476 F.2d 1127 | D.C. Cir. | 1973
Lead Opinion
Appellants were indicted for rape while armed,
I.
Appellants were arrested in a blind alley by police officers responding to a report that a woman in the alley was screaming for help. At trial, the neighbor who had reported the incident testified that, having been awakened by screams, she saw two men leading a young woman into the alley. After calling and directing police to the alley, she saw two men, dressed similarly to those she had seen earlier, being taken from the scene by the police.
The arresting officers testified that when they entered the alley, appellants were crouched over a nude girl, but upon seeing policemen they straightened up and walked away from her. The victim was described as appearing frightened and nervous and having a bruise over her eye, scratches and handmarks on her neck, and dirt in her hair. She told the officers that both appellants had raped her and that Hunt had struck her on the head with a gun. The police recovered a switchblade knife from appellant Benn and a revolver was found next to one of the victim’s discarded shoes. Other items of her clothing as well as her purse and its contents were scattered about the alley.
The prosecution’s primary witness, the complainant, is a mentally retarded girl of 18. In order to determine her competency, the trial judge held a hearing out of the presence of the jury at which the girl’s father testified that her memory was at times inconsistent and admitted that she did fantasize but that her flights of fancy were always innocuous and she never totally fabricated anything. She is usually able to accurately describe what she has observed and would be likely to retain an impression of a traumatic event, he claimed. On voir dire examination, the prosecutrix expressed an understanding of the meaning of an oath and related a comprehensible narrative of the events surrounding the crime. The judge reserved final ruling on the girl’s testimony pending an evaluation of the degree of corroborative evidence produced, holding only that she had the “rudimentary
Although the prosecutrix was examined by a physician on the night of the alleged rape, the doctor did not testify at trial.
II.
The competency of the witness to testify before the jury is a threshold question of law committed to the trial court’s discretion. It remains for the jury, of course, to assess the credibility of the witness and the weight to be given her testimony. Competency depends upon the witness’ capacity to observe, remember, and narrate as well as an understanding of the duty to tell the truth.
A mentally defective rape prosecutrix presents a particularly difficult problem for both judge and jury. It is generally agreed that sexual assault charges by mentally abnormal girls should be subjected to great scrutiny. There is real danger of contrivance or imagination — the events may seem real to the girl even though they exist only in her own mind. Yet that testimony may arouse enough sympathy to make an innocent man the real victim.
To assist the court in making its competency decision, to aid the jury in assessing credibility, or to serve both purposes, the trial judge may order a psychiatric examination to obtain expert testimony concerning the degree and effect of a witness’ disability.
In the present case the trial court found that the prosecutrix demonstrated an understanding of her duty to tell the truth and a capability to observe and remember.
The dangers which must be considered in determining whether a mentally retarded rape prosecutrix is a competent witness must also be considered by the jury in assessing her credibility,
III.
The applicable rule for determining whether there has been a merger
[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
The elements of assault with intent to commit rape while armed are: 1) an assault, 2) with an intent to have intercourse and to achieve penetration against the victim’s will, using such force or threat of force as is necessary to overcome her resistance,
IV
The writer of this opinion, speaking for himself, believes that another matter deserves comment. Although appellants do not raise the issue, the record before us suggests the possibility that appellants have been denied their constitutional rights to the effective assistance of counsel. As indicated earlier, a physician at D.C. General, a municipal hos
THE COURT: . . . [T]he thing that concerns me is the fact that although corroboration in a circumstance like this is normally obtained by the testimony of a physician who examined the girl at the hospital. That physician has not been offered as a witness.
Now, I take it from that no one of the three felt the testimony of that physician would strengthen his ease. Of course, the Government has the burden of proof beyond a reasonable doubt on this issue as well as any other issue of fact in this type of case. I am wondering why the Government did not call the doctor.
THE PROSECUTOR: May I tell you, your Honor?
THE COURT: Why certainly.
