to
consistent statement is itself
to allow
admissibility, willy-nilly,
of
admission of a
consistent statement
simply
meeting
stringent
because a
inconsis-
without
limitations re-
impeach-
quired by
quoted
tent statement
supra.
has been used for
Rease
in the text
admitting
the challеnged Repl.), codify
its discretion7
the common law rule that
Accordingly,
statements,
consistent statement.
prior consistent
general
while
judgment appealed
inadmissible,1
from is
ly
are
they
admissible when
rebut a
of “recent fabrication” and
Affirmed.
made
were
before the motive to fabricate
BECKWITH,
States,
Judge,
Associate
arose. See Tome v. United
150, 156,
dissenting:
115 S.Ct.
130 L.Ed.2d
(1995).
While the common law rule
sought
in this case
only admitted such statements for “reha
аdmit a
statement of Alexsandra
801(d)
bilitative” purposes,
Rule
14-
Green to
Derek Bell
day
Detective
102 label them as “non-hearsay” and admit
the incident that was consistent with cer-
them for their truth.
In McClain v. Unit
grand
tain statements she made in the
(D.C.1983),
ed
Federal Rule of Evidence theoretically did not preclude and its substantially verbatim counterpart admission of consistent statements District, (2012 801(d) § in the meeting D.C.Code not the strictures of Rule judge 801(d) 7. "The trial has broad discretion with most federal courts had held that Rule respect to the admission or exclusion of "displace did not thе common law rule that consistent statements.” District Columbia prior consistent statements could be intro- Bethel, (D.C.1990) v. duced in certain situations to rehabilitate a (internal omitted). citations witness,” "[ujsually” which meant situations necessary where the statement was for com- Simonelli, United States v. 237 F.3d pleteness). (1st Cir.2001) Tome, (noting that before 801(d), cited amendment to Rule provision posed other under some their truth here, majority seems to validate law, аs Federal Rule of such of federal view. hearsay ex the “residual” Evidence 158-59, Tome, at 513 U.S. ception. amendment proposed There is no such yet court has not But S.Ct. 696. § we have never had occa- and Myerson v. exception, such an
recognized split the issue that has sion to address (D.C. 192, 195 n. 3 is, wheth- federal courts after Tome—that had, 2014), surely it would even if we statements, even if not er “very federal be used—as is the 14-102, might rule — still be admissible under exceptional circum rarely, only in non-hearsay purpose, to admissible for a stances.” so, witness, if under “rehabilitate” what circumstances such rehabilitation claims, alternatively than the rule of would be allowed other holds, that even if Ms. majority and the completeness. not admissible for its Green’s statement is truth, “rehabili simply for it is admissible interesting question, this is an we While is, the That statement’s purposes. tation” here, not resolve it because Ms. need contents not to show that its relevance is to meet Green’s statement is not relevant true, merely to show that Ms. are but other than the force of her credible, force of by meeting the Green is implies veracity” through “repetition impeachment tending line of specific some majori- Even under the inferential chain. It is worth to show she is not credible. view, consistent state- ty federal noting the outset that some federal cir not admissible to “rehabilitate” a have addressing cuits the issue after Tome she has been at- simply witness because consistent statements are tacked; held the statement must have some *6 any purpose for sim not admissible meeting specific in the force of a relevance —even purposes ply beyond so-called “rehabilitative” sim- impeachment goes line of that —if strictures of Rule they ply “repetition implies veracity.” typ- do not meet the 801(d). holding, point In so these courts ical context which consistent any that fine distinction between these to rehabilitate a witness for a out are offered charge statement than to rebut a of concepts prior two reason other —a coming merely complete- in for its truth and for recent fabrication is the rule of See, e.g., But one could purposes illusory. “rehabilitation” ness. Simonelli. —is (1st Simonelli, as imagine example, other contexts. For e.g., 237 F.3d Cir. 2001) Tome, Breyer noted in dissent in a (noting split a circuit on this issue Justice it). might relevant reasoning underlying “postmotive” and the It is statement be “majority view” to rebut a of recent fabrication nonetheless true that the speaker in the that consis a motive to lie “when the prior federal courts is based on by while affected prior tent statements not admissible for their made the 801(d) far motivе to tell the might powerful truth under still be admissi a more truth, simply ble not for their but to reha truth.”3 S.Ct. J., (Breyer, dissenting). pro bilitate a witness. And the recent life). In a Advisory important save the child’s 2. Committee Note to Federal Rule of to babysitter Evidence subsequent 807. criminal trial of the for abuse, that she saw child the mother testifies Imagine, example, a case in which a babysitter the child. The defense hit reports child mother to a doctor that her false, repоrt motivated claims the (where, babysitter say, by a the truth abused
