Roundtree v. United States

31-104, budget subject Board’s § was,

reduction —as indeed it two months ROUNDTREE, Appellant, Michael W. Mayor earlier —whenever agree Council can appro- cuts are approves. See also priate Congress STATES, Appellee. UNITED 47-301(c) (1990); D.C.Code Convention § No. 86-1382. Center Comm. v. District Referendum Ethics, Columbia Bd. Elections and Appeals. District of Columbia Court (D.C.1981) (en banc) 906 n. 31 (plurality opinion). But 31-104 makes § Argued May 1989. clear that the elected Board of Education Decided October retains fiscal May- insulation interference. As Hazel not- or’s unilateral excluding

ed in specifically the Board of ruling: language

Education from “explicitly

the Self-Government Act vests powers

certain in the Board of Education Mayor’s budgetary restricts au- Hazel,

thority over the Board.” at 114 n. fact, carefully

11.21 this court limited

Hazel Library expressly the Public open possibility

left that a such as one, differently: could come out “we

emphasize holding applies only that our Library;

the Public necessarily it does not funding disputes involving

extend to other

agencies, entities, or branches of the Dis Id. at 110-

trict government.” of Columbia ignore

We do not fact that Mayor duty

has under the Act Self-Government take action to keep budget the District’s

in balance. See id. at 112. What is at case, however, Mayor’s

issue in this is the

attempt duty by unilaterally to fulfill this

calling appropriations for reduction of Board of Education. Self-Govern- itself,

ment Act D.C.Code 31-104 § §

(1988), expressly provides Mayor

may not do so alone. judgment Superior of the Court

therefore

Affirmed. given interpretation funding due consider- 31-104 education will be § 21. This is buttressed statutory provisions highlighting by ation Education, Columbia Board of District of unique status of the Board of Education. For of the District of Co- the Council (1988), example, provides: Mayor D.C.Code 31-2216 of the District of Co- lumbia and the proposals, recommenda- [F]unding lumbia in all future public schools acknowl- [is] tions, affecting legislative fi- edged highest priority enactments as of the the District public support public schools. priority nancial of Columbia. This status for Kubinski, Washington, Charles A. D.C. court, appointed by appellant. for Black, Atty., Asst. U.S. Thomas C. Jay Stephens, Atty., whom B. Farrell, Atty., Michael W. Asst. U.S. Wash- D.C., filed, ington, at the time brief was brief, appellee. on the were NEWMAN, Before oral performing STEADMAN and understood to mean sex on SCHWELB, her,2 Later, Judges. during past Associate ac- weekend. Brock, cording appellant, who was

STEADMAN, Judge: Associate “[cjoming “[vjery flirtatious” and on to” her, “going said that down” on woman Appellant by jury was convicted a on one on,” “really he would turns him and that sodomy, count of D.C.Code 22-3502 § like to do so with Brock.3 Brock rebuffed (1989), tampering and one count of appellant’s evidence, advances. physical appeal, id. 22-723. On challenges he the trial court’s refusal Brock, by appellant’s After this rebuke permit him complain- to cross-examine the seventeen- apparently attention shifted to ing previous allegations witness her about year-old W.D., complaining witness in of sexual assaults other men. Addition- pris- this case. was the sole female W.D. ally, appellant claims court custody oner in that area of D.C. Jail improperly excluded about Appellant pris- the time.4 asked male genitalia complain- condition of the of the jail oner near the female section of if witness, allegedly suffering was who lady he the “young knew how old across from a venereal disease at the time of the portion the hall” then was. He entered incident. also He contends that the trial held, and, jail being of the W.D. where was improperly instructed the as to return, upon prisoner, his said to the male sodomy. elements of crime We got “I’ve her.” to have affirm.1 asleep that she had been testified appellant when came cell in the to her ostensibly jail, female of the section May appellant, inquire On she correction- whether wanted to released officer, al on duty at the D.C. Jail. from her cell for some time. recreation Brock, According opened to Karen W.D.’s cell another correc- After he unlocked Jail, door, however, appellant appellant grabbed tional officer at W.D. and quite day Despite forward that his started face and kissing about fondness neck. push appellant for cunnilingus. away, Brock testified that she W.D.’s him efforts to placed lips around appellant telling nightshirt, overheard a woman named lifted her his telephone vagina, genitalia Sheila over the much he had her licked her with his how enjoyed her, activity “going tongue.5 engaging down” on which Brock After contentions, appellant’s custody charges 1. We solicitation address 4. W.D. was in on discussion, prostitution. learning warrant do not extended After that W.D. was a V, parties juvenile, Because Part no author- United States had whom the infra. legality appellant’s Attorney’s ity raised the issue prosecute, the United States evidence, tampering physical charges sentence for the solicitation to the Office referred Appellant we do on the matter. re- not rule Corporation For District of Counsel. Columbia free, however, to file for correc- mains a motion Corporation reasons to this unrelated 35(a) Super.Ct.Crim.R. under tion of sentence (1989). charges ultimately Counsel dismissed against W.D. "go "Slang [Vulgar] perform down on”— testimony included 5. W.D.’s direct examination cunnilingus fellatio or on.” Random House Dic- exchange: following (3d tionary Unabridged English Language, _ you. Q: said he went down You 1987); Dictionary ed. accord R. Chapman, New physically did What he do? Slang American eating me. A: He started that, physically, you Q: mean What do 3. Brock’s examination included direct body? following exchange: what did do with his he licking on me. A: He was say you you explained Q: he what When tongue? Q: With his weekend— he had done with Sheila that Yeah, A: Yes. gone he on her and A: had down licking? her, Q: he What was the kind that he had ate and this is do, My A: vulva. things and this that he likes to on, Q: really and he Excuse me? turns him how—what My thing A: vulva. like same to me. to do the couple for “a minutes,” appellant took by Appellant Brock. having admitted penis, out his put it, W.D.’s hand on paper bag, brown but claimed he was moved her hand back and forth until he carrying a chicken sandwich in it. He con- ejaculated nearby into a trash can. After- tradicted himself as to bag whether the wards, appellant wiped clean, himself it, staples in and could not remember threw the soiled tissues into the same trash bag whether the any writing bore on it. can, and left the female section of jail. girl His friend testified that she and Roundtree had made during A love later, few minutes lunch W.D. reported the hour, and he officials, explained incident to other claimed that this jail and an inves- tigation presence of clothing. ensued. semen on his jail Three officials testi- prosecutor, fied they saw semen who conducted a probing and tissues in a trash can highly professional near W.D.’s cell. One of the cross-examination of prison Roundtree, officials exposed retrieved the liner from the numerous contradic- placed trash can and it in paper account, a brown tions in his severely damaging bag, which he stapled then shut and la- Roundtree’s credibility.

belled placed “evidence.” The official bag top of a file cabinet in an adminis- II jail. after, trative office in the Soon in that Appellant alleges first the trial office, same appellant was by interviewed permit court’s inquire refusal him to supervisors; his they confronted him with during cross-examination of W.D. about bag. evidence in the At the conclusion past allegations her by of sexual assaults interview, their jail offi- other men rights violated his constitutional cials left appellant alone the office with under the confrontation clause of the sixth officer, another correctional appel- also amendement, alternatively or was an abuse lant’s union representative, who did not of discretion. bag know of the containing evidence. The representative union testified that he saw A. background appellant stumble over a desk in the office factual gather and up, among things, a During discovery in a civil lawsuit bag brown stapled had been shut federal by court W.D. appellant writing jail had on it. Another official arising the District of Columbia out of appellant later walking by saw himself incident, appellant learned of and ob- with a bag pocket. folded brown in his back tained copies of juvenile W.D.’s records long, Before officials discovered that the from her home state of Those Minnesota. bag disappeared, had and it was records revealed that W.D. had claimed to However, never found. during strip raped sexually by been or abused search conducted an effort to locate the eight different men on at least occasions. evidence, missing investigating officials did allegations Several sexual involved abuse discover semen appellant’s stains on under- by family boyfriends family members or pants. members; others involved assaults Appellant’s by pimps.6 committed In at least one in- defense was a total denial. stance, Though initially telling he entering admitted the female after social worker jail W.D., section of the speaking sexually that she had abused Hank, having any he denied had any sexual contact brother W.D. later denied that having with her. He proposi- also denied had occurred.7 sexual abuse She also having tioned Officer Brock gave had the inconsistent accounts of how fre- phone conversation with Sheila described quently her brother had sex with her. On Q: part your body What is that? records The Minnesota indicate that W.D. be- gan working prostitute young age. My vagina. as a A: lips Q: Where were his when he started lick- occurred, denying 7. In that the abuse had W.D. your vagina? around told the social worker “that she did not want my vagina.

A: Around the outside police involvement in matter.” [the] hand, the other the Minnesota pro- records members of the Juvenile Horizons staff partial vide corroboration of at least some and two social workers familiar with W.D. W.D.’s claims. May In they W.D. indicated that did not believe W.D.’s during claimed a medical examination that allegation.8 The Depart- Human Services sexually she had been assaulted by a friend investigated ment officials who allega- of her sister’s. The examining physician’s they tion concluded that were “unable to report" presence noted the of a “semen-like substantiate” charge, although they thighs, substance on pubis, mons felt “that there was suspect [the] reason to vagina” within of W.D. Additionally, the incident [the] have occurred.” medical tests conducted after a sexual as- parties After had reviewed the con- sault which alleged occurred on Janu- records, tents of the govern- Minnesota ary presence indicated the of ment moved in limine preclude sperm on W.D. inquiry by the defense into W.D.’s fully

The most documented incident response, sexual abuse. the record involved a claim appellant W.D. that a argued that prior allegations male facility counselor at a teen-aged were credibility.9 of W.D.’s Af- mothers called Juvenile Horizons ter inspecting materials, the Minnesota placed his hand on her inap- buttocks in an trial court indicated that there was “no propriately manner, sexual a claim inquiry denied basis prior for into accusations” by the During counselor. the course aof because there had been no “firm determi- Ramsey County Human Depart- Services nation” as to whether allega- W.D.’s ment investigation matter, into the two Nevertheless, tions “were false or true.” However, any characterization all probative the in- assault would be of her character for dividuals interviewed in the course of the De- veracity in matters sort involved in this partment investigation of Human Services trial. As is the case with the character for allegation disbelieved W.D.’s of sexual assault issue, veracity prior allegations of sexual assault Undoubtedly, overstate the psy- case. probative against authority would be of bias psychologists chiatrists and who interviewed figures only allegations if those were fabricated. portrayed deeply person. her as a troubled See Jones v. United reports, In their various doctors characterized (D.C.1986) (questioner proffer must facts suffi “hostile,” "very angry,” W.D. as prone permit judge cient to the trial to evaluate wheth "aggressivity blaming." One doctor indi- is, fact, proposed question probative er a in "objective cated that reality testing W.D.’s Moreover, bias). argument we find the bias very moderately impaired,” tenuous and at least considerably persuasive less than the character and another stated that W.D. had "lied to the one, veracity argument. for For the notion that [Juvenile Horizons] staff several times in the false, prior allegations, W.D.’s even if stem from doctors, past.” None of these indi- against authority figures a bias male is extreme States, cated whether he or she believed or disbelieved ly tenuous. See Hawkins v. United W.D.’s claim that a Juvenile Horizons staff (D.C.1983), denied, inappropriate- counselor had touched her cert. Sabre, ly county sexual manner. Nor did Mr. 104 S.Ct. 79 L.Ed.2d 193 protection child worker familiar with W.D. (characterizing theory underly as "tenuous” the incident, express the Juvenile Horizons disbelief ing attempt by appellant, a taxicab driver on about her claim. murder, trial for to cross-examine a witness prior about a accident claim she had filed it, appellant's credibility argument 9. As we read against another taxicab driver in order to show First, components. argued consists of two he Moreover, against drivers). her bias taxicab we allegations prior probative that W.D.’s were observe that one of the assault incidents veracity making her character for claims of documented in the Minnesota records—the inci Appellant argued sexual assault. also that the involving dent the Juvenile Horizons counsel- prior allegations were of W.D.’s bias “authority figure" comparable or—involves an against lant, "authority figures” appel- it, male such as appellant. Accordingly, purposes of this prison guard. ap- As we understand appeal, discussing appellant’s attempt to chal pellant's argument prior bias is that W.D.’s alle- lenge credibility, we focus on whether gations part wrongly evidence a desire on her assault, precluding appellant authority figures court erred in accuse male of sexual impeaching veracity which authority figures. turn evidences a bias W.D.'s character for by prior allegations inquiring her into of sexual view, appellant's argument abuse. In our bias is sub- argument sumed within the that cross-examina- prior allegations tion about W.D.'s of sexual making issue,

before specific final decision on the prior instances of specifi- conduct — the trial court inquire decided to about the cally, prior allegations her of sexual as- prior allegations during a voir dire exami- by sault argues other men.10 He nation of W.D. permit trial court’s failure to such cross-ex- dire, On voir W.D. testified that she had amination constituted reversible error. sexually Hank; abused her brother contention, assessing appellant’s we first explained she that she had later recanted consider whether the trial court was consti- charge my “because I didn’t want tutionally required by the confrontation mom to find out and I didn’t want permit clause of the sixth amendment police involved.” She reaffirmed her earli- inquiry prior allegations. into W.D.’s Find- allegation, er documented in the Minnesota mandate, no such constitutional we records, sexually that she had been abused next examine whether the trial court com- mother’s, a friend of explained but precluding mitted an abuse of discretion in report that she did not the matter to the allegations. cross-examination about those police “my going though because mom was problems a lot of and I didn’t feel that she would trust me or believe me.” W.D. also concerns: The con- Constitutional reasserted that several of the clause frontation assaults mentioned the Minnesota’s Appellant argues that the trial court’s records, including the incident with the Ju- permit failure to him to cross-examine counselor, venile Horizons had in fact oc- prior W.D. about her violated curred. rights his under the confrontation clause of hearing, At the conclusion of the the trial Appellant’s argu- the sixth amendment.11 preclude decided to cross-examina- appears ment to be that where a witness tion allegations. about the She made the who testifies that he or she is victim of permitted clear that she would have past a crime has the claimed be a inquiry prior allegations had the been fabri- crimes, prior victim of similar those claims cated. On the basis documents probative credibility of testimony,

her assessment of W.D.’s are so how- ever, the trial court found that “there is no clause there- witness that confrontation concluding substantial basis for that these requires fore the trial court to allow cross- Following assaults are fabrication.” examination about them. judge’s ruling, appellant trial oral filed a “guarantees The amendment to a sixth seeking In motion reconsideration. a brief prosecution the defendant in a criminal motion, denying written order that the trial right to confronted with the witnesses be emphasized appellant had failed States, against him.” Lawrence v. United allega- convincingly” to “show W.D.’s 374, (D.C.1984) (citing Davis 482 A.2d 376 tions were false. Alaska, 1105, 308, 315, 94 S.Ct. 415 U.S. Admissibility prior al- B. 1110, (1974)), oppor- 39 L.Ed.2d 347 sexual assault legations government tunity wit- to cross-examine Id. Never- right. nesses is central to sought impeach W.D.’s cred-