THE PROSECUTOR: I talked to the doctor on the phone. In fact, I subpoenaed him and he never showed up yesterday. He called and left his phone number where he could be reached.- There was a completely negative medical report, completely negative as to bruises and scratches, abrasions, lacerations around the face, negative in all respects, completely negative as to any abnormality of mental health. I talked to the doctor on the phone and confronted him with the photographs [sic] I had told him I had photographs,25 described the mental condition as I knew it of the defendant. He conceded to me he had absolutely no idea that night she was retarded. He told me his method of operation was to ask alleged rape victim what injuries she had and only then would he look at them. I combined this with the knowledge that has been public in the papers recently [sic] and other prosecutors that the doctors at D. C. General are giving negative medical reports of rape victims so they won’t be called to court.
THE COURT: Does your office have some responsibility?
THE PROSECUTOR: Yes. Your Honor.
THE COURT: Why don’t you assume that responsibility?
Tr. 227-28.
Unfortunately, the record suggests more questions than it answers. We are left to speculate as to why counsel failed to elicit the examining physician’s exculpatory testimony.
I am well. aware that there are dangers in attempting to second-guess the professional judgment of trial counsel. But to make the right to the effective assistance of counsel viable requires some assurance that counsel’s trial decisions actually reflect an exercise of his professional judgment.
My brethren point out, however, that there may have been strategic reasons for defense counsel not calling the physician. As I understand it, their disposition rests on the view that they cannot find on the record before us in this case sufficient indication that the standard has not been met.
Evidence of the inadequacy of trial counsel will often be outside the trial record
Accordingly, I would affirm appellants’ convictions (except those rendered under 22 D.C.Code § 502).
V
Nor is the effectiveness of defense counsel the only problem that concerns me in this matter. The court today acknowledges that the charge of rape could not be sustained without the testimony
In addition, as the colloquy described above shows, the prosecutor advised the court that “. . . the doctors at D. C. General [are] giving negative medical reports [on] rape victims so they won’t be called to court.” Every citizen has an obligation to come forward with evidence crucial to a criminal prosecution. According to government counsel, there was not only a disregard for that duty, but also an unjustifiable circumvention of legal and professional responsibilities by doctors on the staff of a public hospital. This situation demands an immediate, careful, and impartial inquiry by a representative of the Department of Justice into what action has been taken to insure that the offending doctors, their supervisors, and those city officials charged with the administration of the hospital properly fulfill their responsibilities.
. 22 D.C.Code ¶¶ 2801, 3202.
. 22 D.C.Code ¶ 2801.
. 22 D.C.Code ¶ 502.
. 22 D.C.Code ¶¶ 501, 3202.
. 22 D.C.Code ¶ 3204.
. She was unable, however, to make any facial identifications. Tr. 60.
. The witness said that “Both of them stuck their privates in me between my legs.” Tr. 191.
. The physician’s failure to testify is discussed later in this opinion. See Tr. 227-28.
. Doran v. United States, 92 U.S.App.D.C. 305, 306, 205 F.2d 717, 718, cert. denied, 346 U.S. 828, 74 S.Ct. 49, 98 L.Ed. 352 (1953).
. District of Columbia v. Armes, 107 U.S. 519, 521-522, 2 S.Ct. 840, 27 L.Ed. 618 (1882); In re Penn, 143 U.S.App.D.C. 248, 251-252, 443 F.2d 663, 666-667 (1970).
. Watson, Psychiatry for Lawyers at 95 (1968); Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L. Rev. 53, 74 (1965); see e. g. Overholser, The Psychiatrist and the Law 53-54 (1953); 3 Wigmore, Evidence 924(a) (3d ed. 1940).
. The basis for ordering such examinations stems from the trial court’s inherent power to conduct those inquiries necessary to a full and fair adjudication. State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958); see United States v. Klein, D.C.D.C., 271 F.Supp. 506 (1967); aff’d sub nom, Hamilton v. United States, 139 U.S.App.D.C. 368, 433 F.2d 526 (1970); Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966).
Although the trial counsel’s passing reference to “scientific evidence or medical evidence” (Tr. 38-39) does not constitute a motion for the court-ordered
. 3 Wigmore, Evidence 924(a) (3d ed. 1940); accord ABA Committee on Improvement of the Law of Evidence, Report (1937-38) ; Guttmacher, Psychiatric Evaluation of Offenders, 2 Bull. World Health Org. 243 (1950).
. Wilson v. United States, 106 U.S.App.D.C. 226, 227, 271 F.2d 492, 493 (1959) (rejecting the Wigmore proposal).
