*1 UNITED STATES America BENN, Jr., Appellant.

Hilton America

UNITED STATES of HUNT, Appellant.

James W. 71-1501, 71-1547.

Nos. Appeals, Court of

United States District Columbia Circuit.

Argued June Dec.

Decided 8, 1973. Amended March

Rehearing Denied March *2 Dunn, Jr., Washing-

Mr. H. Stewart ton, (appointed by Court), D. C. this for appellant in No. 71-1501. Washington, Mr. Julian Singman, H. (appointed by Court), ap- D. C. pellant in No. 71-1547. leading a screams, McCarthy, men two e. she saw Harry Asst. U. J. Mr. alley. call- After young into the Atty., Harold H. Ti woman Messrs. with whom alley, directing police she Terry, ing Jr., Atty., A. tus, S. John U. similarly men, those Attys., Gill, Jr., dressed two G. Asst. U. S. saw John being from earlier, taken brief, appellee. Mr. seen were on the *3 police.6 Atty. Flannery, at the the scene the A. Thomas U. S. filed, also entered record was time the that arresting officers testified The appearance appelle for an alley, appellants they entered the when upon girl, nude but over a were crouched seeing policemen BAZELON, Judge, Before Chief Jus up straightened CLARK,* Supreme of tice the Court away her. The victim from walked and WILKEY, Cir the United States and frightened appearing was described as Judge. cuit having her a bruise over and and nervous eye, her on handmarks scratches and BAZELON, Judge: Chief the neck, told in her hair. She and dirt Appellants rape indicted for were raped appellants had officers that both armed,1 rape,2 assault with a while and her on the Hunt had struck her and that dangerous weapon.3 court dis- The gun. police recovered The head with a rape charges appellants missed the and appellant Benn from knife switchblade convicted with intent to were of assault to one found next and a revolver was commit armed4 and while assault Other discarded shoes. the victim’s dangerous weapon. Appellant with clothing her as well as items of her charges was also Hunt convicted on purse were scattered and contents its carrying dangerous weapon.5 is- The alley. about the (1) judge sues are: whether the witness, primary prosecution’s psychiatric failing erred to order a complainant, mentally retarded is a the mentally examination of the retarded girl her order to determine 18. prosecutrix purpose the the judge hear- competency, the trial held a competency court’s determination ing jury presence out of the of the jury assessing to aid the the credibili- girl’s her which father testified the (2) ty testimony; whether, of her in memory and inconsistent was at times judge case, determining the erred in admitted she did fantasize but prosecutrix competent was a flights fancy always innocu- her were law; (3) witness as a matter of and any- totally ous and she never fabricated appellants properly whether were con- accurately thing. usually able to She charges victed on of assault intent with and has observed describe what she to commit while armed and assault impression likely an to retain dangerous weapon, arising with a from event, he On of a traumatic claimed. the same transaction. examination, prosecutrix voir dire understanding expressed I. meaning and a com- oath related prehensible sur- Appellants narrative events were arrested a blind al- rounding reserved ley by police responding the crime. officers to a re- girl’s testimony pend- ruling on port final alley that a woman in the was degree ing cor- screaming an evaluation help. trial, neigh- At holding produced, roborative reported who bor had testi- incident “rudimentary that, had having fied been awakened * by designation Sitting pursuant 2,8, 4. 22 3202. ¶¶ D.C.Code to Title 294(a). § U.S.C. ¶ 5. 3204. D.C.Code 1. 22 D.C.Code ¶¶ however, unable, make She Tr. 60. facial identifications. D.C.Code ¶ 2801. ¶ 3. 22 D.C.Code