Appellant theless, defendant’s constitution- ibility through cross-examination about a criminal (1983). showing appellant Such evidence is admissi had made the L.Ed.2d 349 Even if him, only purposes impeaching which would have entitled as constitu a witness's ble for matter, prior allegations Lee, tional impeach to use W.D.’s veracity, supra, A.2d at character 775, 454 credibility, he could not have used only circumstances under narrow prior substantive evidence as described below. i falsely him in this case. that W.D. had accused generally law "disfavors the admission of sjxth amend 11. The confrontation clause of person’s character in order to evidence of a prosecutions, provides: ment "In all criminal conformity prove with that charac conduct enjoy right be con the accused shall .to at issue. McLean v. United ter” in the matter States, against him...." fronted with the witnessed 74, (D.C.1977); see Lee A.2d 77 also 377 amend. VI. U.S. Const. / States, (D.C.1982), v. United denied, 104 S.Ct. cert. right to al cross-examine adverse impeach witnesses Where an accused seeks “is not without credibility limits.” Reed v. offering United of a evi- witness States, (D.C.1982), 452 A.2d dence that the has made witness a false denied, circumstances, cert. 464 U.S. 104 S.Ct. claim under similar the con- instance, L.Ed.2d 127 frontation clause that the pro For mandates trial give posed line court of cross-examination defendant leave to cross-exam- must be prior only relevant to the ine about the where issues involved in the claim it is case. States, “shown convincingly” prior claim Gibson United 536 A.2d (citation omitted). (D.C.1987) is false. Id. at (“[t]here is no constitutional right present evidence”).12 irrelevant Sherer, In the trial court refused to permit the defendant to cross-examine a

In this the trial court cor concerning alleged witness incident of rectly noted, past allegations Sherer, perjury. supra, A.2d at 739. probative credibility they of her if sustaining ruling, In Sherer court were fabricated.13 See Sherer v. United specifically agreed confrontation (D.C.1983) (al analysis clause employed Hughes v. leged perjury another Raines, supra. rape case, In Hughes, only if perjury actually place), took the defendant wanted to demonstrate that 931, 105 denied, cert. 469 U.S. S.Ct. the victim previously made a false ac (1984); Raines, L.Ed.2d 262 Hughes v. cusation rape. found that Cir.1981) (9th (any probative F.2d trial court’s denial of the defendant’s re rape conclusions drawn from previ victim’s quest did not offend the confrontation rape depend ous accusation of on whether proof clause because the offer failed to false).14 charge contrast, the other convincingly prior show whether accu prior if the true, accusations were they “[A]ny sation was false: conclusions drawn would not serve as a relevant basis for fact of a [the accusation] impeachment. Because the constitution depend upon would bear on this case would require does not confrontation of witnesses it convincingly whether could be shown evidence, very with irrelevant applica charge that the other Hughes was false.” bility of the confrontation clause in this Raines, supra, 641 F.2d depends prior allegations case on W.D.’s being circumstances, false. opinion Under these This court’s in Lawrence v. Unit- “ 374, ‘the prevent confrontation clause does not supra, ed 482 A.2d does not weighing the trial court compel the a different conclusion. In Law- [defen proof rence, court, offer of determine pro its on relying the confronta- dant’s] ” Sherer, clause, value bative to the trier of fact.’ tion found error in a trial reversible (citation supra, omitted). 470 A.2d at 738 permit court’s refusal to defendant to Additionally, proposed Cal.App.2d even People Neely, where line of also 228 12. 14. See relevant, inquiry (1964) court (prior .is Cal.Rptr. rape ”retain[s] 39 252 wide latitude insofar as Confrontation true); complaints People v. Make not relevant if impose Clause is concerned to reasonable limits 685-86, la, Mich.App. 147 383 N.W.2d on about, based ... cross-examination on concerns (1985) (evidence rape prior 276 accusation harassment, among things, preju- other made); falsely State v. John not relevant unless dice, issues, safety, confusion of the the witness’ son, 110, 118, (N.M.Ct. P.2d N.M. interrogation repetitive only or that is or mar- against App.1984) (prior rape complaints seven Arsdall, ginally relevant." Delaware Van demonstrably individuals false” to "must 673, 679, 1431, 1435, 106 S.Ct. 89 L.Ed.2d relevance); Kringstad, pass test for State (N.D.1984) (prior charge N.W.2d "necessarily Indeed, true, rape been false” must to be allegations if the were and W.D. 733, 736, relevant); Demos, sexually past, Wash.2d inquiry had in the State v. assaulted (evidence episodes prior into those would violate the rule that a 619 P.2d falsity defendant not reports rape prove cross-examine witness “did and there not prior about sexual acts with others in an at- irrelevant”). fore was tempt impeach complainant’s general McLean, credibility. supra note A.2d at 78. cross-examine a witness to a sexual assault the division of the court which decided Lawrence “prior a minor about false accusations question revisited the decid- Sherer about of sexual ed in activity by showing required made [the witness] before a Id. at 376. defendant family constitutionally enti- members.” tled to cross-examine a prior witness about Admittedly, in Lawrence did not the court of others. Under M.A.P. v. accusations question discuss the showing a de- Ryan, (D.C.1971), how- fendant must make as to falsity ever, the court in Lawrence was bound by prior allegations.15 However, it does not the decision in Sherer and could not recon- appear that the Lawrence court saw itself question. sider We think the best deciding as a case in which veracity Lawrence, of Sherer interpretation prior allegations substantially dis- together, read is that where a witness has puted. As the explained, court the issue previously allegations made similar was whether the trial court violated the trial, those he or she testifies to at cross- defendant’s rights by, confrontation clause prior allegations examination about those argued by defendant, “preventing constitutionally they mandated where exploration prior into accusations” false are convincingly” “shown to be false. witness, whether, made as the reviewing after the Minneso- government responded, that the denial was ta records observing Id. appropriate exercise of discretion. hand, first the trial court concluded that (emphasis added). words, In other we read appellant had “convincingly” shown Lawrence as a case premised on the as- prior allegations that W.D.’s of sexual as- sumption allegations at issue were sault agree were false.17 We that appel- indeed false.16 proffer lant’s fell far short of the standard Our conclusion that Lawrence did not required to sustain a contention that cross- modify the convincingly” “shown standard examination about those Sherer is buttressed articulated in constitutionally mandated.18 Lawrence of, fact that the was aware 2. Trial court discretion cited, the Sherer Law- and even opinion. rence, supra, 482 A.2d at 377. To read Having determined that the refusal

Lawrence suggest permit otherwise would appellant to cross-examine W.D. ” simply quoted discretion-guid- (citation 15. The court slight,' sion to the case is omitted), id. permitting standard cross-examination suggested if ”[e]ven [the wit- acts, into a witness’s bad discussed below. allegedly had made the false ness] accusations Lawrence, supra, A.2d at prejudicial proposed ... effect of the cross- clearly outweighed would have examination 16. Our review of the briefs filed with this court probative value.” Id. at 15. Given the manner govern- in the Lawrence case confirms that the ment took the issues, parties presented in which the position that the trial court exclu- the fact that the trial court made no determina- sion of cross-examination about the witness’s falsity tion about the truth or of the witness’s prior accusations of sexual misconduct would accusations, we believe that the Lawrence court proper have been even if those accusations were perceived deciding itself as whether a trial government’s understanding in fact false. The Lawrence, preclude court’s decision to as collateral of the issue in cross- as indicated in its brief, concededly prior was whether “the trial court’s refusal to examination about false alle- permit relating prior cross-examination ... gations of sexual misconduct constituted revers- accusations of sexual misconduct [a ible error. false witness] [appellant] denied his Sixth Amend- right ment to confront the witnesses Indeed, the trial court found that defendant’s 11-12, Lawrence, Appellee him.” Brief for proffer failed to even establish a "substantial (No. 82-1404) added). supra (emphasis With- concluding basis” for that W.D. had fabricated suggesting out that the accusations were in fact prior claims of sexual assault. true, government rejoined by arguing properly "the trial court exercised its discretion Anderson, 272, 18. See also State v. 211 Mont. excluding collateral evidence because it (1984) (confrontation P.2d probative had little or no value.” Id. at 12 by requirement prior clause not violated added). (emphasis In its elaboration of this allegations proven sexual assault be false before contention, government argued that “even if them). may defendant cross-examine about prior could have concluded that the false, charge was ‘the relevance conclu- prior about her allegations did not violate Hollingsworth States, v. United 531 A.2d clause, the confrontation we next (D.C.1987)(“trial consider court has broad whether the ruling trial court’s was other- ruling discretion when on the relevance of Here, wise erroneous. evidence”). because evidence of- Second, proposed even where prior W.D.’s allegations would have been cross-examination two-part satisfies the probative only allegations false, if the were test, Sherer in the absence of confrontation appellant’s request to cross-examine about concerns, clause the trial court retains its those must doctrinally ana- generally “broad discretion” to control the lyzed in the context of evidentiary rules scope and extent of cross-examination. In governing impeachment of witness credibil- C.B.N., (D.C.1985); re 499 A.2d ity specific instances of bad conduct. Reed, 1176; see supra, also 452 A.2d at For purposes analysis, of this alleg- States, Smith v. United 392 A.2d edly prior false accusations would consti- (D.C.1978). In the exercise of this discre- tute the bad conduct. evidentiary Our tion, the “impose court has wide latitude to impeachment on the rules of witness credi- reasonable limits” on cross-examination bility provide may that a witness be cross- about, “based on among concerns prior examined about a bad act that has not harassment, things, prejudice, confusion of resulted in a criminal only conviction issues, safety, witness’ or interro- where, at a minimum: gation repetitive that is marginally (1) the predicate examiner has a factual Arsdall, relevant.” Delaware v. Van su- question, for such pra act bad note 475 U.S. at 106 S.Ct. at directly upon