. After conducting an examination of the prosecutrix and hearing testimony from her father out of the presence of the jury, the judge found that she had the “rudimentary qualifications to tell what she recalls” ; she was clearly in a position to observe and seems to have recalled with some clarity the events which were the subject of her testimony.
. See Proposed Rules of Evidence, Notes to ¶ 6-01, 46 F.R.D. 285 (1969).
. Napue v. Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); cf. Giles v. Md., 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).
. People v. Russel, 69 Cal.2d 187, 193-195, 70 Cal.Rptr. 210, 216-218, 443 P.2d 794, 800-801, cert. denied, 393 U.S. 864, 89 S.Ct. 145, 21 L.Ed.2d 132 (1968). But cf. State v. Falcetano, 107 N.J.Super. 375, 258 A.2d 391 (1969).
. See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).
. United States v. Bryant, 137 U.S.App.D.C. 124, 133, 420 F.2d 1327, 1336 (1969); Allison v. United States, 133 U.S.App.D.C. 159, 163, 409 F.2d 445, 449 (1969).
. 22 D.C.Code ¶ 3202.
. See United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972) (assault with a dangerous weapon conviction vacated when appellant also convicted of assault with intent to kill while armed as a result of the same event) ; United States v. Bryant, 137 U.S.App.D.C. 124, 132, 420 F.2d 1327, 1335 (1969) (assault is a lesser included offense to assault with intent to commit rape); cf. United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970).
. Compare Ingram v. United States, 122 U.S.App.D.C. 334, 353 F.2d 872 (1965) with United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972). In Ingram this Court held that there was not a merger of charges of assault with a dangerous weapon and assault with intent to kill arising out of the same act. Since the former count requires proof of the use of a dangerous weapon and the latter proof of an intent to kill, “each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1934). Thus separate convictions were permissible. We also held, however, that convictions on both counts would support concurrent but not consecutive sentences, because doubts as to whether Congress meant to pyramid punishments should be resolved not only in favor of lenity but also consistent with a reasonable legislative intent. But cf. 23 D.C.Code § 112 (Supp. V 1972).
In Hill, we held that convictions on charges of both assault with a dangerous weapon and assault with intent to kill while armed would result in the lesser charge being vacated even though, as here, concurrent sentences had been imposed.
. We do not find it necessary to remand these cases to the District Court for re-sentencing on the greater offense. The cases in which we have followed such a procedure have involved convictions under the Federal Bank Robbery Act, 18 U.S.C. § 2113, hence been governed by Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). United States v. Parker, 143 U.S.App.D.C. 57, 442 F.2d 779 (1971); Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969).
. My brothers speculate that photographs showing the “bruised and cut” condition of the victim’s face could have “drastically embarrassed” the physician. Opinion of Judge Wilkey, infra at of 155 U.S.App.D.C., at 1136 of 476 F.2d. But the following colloquy indicates that there is a serious question as to what these photographs do show:
THE PROSECUTOR: Directing your attention to Government’s Exhibit No. 11 for identification, what, if any injuries did you — was intended to be shown?
THE COURT: Doesn’t the picture speak for itself?
% 5;*
I am sure that is the rule . [as to laying the foundation for the introduction of photographs].
* * M: * #
The Court will ask whether the picture is a fair and accurate representation of what you saw?
THE POLICE PHOTOGRAPHER: These pictures show partly what was taken and due to the condition of the camera, it didn’t show fully exactly the darkness of the bruise, how it was, the size of the bruise, especially the one over her left eye.
Tr. 150.
. The doctor would have reported not only that there was no indication of penetration but also that there were no signs of a struggle on the person of the victim. The prosecutrix testified that she had been struck in the face with a pistol by Hunt and choked by Benn. Police wit
Hunt was linked to the gun found at the scene primarily by the prosecutrix’s testimony about his use of the weapon to strike her and the corroborating evidence of her facial injury. The physician’s testimony as to the lack of any such mark might have been exculpatory as to this element of the prosecution’s case as well.
. See United States v. Mitchell, 104 U.S.App.D.C. 57, 65-66, 259 F.2d 787, 795-796 (1958) (Judge Fahy dissenting) (the court cannot bar inquiry into counsel’s exercise of his professional judgment and yet protect the client’s constitutional right); State v. White, 5 Wash.App. 283, 487 P.2d 243, 246 (1971) (in examining the acceptable boundaries of the exercise of judgment by counsel, the court could find ineffectiveness if counsel’s choice of trial tactics was not deliberate, no reasonable lawyer would have so acted, or the decision was a result of ignorance of the law or inadequate preparation).