qualifications weight giv- to tell what she recalls.” witness to be (Tr. 90-1). trial, testimony. prosecutrix Competency depends At en her upon observe, capacity she had seized testified that witness’ appellants dragged screaming remember, into un- narrate well as an alley. derstanding They duty removed her clothes tell requires her. Hunt hit her face It assaulted truth.9 also an assessment gun; potential prejudicial threatened.her a of Benn with of al- effects lowing jury testimony. knife and tried to choke In at- her. to hear the tempting explain appellants may severe, what Mental retardation ca- be so her, complainant pabilities impaired, done to was unable so graphically potentially prejudicial to define did so that it should appellants’ hearing completely by judge. scribe acts.7 After be barred Or corroborating substantial testimony, her *4 evidence there be sufficient indications of a complain- capacity found the reliability witness’ and of the competent jury testimony a ant to The of her be witness. that it should be heard testimony by jury, was allowed to hear her as and assessed albeit with a concerning cautionary well as evidence her mental instruction.10 condition, cautionary in- albeit with a mentally rape prose A defective struction. presents particularly cutrix a difficult problem judge jury. for both It is Although prosecutrix was exam- agreed generally sexual assault night by physician ined a on the charges by mentally girls abnormal alleged rape, testify the doctor did not subjected great scrutiny. should be to any at trial.8 Without medical or other danger There is real or contrivance penetration, corroborative evidence imagination may events seem real —the the trial dismissed the girl to though even exist charges jury to submitted in her own mind. Yet that lesser included offense assault with may enough arouse sympathy to make intent to commit while armed. an innocent man the real victim.11 making To assist in the court II. competency its decision, jury to aid the competency The of the witness assessing credibility, or to serve both testify jury to before the is a threshold purposes, judge may the trial order a question of law committed to the trial psychiatric expert examination to obtain court’s discretion. It remains for the testimony concerning degree and ef jury, course, credibility to assess the fect disability.12 Wigmore of a witness’ 7. The witness said that “Both of them 53, (1965) ; g. Overholser, Rev. 74 e. see privates stuck their in me Psychiatrist and the Law 53-54 my legs.” between Tr. 191. (1953) ; Wigmore, 924(a) 3 Evidence (3d 1940). ed. physician’s testify 8. The to failure is dis- opinion. later cussed in this See Tr. ordering 12. The basis for such examina 227-28. tions stems from the trial court’s inherent power inquiries to U.S.App.D.C. conduct States, those neces Doran v. United 92 sary adjudication. 305, 306, a full 717, 718, and fair denied, 205 F.2d cert. Butler, 560, State v. 828, 49, 346 27 143 A.2d N.J. U.S. 74 S.Ct. L.Ed. 352 98 (1958) ; Klein, (1953). 530 see United States D.C.D.C., F.Supp. (1967) ; 271 506 aff’d Armes, 10. District of Columbia v. 107 nom, States, sub Hamilton v. 519, 521-522, U.S. 2 S.Ct. 27 L.Ed. U.S.App.D.C. 368, (1970) ; 433 F.2d 526 (1882) ; Penn, U.S.App. In re Superior Court, Ballard 64 Cal.2d 248, 251-252, D.C. 443 F.2d 666- Cal.Rptr. 302, (1966). 410 P.2d 838 Although passing counsel’s Watson, Psychiatry Lawyers reference “scientific (1968) ; (Tr. Weihofen, 38-39) medical evidence” does Testimonial Com not petence Credibility, a constitute motion for the court-ordered 34 Geo.Wash.L. Accordingly, the trial danger him. assist suggested false has prosecu- judge’s preju- determination potential for and the accusations psychiatric competency, a without as- trix’s impact in sexual is severe so dicial examination, not be disturbed. will every com- sex offense cases that sault We examined.13 plainant dangers should be which must be rigid rule think, however, such determining a whether considered countervailing by precluded considera- prosecutrix mentally is is a retarded psychiatric example, exam- For tions. competent must also be consid witness seriously impinge may on a wit- assessing jury ination her ered right privacy; trauma ness’ credibility,16 particularly “the since complainant sex the role of attends jury’s the truthfulness estimate of charges sharply increased is offense reliability given may well witness indignity psychiatric examina- guilt or innocence. be determinative tion; could serve examination itself may jury be aided .”17 The harassment; impact tool psychiat- its task the results of a these well of all considerations examination, ex- ric even when such crime from the victim of such a ter judge’s necessary to the amination lodging complaint at all. Since competency. determination of When weighing is no measure there exact should ordered to aid examination against dangers kinds of the need these jury judgment, involving a bal- is also a *5 examination, be for an the decision must ancing dangers, against of which need discretion of the entrusted to the sound the trial committed the discretion of to judge light particular trial of strong Here, judge.18 indications facts.14 testimony reliability prosecutrix’s against weigh heavily an need present In the case the trial Also, jury not was examination. prosecutrix