“bears veracity regard prejudice, 1435. With the court witness in respect to the may issues involved preclude’ proposed line of cross-ex- the trial.” appears amination “if it danger [in] prejudice unfair outweigh will Sherer, supra, (citations 470 A.2d at 738 Lee, supra, value.” note 454 A.2d at omitted).19 two-part Sherer standard States, 775. See also Goldman v. United constitutes a minimum threshold for the (D.C.1984); 473 A.2d Brown admissibility proposed cross-examination United 1099-1100 alleged prior acts, into bad and evidence (D.C.1979). And as is true even in confron- satisfy which fails to may the Sherer test situations, tation clause may trial court not be admitted. weigh “probable also effect on fair and applying In pertaining the rules Sherer, efficient conduct of trial.” su- to the impeachment of spe witnesses with pra, (citation omitted). 470 A.2d at 738 conduct, cific instances of bad the trial This court will not reverse such decisions is vested with broad discretion. unless trial court abuses its discretion. First, notwithstanding party the fact that a Brown, supra, 409 A.2d at 1100. proposing cross-examination claims to have exercising per- predicate” discretion whether to inquiry prior “factual into acts, prior allegations mit into bad the trial court cross-examination assess the assault, precise probative questioner’s proof offer of sexual val- to determine evidence, ue even it predicate whether such a factual of such where clears exists. Sherer, supra, (trial predicate” component 470 A.2d at 739 “factual threshold, depend court did not precluding upon abuse discretion in Sherer will the de- gree certainty cross-examination into which the trial court proof defendant’s offer prior allegations where that the can that the conclude “scanty”); statements were false was stronger were false.20 evidence of. course, impeachment degree certainty 19. "These rules should not be con- 20. Of if the is such analytically fused with the distinct doctrine that convincingly that the defendant has shown that introduction, restricts the dence, as substantive evi- false, prior allegations are the confrontation prior of an accused’s crimes or bad acts.” clause mandates that the defendant be allowed Sherer, supra, (citing Camp- 470 A.2d at n. 5 inquire allegations. to about those States, (D.C.1982); bell v. United 450 A.2d 428 States, 11, U.S.App.D.C. Drew v. United 15- 16, 85, (1964)). 331 F.2d 89-90 Johnson, supra, false, See also State allegations greater are 102 N.M. probative countervailing value. As a 118, (“the 692 P.2d at 43 focus would be concern, prior cross-examination into alle- prior charges on whether were ‘unsub- gations likely gener- of sexual assault to stantiated,’ putting in effect complain- prejudicial ate consequences. considerable ant on trial as to the truthfulness First, prejudice some results whenever complaint police which did not result “probes private cross-examination into the conviction”). in arrest or complainant life” of a in a sexual assault Here, judge the trial acted within States, case. See Meaders v. United precluding her discretion in cross-examina 1248, (D.C.1986). See also State prior allegations tion about W.D.’s of sexu Anderson, supra, Mont. indicated, al assault.22 As the trial court (evidence prior allegations P.2d at 201 dire, voir determined, following there “place[s] prejudicial stamp com [the concluding was “no substantial basis” for plainant’s] general reputa- character prior that W.D. had fabricated her claims tion”). Second, complainant’s evidence of a result, pro of sexual assault. As prior allegations of assault sexual “diverts posed impeachment line of was of limited jury’s attention to collateral matters.” McLean, supra prejudicial note 377 A.2d at 77.21 value at best.23 The McLean, mandated.) judge presumptively proscribes ex The fact that the trial indi- complaining amination of the witness about her cated she would have allowed cross-examina- history reputation, deal does not allegations prior tion about W.D.’s under cir- allegations with the issue of other of sexual compel cumstances in which Sherer does not therefore, recog assault trial court such cross-examination demonstrates both the nized, preclude questioning does not in itself judge’s “right awareness of her to exercise Bohannon, that area. Commonwealth v. Cf. of that choice” and the actual exercise choice. 90, 95, (1978) (rape- N.E.2d Mass. such, ruling judge’s Id. As the trial was made in apply prior allegations shield statute does not discretion, assump- not under an the exercise of however, assault). does, of sexual McLean illus prior tion that cross-examination about W.D.’s special sensitivity trate the need for in deliberat allegations precluded as a matter of law. question prejudice on the in the decision Moreover, recognized judge the trial that Mc- interrogation whether to allow such and the preclusion- did not set absolute Lean and Sherer States, scope thereof. See also Brewer v. United ruling ary her oral limits. In both denied, (D.C.1989), cert. 559 A.2d 320-21 reconsideration, denying order she written — ——, U.S. 110 S.Ct. 107 L.Ed.2d 1066 proposed ruled that cross-examination Meaders, (1990); supra, A.2d at 1254. Finally, the oral "should” not be made. in both agree suggestion order, 22. We would not with a the trial discussions and in the written insufficiently cognizant judge the trial judge expressed about other factors concern precluded cross-exami her discretion when she discretionary properly which would inform a allegations. prior A trial nation about W.D.’s decision, inquiry including the likelihood that judge he or she fails "to abuses discretion where "apparently adolescence” into W.D.’s troubled calling for choice.” exercise choice in a situation her, prejudice as well as the would result in States, (D.C. Johnson v. United go danger proposed inquiry 1979). Throughout the several bench confer another time" or "afield to another event and denying and in her written order ences jury instant case.” "divert attention from the reconsideration, the trial re motion for discretionary flected an awareness of factors. appellant’s prof- need not decide whether 23.We orally ruling against judge, cross-ex The trial amination, predicate” "factual fer in this case established a that there was “no substantial noted need we satisfy Nor the Sherer threshold. concluding that W.D. fabricated basis” for court, deciding decide whether the trial clearly prior She sexual assaults. account implied, exists, is to make its predicate whether a factual might permitted that she determination, see D.C.Code own factual appellant proposed cross-examination had finding binding 17-305(a) (1989) (trial court falsity, basis of some further factual established wrong plainly unless or without knew, though, trial court the Sherer even as the it), support simply determine what or is requires where- cross-examination standard find, might Huddleston reasonable cf. "convincingly” that a wit a defendant shows 108 S.Ct. United (It is worth prior are false. ness's (trial L.Ed.2d 771 that the noting trial court’s comment discretionarily defendant’s evidence of admit convincingly” that "show[n] had not defendant evidence to if there is sufficient bad act dealing reports false was made the were finding jury defendant committed support a that was thus con a motion for reconsideration act); 564 v. United but see Groves use was the test of when their sistent with the

