Warren v. United States

with a Michael that he was Mr. conviction Haywood Thus, robbery. even date of the robbery, during but Mr. that investigation an immediate trial counsel defendant, Haywood, had control and not the appointment eight his later on upon months impact gun. had no This February would not have revived view alibi defense. the Court’s placed considerable reliance has memory Defendant of defendant’s alibi wit- Superi- Judge decision of Stewart on the or Court No. Additionally, ness. in defendant’s Sweet, in United States Criminal his trial did hear the defendant’s version of 9994-75, p. W.D.L.R. Vol. No. alibi defense. While this analogous factually primarily is Sweet 1677. cross-examination, brought out on as same trial counsel because it involves the Sweet, the court held that the instant case. In finds this did adversary Court context a substantial defense trial counsel blotted out by failing not blot out the essence of the defendant’s an call as witness to interview and alibi defense. post-trial hear who at the individual ing testified rape complainant in the deplores This the evidence of Court day him after defendant talked allegedly raped as incompetence counsel’s demonstrated complainant told her. The ruling the record before it. herein rape story up so that she made witness had acquies- interpreted should not be as an embarrassing No avoid an situation. as to in the defense was blotted out such substantial instant oped or approval incompetence.4 cence in of such Rather, government devel case. However, the law is clear that trial coun- as substantial circumstantial evidence blot out sel’s conduct essence of a must testimony implicat direct well as ing identification substantial defense before will new trial Sweet, trial coun the defendant. Unlike granted. incompetence This is a difficult burden to a not reduce the trial sel’s “swearing did little, but, instead, if contest” one which not been met by the defend- any, impact on of the trial. the outcome ant. majority by the displeased I am as as the is, foregoing, In view of this 9th it representation quality of November, 1979, day of So, judge. obviously, was the trial received. ORDERED, motion defendant’s Nonetheless, ap- judge correctly the trial for a new based on assist- ineffective majority the law the facts. plied denied, be, is, hereby ance of counsel unwilling to do so.2 /s/ John R. Hess John R. Hess

Judge pre-indict Lovasco held that in cases of delay, prejudice generally “proof ment necessary but not sufficient of a due element process inquiry process claim and that the due WARREN, Appellant, delay Morris J. must as the well consider the reasons for the prejudice U.S. at the accused.” 431 790, 97 S.Ct. at 2048. Later federal court deci sions have held that the defendant has STATES, Appellee. UNITED analy proving prejudice burden of even before delay sis of the reasons for the is conducted. 79-162. No. See, g., West, e. United States v. F.2d Appeals. (5th case, Court 1978). District Columbia 367 has not demonstrated In this Cir. defendant any prejudice, so the Argued 1980. Oct. delay apparently lack reasons of Attorney’s due to — States communication between the United 9, 1981. Decided Oct. assigned Office and detective analysis. the case—do not enter into Aiken, at the Dr. O. V. a social worker Center, motions Lorton Youth testified at the hearing after that the defendant told her precedents, affirmed comparable the relevant of this lowed In а another division unpublished per- equally incompetent Memorandum convictions court considered an formance Gillespie Opinion Judgment. That the same defense counsel. 80-819, July readily of a No. essence concluded no division out, fol- substantial defense had blotted Greenlee, Defender Ser-

Richard S. Public vice, D.C., Washington, whom Silas J. Service, Wasserstrom, Public Defender briefs, D.C., for Washington, was on the appellant. Bicki, Atty., Wash- Asst.

Richard C. U.S. Ruff, D.C., F. C. ington, with whom Charles Harry R. Atty., Terry John A. U.S. Washington, Benner, Attys., Asst. U.S. brief, D.C., appellee. MACK, KELLY, Asso- KERN and Before Judges. ciate n KELLY, Judge: Associate after Upon retrial before court,1 Morris J. by this reversal counts was convicted three Warren 1973, armed, D.C. Code while kidnapping -3202; rape 22-2101, two counts §§ 22-2801, armed, D.C. Code §§ while -3202; robbery, D.C. two counts of armed D.C.App., 367 A.2d L.Ed.2d 114 1. Davis v. United denied, (1976), cert. —3202; 22-2901,

Code Williams, Waters, §§ one count of witnesses Sharon Debra assault with intent sodomy to commit while Marilyn Reed Linda Jenkins. armed, -3202; 22-503, Code D.C. §§ May On then Superior Court and one count of assault with dangerous Judge Chief H. Harold Greene denied each weapon, D.C. Code 22-502. He re- § except motions the one to ceived seven concurrent sentences of fifteen suppress post-conviction statements years to life and two shorter concurrent He police made officers. ruled sentences,2 all to run consecutively prior testimony admissible the of all of the other imposed.3 sentence previously ap-He Jenkins, complainants except Linda deter- peals many grounds, his convictions on sev- mining that died in an Sharon Williams had require eral of which dis- reversal. Before unrelated incident since the error, however, cussing these claims of found, Debra Waters not be and that could prоcedural review the and back- factual “psychologically Reed was unavail- ground of the case. As a able.” result the court’s refusal to In 1972 and period eight over a government the perpetuate allow to the months, reported a dozen they women that Jenkins, prior testimony trial of Linda the kidnapped were by persons riding a government was left without evidence to green Vega Chevrolet or similar car and prosecute rape offenses related to that they were sexually by assaulted their and abduction. Descriptions abductors. of the car police driver led to arrest one John began 1978. Retrial on October In February Davis on Appellant 1973. was jury ap- was instructed that April arrested on 1973. The men pellant previously been convicted were jointly tried in September The 1973. jury, they another to but that were disre- jury appellant found guilty of eleven counts gard prior outcome trial. The relating separate to four incidents of kid complaining absence of the witnesses was napping and sexual assaults.4 On Decem briefly explained jury. also to the ber appellant’s were convictions statement, opening government In its misjoin- reversed prejudicial because of his explained expected it der with John Davis. Davis v. United (from testimony to transcripts) show States, D.C.App., (1976), cert. A.2d on different occasions three women denied, 434 U.S. green Vega were offered in a L.Ed.2d 114 rides they to taken secluded locations where retrial, appellant Before his dis- moved to sexually by appellant personally assaulted miss the indictment for want speedy of a presence. princi- prosecutor’s or in his The pub- аnd because of prejudical pretrial argument pal inconsistency be- licity. He also sever moved to the counts of appellant’s tween denial at his first trial of suppress post-convic- indictment and to any knowledge complaining