found demon that the credibility to make its decision with- left understanding duty an of her to strated to the witness’ out information as capability the truth and to tell a observe fect; comprehen- the frank and had comprehensible remember.15 A nar girl’s testimony to as- sive of the father emerge rative does from the sum of her circumstances, it. we can- sist these testimony. Also, as the cautious say judge in fail- erred that the trial allowing judge noted before witness ing psychiatric to order examination a testify, to substantial corrob there was jury. of the witness to aid the testimony giving oration to her extrin III. reliability. Finally, sic assurance of its applicable judge girl’s for deter had The rule the benefit mining merger there has testimony whether as to her father’s retardation “rudimentary qualifications witness, to tell what examination of such a motion clearly position ; unnecessary she in a recalls” she was since the court sua sponte expert to to have with observe and seems recalled call its own witnesses. Fed. clarity 28(a). some subject the events which were R.Crim.P. testimony. her (3d Wigmore, 924(a) 13. 3 Evidence ed. Proposed Evidence, 1940) ; *6 386, 1280, U.S. S.Ct. 78 2 L.Ed.2d 1405 fact which the other does not.” Block (1958). burger States, 299, v. 284 United U.S. 304, 180, 182, 52 S.Ct. 76 L.Ed. 306 Bryant, U.S.App. 20. United v. States 137 (1934). separate Thus convictions were 124, 133, 1327, D.C. 420 F.2d 1336 permissible. held, however, We also that (1969) ; States, Allison v. United 133 support convictions on both counts would U.S.App.D.C. 159, 163, 445, F.2d 409 sentences, concurrent but not consecutive (1969). 449 Congress because doubts as to whether 21. 22 ¶ D.C.Code pyramid punishments meant to should be only lenity resolved not in favor of Hill, U.S.App. See United States v. 152 legis (assault also consistent with a 213, reasonable (1972) D.C. F.2d 470 361 dangerous lative intent. But weapon D.C.Code 112 § 23 with a va conviction cf. (Supp. 1972). V appellant cated when also convicted as Hill, In we held that convictions on sault with intent kill while armed as a charges dangerous of both event) ; assault with result of same States United weapon and assault with intent kill Bryant, U.S.App.D.C. 132, 124, v. 137 420 while armed would 1327, (1969) (assault result the lesser F.2d 1335 is a charge being though, here, vacated even as lesser included offense to in assault with imposed. concurrent sentences had been rape); t ent to commit States United cf. Hooper, U.S.App.D.C. 171, 139 432 F. necessary do not We find it to remand (1970). 2d 604 these cases to the District Court for re- Ingram Compare States, sentencing 122 greater United on the offense. The U.S.App.D.C. 334, (1965) 353 F.2d 872 cases procedure which we have followed such a Hill, U.S.App. with United States v. 152 have involved convictions under 213, (1972). Robbery Act, D.C. 470 F.2d In the Federal Bank 18 U.S.C. Ingram 2113, governed by this Court held that there was § hence been Prince merger charges States, not a with a of assault v. United U.S. S.Ct. dangerous weapon (1957). in assault with 1 L.Ed.2d 370 arising Parker, U.S.App.D.C. tent to kill out of the same act. States v. requires proof Bryant (1971) ; Since the former count 442 F.2d 779 v. United dangerous weapon States, U.S.App.D.C. 138, the use of a 417 F.2d proof kill, latter of an intent “each neg completely There was a prosecutrix, at reached.- pital, examined nega completely report, shortly police, ative medical after instance scratches, however, abra one, to bruises alleged tive as assault. No neg face, sions, testify appellants’ lacerations around trial. him to at called nega completely respects, apparently conscien- ative in all disturbed This abnormality mental perceptive in- tive as to who tious on the physician’s I talked the doctor quired absence. health. to the colloquy phone following disquieting him en- and confronted I told him photographs I had [sic] sued: men photographs,25 described thing . THE . [T]he COURT: de as I tal condition knew me that al- concerns is the fact that me he had ab He fendant. conceded though in a circum- corroboration night solutely re no idea that normally like this obtained stance op me his method He told tarded. physician who aof alleged rape victim towas ask eration girl hospital. examined at injuries then she had and what physician offered That has not been look at them. I combined he would witness. as a knowledge has been with the this Now, I take it from no one papers recently public in [sic] testimony of felt the three prosecutors doctors other strengthen physician negative ease. his giving are D. C. General course, Of has Government so reports of victims medical proof beyond reasonable burden called to court. won’t be this oth- doubt on issue as well as your office have COURT: Does THE type I er issue of fact of case. responsibility? some wondering why am the Government Your Yes. THE PROSECUTOR: did not call the doctor. Honor. May you, THE I tell PROSECUTOR: you Why don’t assume THE COURT: your Honor? responsibility? Why certainly. THE COURT: Tr. 227-28. suggests THE I to the talked Unfortunately, PROSECUTOR: the record phone. fact, doctor on sub- I are questions We than it answers. more poenaed up him and he never showed why speculate failed counsel left to as to *7 exculpatory