325 proposed inquiry, compari- appellant effect of the in in- precluding discretion from son, was considerable. cross-examina- quiring on about cross-examination W.D.’s sought by appellant probed tion would have allegations prior of sexual assault.25 extremely private potentially into hu- position We do not think that neces- miliating Moreover, aspects of life. W.D.’s v. Mintz sarily opinion the conflicts with in this distracting case the risk of the Ass’n, 389, Premier Cab U.S.App.D.C. 75 particularly with collateral matters was Mintz, (1942). F.2d trial 127 744 Appellant's proposed acute. cross- line of permitted personal in a court the defendant ju- examination would have diverted the injury plaintiff action to ask on cross- away rors’ attention from incident examination whether she had “made claim the D.C. Jail would have invited them injuries” previous for in two acci- unrelated energies assessing instead focus their 389, 75 127 U.S.App.D.C. dents. at F.2d at veracity prior of each claims of W.D.’s appellate 744. court affirmed the trial Accordingly, con- sexual assault.24 we prior clude that the trial acted its court’s decision to admit evidence of court within 855, 372, der, 861, 338, 342, (D.C.1989), Ill.App.3d modified, 116 A.2d 375 & n. 5 574 72 Ill.Dec. 1990). 591, (D.C. (defendant assuming a fac 265 Even 452 N.E.2d 595 was "unable to predicate unfounded’’); court prior complaints tual existed in this the trial show were State pro Anderson, 18, 285, acted nevertheless within its discretion in supra note v. 211 Mont. at hibiting proposed (defendant's view cross-examination in proffer P.2d 200 not 686 at did danger of its value and the limited support "establish whether there is sufficient for prejudice posed. supra and distraction it See allegations prior are the contention that note 22. 14, false”); Kringstad, supra note State v. 353 (defendant produce at N.W.2d 311 did not proceedings, During pretrial defense counsel 24. “quantum evidence sufficient establish digression proposed made that his clear falsity charge”); previous State v. John- go beyond events in the D.C. Jail would well 14, 117, 118, son, supra 102 N.M. at 692 note merely cross-examining prior W.D. about her 42, (defendant's evidence did not P.2d 43 allegations example, For he assault. allegations prior were establish that “demon- sought leave from the trial court to call the 89, Sieler, false”); strably v. State 397 N.W.2d 92 as a Juvenile Horizons counselor witness so (S.D.1986) (defendant failed to establish that deny allegation he counselor could W.D.’s false”); charges “demonstrably prior State were inappropriately touched her in sexual man- 263, 426, Padilla, 414, Wis.2d 329 N.W.2d v. 110 expressly The trial court noted its concern ner. (defendant (Wis.Ct.App.1982) established 270 going about "afield to another and anoth- event allegations”). proof prior untruthful “no er time” on such collateral issues. we Because approach employed a similar Courts have hold that the trial court acted within discre- involving evidence cases introduction of of—not precluding tion in cross-examination about prior allegations of sex- cross-examination into— allegations, prior we need not resolve State, See, e.g., v. N.E.2d ual assault. Little whether such extrinsic evidence could have (complainant’s (Ind.Ct.App.1980) other Lawrence, presented. supra, A.2d at “demonstrably rape not accusations of were Demos, false”); supra note v. State (evidence of Wash.2d at 619 P.2d at 969 jurisdictions It is that courts in several true allegations falsity”). prove prior “did [their] prior apparently require inquiry allegations into Massachusetts, Indeed, where the Bo- even in the defendant demonstrates whenever good decided, upheld case was courts hannon concluding for faith factual basis permit court cross-examination trial refusals false, see, Bohannon, e.g., supra are prior allegations, despite the fact about N.E.2d We note Mass. at 991. good faith basis such in- defendant had many jurisdictions, note that in quiry: had what to him was “While counsel discretionary courts have affirmed inquiry good two [about faith reason seek where refusals to allow cross-examination allegedly com- accusations made false provide defendant failed sufficient others], plainant acted within prior allegations were in fact to establish that rejecting proof offer of State, his discretion in See, e.g., Covington 703 P.2d false. inquiry.” Com- to merit further (Alaska (defendant insufficient Ct.App.) estab "did not 487, 492, Hicks, Mass.App.Ct. monwealth prior complaints”), falsity alleged lish origi- (emphasis 503 N.E.2d nal). rehearing grounds, on other partially reversed on Annotation, Impeachment generally (Alaska Ct.App.1985); State 711 P.2d Prosecuting Witness in Hutchinson, Cross-Examination P.2d 141 Ariz. by Showing that (defendant pro Trial Similar Sexual (Ariz.Ct.App.1984) failed Offense Persons, Against Charges Other Were Made facts to show that the duce "sufficient charge unsubstantiated’’); People v. Alexan- A.L.R.4th claims plaintiff McLean, under claim-minded supra costs. note 377 A.2d at principle. We read permitting, Mintz as reasons, For that, 77-78. similar we think requiring, the trial court to allow cross- concerns, absent confrontation clause examination under this principle where it prejudice inherent in cross-examination determines proffered complainant’s a prior allegations about “may prejudice create but is believed to be sexual assault28 precludes requir- us from worth more than it costs.” Id. at 127 ing the trial court princi- under Mintz F.2d at 745.26 ple to allow cross-examination victim Furthermore, the dictum in sug- Mintz in a sexual assault case about her gesting principle’s application to sexual regardless of sexual assault assault today.27 cases is of validity dubious falsity.29 their truth or In the era suggested when Mintz court sum, In under all the circumstances of application of its cost-benefit calculus to case, we this conclude that the trial cases, sexual legal assault system oper- committed no in precluding reversible error assumption ated under the that it also appellant cross-examining “worth about put more than it costs” in effect to cases; prior allegations the victim her rape on trial in of sexual the rules assault. permitted evidence at time a defen- dant, guise under the of cross-examination Ill consent, on the grill issue of his victim about virtually her entire history Appellant next contends that the tri reputation. Trial, Berger, Man’s al court abused its discretion in refusing to Rape Woman’s Tribulation: in the Cases permit physician testify a about the re Courtroom, 77 Colum.L.Rev. 12-15 a sults of medical examination he conduct (1977); also, e.g., see Packineau v. United Appellant ed on W.D. intended to have the (8th Cir.1953) 202 F.2d 684-87 testify doctor the examination re (holding excluding that trial court erred in redness, “bruises, no swelling, vealed [or] complaining “concupis- evidence of witness’ lacerations” on genitalia. Appel W.D.’s having cence—of her sexual lust and un- sought through lant also to show the doc lawfully man). in it” indulging with another suffering tor’s that W.D. was opinion As this court’s McLean Unit- disease, and symp from a venereal that a clear, ed today States makes courts accord presence tom of that disease was the of a much weight prejudicial aspect more to the “cheesy “heavy white or a extrudance” dis of inquiry rape into victim’s a sexual histo- charge” genital area. The ry half-century ago; than did courts jurisdiction, court prejudicial inquiry excluded irrelevant medical testi longer no to be worth than it mony “concerning any deemed more disease.” Mosby, gory 26. As we stated United States v. "[f]ortuitous events are less like- [which] (D.C.1985): govern- Mintz, "Although ly happen repeatedly than once.” su- pra, U.S.App.D.C. ment cites where courts found abuse of cases no at 127 F.2d at 744. evidence, view, discretion in the admission of certain Under this fact that a the mere woman holdings those be cannot read to mean reports a sexual assault on more than one occa- required trial courts were to admit the evidence gives sion rise to an inference that she has in those instances." reports. For fabricated those someone in least, circumstances, we find at this as- illustrating scope permissible In dicta W.D., sumption extremely dubious. who was inquiry plaintiff’ prin- under the “claim-minded described one Minnesota school official as ciple, prose- suggested that "the Mintz "one of most severe victims of chronic emo- cuting rape witness in case asked physical neglect tional and have ever encoun- charges whether made she has similar tered," grew up obviously in an troubled home Mintz, supra, U.S.App.D.C. other men.” prostitution and had environment resorted 389-90, 127 F.2d at 744-45. age. young light family of W.D.’s situation associates, and her circle of mere number of supra p. 28. See reported readily sexual assaults she has does not court, any empirical justi- give 29. The without rise to those inference that assaults did Mintz fication, among included sexual assault a cate- not occur. us, appellant urges heavy discharge.” Before The trial court that such evi- was jury’s dence testimony “could have influenced the con- ruled that it “would exclude mind the creditability on of com- represent- cerning any disease and finds as [sic] [the plaining trial, ap- At in appear witness].” it would to be irrelevant ed that pellant precisely for did not make clear this case.” purpose what he offered the evidence of appellant’s initial assertion Contrary to Initially, during W.D.’s medical condition. court, light of his de- before the trial pre-trial proceedings, appellant sought had trial, presence in W.D. of a fense at leave to introduce evidence that he was rele- disease would not have been venereal aware of the fact that in the W.D. was D.C. appellant’s state of vant on the issue of following prostitution Jail her arrest on i.e., suf- whether he feared W.D. mind— fered from a venereal disease and thus relevant, charges. appellant This was ar- gued, theory on the that he would not have unlikely sexually to assault her. would be engaged any sexual acts with W.D. be- trial, consistently Throughout appellant prostitutes many cause “he knew any physical he never had maintained that carry times venereal diseases and Because he contact with the victim. would his own mind create the idea claimed that he was never in a situation It he would not want to do this her.” symptoms where he could have observed appellant in this context that first manifesting had a vene- the fact that W.D. mentioned evidence that W.D. was suffer- disease, presence real the actual or absence from a venereal disease at the time matter,” symptoms of such a disease or its would the incident: truth of the “[T]he argued, according bearing had his of mind.30 defense counsel “is that have no on state to the medical sort of actually records she some would the fact that W.D. suf- Nor happened. infection at the time that this fered from a venereal disease be relevant So, [appellant’s] thought might that she appellant’s ex as to the reasonableness diseased or unclean is not a fanciful might suffer from such ante belief that she words, thought.” appellant In other initial- Thus, given appellant’s defense a disease. ly suggested to the trial court that evi- trial, the extent he offered the evi- at presence of the mere of the disease dence symptoms and its dence of W.D.’s disease proof was relevant as of his state of mind contracting a prove that his fear of —namely, contracting that his fear of dis- him would have dissuaded venereal disease by prostitutes eases often carried W.D., sexually assaulting the evi- seeking engage him from have deterred dence irrelevant. conduct with W.D. sexual appear physical Evidence of the Later, trial, prior presentation to the regardless of genitalia, ance of W.D.’s again appellant of the defense raised relevant, however, cause, might have been question of W.D.’s medical condition. credibility. This is of her question on the time, he This defense counsel indicated appellant’s defense light true even in- doctor’s wished to have the suggests, symp If, appellant trial. organ.” her sexual clude “the condition of made would have toms of disease W.D.’s proffer as to the rele- Defense counsel’s unlikely therefore unpleasant oral sex “cheesy of evidence of the white vance occur, could be somewhat this evidence extrudance,” however, somewhat was still account credibility of her would have Government unclear: “[T]he such, might it sodomy. As in of the came jury believe Roundtree] [Mr. likely to be more made a somewhat there, act even—ac- committed the without events, i.e., that doctor, version my appellant’s with lieve cording to the conversation occurred.31 doctor, there no oral contact agrees the doctor opportunity to might appel- sodomy, had an if or otherwise be different 30. Our conclusion genitalia. appearance W.D.’s observe the approached the com- contended that he lant had symptoms ill- plainant, ness, of her discovered pur- for this be relevant 31. Such evidence performing was then dissuaded from though appellant he never pose contends even Here, appellant’s id. evidence, proffer (citation omitted), did not make will as- we entirely admissibility clear to the the issue that he was sume merely request appearance genitalia reiterating his intro- external n presence credibility sufficiently the of duce of issue was evidence the in of a presented appellate to warrant review. venereal disease proof as of his state of mind, irrelevant, which it for was but was evidentiary ruling by An a on trial seeking instead to introduce the evidence particular relevancy the item is a of a physical appearance of of the disease “highly decision” will be discretionary that challenge credibility, to it for which upset appeal only upon showing on a of Jones v. United could be relevant. Cf. States, Mitchell United “grave abuse.” States, supra (af note 516 A.2d at 517 (citations (D.C.1979) 408 A.2d firming trial court’s on restriction cross-ex Mosby, supra omitted). also note about a amination witness’s bias because of However, 305. on the even proffer).32 an insufficient na- factual assumption ruling relevancy that was appellant’s proffer perhaps explains ture of application physical in in its to error ruling court’s trial that “the Court appearance genitalia, per we not do testimony any would concerning exclude reversal, grounds think ceive for since we represented as disease finds it that say any we can fair assurance that appear would to this be irrelevant presumed court did not error Nevertheless, case.”33 because ordi- we substantially jury’s influence the determi “ nation. See Kotteakos United narily require prof- do not an ‘exhaustive ” prerequisite 750, 765, 1239, 1248, fer’ as a to the S.Ct. admission any genitals. contact to with W.D.'s Consider bative be deemed relevant. See E. Cleary, analogous (3d Imagine alleg- an case. Plaintiff at 542 ed. McCormick on Evidence (evidence 1984) by grabbing es that Defendant assaulted him if reason- is relevant it "could pinning ground ably slightly probable him and him to the for hour. show that a an fact more evidence”); alleges appear it Plaintiff that the incident occurred on than would without that 1, 1990, (relevant January grounds on near Wash- see also Fed.R.Evid. evidence is Defendant, ington person having any tendency Monument. a of av- the ex- "evidence make size, erage apartment consequence was in to the claims that he his istence of fact that is January day probable he all on never went near determination of the action more Monument, Washington probable and that he never than it would be the evi- less without Plaintiff, dence"). pinned less to the even saw much him ground. theory is that has Defendant’s Plaintiff Avirom, U.S.App.D.C. Miller trial, v. 319, fabricated the entire account. At Defen- Cf. (1967) ("points F.2d assert- testimony to introduce the Wit- dant seeks precision distinctly ness, Plaintiff, ed with sufficient indicate will state who unbeknownst thesis, normally party’s spurned on assault, will be alleged at the time of the Defendant omitted)). (footnote appeal” Olympic is a class wrestler who won an world gold weight division. medal his Defendant However, subject sought pin ruling claim he left the does not Plaintiff but wrestling do defense counsel could unable to so because Plaintiffs revision stated that Nevertheless, prowess. at a evidence of the Plain- renew his motion to introduce wrestling ability unlikely it more time. tiffs makes later occurred in the manner claimed events counsel, expanding on the without Defense Plaintiff; it makes version events Defendant’s proffer, twice the motion. The second renewed January 1 more credible. time, immediately this ex- the motion followed lawyer: hypothetical, change appellant between and his In this Witness's evidence affects suggests you prostitutes? credibility Q: Do oral sex on because it Defen- commit Plaintiffs No, incapable committing I don’t. dant would have been A: why alleged. prof- Any particular Q: not? The medical evidence reason acts sex, mean, contrast, period. I oral affects W.D.'s A: don't commit fered in you appellant godliness myself, suggests have about credibility because I do some it al- disinclined commit the acts know. have been appears, particularly leged. trial court ruled: "It evidence of defendant’s disincli- While answer, light doctor’s certainly less of the last commit an offense is nation to then, credibility plaintiff’s evi- will not be relevant." Even of a than is amplify inability counsel did not the rationale to commit defense dence of offense, defendant’s pro- proffer. sufficiently for his it nevertheless above, admission, above. indicated (1946).34 L.Ed. 1557 As indicated suggested Moreover, appeal that he contains no appellant never the record on any way appearance of W.D.’s saw the proposed tes- significant elaboration His defense a flat denial of genitalia. sketchy description oral- timony beyond the significant events testified to all the although And ly given to the trial court.35 prosecution witnesses: the conversation explicitly reached the never the trial court prison guard his with the female about issue, excluding on a ruling the evidence desires, sodomy of particular probative val- prejudice versus balancing of event, W.D., de the masturbation See, e.g., sustained. ue could not the struction of evidence. W.D.’s was States, 483 A.2d Swinson v. United testimony appellant’s sto to contradict (D.C.1984). 1164 three these events ry. That he lied as to of circumstances, sum, light of all the In by the evidence convincingly shown ruling that the trial court’s do not think we Thus, testimony. appel apart from W.D.’s proffered respect with witness, largely lant stood as a discredited trial. reversal for a new appellate warrants apparent why W.D. and no reason was part of have told the truth as IV lied the cunni appellant’s actions and about cunniling lingus. Appellant next asserts that here, evidence does us,36 at least on the is marginal relevance of the evidence sodomy statute.37 For the D.C. not violate diffi- by appellant’s own further illustrated established years, it has been articulating any legitimate over fifteen culty in basis reading medical apparently from a Although acknowledging question counsel was is discretion,” appellate record. report, included in the appellant a not of asserts one of "abuse to "that Subsequently trial counsel referred right in his own to call witnesses "fundamental stated that behalf,” cheesy the vulva” and extrusion on citing Mississippi, 410 U.S. Chambers v. doctor, my "according conversation with (1975), to the L.Ed.2d 297 Wash 93 S.Ct. 35 doctor, agrees a that there was the doctor Texas, ington 18 v. 388 U.S. 87 S.Ct. discharge.” heavy (1967), Brown v. United L.Ed.2d 1019 (D.C. 1979). States, are 1093 We Cozart, (D.C. here, however, A.2d 342 States v. presented sort of 36. In United with a common 1974), adopted of cunni the definition relevancy ruling defen in a trial in which the " perversion lingus committed 'an act of sex range We as presented of evidence. dant a wide ” organ.' sexual the mouth and the female ruling implicates with the trial court’s do not think Dictionary (quoting at n. 3 Id. right” which would the asserted "fundamental Law Black’s (4th 1968)). See also 70A Am.Jur.2d ed. application standard call into the constitutional (1987) (defining Sodomy n. 29 § California, Chapman U.S. 87 S.Ct. of 824, vaginal or the cunnilingus contact as "oral Giles v. United 17 L.Ed.2d 705 organ mouth or touching with the of the female (D.C.1981) A.2d 746 and n. 13 tongue”) cases cited therein. error re (applying non-constitutional Kotteakos erroneously per case where trial court view in perti- provides, in § 37. D.C.Code 22-3502 hearsay and defendant of mitted use part: nent the evidence "vio that admission of contended of the Sixth confrontation clause lated the of (a) be convicted Every person shall who Green, Amendment”). See also anus the taking California or her mouth into his or 1930, 1943, 173, 186, S.Ct. animal, person any or organ other sexual J., (ob (1970) (Harlan, concurring) L.Ed.2d 489 placing his or be convicted or who shall pro serving nor due that neither confrontation any organ mouth or anus in the her sexual consti- or should be seen to animal, clause has been cess con- who shall be person or or hearsay). evidentiary rules of open- tutionalize having copulation in an Cf. carnal victed of (D.C. States, 388 A.2d 846 Springer v. United parts an- body except with sexual of the oppor 1978) (once been afforded defendant has more than not person, all be fined other $1,000 cross-examination, tunity period sufficient imprisoned for a not for be or evidentiary rulings discre any fall within its indictment exceeding years.... court’s [I]n acts, subject hereby error to constitutional and are not tion review). the commission offenses, not be neces- it shall to be declared particular unnatural sary forth the to set practice the commis- perverted proffer portions were The relevant charged, may be the defendant cheesy of which white extrudance sion was a "There follows: particular manner set forth (sic) Trial nor to that word.” the—I cannot read on jurisdiction in this “cunnilingus Appellant’s is argument heavily a relies sodomitic act purview 22-3502(b), which is within the provides: D.C.Code § Cozart, United States v. “Any 22-3502.” penetration, slight, however suffi- is supra, (footnotes omitted). A.2d to complete specified cient the crime in this holding, course, binding This upon is us section. Proof emission shall division, as a proceed necessary.” However, and we must provision does Ryan, supra, M.A.P. postulate. interpretation pressed by not mandate the contends, Appellant at 312.38 appellant. The reference “emission” cunnilingus 3502(b) if even con provision does section indicates that that penetration sodomy, necessary stitute of sodomy pe- refers forms involving contrast, element of appellant’s the offense. Under nis.41 where defendant interpretation, charged the trial re performing sodomy court would be oral on a quired prove genitalia, to instruct “penetration” that to the woman’s lan- sodomy woman, offense of guage 3502(b), oral on a of section is inapplicable. 3502(b) government prove Consequently, must either that the de section does not re- placed tongue government fendant his or her quire within in such cases vagina or complain prove labia inside the of the either the complaining that witness’s witness, ing genitalia penetrat genitalia penetrated or that her the mouth of the de- fendant, ed the defendant’s not tongue mouth.39 We do or that the defendant’s req the imposing penetrated complainant’s read statute genitalia.42 the Nor, given Cozart cunnilingus under that uirement.40 perverted cunnilingus complainant which said unnatural or sexual the act of the on practice Cunnilingus placing was committed.... act the is the of [W.D.]. (b) Any penetration, slight, organ however is suf- mouth on the female sexual the and specified complete touching organs lips ficient to the crime in this sexual with the tongue. section. Proof of emission shall not be neces- sary. the and/or You must determine in this case whether proved beyond has the Government a reason- 1948, sodomy statutorily 38. Prior to was not placed able doubt that the defendant his Columbia, prose defined the District of tongue organ mouth or on in the sexual of or proceeded for the cutions the offense under 1377, complainant put or the organ that he the sexual S.Rep. common-law 80th definition. complainant on or in own his No. Sess., Cong., reprinted mouth, second, 2d in 1948 U.S.Code Cong. that he intended to do 1714, (incorporating Report) 1717 House that act. Serv. law, Report"]. At the common offense ["Senate among beings sodomy penetration requirement, of human was to limited 40. Even if were a the copulation. presented very might See 3 C. anal evidence here well Crim Wharton’s Torcia, 295, (14th 1980); supported penetration. at 77 ed. v. an su- § Rose inference of See inal Law Locke, 48, 53, 243, 246, pra 423 U.S. 96 46 S.Ct. note 5. (Brennan, J., (1975) dissenting). L.Ed.2d 185 sodomy language the of Both the current statute law, penetration 41. Under the common the of legislative history, indicate penis required prove sodomy the was to anus among 3502, Congress, enacting sought section State, beings. human See Canter v. 224 expand prohibited practices. the sexual class 384, 483, 484-85, (1961) (per Md. 168 A.2d phrase statute contains the itself "unnatural curiam); 74, Pettijohn, State v. S.W.2d 76- practice,” category perverted acts or 77, 1976); (Mo.Ct.App. Sodomy 77 n. C.J.S. proscribed by broader than those the common- 6, Additionally, according offense. to the Sen law Report accompanying ate the statute at the time jurisdictions 42. Courts in some other have held enactment, codify one of the of its reasons any part oral contact of a woman’s sodomy expand the the definition penetration by genitalia tongue con- without per encompass “the action os.” crime Senate prohibitions against cun- stitutes nilingus. violation supra, at 1717. Report, State, Ala.App. Parris (defendant 190 So.2d case, this trial court’s instruction to 39. In "placed upon organ” his mouth com- the sex jury sodomy provided: offense of Hunter, plainant); People 505, Cal.App.2d (“[a] law, (Dist.Ct.App.1958) sodomy 322 P.2d an In the is the commission of guilty [sodomy] person person violating statute sexual act with another unnatural upon genital Specifically, placed he when has his mouth animal. another”); organ People, performed 171 Colo. this case are that the defendant Gilmore v. Second, court did not sodomy constitutes a violation of the stat- the trial grant a ute, refusing abuse its discretion considering the realities of female prosecutor, in his rebuttal mistrial after the anatomy, agree phrase can we argument, jury’s attention to directed 3502(a) requires “taking into” in section com the absence of female sexual entry into the mouth of a plaining witness been convicted Supreme organ. As the North Carolina remark, though charge. The prostitution context, in a similar Court noted “[t]o true, literally jury invited the to infer some saddle the criminal adopt this view would i.e., that the com thing that was false — hypertechnical law with distinctions.” prostitute. not a plaining witness was Ludlum, supra note 303 N.C. State v. Nevertheless, re prosecutor’s even if the at 162. S.E.2d On the facts of misconduct, the miscon marks amounted sodomy instruction here Additionally, the trial grave. duct was sufficient.43 instruction. gave a corrective appellant conclude that did We therefore prejudice” as a re not suffer “substantial V argument. Dyson prosecutor’s sult of the Appellant’s other contentions war (D.C. States, 450 A.2d v. United First, rant little discussion. the trial court such, 1982). grant a As the refusal granting government’s did not err not an abuse of discretion. mistrial was appellant preclude limine to motion in Beale United complainant’s credibil impeaching denied, (D.C.1983), 465 U.S. cert. ity by inquiring into her activities as 1293, L.Ed.2d 694 S.Ct. 79 complainant Because the prostitute. Affirmed. adjudications no or of delin convictions prostitution, she not be