H01 change theory in which a does not the fact that the exceptional context Another ultimately nothing arguably should relevance is more than consistent statement “repetition implies veracity” purposes, fallacy for “rehabilitative” be admitted 14^102, § general under that the rule of exclusion for prior if not admissible even meets well be where the statement consistent statements is meant might pre- is, grounds an the force of vent —that a contention that the witness memory The defense faulty perception. or thing said the same before the inconsisten- justifying here to dangerously came close that she later to the cy grand jury. said on such a admission of the statement majority suggests To the extent the recognize were we to it as a valid ground, consistent statement is admissible The defense inti- ground for admission. рurposes long for rehabilitative so as the Ms. Green’s testi- mated that credibility challenged witness’s has been mony ingestion was affected her “by impeachment with a inconsistent that Ms. Seroquel, antidepressant statement,” ante at this cannot be memory. affects her acknowledged Green Such a exception the law. broad would theory of relevance in government’s If the swallow the rule of exclusion of De- introducing Ms. Green’s statement consistent statements. While some given at a time tective Bell—which was explicitly states have chosen to allow under the influ- when Ms. Green was not see, consistent statements for this purpose, that it showed that Seroquel ence of —was (allowing Cal. Evid.Code admis- Worthy had Ms. Green’s claim that Mr. sion of consistent statements when simply kill her was not threatened to they predate prior inconsistency either a haze, Seroquel-induced of a then product lie), alleged or an motive to the District might task on be rendered appeal our has not. difficult. more however, Here, I government’s theory government’s also decline the invita- per tion to create a se harmlessness rule simply of relevance was grand that the for the erroneous admission of con- tended to show Here, jury testimony was credible because the sistent statements bench trials. only Grеen theory two stories were similar. And that Ms. witness to the *7 threat, majority alleged descriptions The her of that of- undisputedly is invalid.4 contradictory, that the “relevance of the con- fense were and the defense states every govern- impeached that was also made to her at turn. sistent argument even closer in time to the inci- ment’s rebuttal then relied police the being heavily upon self-evident.” Ante Ms. Green’s dent borders portrаy to her timing at 1098. Yet the of the statement as credible and to day Worthy anything pay babysitter. It would Mr. did not do to desire not to the —that government appropriate that the would seem actually her —was not inconsistent with her the mother’s con- be able to introduce grand jury testimony. properly rejects It also doctor, not for its sistent statement to the government’s invitation to create what in truth, suggestion to meet the force of the but heаrsay exception to the rule for essence is an testimony primarily her moti- that current prior consistent statements of a domestic vio- babysitter. pay the vated a desire not to have such a rule— lence victim. Some states shortly California created one after the OJ. majority properly declines to embrace 4. The see, verdict, Simpson e.g., Cal. Evid.Code government’s argument this state- the District of Columbia does 1370—but' ment could also be admissible to show that Ricks the next not. the statement to Detective prose- say testimony the inconsistencies. The that “never should have downplay evidence,” testimo- cutor stated that Detective Bell’s been admitted into judg ny that “Ms. Green was consistent showed “undoubtedly substantially with what she then. She was consistent swayed by impossible the error and ‘it is in time after the very told officers short conclude rights that substantial were not haрpened morning incident with what affected.’”) (citation omitted). At least or so weeks later in she told a mere two respect attempted to the threat stated, have often grand jury.” “[a] As we charge, government has not estab [upon] centrality stress prosecutor’s lished that it “highly probable that [the] particular closing argument evidence error did not contribute to the verdict.” good tells a deal about whether the admis- (D.C.2005) Ty.B., In re 878 A.2d be, meant sion of the evidence was (citation internal quotation marks was, prejudicial.” Morten v. United omitted). Worthy’s Julius conviction on (D.C.2004) (quo- that count should be reversed. omitted). tation marks significantly, explic More the trial court
itly upon relied consistent state verdict, crediting
ment in its Ms. Green’s
grand jury testimony Worthy that Mr. part
“threatened to kill her” in because story gave police,”
“this is the she consistent,
noting that as the “[i]t testified, also officer that that’s what she CRONAUER, Respondent. In re Adrian him, Bell,” related to Officer and conclud No. 14-BS-1101. ing very in the findings last sentence of its proved beyond that the had Appeals. District of Columbia Cоurt of reasonable doubt that Mr. commit Filed Oct. ted the offense of attempted “by threats saying going you’ ‘I’m to Mil ”—the words that,
she used in the testimony view,
in the court’s had been so bolstered consistent statement. In oth EASTERLY, Before GLICKMAN and convictions, appeals er from bench trial we Judges; KING, Associate Senior readily have held that a trial court’s evi- Judge. dentiary error was not harmless where the specifically
court upon relied the errone ously hearsay admitted convicting the ORDER L.L., defendant. In re *8 PER CURIAM (D.C.2009) (finding that the erro On consideration of the affidavit of Adri- evidentiary ruling neous required reversal Cronauer, “[bjecause wherein he consents to dis- expressly the trial court re barment from the Bar of the District ferred to the substance of the pursuant § XI explaining when its decision that Columbia of Rule de [the guilty”); Governing the Rules the Bar fendant] Jones v. United of the Dis- (D.C.2011) (con trict of of Appeals, Columbia Court which court, cluding that because the trial “in affidavit has been filed Clerk of Court, adducing appellant’s guilt,” report relied on hear and recommen-