yesterday. examining physician’s He his called and left the to elicit course, ony.26 is, of phone It number where he could be testim ly following graphs do show: of App.D.C., showing a of the victim’s face could have “drastical THE COURT: juries My shown? attention to Government’s Exhibit No. THE PROSECUTOR: introduction of speak serious [as Judge embarrassed” I am brothers to for itself? the “bruised and cut” condition Wilkey, did question identification, what, laying colloquy sure at 1136 of you speculate the infra photographs]. —was as indicates % is the rule Doesn’t to physician. 476 F.2d. But foundation at of what that intended Directing your 5;* that photographs these if there is Opinion picture photo to be U.S. the in- The Hunt and that Tr. 150. a tion The These over taken and due THE sentation picture darkness size of camera, struggle The Court ^[*] but also there was no indication prosecutrix struck doctor would have her left pictures POLICE is it didn’t show choked on the ^[*] of what in the a fair that eye. bruise, especially the one will to testified show bruise, by there person face with M: PHOTOGRAPHER: the you Benn. ask partly reported not were no fully condition how saw? accurate ^[*] whether of the victim. Police wit- exactly what pistol was, penetra- signs of repre- # only was the the the by possible choices, only which to in better construct scenario different but tactical choice. that decision was a wise whether his trial in- decisions were conjecture possible formed, equally deliberate, It is to rational. In the investigate question case, counsel failed to circumstances of this I believe that examining physician’s were examination decision to call the simply physician28 of their indifferent to the needs some assurance demands explanation clients' cases. Which com- that counsels’ choice met this standard ports reality reflecting ignor- remains unknown. with rather than counsels’ ance or indifference.29 I am well. aware that there dan- are gers attempting second-guess My out, point however, to brethren professional judgment may strategic of trial counsel. there have been reasons right But to the effective calling physi- make for defense counsel not requires it, disposi- assistance counsel viable cian. As I understand their they some assurance that counsel’s trial tion rests on the view that cannot actually his cisions reflect an exercise of find on record before in this case us judgment.27 professional question The sufficient indication that the standard would done is not whether counsel have has not been met.30 story by nothing everything this nesses corroborated describ- fense had to lose and ing eye, alleged- gain directing a bruise over the victim’s all their efforts to pistol ly whipping, single purpose acquittal securing a result of the neck, might scratch marks on her as have on the lesser included offenses. attempted strangling. from an resulted My physician’s contrary testimony brothers observe that the defense could conceivably defending counsel “are have not not novices at created sub- Opinion Judge criminal cases.” stantial doubt as to the truthfulness of Wilkey, infra, prosecution’s complainant, key U.S.App.D.C. at - of wit- ness, experi but also refuted the 476 F.2d. But contention counsels’ hardly may, proof ence is there was assault. There effectiveness. The course, physical be an assault issue is what in this without con- did case. prosecution tact, And I find little else the record this case sought prove physical striking reassuring case that as counsels’ ef- injuries. resulting long fectiveness. When asked how he gun summation, needed for his Hunt linked to the found at one of the de- attorneys primarily prosecutrix’s engaged following fense scene exchange weapon about his the court: use of the corroborating give you— THE strike her and the I will COURT: injury. physician’s my I of her facial COUNSEL: like to move testi- mony as to the lack car before mark 5 :00. such might exculpatory THE I have been COURT: will allow ten to this prosecution’s you minutes for each element of the case defendant unless as well. want more. Mitchell, No, See United States v. enough. U.S. COUNSEL: I think that App.D.C. 57, 65-66, you it, you F.2d THE COURT : If want (1958) (Judge Fahy dissenting) 795-796 have it. (the inquiry cannot bar stretching into I COUNSEL: think I will be *8 professional judg counsel’s exercise of his it in ten minutes. . yet protect hope ment Appeals the client’s I constitutional the Court of doesn’t look righ t) ; White, upon State v. 5 the summation aas Hammond situa- Wash.App. 283, 243, (1971) enough 487 P.2d 246 tion. ... I have trouble with (in examining acceptable Appeals the hollering boundaries the Court that I was judgment by counsel, gave of the exercise of argument. I a Hammond court could find ineffectiveness if asking you THE counsel’s I am COURT: not deliberate, choice trial tactics was not talk for a half an hour..... lawyer acted, no reasonable Tr. have so 236-7 ignorance or finally gave decision was a argument, result of When counsel his it inadequate preparation). the law pro or was little more than forma. Since, my colleagues Opinion Judge 28. recognize, Wilkey, infra, as 30. at 16- charge threat, was never a the de- 18.