witness- tion probation statements made to officer admission, presentence es and his in a re- who prepared presentence investigation port, to sexual relations with two these report and statements made later to two police alleged women whom he consented to those government officers. The in turn defense, transcripts appellant argued moved introduce the relations. his of the prior of complaining only the likelihood of misidentification. Appellant original against appel- sentenced three to nine 4.The indictment filed years dangerous weapon for the assault and his lant codefendant contained total of years counts, eighty-four relating separate conviction one to for the assault five to twelve sodomy Forty-five against with intent to commit while armed Davis abductions. counts prejudice conviction. trial. were dismissed without before Appellant only relat- named the counts ing to four of Appellant presently serving these abductions. a life sentence Maryland for murder. May precise reflects government presented prior tes- court’s 30 order complainants by female timony three of the limits the Sixth consideration having States secretaries the United confrontation clause and Amendment’s the com- Attorney’s play office role of prior exception for recorded hearsay ques- prosecutоr read the plainants. The explaining that constitutional testimony, asked at the first tions require law and common tests secretary responded trial and read- adequate opportunity ment to show complainant’s ing the answers. The secre- proceeding for the defendant prior at the questions taries also read the asked whose the witness cross-examine codefendant, attorneys for appellant and his introduced, sought the una- to be upon witnesses’ answers cross-ex- ruled that witness. The court vailability of amination. Portions from a adequate opportunity had an pretrial hearing suppress on a motion his all four witnesses at cross-examine were read identifications in a similar man- three trial,6 but that of these the jury. ner to justify so as to witnesses were unavailable testify In contrast to his decisionto trial testimo- their introduction Davis, joint trial appel- with codefendant ny. lant declined to take the at his retrial stand put and the defense evidence. no On jurisdiction common law of acquit- motion for judgment testimony is recognizes prior that recorded tal, relating the court dismissed the counts exception as an admitted into evidence Jenkins, concerning to Linda whose abduc- hearsay rule when tion no presented. evidence It two counts assault also dismissed of with a (1) testimony of the declarant the direct weapon, deadly ruling they merged that unavailable, testimony (2) the former is charges kidnapping. Ap- into the of armed in a was under or affirmation given oath was pellant remaining convicted on all legal (3) issues the two proceeding, counts. same, substantially proceedings testi (4) party against and whom the I opportunity is offered had the mony now 28, pretrial hearings After on November declarant at the for cross-examine the 1978,5 April 18, Judge 1977 and then Chief proceedings. mer v. United [Henson disposed Harold H. pending Greene of mo States, D.C.App., cert. 399 A.2d parties tions of both written order on 96, 848, denied, 444 U.S. S.Ct. [100 30, May Four of assign 1978. the seven (1979) (quoting Alston L.Ed.2d 62] appeal ments of in this pertain error 307, States, D.C.App., 383 A.2d rulings in that contained order. (1978)).] First, appellant it was contends that error find- challenges trial court’s Appellant of prior testimony to allow com- regard of these ings with to the first only Reed plainants Marilyn and Debra Waters e., factors, unavailability. He concedes to be read to the at his retrial. i. interpreted request Amendment was 5. At the trial court’s for additional ex- of the Sixth allow testimony pert testimony prior connection with recorded introduction unavailable, prior (2) (1) ment’s to introduce trial testi- motion the declarant is where the witnesses, mony of Reliability partly unavailable a second hear- testimony is reliable. 18, ing April was conducted on by showing had an that defendant established adequate opportunity at the to cross-examine Appellant finding challenged has not that prior identity parties proceeding, adequate opportunity he had an ine the to cross-exam- proceedings, by fact at the two issues testimony of Debra Waters given prior testimony oath that the under any Reed at his nor has he raised represented by and that the defendant questions relating reliability other testimony. to the of that 149, Green, 399 U.S. counsel. See California v. Supreme In the recent Court 26 L.Ed.2d489 of Ohio v. Roberts, 448 U.S. 100 S.Ct. (1980), 65 L.Ed.2d clause confrontation Appellant’s objection that correctly permitted the court the read- such an inter- ing of prior Sharon Williams’ trial testimo- pretation 14-303 means that § ny, agreeing that the clearly witness’ death government could never use statute to established her unavailability. testimony introduce or “incapa- deceased witnesses, ble” persons as those would be Reed, appellant’s With respect Marilyn “parties,” sup- mere “witnesses” and not contentions admissibility are ports the conclusion 14-303 was not § governed by D.C.Code designed as the means exclusive of intro- 14-303, requires § exclusion ducing former testimony and has not dis- here “incapable because Reed was not placed the common law the area of wit- testifying” meaning plain under the of that unavailability.9 precisely ness It is because statute, (2) support the record does applicability the limited the statute conclusion she was unavailable to testi- question admissibility of that the fy at trial even under com- acceptable prior properly decided mon psychological law test of unavailabili- below as a matter of constitutional and ty, the trial court failed to use law. common proper procedures to evaluate her unavaila- bility.7 Appellant argues under a that even com- unavailability, mon test of law witness disagree appellant’s argu We improperly permitted Marilyn trial court ment that since D.C.Code § 14-303 Reed’s to be introduced. As stat- “appears applicable,” to be the court should above, ed we are statutory not bound have that statutory construed definition limitations, question since the of witness witness unavailability applying instead of unavailability, party in contrast to unavail- the common exception law hearsay ability, legislatively not been defined in rule for testimony of witn unavailable On District Columbia. the other esses.8 Section 14-303 treats the ad hand, have constitutional limitations recent- missibility parties of former testimony of Roberts, set in ly been Ohio v. 448 U.S. question and is silent of former 2531, (1980), 100 65 L.Ed.2d 597 where S.Ct. non-party witness testimony. none of Since Supreme Court the test of said that four witnesses whose former unavailability was Sixth Amendment government sought to introduce prosecutorial met “unless the authorities parties in inapposite. 14-303 is § good a have made faith effort to obtain In the words district in United [the court 74, presence Franklin, 338, at trial.” Id. at 100 States v. F.Supp. 235 340 witness’] original) (D.D.C.1964): (emphasis (quoting at 2543 in “[b]y language, its clear S.Ct. [sec 719, 724-25, Page, tion applicable is Barber 390 88 only where the U.S. 14-303] 1318, 1321-22, (1968)). 