. Since, as my colleagues recognize, the charge of rape was never a threat, the defense had nothing to lose and everything to gain by directing all their efforts to the single purpose of securing an acquittal on the lesser included offenses.
. My brothers observe that the defense counsel “are not novices at defending criminal cases.” Opinion of Judge Wilkey, infra, at - of 155 U.S.App.D.C. at 1137 of 476 F.2d. But counsels’ experience is hardly proof of effectiveness. The issue is what they did in this case.
And I find little else in the record of this case that is reassuring as to counsels’ effectiveness. When asked how long he needed for his summation, one of the defense attorneys engaged in the following exchange with the court:
THE COURT: I will give you—
COUNSEL: I would like to move my car before 5 :00.
THE COURT: I will allow ten minutes for each defendant unless you want more.
COUNSEL: No, I think that enough.
THE COURT : If you want it, you may have it.
COUNSEL: I think I will be stretching it in ten minutes. .
I hope the Court of Appeals doesn’t look upon the summation as a Hammond situation. ... I have enough trouble with the Court of Appeals that I was hollering and I gave a Hammond argument.
THE COURT: I am not asking you to talk for a half an hour..... Tr. 236-7
When counsel finally gave his argument, it was little more than pro forma.
. Opinion of Judge Wilkey, infra, at 16-18.
. United States ex rel. Kent v. Maroney, 435 F.2d 1020 (3d Cir. 1970).
. Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). See also, United States v. Washington, 154 U.S.App.D.C. _, 475 F.2d 357 (1973).
. See, e. g., United States v. Thompson, 154 U.S.App.D.C. _, 475 F.2d 931 (1973); United States v. Moore, 432 F.2d 730, 739 (3d Cir. 1970); Tucker v. United States, 235 F.2d 238 (9th Cir., 1956).
. People v. Ibarra, 60 Cal.2d 460, 34 Cal. Rptr. 863, 386 P.2d 487 (1963) (Justice Traynor, writing for the court, found counsel had been ineffective where he failed to move for the suppression of evidence due to a misapprehension of the applicable law) ; see, Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729 (1958) (Judge Bazelon dissenting) (the dissent would have remanded the case for a hearing as to the reason for an unexplained failure to assert an insanity defense) .
. In United States v. Simpson, 154 U.S.App.D.C. _, 475 F.2d 934 (1973) (Bazelon, Chief Judge, dissenting), the dissent suggested a mechnical device, a preparation report to be submitted by counsel before his client pleads or at the close of trial after the verdict had been rendered, to provide the trial and appellate courts with information about counsel’s effectiveness. See Id. at _, 475 F.2d at 940 and Appendix.
. United States v. Benjamin Thompson, 154 U.S.App.D.C. _, 475 F.2d 931 (1973); United States v. Smallwood, 153 U.S.App.D.C. 387 at 392, 473 F.2d 98 (1972) at 103 (Bazelon, Chief Judge concurring); see Fed.R.Crim.P. 33; Marshall v. United States, 141 U.S.App.D.C. 1, 5 n. 11, 436 F.2d 155, 159, n. 11 (1970). The judgment as to whether there is a meritorious claim warranting such a motion should be made by appellate counsel on the basis of an investigation rather than by this court on the basis of pure speculation.
. The pendency of an appeal does not inhibit the filing of a motion for a new trial, thus limiting its usefulness to appellate counsel. Fed.R.Crim.P. 33 states, . . if an appeal is pending the court may grant the motion only on remand of the case.” It is, however, settled law in criminal cases that the motion can be made without a remand and, if the district court indicates that it will grant the motion, then a motion for remand is made in the appellate court. Thus, when counsel on appeal finds an ineffectiveness issue as to which there is an inadequate record, he should file a motion for a new trial in the district court before the appeal is heard in this court. See Smith v. Pollin, 90 U.S.App.D.C. 178, 179, 194 F. 2d 349, 350 (1952).
Concurrence Opinion
with whom concurs Mr. Justice CLARK.