1135 34 may It be had he done so. Appeals the Third raised have The Court only inquiry attentive of the inef- recently an dealt with Circuit31 light ques bring arising un- trial will out of the claim fectiveness But, of counsel.35 tion of effectiveness defense either explained failure of may circumstances, appellant in such present re- prosecution a medical prosecu- with claim of ineffectiveness ventilate a port- of the examination being relegated attack. charge. Admitting to collateral out of a trix is claim ineffectiveness A meritorious may reasons indeed various “there be trial.36 motion for a new offered,” re- on a available why the court it was not may supported quagmire of The claim be into the fused to be lured showing of without a explanations dehors the record constructing after-the-fact diligence.37 due conduct. to rationalize counsel’s such the case because court remanded appel- Accordingly, I would affirm proof.” place of “cannot surmise take (except rendered those lants’ convictions 502). 22 under D.C.Code § inadequacy of trial Evidence counsel will often be outside V precisely be- some cases record32 —in For ineffective. cause counsel has been of defense effectiveness Nor is the example, failed to con- only counsel has problem when concerns counsel may investigation, today the record be duct an ac- me in this matter. The court charge he the witnesses knowledges of mention of barren could that the 33 he would would have called or defenses without be sustained Maroney, _, rel. Kent v. ex States F.2d United Id. at 475 See effectiveness. (3d 1970). 1020 Cir. Appendix. 435 F.2d at 940 (9th Dickson, Benjamin Thompson, v. 310 F.2d 30 32. Brubaker v. States United 1962). also, U.S.App.D.C. _, v. United See States F.2d Cir. 475 Smallwood, 931 154 Washington, U.S.App.D.C. _, (1973) ; 154 153 475 States v. United (1973). 392, U.S.App.D.C. F.2d 357 473 F.2d 98 387 at Judge (Bazelon, (1972) at Chief 103 Thompson, See, g., v. e. States United 33; concurring) ; see Fed.R.Crim.P. U.S.App.D.C. _, 475 F.2d 931 U.S.App. States, 141 v. Marshall United (1973) ; Moore, 432 F.2d United States 155, 159, 11, 11n. n. 436 F.2d D.C. (3d 1970) ; Tucker v. Cir. judgment to whether (9th States, Cir., 1956). 235 F.2d 238 warranting a meritorious claim there is appellate made a motion should be such People Ibarra, 60 Cal.2d 34 Cal. investigation of an on basis counsel Rptr. 863, (1963) (Justice 386 P.2d 487 than this court on basis rather Traynor, writing court, found pure speculation. counsel had been ineffective he where suppression pendency appeal failed to move for the evi- in of an does not 37. The misapprehension ap- filing dence due to a new hibit of a motion for plicable law) ; see, ap limiting trial, Plummer v. United its usefulness to thus States, U.S.App.D.C. 211, states, pellate 260 F.2d counsel. Fed.R.Crim.P. 33 (1958) (Judge dissenting) appeal pending Bazelon if an . . is (the grant dissent would have remanded the case on re motion hearing is, however, for a explained as to the reason for an un- It settled mand of the case.” insanity failure to assert the motion can law criminal cases fense) and, if made without remand the dis grant trict court indicates that will motion, U.S.App.D.C. Simpson, 35. In United States v. remand made then motion for _ , (1973) appellate Thus, F.2d 934 when court. (Bazelon, Judge, dissenting), appeal Chief counsel on finds ineffectiveness suggested device, inadequate dissent preparation a mechnical which there is an issue as to *9 report by record, to be submitted he should file a for a new motion pleads appeal counsel before his client the trial the district court before the close of trial after the verdict had been is heard in this court. See Smith provide rendered, appellate Pollin, U.S.App.D.C. 178, 179, to the trial and 194 F. courts with information about counsel’s 2d Plainly, examining physician. proof beyond the den a reasonable prosecutor intended to the neither call on this oth- doubt issue as well as type doctor to move dismissal of the er nor issue of of case. fact charges. appear rape It would therefore suggest We that those two sentences of prosecution prepared to that gain the Judge assuaged Gasch should have all of it conviction without a evidence dissenting colleague’s our fears. The knew to be essential. Government does bear the burden of proof beyond addition, colloquy a reasonable doubt. With- as the described testimony physician, shows, out prosecutor a it is above advised much more difficult than otherwise . doctors at D. C. to that “. charge prove negative rape, giving medical trial General [are] recognized dismissing reports rape court here victims so won’t [on] original charges rape Every while armed be citizen called to court.” has simple rape. obligation appellants and were to forward come convicted assault with