20 255 testimony sought given by to be used a S.Ct. L.Ed.2d party applies and where the later in This rule to all cases of witness proceeding unavailability, which it is is offered ‘between same but is moderated rec- parties legal or representatives’.” ognition lengths their that to which the “[t]he may testify testifying opposite party 7. The court a found Reed’s “would such case the opposition in likely psychosis, be possible to lead to a severe even thereto. likely and to suicide” would “be as be grave 9.We a therefore need not address threat to her life as to health and compel arguments ment’s alternative that even if with an the individual applicable, only acute heart condition.” 14-303 codifies § some it either regarding the common law witness 1973, provides: 8. D.C.Code 14-303 § unavailability broadly or be that it should read party, having When a after at a encompass psychological testified question to availability. Judge un- so, competent time while he was to do dies or Greene noted while incapable testifying, becomes testimo- properly applicable to statute was not the in- ny may given in or evidence in analogous question, stant “its standards are to hearing subject-mat- in relation to the same law the common witness unavail- standards on parties legal ter between same their or ability.” be; representatives, may as the case in

827 225, Gomez, People Cal.App.3d 26 go a witness In prosecution produce must to 80, (1972), question 230, 103 Cal.Rptr. ... is a reasonableness.” Id. 83-84 the Cali concurring (quoting require from Justice Harlan’s a interpreted to fornia statute 149, Green, 399 opinion California v. U.S. infirmity must “the illness or showing that n.22, n.22, 90 1930, 1951 L.Ed.2d 189 26 must exist to severity; it comparative be of (1970)). Therefore, 489 the constitutional to the witness’ degree as render such a point, any, to if question appears be at what relatively im attendance, his testifying, longer require it no to reasonable merely inconvenient.” possible and produce to witnesses at the risk Gomez, unavailability under witness’ psychological need not of their health. We psy by two was established this standard here; pose question resolve this abstract “very testified she was who chiatrists only flexibility it to underscore inherent stress; tendency to had a vulnerable to she ambiguity of the constitutional stan difficult seizures which were psychomotor to set the dard and outer boundaries of our present treat” her diagnose and that of common law interpretation. task well be might mental health and future following Professor McCormick lists the testifying the court. Id. injured by before recognized categories ‍​​‌‌‌‌​​​​​​‌‌​‌​‌‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌‌​‌​‌‍of witness unavaila- Cal.Rptr. 82.13 10 death, absence, bility: physical disability, Lombardi, 39 People The decision incapacity mental failure of (insanity), 749, 750- App.Div.2d N.Y.S.2d memory, privilege, exercise of refusal aff’d, (1972), 348 N.Y.S.2d N.Y.2d testify and supervening disqualification. denied, (1973), N.E.2d 705 cert. McCormick, Evidence at 609-12 § L.Ed.2d 111 94 S.Ct. princi- He states however that “[i]n finding it (1974), upheld a lower ple probably anything un- which constitutes endanger the to testi witness’ health would availability in fact ought to be considered by the witness’ fy again, where adequate” categories but that the various psychiatrist could reason husband emerged recurring fact have result of the court that had ably have satisfied situations. Id. at 609. required appear and testi witness “been recognize type We are here asked physical . . . her mental and fy person which, unavailability our knowl- witness jeopar seriously have health would edge, has been expressly sanctioned would have in a “fur dized” and resulted cases, California, one attempt at sui perhaps successful ther and New other from York. The courts in both The witnesses in both the California cide.” by interpreting cases have done so codified rape victims. York cases were and New defining rules of evidence medical unavaila- contentions, include, Contrary appellant’s to California, in ex- bility to a “then case inter- judge’s reference to these isting physical or or infirmi- mental illness 11 was a of statutes York, pretations in New to attend out-of-state ty,” inability and “by insanity, guidance in for- obtaining of proper reason of .. . sickness or infir- means 12 law on mulating the District’s common mity.” DelMastro, analysis People 72 physical that mental. to note in or It is useful such (1973). general speak practice 393 is to 339 N.Y.S.2d “while the rather Misc.2d witness, loosely unavailability the crit- of unavailability actually of his ical factor is testimony.” applying statute the California 13.A later cáse McCormick, § Evidence rejected the lower the Gomez standard and (1972). 608 unavailability finding no medi where concerning of court’s presented testimony cal 240(a)(3). § Cal.Evid.Code only present tes mental and the witness’ state concerning timony relat her medical condition 8(3)(d). The subse- 12. N.Y.Code Crim.Proc. § anguish physical suffered and effects to the ed quent codification Law in N.Y.Crim.Proc. 1971), replaced appearance. Peo a result of her court as ple (McKinney “insanity, 670.10 § Williams, Cal.Rptr. Cal.App.3d infirmity” incapaci- sickness or ty.” with “illness or may be either “Illness” within this section did,

question unavailability. ruling Judge witness as he of Since it Chief Greene duty, judges, adapt our as to common cautiously extended the traditional defini- law evolving to reflect norms and new cir- unavailability tion to of witness include cumstances, including new scientific and of psychological unavailability type understanding, medical it is wise to look to Marilyn Reed, in the demonstrated case of legislative judicial other considered and but degree psycho- to exclude lesser of judgments. logical infirmity demonstrated Linda It is also useful to note Fed.R.Evid. evaluating Jenkins. After 804(a)(4), corresponding and the Uniform psychiatrists, personal- one he of whom Evidence, Rule of one or the other of which ly appointed independent, to obtain an states,14 adopted by has been nineteen and opinion, second he from excused Reed testi- provide which that a declarant is unavaila- fying experts agreed because the that she ble present if he “is unable to be or to undergo greater anguish “would far mental testify dеath, hearing at the because or normally accompanies appear- than court existing then physical or mental illness or (and presuma- rapes ances of the victims of added). infirmity.” (Emphasis bly kidnapping, other crimes as terror- such case of applying are aware ism, appearance hijacking) her that infirmity part mental of this definition is likely court . . . would be lead to Benfield, (8th F.2d States possible severe even psychosis, suicide.” 