quency for could SCHWELB, Judge, Associate (1989), impeached under D.C.Code 14-305 dissenting part: in concurring part evidence permits impeachment Judge respect due for Steadman’s With involving dishonesty. misdemeanors of Cf. court, I am unable opinion erudite for 446, Brown v. United disposition of this my colleagues’ join curiam) (D.C.1986) (ruling that “solicit (per opinion, did not appeal. my Roundtree impeachable is an con prostitution for sodomy charge. trial on the receive a fair viction”). resulting in a activity not Sexual First, I conclude for two reasons. so im felony is not relevant for conviction com- persuasive spite of McLean, general credibility. peachment witness, W.D., claims of plaining fabricated 10, rule 377 A.2d at 78. This supra note judge past, the trial in the sexual abuse applies prior sex ordinarily even where re- of her with precluded cross-examination prostitution. Second, activity includes ual gard prior to these accusations. Cf. 21, “irrelevant,” Brewer, pro- A.2d at 321 supra excluded, note pri- (evidence complainant’s existence rape case of about the posed medical evidence in the area “cheesy not relevant on extrudance” prostitution activities of a white or allegedly resulted inadmissible). genitals which of W.D.’s issue of consent "oral-genital 828, (R.I.1980) (evidence contact 358, 360, (1970) ("placing ... P.2d alone, State, to es- penetration,” is sufficient victim); without vagina” Carter v. mouth on 238, cunnilingus). 21, 23, (1970) tablish Ga.App. S.E.2d cunnilingus] ("all required prove [to that is sodomy argument original)); (emphasis State Appellant’s related some contact" encompasses (Mo.Ct.App. give that it Thompson, notice 574 S.W.2d statute fails to 1977) Rose ("any cunnilingus mouth or not merit relief. contact between the does Cf. Locke, S.Ct. 243 423 U.S. component parts supra the vulva is sufficient note curiam) prohibiting (ruling cunnilingus”); that statute (per State offense of constitute the warning adequate gave Ludlum, nature" 281 S.E.2d "crime N.C. act). prohibited This is cunnilingus ("stimulation tongue lips language light in our particularly true in genitalia” cunni constitutes part a woman's McParlin, opinion. 745 n. lingus); State v. Cozart from her affliction with disease, a venereal basis to believe that some of her which, a jury might conclude, well charges of sexual abuse were fabricated. tended to make substantially it likely less thirteen, When W.D. was the director of engaged Roundtree in cunnilingus an institution girls for in that state de- with her.1 her scribed as “one of the most severe victims of chronic physical emotional and potential impact on a reasonable neglect I have ever encountered.” of the excluded cross-examination and evi- She apparently a victim of incest at dence was Moreover, substantial. Round- pregnant a mother at and a tree’s first trial ended a mistrial because prostitute I.Q. at 15 or 16. With an of 68 jurors were agree unable to on a ver- skills, and second to grade fourth W.D. had dict. I am therefore satisfied that Round- exposed cocaine, to marijuana, pimps tree suffered substantial prejudice, and and a lifestyle by sordid her middle teens. that the errors were not harmless. Accord- Such an existence takes its toll. We would ingly, respectfully I dissent from the af- surely be blind reality if we were to firmance of sodomy Roundtree’s convic- pretend that one who has endured so much tion.2 escape can potential without erosion not only of her authority trust in but also of credibility. The records from Minnesota show that W.D.’s PRIOR ALLEGATIONS W.D. had claimed to have been the victim rape or incest or sexual abuse A. The evidence of fabrication —the men, substantial number of different in- Minnesota records profes- least,3 cluding, following: sional and other evaluations Hank, 1. W.D:’s half-brother alleg- who ’s veracity. W.D. edly had sex with weekly her on a basis damages instituted a suit twelve; from the time that she was against Roundtree and the District of Co- (no 2. her brother pro- Joe elaboration in lumbia connection with the incident vided); precipitated prosecution. Dur- nephew, aged 3. a 23 or whom W.D. ing discovery action, in the civil the defen- identify; refused to dants juvenile obtained records from au- Minnesota, thorities in boyfriend mother; as well as 4. a of her W.D., young which reflected the boyfriend sister; 5. a of her My colleagues woman’s troubled life. Horizons, 6. a counsellor at Juvenile records, summarized the contents of these institution Minnesota for mothers in 318-319, maj. op. at but the same facts teens; their come across a little differently to me. In 7. a pimp Casper; named view, my Minnesota, the information from together prevarica- with W.D.’s Vernon, admitted pimp, boy- also a who was a Washington, tions after she arrived in pro- sister;4 friend or her boyfriend former of vide, least, a bona and reasonable and fide patently 1. I also find it to be unfair that Round- 3. A few of the documents from Minnesota were imprisonment tree was sentenced to for three to poorly reproduced so that it is hard to read years judge obviously nine because the believed reasons, them. For obvious I enumerate sodomy, that he had committed when forcible those which the incidents as to documentation prosecu- had been instructed that the sufficiently legible. required prove only tion was the elements of activity consensual oral sex—an in which the apparently 4. This was a different man from the overwhelming majority of adults at least some- 5; allegedly one in item one incident occurred engage. page times infra. years in 1983 and the other two later. 346-347, pages infra, 2. For reasons described at join majority affirming Roundtree’s tampering conviction for with evidence. pimps get Dawkins, 9. Six gang-raped who had W.D. Ms. so- attention.” another her and sister.5 worker, cial related that W.D. “has a histo- stories,” is her ry making up of and that “it Although experi- some of W.D.’s claimed power style up to make as a accusations ences, especially those pimps, Lord, play.” supervisor, the staff stat- Mr. go lifestyle, well with the the records on “a ed that substantia] he took W.D.’s accusations provide their face reason to past grain questionable of of salt because question the veracity allega- of some of her her, allegations” and that he believed respect tions.6 With to her half-brother Hank, Reed, alleged at different denials. Dr. times that accused counsellor’s (1) weekly he had sex with her she psychological since who conducted a evaluation twelve; (2) was total four five W.D., or she “to scare found that was able times; and never. people phys- and intimidate with her hostile aggression,” ical and verbal and concluded allegations that a old 22-year “objective reality testing that W.D.’s and inap- counsellor Horizons Juvenile had very moderately tenuous and at least im- propriately particu- stroked her “butt” was Arnold, paired.” who Dr. also examined larly suspect. investigated by It was W.D., reported “exaggeration police and the Juvenile Horizons author- cooperation, ities, symptoms, lack of report pre- and a rebellious- comprehensive pared by anti-authority feelings.” ness Dr. latter. The had Gen- counsellor Hospital come Juvenile Horizons with excellent dron of Fairview Adolescent references, young worked with stated had a Program Treatment that W.D. report women before. The writer history blaming.” “aggressivity interviewed psychiatrists, psycholo- two psychiatrist reported had an One that W.D. director, gist, program super- the staff “impaired” reality. sense visor, workers, separate social three light foregoing Unsurprisingly, including primarily assigned one W.D., complaint assessments of work with W.D. substantiate,” closed “un- as “unable Without exception, these individuals The treatment team found substantiated.” because, veracity, largely doubted W.D.’s “suspect” “may reason to the incident those who had worked with her unani- occurred, have” but deemed the evidence mously agreed, history had a mak- she in the absence of corrobora- insufficient past. false in the Dr. Mada- tion.7 mala, psychiatrist a staff at a Child Guid- complaints of W.D.’s most recent Clinic, very reported ance that “W.D. is a 1985; she made March of Minnesota was angry child who has lied to J.H. staff reported pimp had forced her to have that a Pruden, past.” times in Ms. several the prosti- the a sex and “work streets” as to director, program the related W.D. that According deposition to her testimo- tute.8 past “had lied to the in the was staff and suit, W.D. then travelled ny her civil lying report the probably about child Detroit, in a brown Cadillac to Arenson, pimp with primary Ms. W.D.’s so- abuse.” worker, Chicago, Washington, and work- past “in the New York cial stated that [W.D.] ing prostitute as a in all of these cities.9 exaggerated had lied and stories in order things they reported not the had known all the 5. W.D. testified that she had Roundtree if gang rape why. police brought but could not attention the remember about W.D. which were to the the of Juvenile Horizons authorities. colleagues, maj. According my op. the police, response question by W.D. 8. In to a pubic presence provid- of semen in W.D.’s area previously reported as a she had worked allega- partial of ed corroboration of some her prostitute had been three times because she concededly pros- Since worked as a tions. W.D. by gangsters. forced to do so titute, and was no evidence bruis- since there injuries, hardly was com- es or other the semen deposition transcript is not in the 9. The pelling corroboration. deposition testimony de- was record. W.D.’s prosecutor by defense ju- scribed both to wonder whether the I am constrained presence jury in the present attorney outside rors in the case would convicted May Washington she was arrested she had later denied of the charge the truth charge of soliciting prostitution. she police because did not want the to be gave police She a false and with her name10 lied involved mother. related that She age.11 report about her She not being police by at the she did to the abuse held District jail “my of Columbia her mother’s friend mom following this ar- because through going rest at the a lot problems time her and I encounter with didn’t feel that she me or Roundtree. would trust be-

lieve me.” She that she confirmed B. Judge complaints Bacon’s Ruling. made counsellor about the by Juvenile Horizons and about assaults government The prior moved in limine pimps. pre- Roundtree’s first trial for an order cluding inquiry At the any hearing, conclusion of the defense into judge granted prior allegations motion in limine be- sexual abuse. cause having inspected materials,12 After and held,

before Judge voir dire was Ba- no there is substantial basis for conclud con stated that these assaults are fabrication

constitute unless any of there these matters ... additional evidence about bias. they not that are Sherer incidents, ... To ^[14] permit inquiry precluded by and that the I believe, would be matters voir into these McLean[13] dire does not prior provide a exceptions basis for to McLean My view is that at this time there is no or Sherer. inquiry prior basis for into accusations. judge The up followed her oral decision record, Conscientiously protecting his a brief written order which she prosecutor suggested that a proposed voir emphasized complaints that W.D.’s various W.D., dire of which was to be conducted been “convincingly” had not shown to be order competency, to determine her be ex- prosecute false W.D.’s failure panded prior to include her allegations of of sexual incidents abuse did establish abuse, “although proffer can Sherer, falsity. supra, their She cited my court based on discussions Raines, Hughes A.2d at money.” judge is on the court The (9th Cir.1981), F.2d on which the prosecutor’s suggestion followed the court in Sherer had relied. ruling. reserved C. The Restriction On Cross-Examina- ensuing voir dire ex- was conducted tion. clusively by presence outside the perspective legacy Historical —a jury. During of her course injustice. testimony, tearfully repeated alle- gation sexually that she had been question abused whether explained inquir- her brother Hank. She properly precluded Roundtree Bacon, proceedings Judge before and those de- and a There is brother friend of mother’s. other, scriptions, which are consistent each and a to a sister’s friend reference reference by pimps are the of our a source information. to abduction, some and reference to attacks fully in to the more doc- addition event. gave umented Juvenile Horizons 10. W.D. that she a name testified false 332-333, pages supra, charges against As noted Minnesota not want her because she did more, good espe- materials contained a deal real filed under her name. regard credibility perceived cially in to W.D.'s as by professional people who had worked with age that she 11. W.D. testified lied about her. get been told because she had that she could out jail easily more as an adult. States, (D.C. v. A.2d 74 13. McLean United 377 1977). 12. The summarized the materials fol- lows: (D.C.1983), States, A.2d 732 14. Sherer United 470 denied, 931, 325, appeared to me that there were miscella- rt. 469 U.S. 105 S.Ct. [It] ce members, (1984). family to two a 83 262 neous references L.Ed.2d