com- prosecution. intent to crucial to a Ac- criminal government counsel, mit cording armed, while included lesser to there was offense, may very disregard which duty, well have been required because of unjustifiable the absence also an legal circumvention testimony. by m'edical professional responsibilities and hospital. public on the staff of a doctors Judge says When Bazelon “we are left immediate, This situation demands speculate why, as to counsel failed careful, impartial inquiry repre- examining physician’s exculpa- elicit the Department sentative Justice tory testimony,” only ignores he not in- into action what has been taken to Judge statement, Gasch’s he does not offending doctors, sure their su- give sufficient credit to the astuteness charg- pervisors, city and those officials of defense counsel. medi- Without with the administration of hos- ed testimony record, cal each pital properly responsibili- fulfill their likely highly fense counsel he knew was ties. get off on his client the serious charges simple while armed or WILKEY, Judge, rape, Circuit with whom and this did occur. Both defense concurs Mr. physician’s Justice CLARK. counsel informed were negative report written after examina- I, We concur Parts II and tion of the Each victim. confronted the Judge opinion III Bazelon’s which probability that if he re- introduced the speaks for the unanimous court. We port, it would be followed the Gov- disagree with Parts in which IV V putting ernment’s the doctor himself on Judge suggests Bazelon trial that a new the stand. Defense counsel had heard might appropriate due in this case colloquy prosecutor between the alleged inadequacy to the of trial counsel. court, prosecu- to the effect that the point Since our view of raised dif phone tor “talked to the doctor on the expressed by Judge fers from that Baze photo- and confronted him with the lon, obligated say why. we feel graphs photo- I told I him had [sic] Judge Bazelon’s concern arises from graphs, described the mental condition physician the failure of the who exam- I as knew it He con- defendant. ined appear. victim to “The absolutely ceded me he had no idea perceptive conscientious judge” night she was retarded.” inquired physician’s as to absence If the defense had offered either the and commented: negative physician’s report physi- or the Now, I himself, physician take from that no one of the cian have would three drastically felt the physi- by photo- of embarrassed strengthen cian graphs showing his case. Of cut con- bruised and course, the Government has bur- dition of face of con- the victim in *10 experienced up negative two properly left completely re- own trast to his of interest in best to what bruises, scratches, counsel port etc. as to it. about they to do desired might their clients jury doctor have believed witness, police if officer contrast to a colloquy between light of prosecution had to of- light that were all the com- counsel, in and bench n photographs fer, would have but prosecution to plete revelation admitting in front doctor into forced the only physician’s re- defense prose- jury told the what he had in the comments his port also of cutor. conversation, under- we cannot telephone that Judge intimation absolutely Bazelon’s stand conceded me he had He in- [not] decisions were night “trial counsel’s she was retarded. no idea How formed, rational.” operation deliberate He told me his method ? informed alleged rape better have been could counsel was to ask victim what ' gained by remand injuries now will be she had and then would What except prolongation he look them. I combined this with trial at court — em- knowledge public defendants before these the time has been judge and punishment a papers recently upon the and other bark [sic] they prosecutors deserve? jury found have doctors at D.C. negative giving General or medi- [sic] two defense noted have We reports rape cal victims so to the bar have been admitted counsel won’t called to court. respectively, years, and 8 physician’s negative report on indi- not novices are judging this record from cia of itself would defending thus likewise have We cases. criminal at impeached, and, have closing arguments and who knows their examined the doctor would then have said? a classic rank as neither would while Certainly defense counsel did not. issues, facts, dramatis bar, hardly called personae of case physi- Given this situation as to the powers of a possible and forensic testimony, cian’s intellectual both defense Darrow. counsel made a calculated Webster tactical judgment and did not offer either convictions, except rendered those All ' physician’s report physician or the 502, are 22 D.C.Code § under person. say It is not for this Court to Affirmed. whether witness who was never called convincing would be or not —to do so only infringe