1979), Cir. where conviction was [May opinion, p. 30th 27.] reversed because a violation his Sixth right Amendment to confront reject appellant’s that We claim evi- ment’s witness face-to-face. On support finding. dence does At the not by a psychiatrist the witness should hearing, Dr. Leon Yo- November required to endure a trial situation suffering chelson testified Reed kidnapper to face her because of her psychoneurosis from a mixed severe condition,15 agreed mental the lower court mood, particular emphasis depressive on testify allow the witness to at a video- phobic anxiety. He found reaction taped instead, deposition later be intro- depth depression her had reached counsel, duced at at which defendant’s suicidal levels and that suicidal tendencies defendant, but present. not the would be present. were still Dr. Yochelson’s testimo- The defendant was allowed observe the ny on was based two interviews well as proceedings on a and interrupt monitor police reports witness, them to lawyer. summon his appearance. He Reed’s court learned however, kept unaware the defend- incident, rape that since the time of the presеnce. ant’s Appeals Court name, changed religion her her Reed had object finding Benfield did lifestyle. and her Yochelson entire testified unavailability, but reversed the basis of that, the usual time and the unlike in reliability. purpose It found that change lifestyle succeeded had not proper face-to-face encounter is assure blunting psychological the emotional and by reinforcing cross-examination the wit- suffered, effects of the violence she recollection, ness’ veracity and communica- appear- the trauma another present case, tion. In the unlike in Ben- field, likely fragile ance would most shatter appellant’s physical presence at the adaptation leading society, possibly trial when to to Marilyn Reed testified against him, permanent injury.16 satisfied function. psychological this Berger, developed J. Weinstein M.& Weinstein’s Evi- that event she could no after until dence, 804(a) 804-51, [02], (1979 longer -52 § tolerate crowd situations and was un- & Supp.). able to work. report The discussion of the witness’ mental condi- 16.In to the States his written infirmity Attorney, upon sugges- only tion in Benfield reveals that her Yochelson stated that gradually to her related abduction “in her the suffer- testifying” and that

Following of Dr. Yochel- would ordi- son, ing greater than one Judge would be appointed Greene Dr. Sheila narily Gray independent psy- see.” Hafter to conduct an of chiatric evaluation Reed and Jenkins. that the risk of dam- Gray Dr. did state did, necessarily This he not as religious if minimized Reed’s age would be contends, testi- because he discounted the support her in testi- actively to group were but mony government’s psychiatrist, court against the defendant. The fying rather because he was to the ex- sensitive possi- by not apparently reassured traordinary government’s mo- nature and, think, fairly the ex- we sifted bility con- tion and needed additional evidence to relying on find- opinions especially perts’ not vince him that these witnesses should psychi- substantially to both ings agreed an required testify. appointing be In to disallowing introduction atrists. impartial psychiatrist, expressly followed he Jenkins, Linda prior question of only precedent local on the disagreement re- experts’ judge noted psychological unavailability. In one of the likely to be suf- garding the relative harm trials, well known Hanafi United States that witness relation fered 47902-73), the (D.C.Super.Ct. Griffin No. victim-wit- average burden carried eyewit- contended that the sole conflicting progno- ness. In contrast to the ness to mass murders for which the Jenkins, substantially experts sis for defendant was on was unavailable to injury agreed severity of the to testify physical for reasons both to she forced re- Marilyn Reed were befall psychological health. In the Griffin rape through another live the events of her independent ap- psychiatrist was also appearance. pointed, testimony of notwithstanding the ruling sup below intimately three other doctors who were evidence, but was also rea ported physical familiar with the witness’ unavail sonable construction of the witness mental condition.17 ability We do intend to sanction a rule. Gray diagnosed suffering as Dr. Reed unavailability in category of medical new personality from a narcissistic disorder sub- likely are to suf all cases where witnesses be enough stantial to considered a mental psychological ef fer adverse emotiоnal defect, psy- and as vulnerable to transient testifying against their fects as a result chosis as result of stress. informed She circum assailants. But in the extreme Dr. Gray jailed would be here, she rather presented agree that the stances contempt testify Gray again. than Dr. psychological witness’ grave risks to the lifestyle change Reed’s ef- excusing found have her in-court tes justify health live merely adjustment relating expert testimony fected a surface to reali- timony. The ty and concluded that “there would be a that there Reed’s mental health established temporary very high small but real that she would likelihood of risk was both a psycho- psychotic injury, perhaps even temporarily psychological become result of severely incapacitating possibility an extended tion that reconsider of tes- over Reed time, permanently.” retrial, period perhaps tifying panic even at a “the sense of and the depressive strong symptoms return of were so whether the admission reentering determine 17. We cannot that she could not even conceive prior testimony in Griffin was made being questioned in a the courtroom or even compelling circumstances than under more private setting more what she had about hand, presented the one those here. On through.” great concluded He that “[T]here very had suffered real “unavailable” witness testify again. pressuring risk in Reed physical had been crime. She effects very likely She is an intensification suffer head, fragments were still shot and bullet psychological injury previously she had hand, implanted her On the other she skull. sustained, probability panic states prior with the had testified on three occasions depression being very high. serious emotional moreover, and, physical handicap new same Further, likely it is that should she be forced of misidentification rendered evidence testify, injury psychological the would resultant testimony especially suspect. sis, and possibility permanent psycho- ty prior testimony sufficiently a of logical injury. persuaded We of might prepare also are so both advance sides the of ruling accordingly. correctness the trial court’s trial find We no abuse of expert’s agreement because of the on the discretion in failure updated the to obtain comparative severity proba- of this victim’s psychiatric evaluations. again.18 ble reaction testifying to Appellant’s challenge to the admis Appellant’s challenge final to the admis- testimony sion of trial Debra Waters’ sion of Marilyn proce- Reed’s improper timing. rests on claim also a of dural. He asserts that the court its abused Since what must be established is the wit by (1) failing discretion take to Reed’s testi- trial,19 unavailability ness’ at the time of mony and personally to observe de- her appellant contends that the court should meanor, (2) issuing subpoena a for trial finding have made a renewed of Waters’ test to her asserted testify, refusal to retrial, unavailability opening the of his (3) failing to reevaluate her mental health after year almost one at the time of trial. We conclude the to Virgil Hopkins un Detective about his contrary, by appointing indepen- an attempts locating successful the witness. psychiatrist, dent the judge trial went out Appellant concedes of that as the date of of his way to conduct thorough a evaluаtion Hopkins’ testimony, genu his efforts were Marilyn of Reed’s mental health. him For ine, reasonable, bona fide and as found personally to have observed the witness in insists, however, the trial He court. court would pointless have been of view updated an of the absence of determination expertise. lack psychiatric of re- To plain preced In our unavailability is error. manner, quest testify her to just in this timing on the of ing discussion the court’s judicial process, test resistance would ruling admissibility of unnecessarily per-