335 oppressive into is a sensi- in confining and to women than centuries, many tive one. For under relation to law of sexual crimes. legal men, tradition established Com quite recently, complaining Until wit- Bohannon, 90, monwealth v. 376 Mass. presumed ness a sexual assault case was 94-95, 987, (1978), 378 N.E.2d female lacking credibility special so to be rape victims of and sexual abuse were corroboration, in rela- rules of unheard of harshly treated and unfairly pursuant to a crimes, to other to be tion were deemed pervasive double standard of sexual morali- necessary appropriate. and Arnold See Chamallas, ty. Consent, Equality, States, 335, (D.C. United Conduct, Legal Control Sexual 1976) (en banc). charged A defendant 777, (1988). 61 S.Cal.L.Rev. In a 788-89 effectively put a sexual offense could Bible, revealing passage in rape trial, his victim for her entire treated as an against offense an unmarried reputation history and deemed “fair were her; woman’s father rather than game” in relation to consent.17 the issue of rapist’s punishment, having besides private The most in a life facts woman’s pay fifty “owner,” shekels to was a all, exposed were thus to the world for and marriage forced to the victim. Deuterono- orientation, prurient especially those of my raped 22:28-29. woman was obvi- see, Despite denounce and deride. their ously given becoming no choice about perceived timidity “natural and delica- ... perpetrator’s wife. Gold & See also Wall) Illinois, (16 cy” Bradwell v. 83 U.S. Wyatt, Rape System: Old Roles 130, 141, (1872), alleg- 21 L.Ed. 442 women Times, New 27 Cath.U.L.Rev. 696-700 ing rape required put up the “ut- were later, two Sigmund Some millenia most resistance” their assailants before Freud, the father psychoanalysis, still guilty verdict would be sustained. Est- right possession viewed “exclusive rich, note at 1122 n. supra, 95 Yale L.J. as the monoga- of a woman” “essence involving 105. In one notorious case my,” and the girl “demand that the shall year rape virgin, of a sixteen old the vic- bring with her into man marriage with one struggles repeated tim’s and screams while memory no of sexual relations with anoth- her, almost when the attacker choked even “logical er” as a consequence” of that coupled attempts escape, with her were right.15 The notion that the world is divid- woefully compari- do, viewed as insufficient girls”, “good ed into “bad who don’t, “the terrific which the son with resistance girls”, part who of a climate of women, paternalism” determined woman should make.” See put “romantic State, Brennan’s “not on a Brown v. 127 Wis. apt phrase, Justice (1906). Moreover, if a pedestal, in a N.W. even cage.” but Frontiero v. Richardson, 677, 684, vigorously, was often 93 S.Ct. woman did resist 1764, 1769, (1973)(plurality erotic L.Ed.2d 583 treated as evidence that she derived cage being opinion).16 Nowhere was this more pleasure from overcome.18 (Riviere See, F.2d Papers e.g., 4 S. 17. Packineau v. United Collected Freud, Estrich, 1925), (8th Cir.1953) (error quoted Rape, to exclude evi trans. S. 95 Yale 685-87 (1986) (hereinafter "concupiscence— complaining L.J. rich). 1141 n. Est dence of witness’ unlawfully indulg having sexual lust and of her ing Abbot, men); People v. in it” with See, e.g., concurring opinion ("will you of Justice (N.Y.Sup.Ct.1838) Wend. Wall) Illinois, (16 Bradley readily practiced in Bradwell 83 U.S. infer Mes- more salina, assent in (1872), attire, 21 L.Ed. in which the reserved and in loose than in Estrich, prohibition against prac- Lucretia?”); supra, Court sustained Yale L.J. virtuous tice of law women: at 1130-32. delicacy timidity proper The natural belongs evidently "Although may inter- to a desire sexual which the female sex 18. woman "no, no, course, say many customary occupations civil her to for of it is for unfits it of (although "yes, yes, yes”) paramount destiny meaning and to The and mission of life ... no” expect Slovenko, benign aggressor.” are to noble and the male to be the woman fulfill the Behavior and of wife and This is the law of A Panoramic Overview: Sexual offices mother. (Slo- And The Law 5 Creator. the Law in Sexual Behavior 336 only dants,

That a percentage small of including cases of charged those with sexual rape offenses, and sexual reported, abuse were and receive the fair is conviction, still fewer resulted in is their constitutional due. Under the Sixth hardly surprising light applicable Amendment, right the accused has to game,” only “rules of the some of against pri- which confront him. A the witnesses are mary described above.19 In reaction by to these secured interest the confrontation palpable injustices, juris- right cross-examination, the courts of this clause is the so diction, elsewhere, like others took a adequate num- the finder of fact has an ber of measures to opportunity credibility redress balance. to assess the requirement prove prosecution Alaska, that the victim actu- witnesses. Davis v. physical 315, 1105, al negate 308, 1110, resistance in to 415 order U.S. 94 39 S.Ct. largely consent relegated (1974); has to the Berger L.Ed.2d 347 see v. also Cali Chamallas, ash-heap history. 314, 315, 540, 541, su fornia, 393 U.S. 89 S.Ct. pra, 61 S.Cal.L.Rev. (1969) curiam). 799. corrobo 21 {per L.Ed.2d 508 requirement ration as mature females Where the individual whom the accused Arnold, was abolished here in is, su present seeks to cross-examine as in pra, 344, 358 A.2d at also Gary instance, see v. a “star” witness to the essential States, 815, (D.C.1985) United 499 A.2d 832-33 case, prosecution importance of full ( (child banc) complainants), cert. possible cross-examination to bias disclose en denied, 906, 3279, 477 U.S. S.Ct. 91 necessarily enhanced. Lawrence v. (1986), 1086, L.Ed.2d 568 and States, 374, (D.C. United A.2d (1986). 1977, S.Ct. L.Ed.2d 725 1984); Summers, 598 United States v. inquiry this court held in McLean that into (5th Cir.1979). F.2d As the Su prior a woman’s sexual conduct and her preme speaking Hampshire, Court of New reputation “unchastity” presumptive- (now through Judge Justice-designate) ly impermissible and will be countenanced Souter, has recognized David with refer- pro- in the unusual case in which the law, ence to shield rape “such statute’s demonstrably bative value such evidence by reach limited a defendant’s has to be ... outweighs prejudicial effect. 377 A.2d rights to confront the witnesses at 77-80. See v. also Brewer United present exculpatory him and to his own (D.C.1989); 320-22 Colbath, cf. evidence.” 130 N.H. State Court, Pope Superior State ex rel. 113 323, (1988); see also 24-29, Ariz. 545 P.2d 948-53 Commonwealth, 225 Va. Winfield (en banc). The trial in this case 217-18, (1983). In S.E.2d proscription against have viewed in- present case, actually or there is no statute quiries prior complaints into W.D.’s of sex- ostensibly proscribing cross-examination step progres- ual abuse as another in this past complaints, W.D. as to her injustice equity. sion privacy potentially intrusion into generated far justify does cross-examination is

But the end means. eradicating be occa- past grave Our less that which would commitment than wrongs may permitted inquiry past sexual present20 not be sioned into her experiences.21 dilute determination that all defen- our Note, 1965), quoted inary The Resistance of which the narrator is venko ed. sex incidents Rape Legislation, the victim. On the surface the the heroine or Standard Stan.L.Rev straightforward convincing. narration is (Chadbourn 924(a) 3A Evidence J. Wigmore, Wyatt, supra, Gold & U.L. 19. See also 1970). Accordingly, Cath proposes that no rev. ed. he 706-714, describing vividly Rev. treatment go psy case to the unless a assault rape hospital, dispensed victims at the at the performed chiatric has been examination station, police prosecutor’s and in the office. examining physician has with re testified spect complainant's health. Id. mental treatise, recent edition of his In the most Wigmore 21.Moreover, Professor remarks litigation instituted civil mentality the informa- finds to the trial the unchaste ... incidental already expression imag- in the hands tion from Minnesota was but in the narration of direct below, dant; pages robbing For reasons one discussed see who accuses man of 337-341, infra, degree the cross- may to which him while he was drunk be asked charge examination as to other must be he made the whether has same permitted depends men; on a circum- variety against of wit- prosecuting other the inappropriate stances. An restriction of may in a be wheth- rape ness case asked necessarily such examination is not a viola- charges er she made has similar clause, the I tion of confrontation and of type men .... This other evidence, my objections would not constitutionalize many types, may like cre- case. procedures to the trial court’s in this prejudice ate is be worth but believed to Nevertheless, right to is confrontation than more it costs. here, implicated

in some measure see Davis Alaska, and must bear supra, v. courts appellant’s all That three stories of constitutional considerations in mind. may weight true affects (2) Impeachment evidence, admissibility. W.D. with her not prior for all the jury accusations. It was to decide from evidence, ap- from its observation necessary some With accommodation stand, pellant on whether she was rights complainants in sexual of- merely unlucky or was “claim-minded.” cases, fense the issue here under discus- 389-90, (emphasis 127 F.2d at 744-45 Id. general sion falls within the rubric of the omitted). Accord, added and footnote typified shep- plaintiff, claim-minded (D.C. A.2d Dowling, Manes v. boy herd who cried “Wolf!” once too often. 1977); Greyhound Corp., 200 Evans correctly As Professor not- McCormickhas (D.C.1964). ed, the courts of the District of Columbia notably receiving are liberal analysis, party Under Mintz allowing jury claim-mindedness and to seeking complaining to cross-examine the its weight. assess Cleary, complaints need not E. witness about other McCormick (3d at 580 ed. n. 10 falsity. The prove principle Evidence first their 1984) (hereinafter McCormick). lightning usually not strike the same does times) (or times or is person twice four nine in this leading jurisdiction case sufficiently persuasive warrant deemed Association, Inc., Mintz Premier Cab signifi- leaving it to the to assess the (1942), U.S.App.D.C. F.2d 744 past complaints. cance of The courts personal injury action which the court Posner jurisdiction Judge avoid what per- court’s sustained the trial decision notions of relevance or has called “crabbed plaintiff mit the cross-examination of the juries,” excessive mistrust of Riordan regard prior to two claims: (7th Kempiners, F.2d Cir. given less Fortuitous events of sort are 1987), keep properly decline likely happen repeatedly than once. jurors the kinds of information instructed The fact that a witness has told several which, as a of common sense matter involving stories fortuitous similar experience, might their human well affect therefore, tends, events create a con- of the situation. rational assessment flict his and normal between dictum, allu- Although plainly one experience. it has been held that obiter So opinion rape com- de- in the Mintz to a who furnishes an alibi a criminal sion enough, practical for all plainant asked whether he has broad fendant present case.22 purposes, alibis for the same defen- reach furnished other impact proposed acknowledge legal has I climate of the District. The which the might regard forty-eight years had on changed past cross-examination otherwise have in the significantly privacy W.D.'s has therefore been assault cases. I therefore would to sexual attenuated. no evi- dictum if there were follow Mintz was false. dence at all that the accusation majority Judge Edger- agree 339-340, point pages As I out language regarding rape victims ton's italicized rape-shield changes such as the enactment of necessary for the in the was not decision frequency girl which a with woman or has and veracity by fulness defense counsel’s alleged that various men sexually have as- probe of this sensitive area and have saulted her was something considered to be greater testimony skep- viewed her with jury should know in deciding whether The ticism. trial court’s action have to believe her. Neither before nor in Mintz kept jury impor- from the relevant years the forty-seven since that decision bearing tant facts on the trustworthiness has squarely this court confronted is- key testimony of crucial witness [of] sue in a in which sought case the defendant required establishes [whose] alleged cross-examine the of a victim of the charged element offense has [and] prior against sexual assault about charges independent little corroboration. Although other men. judge trial relied (internal quotation 482 A.2d at 377 marks Sherer, primarily on discussed in some de- omitted). alteration marks court 340, below, page tail at case to closest also stated that the trial court’s error in present one is Lawrence. this curtailment of cross-examination was charged taking Lawrence was with inde- Mayo “more severe” Ms. rendered because six-year-old cent liberties with a girl. One “key” prosecution was a witness. Id. of the witnesses him was Darlene Mayo, sought the child’s aunt. Lawrence distinguishable Lawrence is from the Mayo First, cross-examine Ms. what he present about in respects. case two by allegations claimed were false her attempt, made no outside the of in other incidents of sexual abuse presence jury, to assess the truth or family. judge, The trial conduct- without falsity Mayo’s charges. Ms. Sec- other ing a voir dire examination as to the truth ond, case did other not involve com- falsity Mayo’s charges, Ms. other crime, plaints by alleged victim of the permit inquiry. refused to Lawrence protection complaining so that the wit- guilty, was found but this court reversed private nesses from intrusion into facts is Emphasizing his conviction. the con- that directly implicated.23 The decision is implicated frontation clause important present purposes, right challenge the defendant’s credi- ground ruling because this did not protect- bility prosecution witnesses was judge’s on the trial failure conduct a clause, ed the court said: voir examination. Rather the court dire An examination of the record reflects a key held of a wit- that cross-examination appropriate of an line of curtailment her other was crit- ness about accusations prevented cross-examination which jury’s opportunity ical to the assess her receiving jury from essential information credibility, proposition and this was not Mayo’s to an assessment Darlene finding any previous conditioned on credibility government Ap- aas witness. the other were false. pellant Mayo sought confront Darlene ap have jurisdictions Courts Mi- with the fact that she had accused proached presented a vari issue here April having Mayo chael 1981 of inter- Annot., ways. ety generally Im five-year-old daughter course with peachment or Cross-Examination fact that accused and with the she had Prosecuting Witness Sexual July having Jacqueline in 1981 of inter- Offense Charges Showing Trial That Similar elderly course their uncle. The trial Persons, 71 Against to allow line of in- Were Made Other

court refused have of her Some quiry. Regardless response, the A.L.R.4th Mayo’s permitting have assessed truth- examina- quite could liberal developments, nothing except predecessor judges not re- statutes and similar do learn our enlightenment. quire lacked of evidence of the exclusion "claim-mind- W.D., disagree part of edness” on the and I would, proposed how- cross-examination (albeit apparent majority’s one view ever, public embarrassing allega- made circumspect language) that couched in more family members of the and their tions about relic we can is an obsolete from which Mintz practices. complain- to the interests ly defen- sensitive required the tion.24 Others have ing witness. dant, being permitted to cross-exam- before charges complaining as to ine the witness ruling: McLean judge’s The trial others, had made which she examined. and Sherer show, jury, that presence outside that the no indication There is proved or complaints have been the other Lawrence, Mintz, any cases considered conceded to be false.25 prohib- she jurisdictions26 when from other ap- persuasive my opinion, In the most As proposed cross-examination. ited the one taken proach is the intermediate above, evidently believed that noted she Sherer, require McLean, the defendant those courts which controlled issue was is a reasonable demonstrate that there agree. I cannot and Hughes. line of proposed for the bona basis fide proscribes McLean, presumptively which State, See,