would not on defense coun- also, jury’s sel’s and role but would

amount specula- to little more than idle

tion. The doctor’s was defi- America STATES UNITED nitely double-edged sword. The de- paid fense counsels’ tactics off secur- CHAVIS, Jr., Appellant. J. Walter ing the dismissal of the while armed No. 72-1532. rape charges; a different tactic Appeals, Court States may have made sure the conviction of Columbia Circuit. District armed, defendants for while 7,1973. Argued much March more serious offense. It is judge, obvious that the trial one April 4, 1973. Decided experienced

of the most in the court- room on bench, our District thor- oughly understood the situation re- gard to strategy prosecu- the trial counsel,

tor and the two defense made inquiry it, saw that the defense was fully facts, very informed all the 16. Rules of Notes See accord ABA Committee on Im 6-01, (1969). provement Evidence, Report to 285 ¶ 46 F.R.D. of the Law of (1937-38) ; Psychiatric Guttmacher, Napue Ill., 264, 269, 79 v. 360 U.S. Offenders, Evaluation 2 Bull. World ; (1959) 1173, 1177, S.Ct. 3 L.Ed.2d 1217 Org. (1950). Health 243 66, Md., Giles v. 386 87 S.Ct. U.S. cf. 793, (1967). States, U.S.App. 14. Wilson v. 17 L.Ed.2d 737 United 106 226, 227, 492, (1959) D.C. F.2d 493 271 People Russel, 187, 193- v. 69 Cal.2d (rejecting Wigmore proposal). 195, Cal.Rptr. 210, 216-218, P.2d 443 70 864, 794, denied, 800-801, conducting cert. 393 U.S. After an examination (1968). prosecutrix 145, hearing 89 21 L.Ed.2d 132 S.Ct. from N.J.Super. Falcetano, presence But father her out of State cf. jury, 258 A.2d 391 found charges arising dangerous 1) weapon: the same with a from of assault two assault, 2) intent, in Block criminal act or with a al transaction was set out one, 3) burger States, general more 284 U.S. with a beit 180, 182, dangerous weapon.22 L.Ed. The assault with a S.Ct. dangerous (1932):19 weapon count therefore merges in with and becomes a lesser act or the same [W]here charge cluded offense to the assault transaction constitutes a violation armed, with intent to commit while statutory provisions, two distinct barring on the conviction the lesser applied test wheth- determine be Accordingly, offense.23 the convictions er offenses or one there two are rendered under 22 are D.C.Code -§ provision requires each is whether appellants’ vacated other convictions proof of additional fact which the are affirmed.24 other not. does assault intent elements with IV 1) commit while armed are: an as sault, 2) an intent have inter with opinion, speaking The writer of this against penetration course and to achieve himself, believes another matter will, using the victim’s such force or Although appellants deserves comment. necessary to threat of force as is over issue, do not raise the record before resistance,20 3) come her “armed while suggests possibility appel- us any pistol . . or ... lants have been their denied constitution- dangerous weapon.”21 deadly other rights al assistance of effective proof these elements would also earlier, physi- counsel. As indicated charge proof elements General, municipal cian at D.C. hos- See, States, g., e. Gore v. United provision requires proof of an additional