have very burdened the testimony, explained Reed’s we that it was well-being son whose sought the court reasonable for the trial court to have relied protect. presumption on of con continued mental The delay between the psychia- the dates Similarly here, judge dition. the trial rea trists conducted their respective examina- sonably presumption relied on a that the tions of Reed and does quo unchanged, status remain unless would order, the validity affect of the trial court’s of parties suggested one otherwise. nor render admission re- of her appellant, government, Neither nor the objec- versible error in the of absence good locate wit whose faith efforts to tion at trial. trial court’s failure to date,20in must till ness continue request, sponte, updated report sua of change of a in the status formed psychological supported by health is rea- quo. met its burden presumption continuing sonable mental showing unavailability and the Waters’ necessity par- condition hope to both presented evidence it left no of obtaining ruling pas- ties might yet admissibili- witness be located with the 18.Adopting questions posed quantum rеquired to stan- a variation on the meet the evidence court-appointed psychiatrist, unavailability. in the Grif- factors dard of should Braman, supra, Judge other, fin weighed Leonard context of as well as each following think that the matters are relevant to of the crime and context nature question unavailability: psychological history pre-existing psychological (1) probability psychological injury as a witness. degree testifying, anticipated result injury, (3) expected injury, duration Virgin 19. See Government of the Islands v. expected psychological whether in- Cir.1967). Aquino, (3d 378 F.2d substantially greater than the reaction average rape, kidnapping victim of a Page, supra, 20. Barber v. 390 U.S. at physical terrorist act. Just as in the case of S.Ct. at 1322. infirmity, precise it is difficult state

831 joint which the upon in the by or avenue of established sage of time some other (2) discovery.21 predicated, and appeal Davis con review of the merits independent an respect to Amendment With the Sixth joinder. of propriety them of vinced unavailability, Supreme of standard recently stated “The law does Court the critical factor in determin Since Thus, doing require of a futile act. mo ing merits of a Rule 14 severance of possibility procuring if no the witness movant,22the prejudice is the to the tion ‘good nothing faith’ of exists . .. demands correctly anew the considered trial court Roberts, prosecutor.” supra, Ohio v. desirability of severance. The different Here, 448 at 100 at 2543. affect posture of case on retrial the absence of evidence that there prejudice he was type of to which Waters, ed the possibility locating no Debra then, preju remote, compаred as say susceptible that the matter how we cannot subject prior government good failed to faith which he was at meet its dice to requirement. prej fail example, relating effort Thus the court’s For factors trial. request a ure to fresh recitation proceedings differed the two udice which fruit involved, search efforts and demonstration of (a) number offenses were: good (which less continued faith efforts wit complaining (b) the nature and promised and government to conduct in effect testimony. Appellant was nesses’ make), obliged was neither an abuse separately rape for three offenses retried discretion, States, 155 Ga. Milstead v. rapes out of involved opposed to four seven App. (1980); Napier 270 S.E.2d were joint trial. Thus there prior in the State, (Ala.1979); People So.2d to be and confused fewer crimes cumulated Starr, Mich.App. 280 N.W.2d However, this jury. in the minds (1979) (determination diligence of due will by the in contrast is offset fact that factor not be overturned clear appeal on unless testimony by rape victims to the live shown); abuse of discretion Commonwealth proceeding, no demean- prior there was Jackson, Pa. 344 A.2d 842 part their retrial because or evidence on (admissibility prior within dis testimony was read to the their judge), plain cretion of trial error. nor This factor by government secretaries. tendency jury’s heightened the could have II the evidence. to confuse cumulate have Appellant claims that he should present motion appellant’s severance Since separately rape been tried incident for each its resolu question prejudice, ed a new denying the court and that erred in judiсata or by not dictated res tion was counts, Super. pursuant to sever motion We therefore the case doctrine. law of judge Both 14. the motions Ct.Cr.R. independent consid the trial court’s review judge presented the trial with the the severance motion. eration of question in the alterna severance and ruled that, order recently We have held it was either “[a]n tive foreclosed to them may be Rule 14 judicata denying severance ‍​​‌‌‌‌​​​​​​‌‌​‌​‌‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌‌​‌​‌‍under by the res effect of our decision Davis, showing of abuse supra, only upon or case as a clear the law of the reversed Investigation Hopkins period in his efforts testified that over a Federal Bureau months he searched Waters Waters. for Debra locate Commission, checking with the Civil Service Inspector’s public assist- the Postal Office Superior in D.C.Code codified Ct.Cr.R. ance, by verifying motor vehicle part: criminal and pertinent “If it 23-313 states in § records, by issuing telephone subpoenas to the appears a defendant or the company Hopkins also ., and the Credit Bureau. joinder prejudiced . . of offenses Waters’ visited last known addresses three may separate order election or court counts, places employment subpoenaed former provide relief whatever other ... colleges local she had check whether (Emphasis added). requires.” justice Hopkins rolls. their was assisted States, composite

of discretion.” Winestock v. United or feature mark which as a whole 519, D.C.App., (1981) (citations 429 A.2d 526 be supposed cannot to be associated with omitted). Appellant Id., expressly al- single object.” more than a quoting 2 leged that Wigmore the denial 411, (3d court’s of his sever- on Evidence at 385 § ed. 1940). ance motion a rose to level of clear discretion, of