interrogation. e.g., v. Woods complaining witness examination of 180, (Okla.Cr.App.1983); 182 657 P.2d reputation, history and her sexual about 126-32, 121, LeClair, Or.App. 83 State v. allegations by a not deal at all does denied, 609, (1986),review P.2d 613-16 730 previously been complainant that she has (1987); 74, 734 P.2d 354 303 Or. Common assaults. or more sexual the victim of one Bohannon, at supra, 376 Mass. v. wealth Bohannon, noted in As the court LeClair, 94-95, In 378 N.E.2d at 991. prior dealt with questions proposed that, under the confronta- court indicated way they in no rape; allegations of clause, must be cross-examination tion concerning the response sought elicit a alia, some where there is permitted, inter activity or prior sexual complainant’s has complaining witness evidence We, therefore chastity. reputation for accusations, unless the false made related to the any issues do not reach value of the evidence substan- “rape-shield” statute. recently enacted outweighed by prejudicial effect. tially (empha 95, at 991 at 378 N.E.2d 376 Mass. 129, Or.App. at 730 P.2d at 615. 83 State, Accord, 290 added). v.West sis Bohannon, Supreme Judicial Court 684, 330-34, 686-87 329, 719 S.W.2d Ark. test, Massachusetts, similar applying a 442; 703 P.2d at (1986); supra, Covington, court to cross-examine stated that leave of 444, 446-47, Johnson, N.C.App. 66 State v. charges obtained to other should be denied, 52, N.C. 50, 310 review 311 S.E.2d advance, and held that such cross-examina- Woods, supra, (1984); 747, 315 S.E.2d permitted where should have been tion 1; States at 182 n. But see United 657 P.2d proof made an offer of the defendant (6th Cir.), 34, cert. Cardinal, 782 F.2d v. factual that he had a which indicated 2282, denied, 106 S.Ct. 476 U.S. party independent third basis State, 451 (1986); v. L.Ed.2d 724 Carter prior allega- concluding that records for (Ind.1983). McLean N.E.2d 644-45 fact, had, in made and rape tions of consent proposition stands for fact, were, in untrue. from a woman’s inferred not be others; present in the activities with 991. These 378 N.E.2d at 376 Mass. not arise. does question consent view, defen decisions, provide the my case assault not a sexual opportunity Sherer a reasonable dant with charged with first all. The defendant was cross-examination, appropriate- but are also State, See, P.2d Chambers, e.g., Covington 24. See, e.g., 370 N.W.2d State v. case; grounds on (non-sexual (Alaska (Iowa Ct.App.), Ct.App.1985) assault modified (Alaska Ct.App.1985); neces being victim doesn't rehearing, a habitual P.2d 1183 ‘‘[w]hile credibility, (N.D. sarily witness’ reflect on that Kringstad, N.W.2d State it and to assess to know that fact entitled 1984). presented"); relation to the other 162-69, Durham, N.C.App. State v. Hughes. Except Ouellette, (1985); State 923-27 S.E.2d 102-04, 190 Conn. armed, degree murder professional people while sev- indicated ferent key (with prosecution eral other offenses. A wit- varying degrees emphasis) Garrison, ness alleged Sherer’s probably ought accom- W.D. not to be believed. pretrial plice. limine, In a having motion in Sher- Several them alluded to her sought er leave up” to examine Garrison about past. “made stories in the admit- perjury Garrison had com- allegedly lying police to the name and ted about her an Virginia. mitted in earlier trial in The age upon Washington. her in As in arrest government Bohannon, denied lied suggesting that Garrison had information trial, contending at among relating that other unreliability came from records to things passed that he had polygraph two fur- complaining witness which were judge by tests. The trial denied leave agency Sherer an which had connec- nished no to the proposed conduct This examination. tion whatever with defendant. affirmed, own, adopting court as its Hughes, true formulation It is that the in following A.2d language from Sherer, present in quoted makes the issue supra, Hughes, rape 641 F.2d at a could con- turn on “whether it be shown in case which defendant had to sought vincingly charge that false.” the other was complaining cross-examine the witness believe, however, I that result in do not prior allegation of rape against about a by can this case or should be controlled another man: word. “It well to that one italicized is First, any conclusions drawn this given to significance remember on fact that would bear this case would general broad and of law statements depend upon it whether could be shown comparing they the facts from which convincingly other was charge that the they sup- to arise those facts which very false. This is offer doubtful. The posedly apply.” Kraft, Kraft proof indicates that cross-examination 910, (D.C.1959). Accord, Armour & complain- would have revealed that [the 126, 132-133, Wantock, Co. v. true, prior charge contended the was ant] 165, 168, (words S.Ct. 89 L.Ed. 118 attempting man that the involved denied light read in of facts opinions are to be her, attorney rape to and that district discussion; transposition other under to prosecute charge. fact did not The misleading). often facts is attorney district to chose not addressing court in was a Sherer itself, prosecute, in could mean no more I think specific factual situation. do not than that he he did have decided attempting analyze was to stan- that it sufficient evidence to obtain a conviction. applicable such dards to cases with facts as I find the distinctions between this case presented. here these numerous hand Hughes on the one and Sherer and in precedents, some of which are cited Sherer, In compelling. the other as opinion, were neither nor discussed. cited prosecution Hughes, witness had made Indeed, Lawrence, decided after year a prior allegedly charge. one In each false opinion which Sherer Sherer case, apparently the witness continued cited, repeatedly the court reached result previous stand behind his or her accusa- if, every could not sustained which be allegation with- tion. Neither had been case, “convincingly” the defendant must independent There was no evi- drawn. prior allegations the witness’ to be show wit- suggesting complaining dence that the being permitted to cross-exam- false before false ness unreliable or made Accordingly, respect them. ine with this kind. charges of Mintz, to reading and Lawrence Sherer gether, I it be in the hand, believe interest present on the other In the justice, and consistent with District Co allegations against approxi- had made authority, adopt reasoning lumbia given mately nine men. She had three Bohannon, and similar dis be- LeClair cases versions of what occurred inconsistent page supra. Applying In cussed and her half-brother Hank. tween her here, Round- charges against standard I am satisfied that connection with the Horizons, reasonable eight at Juvenile dif- tree had bona basis counsellor fide one, nor she past least I to be the correct did believing that at some W.D.'s believe Sherer, than Accordingly, precedents, he consider were false. question to a different from the permitted pointed should result subject. one reached. W.D. on the she A it summary, In that the defen- trial court abuses its discretion when would hold legal stan- dant must allowed cross-examine the rests its conclusions on incorrect be Sunderman, complaining witness claims of dards. 840 F.2d about Jett (9th Cir.1988).27 judicial Exercise of long as he has bona assault believing upon must be founded correct reasonable basis for discretion fide untrue, Medina, 47 legal principles. unless the claims See Conrad (D.C.1946). My view that specifically finds i.e., inquiry substantially apply correct value of such an failed to test — prejudicial effect. the defendant had a bona outweighed whether fide prior allega- has such a that W.D.’s assessing whether counsel bona reasonable belief basis, me to compels the court tions conclude reasonable should con- were false— fide result; claims, wrong you and the if sider the number nature she reached question, are to any wrong you apt ask may as well information counsel the as wrong Accordingly, I tending complain- to cast the receive the answer. doubt on judge’s that the refusal to allow veracity. considering prejudicial would hold ant’s regard effect, of to cross-examination W.D. the court should consider need the prior complaints her constituted error of to of avoid diversion the trial to collateral Moreover, given the evidence from law.28 inquiries danger, particu- as in as well the Minnesota, especially the unfavorable cases, inflaming jury. lar of gener See professional and assessments of other LeClair, ally supra, Or.App. v. 83 at State veracity to which (court at 730 P.2d to consider —assessments judge apparently gave trial no considera- confusion, prejudice, embarrassment or de matter law tion—I would conclude as a of lay). should, The court also bear government to or to any prejudice that, in presumption the sound mind. respond requiring her to general, faithfully will jurors follow past allegations against her questions as to judge’s instructions. Hairston United more, men, not have without States, (D.C.1985). A.2d “substantially outweighed” error Abuse discretion or law. of Bohannon, inquiry. value of the See su contends, major- The government 990; 93-94, at N.E.2d at pra, 376 Mass. holds, ity proper question that the for our Mintz, U.S.App.D.C. supra, judge review whether the trial is abused (such than F.2d evidence worth more apparent It not to me discretion. costs). it exercising judge initially was dis- II cretion, doing she herself as or that viewed States, so. See United Johnson THE OF THE EXCLUSION Rather, (D.C.1979). she held MEDICAL EVIDENCE proposed cross-examination was Relevancy motive A. —Roundtree’s precluded by As- Sherer and McLean. lack thereof. suming, judge ex- arguendo, that the was discretion, proffered The maj. op. at 324 n. defense ercising see The physician had examined W.D. purport apply the test who she did not which note, sought only question regard, counsel that defense counsel Roundtree’s her, precedents proffered trial did cite other no not W.D. about the incidents judge little embark in mid-mo- Accordingly, has time to often them. extrinsic evidence about projects of this kind. tion on ambitious research danger appreciable that a there no series was like the term "abuse of It is for reasons this that would result. mini-trials really than it discretion" sounds much worse imply any on reflection does judge. King v. United (D.C.1988). 353 n. 3 57, 60-61, doctor was said to prepared testify 27-28, be 150 U.S. S.Ct. (1893); Tierney, supra, that W.D. had L.Ed. 996 contracted venereal dis- 760 F.2d general, at 387. any may be “cheesy ease and that there was a white “[I]n fact by possibility can be con- genital in her extrudance” area. Counsel offered tending towards ceived others described the his proffer extrudance in as a emotion Wigmore, question.” 2 J. su- “heavy discharge.” He contended that it pra, (emphasis note 20 at 417 was incredible that Roundtree would have original). opportunity grati- The committed the crime under these circum- obviously provide fication can a motive for stances.29 Roundtree’s conduct. prosecutor opposed admission of the But two-way evidence about is a motive that, argued evidence. He “in light street. absence of tends motive “[T]he defense,”30 irrele- innocence; support presumption it is vant, and that its preju- admission would be a fact to reckoned the side [with] dicial government. to W.D. and to the People Weatherford, innocence.” found evidence “irrelevant to (1945) (en 401, 423, 164 Cal.2d P.2d issue.” never the question She reached banc). Any evidence which tends to shed prejudice. light on the defendant’s motive is admissi proffer I think plainly relevant him, then, turn, ble but he (or thereof) to the issue motive the lack proof negate offer rebutting tending to mo- and disincentive. The could jury reason- Rogers, 218, 228-29, tive. State v. 19 N.J. ably Roundtree, find it less likely that Vojacek, 37, (1955); State v. 116 A.2d 42 49 whose govern- “lustful” motivation31 the 429, N.J.Super. 433-34, 228, 140 A.2d 231 show,32 ment made substantial to efforts (1958). in Pollard explained As the court would to come want into oral contact with a State, v. 56, 60, 956, 218 Ind. 29 N.E.2d 957 genital diseased area with than a healthy (1940), one. If such it proba- evidence made less committing of a absence motive for [t]he ble that Roundtree was motivated to com- charged the crime is in the nature of an crime, mit the it it likely likewise made less exculpatory circumstance which defen- telling that W.D. was when the truth she is dant on trial entitled to establish ... testified that Roundtree it. committed such proof place To exclude arbitrary limitation on the accused “Motive is evidence of the commission of unjust, would be in view of the freedom Bradshaw, v. United States any crime.” adducing prosecution allowed the facts 704, (9th Cir.1982), cert. de 690 F.2d 708 guilt. pointing circumstances to his nied, 1210, 3543, 463 77 U.S. 103 S.Ct. L.Ed.2d It “a state of mind Accord, 1392 is v. People Kepford, Cal.App. 52 by proving 508, is the emotion that shown (1921); People v. 510-11, 64, P. Cotto, United States v. brings being.” it into 1116, 1117, 28 A.D.2d 285 N.Y.S.2d (1st Tierney, Cir.), curiam). cert. F.2d (1st Dept.1967) (per denied, 474 U.S. 106 S.Ct. present extrudance cheesy (1985). Relevancy objections L.Ed.2d 108 tended to of motive show more than a lack relating long sodomize; might to evidence to motive have to jury con- a reasonable been disfavored. Moore v. United powerful clude disincen- provided that it infection, agree my any proffered I am with col- evidence of constrained and “the leagues, maj. op. any defense probative counsel sub- disease was not therefor presented might precisely more have issue stantive issue." did, however, it, cogently. He and more raise majority point, and since the views albeit State, Speagle 31. See v. 390 So.2d 992-93 gingerly, having adequately somewhat (Miss.1980). opin- preserved, will not I further encumber this subject. on that ion with authorities alleged proposition- 32. Evidence of Roundtree’s telephone government's appears of Officer Brock and of his discus- to be 30. The contention that, engaging partner sion with weekend was ad- denied his since Roundtree W.D., depict with he would be unaware mitted to Roundtree’s of mind. sexual conduct frame question tive If motive son —to whether Roundtree to do so. evidence lack of relevant, likely then evidence of disincentive to sodomize have been motivated probative. even more alleged. The existence of the W.D. as she to the might appeared have disease Concededly, we for sure cannot know sufficiently likely from Roundtree inhibit whether have wished to Roundtree would committing sodomy create a reason- oral sex even if she suf- oral with W.D. plau- doubt as to truthfulness able physi- fered affliction which the agree sibility of account. I cannot prepared cian was said to describe. aptly judge’s As Justice Cardozo observed for conclusion Lewis Accident & Guar- court in Ocean evidence was irrelevant. 18, 22, Corp., antee N.Y. 120 N.E. value, prejudice, (1918), however, B. Probative itself “the law contents responsibility. trial court’s probabilities, and declines to wait certainty drawing its before conclusions.” find In rhetoric which do not to be Ordinarily, any logically which is understated, government contends that some fact issue is admissi- proffered ble, Broyhill, Ahrens 117 A.2d 455- imaginable the rankest (D.C.1955), would have been unless it conflicts with some Wood, assassina- rule. Fowel v. prejudicial form character exclusionary

settled (D.C.1948). countervailing absolutely the evi- no tion with “[I]f in any degree dence conduces reasonable probative value. improbability of probability establish the says government, there Accordingly, controversy, go it to the fact should excluding it. no abuse of discretion Weide, Home Co.