We concur in Parts I, II and III of Judge Bazelon’s opinion which speaks for the unanimous court. We disagree with Parts IV and V in which Judge Bazelon suggests that a new trial might be appropriate in this case due to the alleged inadequacy of trial counsel. Since our view of the point raised differs from that expressed by Judge Bazelon, we feel obligated to say why.
Judge Bazelon’s concern arises from the failure of the physician who examined the rape victim to appear. “The conscientious and perceptive trial judge” inquired as to the physician’s absence and commented:
Now, I take it from that no one of the three felt the testimony of that physician would strengthen his case. Of course, the Government has the burden of proof beyond a reasonable doubt on this issue as well as any other issue of fact in this type of case.
We suggest that those two sentences of Judge Gasch should have assuaged all of our dissenting colleague’s fears. The Government does bear the burden of proof beyond a reasonable doubt. Without the testimony of a physician, it is much more difficult than otherwise to prove a charge of rape, and the trial court here recognized that by dismissing the original charges of rape while armed and simple rape. The appellants were convicted of assault with intent to commit rape while armed, a lesser included offense, which may very well have been required because of the absence of the m'edical testimony.
When Judge Bazelon says “we are left to speculate as to why, counsel failed to elicit the examining physician’s exculpatory testimony,” he not only ignores Judge Gasch’s statement, he does not give sufficient credit to the astuteness of defense counsel. Without any medical testimony in the record, each defense counsel knew he was highly likely to get his client off on the serious charges of rape while armed or simple rape, and this did occur. Both defense counsel were informed of the physician’s negative written report after examination of the victim. Each confronted the probability that if he introduced the report, it would be followed by the Government’s putting the doctor himself on the stand. Defense counsel had heard the colloquy between the prosecutor and the court, to the effect that the prosecutor “talked to the doctor on the phone and confronted him with the photographs [sic] I had told him I had photographs, described the mental condition as I knew it of the defendant. He conceded to me he had absolutely no idea that night she was retarded.”
If the defense had offered either the physician’s negative report or the physician himself, the physician would have been drastically embarrassed by photographs showing the bruised and cut condition of the face of the victim in con
He conceded to me he had absolutely no idea that night she was retarded. He told me his method of operation was to ask alleged rape victim what injuries she had and only then would he look at them. I combined this with the knowledge that has been public in the papers recently [sic] and other prosecutors that the doctors at D.C. General or [sic] giving negative medical reports of rape victims so they won’t be called to court.
The physician’s negative report on indicia of rape itself would thus likewise have been impeached, and who knows that the doctor would then have said? Certainly defense counsel did not.
Given this situation as to the physician’s possible testimony, both defense counsel made a calculated trial tactical judgment and did not offer either the physician’s report or the physician in person. It is not for this Court to say whether a witness who was never called would be convincing or not — to do so would not only infringe on defense counsel’s and the jury’s role but would also, amount to little more than idle speculation. The doctor’s testimony was definitely a double-edged sword. The defense counsels’ tactics paid off by securing the dismissal of the rape while armed and the rape charges; a different tactic may have made sure of the conviction of the defendants for rape while armed, a much more serious offense.
It is obvious that the trial judge, one of the most experienced in the courtroom of any on our District bench, thoroughly understood the situation in regard to the trial strategy of the prosecutor and the two defense counsel, made inquiry of it, saw that the defense was fully informed of all the facts, and very properly left it up to two experienced counsel as to what in the best interest of their clients they desired to do about it.
In light of the colloquy between bench and counsel, in light of the complete revelation by the prosecution to the ■ defense not only of the physician’s report but also of his comments in the telephone conversation, we cannot understand Judge Bazelon’s intimation that counsel’s “trial decisions were [not] informed, deliberate and rational.” How could counsel have been better informed ? ' What now will be gained by a remand to the trial court — except the prolongation of the time before these defendants embark upon the punishment a judge and jury have found they deserve?
We have noted that the two defense counsel have been admitted to the bar for 16 and 8 years, respectively, and judging from this record are not novices at defending criminal cases. We have examined their closing arguments and, while neither would rank as a classic at the bar, the facts, issues, and dramatis personae of this case hardly called for the intellectual and forensic powers of a Webster or Darrow.
All convictions, except those rendered ' under 22 D.C.Code § 502, are
Affirmed.