abuse nor are we able to dis- case, composite In this features cern such a defect ourselves. which appellant crimes for was tried justified The trial joinder court of indicate that trial properly court exer in “reciprocally offenses this case under the denying cised its in discretion severance exception join admissible” to the rule that because crimes were so similar as to der identity of offenses of similar suggest wrong a character cre of the same ates prejudice.23 a substantial risk of rape The doers. All involved the and abduction reciprocal test of admissibility young twenty years is satisfied women around old. joined here because Perhaps evidence each of the the most distinctive shared charac offenses would be transpor admissible teristic of the crimes that the the others as to showing relevant the “iden tation vehicle in each case was described as tity person charged with commis green sportscar a small with black interior sion of the crime on trial.” Drew v. United and bucket which two of the com seats States, 85, 118 U.S.App.D.C. plainants 331 F.2d Vega identified as a Chevrolet (1964).24 90 Identity-type reciprocal tags, admis blue and white license and the crimes, sibility, signature per so-called resembling third as Each Pinto. com joinder street, mits where so plainant standing waiting the offenses are near ly cabs, identical in method because concur transportation of a for for and the —two rence of unusual and distinctive characteris other for a bus—when she was accosted. tics, that it is likely they place were сommit took after The abductions all sunset ted by person. Bridges complainants same midnight. v. United and before States, 1073, 1075 locations, D.C.App., (1977), 381 A.2d were driven to deserted threat denied, 135, cert. 439 weapons 99 58 with deadly U.S. S.Ct. ened knife in one —a joinder L.Ed.2d 141 But in such revolver in other two—and then require instances, cases “does not single raped. that a charac In all the driver of the unique car, Davis,25 teristic be so as to lead to the con who was identified as John clusion that all presence were committed raped complainants in the [offenses] person.” (emphasis the same Id. accomplices, at 1078 or one more while one of the original). Rather, by adding cir accomplices weapon. In two in held “[i]t stances, cumstance to raped by circumstance that we obtain a the victims were also States, exceptions U.S.App.D.C. 23.This rule and forth its are set ed (1964)]. 331 F.2d 85 [118 States, Bridges D.C.App., v. United 381 A.2d denied, (1977), 1075 cert. 99 reciprocal admissibility is also satis- (1978): test L.Ed.2d 141 joined fied where of each of- evidence When, however, offenses a “similar char motive, prove fenses would relevant to in- be joined acter” are there is a substan tent, accident, or a absence of mistake or com- prejudice.... tial risk of Our there cases plan. mon scheme or See Drew United require joinder fore that when offenses States, supra at 331 F.2d at 90. based on the fact that are of crimes character,” “similar a motion to sever should complainants granted All the driver three described unless to each evidence as male, stocky Negro complected, separate distinct, aas medium offense is thus unlikely height amalgamated jury’s was estimated at 5'9" tо be bearded. His in the Williams; Reed; mass, single inculpatory Sharon mind into a 5'8'' merely joined the evidence of Debra Waters him as short. each described crimes guessed separate complainants respectively would be admissible The three other, citing Tinsley States, age years years, his to be between D.C.App., (1976); years. 368 A.2d Drew Unit and 27 evidence of each crime discretion because accomplice. accomplice identified as the trial of appellant26 rape did the com- would been admissible at have plainants, merely one appellant. he assisted in identity others to show another, (trial holding legs, victim’s and in he supra Bridges v. United See placed penis legs. the victim’s between refusing abuse its discretion did not charges rapes oc- rape sever where four oc- The abductions of Williams Reed period, six-month between curred within night, curred the same about five hours m., m., general a. in same 1:00 a. and 4:45 apart. complainants raped Both were in D.C., Washington, assail- area southeast room, apartment buildings, laundry one in a apartments through victims’ ant entered apart- the other an abandoned basement them, rear, with them a awoke threatened weapon ment. The used in both instances weapon demanded silence and submis- and was a revolver. The Waters abduction took sion, through rear); and fled raped them place earlier, months five at the same hour States, D.C.App., 358 Arnold A.2d v. United as the Reed abduction. Debra Waters was banc) (denial (1976) (en of severance ride, Reed, just Marilyn by offered a like a where motion of discretion not abuse (Sharon green sportscar. man alone in a charged was rapes with which defendant gun- Williams was forced into the car at by light blue involved ride offers driver point.) cases, In both driver stopped the change of attitude Volkswagen, driver’s up about one block pick appellant, later to one, threatening to success- friendly from a Marilyn and in Reed’s a second uni- and, ful sexual intercourse fi- demand for passenger Following dentified as well. destination). victim nally, return of to her rapes, Marilyn both Debra Waters and Reed were driven back to other locations in the District. Ill sum, green sportscar, team- error, allegation appellant In a third crimes, age aspect work of the of the a twenty-two asserts and half victims, they picked up the fact delay month between his arrest cumulative dark, public

on transporta- streets after this court’s re- and first trial and between tion across town to unfamiliar lo- secluded retrial, right him the mand and his denied cations, deadly and the with a threats the four- Applying to a trial.27 speedy weapon were unusual and distinctive fac- prong Wingo, Barker 407 U.S. test of all tors common to three crimes. When (1972), L.Ed.2d 101 find 92 S.Ct. additional similarities between the Williams despite the no such constitutional violation rapes and Reed on hand the one and appellant’s claim.28 prima facie merit rapes Reed and Waters on the other hand Supreme Court’s part The first considered, are also the facts combine requires supra, analysis Wingo, in Barker signature unique point form a and length delay. pretrial us to consider operandi single wrong- modus team of Therefore, elapsed appellant’s arrest Five from doers. the trial court’s refusal months April beginning of his sever the counts was not аn abuse of on 1973 to the 26.Appellant by complain- with our decision United described In accordance Alston, D.C.App., Negro ants as a in his twenties with a States 412 A.2d 351 male (en banc), appellant expressly short bush haircut. Williams he refrained Sharon stated teeth, 5'9", speedy including claim had two broken was about trial front delay by years period appellate clean shaven and old. about 23 occasioned tooth, scar, appeal joint chipped pim- he had Davis. Nor Reed said of his with John shaven, challenge delay ples, complected, dark as violative clean tall does process rights. glasses. and wore a dashiki of his Debra Waters due skinned, described him as in his dark mid twen- year ties and scar his face. delay 28. A than suffices to of more one claim, prima speedy facie establish a see. September pretrial