jury.” Insurance foregoing recitation of the man- As (11 Wall.) 438, L.Ed. issue decided demon- ner which the was strates, however, nothing I can in the “find reasonably enough It if item is the could [judge] that the trial was record show slightly proba- that a fact is more show exercising excluding the discretion that appear ble than it would without [her] cannot testimony, therefore probative Even the force evidence. after [I] [vote grounds.” spent, proposition uphold evidence the exclusion those the is the to] Dutremble, 42, (Me. for it is offered still can seem v. A.2d State Thus, quite improbable. the ob- Inc., common Hrnjak Graymar, see 1978); also jection the the that inference’for which 725, 599, 604-05, 732-33, 484 P.2d Cal.3d necessarily not fol- fact is offered “does (en banc) (er Cal.Rptr. 628-29 poses It standard low” is untenable. a weigh probative value ror to fail to very single that conclusiveness few Although the trial impact).33 prejudicial ever items of circumstantial evidence balancing these judge has latitude in wide A is not could meet. brick a wall. factors, only if should be excluded supra, (foot at 542-43 substantially out probative value § McCormick, omitted). jurors might thought sense. have that that oral no sexual contact occurred. likely Roundtree would not have been to do Maj. passage stripped op. having at 327. If this what said he did. The W.D. record use, twice, constricted, improperly of the editorial of the word been and the rele- “somewhat”, correctly prob- excluded, having it states vant been de- confronting colleagues’ my position. position lem fense counsel no to make was in appearance argument. Had the condition and When deter- an this court n W.D.’s genital appellate area disclosed to the that lofty perch mines jurors, would “more likely,” it have been the exclusion of this evidence did not affect verdict,36 majority’s expression, they to me use the that it seems to be substitut- ing only Roundtree and assessment would believed disbe- its assessment for respect jury not a really lieved W.D. with whether or that should count—that of case, sodomy which, jury cir- in oral occurred. Under these unlike the trial has cumstances, I opportunity do not understand how an to consider all of the rele- assurance,” Basically, I majority can state “with fair vant and evidence. admissible Giles, my colleagues guessing think are as to supra, 432 A.2d that jury if jury’s would not have been differ- what the would have decided verdict here, Or, excluding proba- prosecutor’s in absent the error effective cross-examination. tive probably evidence. lied That Roundtree does not necessar- ily mean, however, he had sex with that oral majority agree with that I Roundtree’s significantly impaired by credibility had been evidence, gener- we can of the testify jury has all been allowed to about doctor had judgment in its sound ally and condition of W.D.’s have confidence appearance liberty not genitals. fairly. Roundtree’s should ability assess the case — guess. —,- depend on such California, Boyde v. 1200-01, L.Ed.2d —, 110 S.Ct. single only that if We must remember Cotter, (1990); States v. United acquittal, there can be juror holds out for Hand, Cir.) (2d (per Learned F.2d guilty. Roundtree’s first trial no verdict of J.) denied, 287 U.S. S.Ct. cert. though the hung jury, even ended with (1932); Allen v. United 77 L.Ed. 575 apparent- proffered medical cf. (D.C.1990) States, 579 A.2d quotable ly always As the not admitted.37 J., dissent- think, (Schwelb, concurring part and, Judge Irving insightful I Goldberg Chapman present the court in In the part). wrote for (5th States, I 547 F.2d it what v. United not have before jury did Cir.), denied, 97 S.Ct. cert. 431 U.S. probative evi- regard important and (1977), L.Ed.2d 393 as to what would have Speculation dence. into er- infusion of “harmlessness” aware of if the had been occurred [t]he doc- exception, ror must be should hazardous. The doubt evidence is employed. A sparingly trine must be in Roundtree’s favor. resolved gar- with minuscule error must coalesce colleagues opinion my are Since the accused gantuan guilt, even where correctly prohibited cross-ex- Pantagrueli- displays imagination respect to her amination of W.D. anf38l dimension. abuse, I have confined allegations of sexual concept if this formulation reads Even error to the of harmless my discussion narrowly of harmless error a bit too —and appearance of of the condition and issue not- Chapman’s conviction was affirmed area, respect to which pubic flour- withstanding judge’s rhetorical and more or less majority assumes something to learn think we have ish—I I error occurred. add concedes that a denial of from it. Before we sustain my conclusion that I correct that if am permitted liberty to a citizen who was imper- of W.D. the cross-examination jury, to the we present relevant evidence restricted, im- the cumulative missibly then than good more satisfied should be a deal rulings was sure- two erroneous pact of the allows us to be that he would this record I do not think ly so substantial anyway. convicted have been seriously colleagues maintain my like emphasize that this is not a ease it was harmless.39 Lemon v. United (D.C.1989), harmless in which we found IV “missing prosecutor’s spite error in the ab- argument part because witness” STATUTE THE SODOMY from the stand of the witnesses sence cunnilingus is a Although notion that the to the obvious question “would have been the text not obvious from act is sodomitic said.” prosecutor matter what the jury no statute, 22-3502 D.C.Code the see in which In a situation Id. at 1376. law, by no remand is neces- and that judge ruled error of had that if the first trial 37. I assume admissible, judge weigh probative sary counsel to evidence Roundtree’s to enable that would have judge's brought this to the second cor- against prejudicial effect under the value whether record does not disclose my colleagues’ attention. The legal under standards. Even rect proffer first trial. was made at the a similar relating analysis to the exclusion the issue appearance W.D.'s regarding evidence Pantagruel, Rabelais’ the hero of Francois however, area, appears that a genital to me it name, bearing as the is described novel his judge can do the required so that the is remand Gargan- gigantic coarsely son humorous by being balancing discretionary misled without tua. Webster’s Dictio- New International Third palpably incorrect notion (1966). nary is irrelevant. my expressed view that the previously I have rulings judge’s issues were tainted on both (1989), agree I majority that we whether rational basis exists for a are bound follow to United States v. statutory Co scheme under a forcible which zart, (D.C.1974), 321 A.2d voluntary per- to act assault and a reject argument Roundtree’s that this form by consenting formed are treated adults of sodomy proscribed. maj. op. States, is See identically. Greene v. See United I my concern, at 329-331. do wish to note (D.C.1990). poten- to aspect as another of the stat tial for abuse is obvious. This state of which, my view, may ute result in a justice, affairs has little to do with palpable injustice legislature which the hope remedy yet that a will found. But intended, which may never Gary see v. United present problems serious constitutional as (D.C.1985) (en banc) (describing congres- well.40 sional District veto of of Columbia sexual denied, legislation) reform cert. 477 U.S. sodomy Since is a crime which consent (1986) 106 S.Ct. 91 L.Ed.2d 568 defense, many is no there great peo- are a and 475 U.S. S.Ct. ple in the District of who commit Columbia (1986). L.Ed.2d 725 Sexuality it. See G. Nass M.P. Fisher, & Today (95% males and fe- sex). practice males sometimes oral V Kinsey, also A. Sexual Behavior in the THE OF CONVICTION TAMPERING face, On its 576-77 Male, Human WITH PHYSICAL EVIDENCE exception the statute makes no for married every specifies couples. appeal If sentenced Roundtree’s notice of violator were years, appealing as that he of his serve three nine Roundtree both con- was, great many argument in victions. in his more adults would be No was made jail Obviously, respect than out of it. such a stat- brief with to the conviction tam- evidence, likely pering ute nor was physical to be enforced cases point argued orally. which either there was a sexual assault or circumstance, aggravating some other real case, present despite mis- perceived. goes or When the assailant investigators handling by paper bag trial, however, government argue— can allegedly contained se- Roundtree’s prosecutor case did—that men, against tampering the evidence of in- consent is no defense. The so compelling. Roundtree was His defense effectively jury. structs the This enables absurdity effectively was reduced to —he government prosecute a case of sex- bag did not if his chicken know sandwich proving ual assault without assault. stapled word “Evi- was shut had the government orig- dence” on it. present In the written assault, regard him in inally charged Roundtree with but to that offense was Nevertheless, provided exclusively charge. later witnesses other dismissed W.D.; imposed testify to nine than she did not about it at sentence —three years judge’s Any impeachment credibility view that all. of W.D.’s —reflects tampering crime. irrelevant to Roundtree a serious He thus be committed convicted, however, which, act if conviction. of an adults, performed consenting is an Moreover, ample reason Roundtree everyday occurrence. if he tamper with .the evidence even If, guilty sodomy. example, any issue the constitution- Aside from sodomy, only partially ality prohibition of W.D.’s account was true —if of a consensual Hardwick, compelled participate she in his was mas- generally see Bowers v. 190-96, 2841, 2843-46, turbation, if there no cunnilin- but S.Ct. (1986), might gus guilty be well ask Roundtree would not 92 L.Ed.2d 140 one —then prob- counsel did not raise these existence. 40. Roundtree’s noting myself with their lems and I content specific with which he was crime ample al.,

charged, but would still have had PEARSON, Appellants, et Robert bag destroy motive to or conceal brown containing semen and soiled tissues. STATES, Appellee. UNITED

In Gethers v. United (D.C.1989), recently held that we 88-1024, 88-1021, 88-1023, 88-957, Nos. of- where defendant is convicted two 88-1026, and 88-1029 88-1027 and re- fenses one conviction must be 88-1031. versed, conviction can stand second “prejudicial spillover” if there was no Appeals. District of Columbia Court of ap- at first from the first. It blush incongruous Argued to sustain find- pear to vote June “cover-up” guilt with a connection Decided Oct. I think of the crime when the conviction sought to be concealed should reversed. incongruity dissipated, seeming

That

however, when the evidence one considers and, particular,

as a whole the lack of relationship between W.D.’s I tampering offense. discern no spillover

prejudicial in this case. Accord-

ingly, I affirm Roundtree’s convic- physical tampering

tion of evidence.41

VI

CONCLUSION peo-

This is difficult case. Reasonable can, do, differing

ple hold views with presented.

respect legal issues opinion,

my was with- could sub- jurors

held from credibility

stantially affected the

complaining plausibility witness Moreover, the failure of our

her account. distinguish

statute to between forced sodomy unjust. irrational and

consensual Roundtree,

I do not believe that who long guilty began a term of

found August more than

imprisonment fair years ago, received a trial.

four view, contrary my colleagues’ but

respect considera-

regret their conscientious not led them to the

tion of the case has conclusion.

same illegal. imposed was thus felony for which indeter- sentence Accordingly, is a 41. This offense remand for resentenc- we should required. See D.C.Code minate sentence was 24-203(a) (1989). one-year on this count. determinate notes danger prejudice. unfair weighed supra, (emphasis at 545 § trial, credibility critical At W.D.’s was a McCormick, added). judge made no such determi evidence would have issue. The doctor’s here, probative value of the nation indeed, a exercis- jury provided a reason — It should have substantial.34 evidence was experience might its common sense persuasive rea- admitted. very have it a well found suggest Maj. op. "marginal." that judge's belief that the evidence mistaken likely, reasonably jury doomed her exercise it much less irrelevant would have could find was of one, attempted likely, just marginally even if she that discretion a man not less which she did not. awith woman’s to have oral contact would wish pubic area diseased. area if that were respect my colleagues, I do not due 34. With of the evidence believe that relevance III the disputed ent if evidence had been re- ceived. HARMLESS ERROR ANALYSIS My colleagues apparently affirm the My colleagues discern no error in the judgment spite judge’s of the trial erro- judge’s restriction of cross-examina- because, view, ruling neous their apparently tion and hold that the exclusion government’s supported case would have of evidence regarding appearance guilty proffered verdict if the even defense incorrect, genitals, W.D.’s diseased if evidence had been admitted. But if “[e]ven In my opinion, rulings harmless. both appellate court is without doubt that a manifestly were not erroneous but guilty, defendant is there must a rever- prejudicial. sal sufficiently if error is serious.” holding Tussa, To warrant a (2d that trial court United States v. 816 F.2d harmless, Cir.1987). error is finding must be satis- A the evidence assurance, pondering fied “with fair after supported would have even conviction happened all er- stripping correctly without if had ruled dis- whole, roneous action positive question from the of the error. harmless judgment substantially (8th swayed Solem, was not 815 F.2d DeVine States, Cir.1987); Leeke, error.” Giles v. United F.2d Thompson (D.C.1981) (4th Cir.1985). (quoting A.2d Accordingly, Kottea harm- States, kos v. 328 U.S. analysis United less error “should not be limited to 1239, 1248, (1946)); S.Ct. superficial inquiry 90 L.Ed. 1557 see same as whether the 11-721(e) (1989). also D.C.Code In dis possible verdict would have been absent issue, cussing “cheesy extrudance” the tainted evidence.”35 Brooks v. United majority acknowledges (D.C.1976). [i]f, appellant suggests, symptoms cheesy If the evidence of the extrudance of W.D.’s disease would have oral made admitted, had been the context of this case sex unpleasant unlikely and therefore materially would have been altered. There occur, this evidence could be somewhat evidentiary predicate been an credibility of her account to attack credi- defense counsel such, sodomy. might As it have bility potentially persuasive argu- with a jury likely made more somewhat grounded ment on common events, i.e., appellant’s believe version of

Case Details

Case Name: Roundtree v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 2, 1990

Citation: 581 A.2d 315

Docket Number: 86-1382

Court Abbreviation: D.C.