first trial on initial delay 1973.29 Anoth five-month er seventeen a half passed months be approximately five a half months of tween our mandate to the trial court fol post-remand delay are attributable to lowing government’s petition denial delays, including four institutional transfers to rehear en banc our decision in Davis v. resulting participation States, supra, and the commence judges stages in various five different ment of retrial on October equivalent proceedings. of two periods 1978. Both should be considered in of postponements during post- months determining total length period directly remand occasioned Alston, delay. See United States v. D.C. unavailability rescheduling. the court’s App., 412 (1980) (en banc). A.2d half delay The rest the ten and a month The twenty-two and a half month total scheduling requirements attributable delay justified must therefore be take into account the time needed prima whose burden in such a parties prepare the court and a case facie outweigh” case is to “convincingly ap complex, generally as well as so over- pellant’s States, Day assertions. v. United Superior . dockets of Court. crowded 957, D.C.App., (1978). 390 A.2d 970 government Appellant charge does not note, however, We longer while the for the delays deliberate sake of the delay, the heavier the government’s advantage over him gaining burden, delay “the that can be tolerated for negligence be would “the result of such complex serious and charge ... is consid- requirement callous indifference to the erably more for simple than misdemean- ” Hedgepeth trial. . v. speedy .. United States, or.” Rink D.C.App., v. United 388 States, U.S.App.D.C. 124 364 F.2d 52, A.2d (1978). 58 n. 11 It cannot be (1966). Therefore institutional gainsaid complex that this case has involved as a delay must indeed be assessed neutral problems prosecution, multiple serious against government. factor defendants, charges initially against — evidentiary important difficult issues and twelve of the total month balance pretrial questions regarding the fairness of mainly caused pretrial delay was the impending The twenty-two trial. and a pretrial filing, hearing and resolution pretrial half month delay in there- this case during period, post-remand motions explanation. fore is not beyond We have government’s which was the motion chief of previously upheld longer a significantly de- prior testimony of “una- to introduce the lay States, in Day (thirty- supra ques- complaining vailable” witnesses. months). two and a half law tions of and fact involved that mo- part Wingo The second of the Barker by far in novelty tion exceeded the others analysis requires specific us to examine the However, it would difficulty. not be and, delay reasons for appropri- where delay exclusively to fair to attribute this ate, assign portions respective delay of the government because four of the motions responsible party. Protractions due were made behalf of judicial to court congestion and deliberation judicial required significant con- themselves are ultimately responsibility sideration. government, supra, Wingo, Barker v. responsible directly for Appellant was at they U.S. 92 S.Ct. at are but delay. pretrial some of the motion It took considered more “neutral” factors and are after “weighted govern- him three months the first heavily against less almost hearing following ment.” Id. remand to status our file g., date, D.C.App., hearing e. Branch v. United held on that a status that was A.2d 998 pretrial motions which followed various disposed September 19 and 20. The of on Although September sides 29. both cite September was not sworn in till appellant’s as the date that trial com- menced, the docket entries indicate it was Nonetheless, neutral appellant’s claim. requested Appellant his a two motions. against charges be counted file must still of time to his week extension responsibil- the ultimate motions, they government “since explaining that “involve[d] rest with fact, must such ity circumstances convoluted issues law and rather with the de- than rather posture this from the unusual stemming Wingo, supra, fendant.” Barker justice system” in the criminal at at schedules of his counsel the vacation for the con- attorney United States Wingo Barker v. part Under three extension, granted week The two flicted. test, appellant’s asser arewe to examine judge, by appel- the motions caused Appel trial. right speedy to a tions of request correspondingly and should lant’s right through timely pressed here lant delay govern- attributable to the reduce the 2, 197730 and November motions filed on period rest of the three month ment. The representa His 1978, respectively. July filing before the of the motions did expressed his will clearly tions “delay” proceedings, but is the actually exped proceed to ingness and desire to type of “neutral” factor which should strong eviden- itiously, and “entitled are heavily against govern- weighted less determining whether weight tiary ment. right.” being deprived defendant 531-32, 2192-93. But remaining eight and a Id. at 92 S.Ct. Nor should the may have injury delay” half count sense of “pretrial month motions presented his exaggerated the time he charge against significant arguments in trial since the noteworthy question speedy ment. It is that motions the were to a memorandum regarding admissibility complain- supporting his approximately ing prior great trial was extent based witnesses’ by delay caused appellant year, as three five month originally by raised a motion appellate trial. That subsequent- appeal and was of the Davis exclude speedy the instant ly government delay More- is not included in recast as motion. over, ruling in claim of our prosecutor really cannot be fault- trial in view Alston, supra, at that “the complexity ed for the issues involved States post- motion, apply in not by his nor for the time Amendment does consumed Sixth Nonetheless, delay.” appointing psychiatric appellate court in conviction second expert right his testify appellant’s timely do to examine the witnesses and assertions present appeal. as his on unavailability. procedure support to their claim This up five alone took almost months of the is the final element prejudice factor by expert wit- delay, partly occasioned Appellant need speedy analysis. trial scheduling problems, partly by ness’ those he that affirmatively demonstrate psychiatrist After the second the court. prevail prejudiced in order on been presented testimony, the an- court took Arizona, trial Moore speedy grounds. thirty- half to rule other month and a in a 188, 189, 38 L.Ed.2d 414 U.S. 94 S.Ct. government’s order on the motion page nine Bolden, (1973); D.C. United States appellant's well as on four motions. Appellant App., 381 A.2d that he affirmatively claim however that eleven does We conclude therefore delay in that it by the filing prejudiced was delay by caused a half month The mini anxiety. him increased is not a caused disposition of motions is indeed anxiety and concern mization of significant charge against government, right protected and, ten and a month one interests along with the half claims that speedy Appellant to a trial. period delay, institutional should be con- Maryland in although he was convicted evaluating more neutral factor in sidered a speedy trial bears a Although government’s ‍​​‌‌‌‌​​​​​​‌‌​‌​‌‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌‌​‌​‌‍for a the first motion both the brief and filing appellant date first as- of November brief state right September speedy serted his trial the rape 1975 for of Debra unavailable witnesses. Barker v. Waters and See imprisonment,31 he Wingo, supra, sentenced life anxiety caused by the fact that he did (delay works to accused’s advan- know whether for gеt tage government he would credit time where witnesses unavaila- served in District of ble Columbia institutions or their memories fade and the This, however, awaiting while trial. to carry proof). not ment is unable its burden of anxiety type which rises to level prejudice. of actual IV Maryland precludes appel- sentence Appellant’s assignments next er- lant contending interest ror can evaluated under the same frame- avoiding pretrial incarceration could have they of analysis work both concern im- protected had the trial date been properly prior hearsay admitted consistent up. allege moved Nor appellant does category statements. The first of chal- delay specifically affected the third and lenged testimony giv- consists of statements important most protected by interest Sep- complaining en witnesses at a speedy right, limiting interest 1973, pretrial suppression hearing tember impairment of the accused’s defense. Thus held before the Davis trial. The second fairly can conclude appellant suf- category objectionable testimony encom- special fered no prejudice delay. from the passes extra-judicial conversations between police complaining investigators and the balancing process which we are suppression hearing witnesses. The testi- required to undertake to reach our decision retrial, directly mony was introduced at the appellant’s speedy an espe trial claim is following dramatization of cially difficult and sensitive one because we complainant, of each ignore cannot completely the fact that еven manner, presented in the same reen- though pretrial delay the relevant Thereafter, actment. months, twenty-two and a half an addition police testify called various officers to forty-one spent al ap months were in the complaining their about interviews pellate forum before was retried. witnesses. We govern nevertheless that conclude the successfully ment has carried its burden of Prior statements consistent with refuting appellant’s prima facie testimony claim. The a witness’ trial are inadmissible “ pretrial chargeable delay the theory repetition that ‘mere does in imply veracity,’ this case was of a neutral sort and is not and that once incon explainable, shown, fully justifiable, sistency if not in in of terms statement is evidence of institutional overload as well does as the additional consistent statements not very complex issues of procedure fact and remove the inconsistencies.” v. Unit Scott Moreover, States, appellant involved in the ed 412 D.C.App., case. A.2d States, allege (1980); has any prejudice D.C.App., failed to v. Rease United indeed, presented (1979); defense and he since no A.2d Coltrane United retrial, States, of U.S.App.D.C. evidence his own at he 418 F.2d 1131 cannot States, supra contend that he as a result at suffered of Scott United 372-73, fading fact, recognizes exceptions memories or lost witnesses. two to this the delay may actually have admissibility hearsay weakened the rule:32 of state utterance;33 prosecution’s case, though spontaneous even it was al ment as ad statement, transcripts prior “excep- lowed to use testimony missibility hearsay of of supra 31. As noted note is also would had the declarant be admissible serving Maryland a life sentence for murder. testified as a witness. only Compare provides “exception” applies Fed.R.Evid. 806 which 33.This this declarant, hearsay admissibility credibility type hearsay, supports of of of if but attacked, may supported by types hearsay evidence other of as well. situations,” hearing testimony (a) suppression of as tional where to rehabilitate fabrication, police officer’s testimo- charge recent well as much there is a ny, rape victims’ detailed re- (b) related has testimony “the witness’ Regarding sup- ports of the crimes.36 impeached aby portion of a statement testimony, pression hearing it is which also contains relevant information proper was to intro- position ment’s that it could be used to meet the force only portions duce those which consist impeachment.” Quoting Rease United 37but also prior description statements States, supra excep at n.7.34 A third hearing testimony, of the the rest prior may tion be added to this list for except segments introduced for those testimony. portions of “description” Those disagree We this conten- with first trial.38 police testimony suppression and the tion hold the statements consisting solely hearing testimony of de suppression hear- prior description from scriptions complain or identifications of the Morris ing testimony were admissible. See ing are as witness’ assailants admissible States, supra. v. United hearsay substantive evidence under the ex justify ception prior description testimony government seeks to intro- rec States, pretrial testimony under ognized in Morris v. duction D.C. exception recognized rehabilitation Scott Aрp., (1978). Appellant 398 A.2d 333 States, supra, precedents. v. United and its point. conceded excerpts in disagree We use of those Appellant object- has also refrained from complainants relate the circum- which the ing to persons of the first legitimate of the crimes constituted stances encountered Sharon Williams and Debra rehabilitation, to was the extent it rehabili- attacked, including being Waters after significant that tation at all. It Kopec of Officer Robert who was was suppression hearing testimony intro- Williams’ first with police, contact near retrial, part as duced at in effect scene crime. This chief, not as government’s “complaint admissible under the of rape” put No rebuttal. evidence theory; not for the truth of the matter during proceeding. defense this second asserted, merely but for the fact that the retrial, Moreover, opening Fitzgerald statement made. v. United appellant’s counsel announced his intention D.C.App., (1980).35 412 A.2d evi- presenting additional refrain Thus “complaints appellant.39 Aside from the there dence on behalf of rape” prior government wit- description testimony, impeachment much no corroborating respect 34. Statements to Debra a sexual assault testified detective proposed exception gen- report; another who Waters’ detectives inadmissibility and, eral ments in Scott consistent state- stand interviewed Reed took the States, supra at v. United 372. turn, report. related her theory rejected This court our because “nothing requirement in [the corroboration pages of De- 37. This would about two include waives the rules of as to cases] evidence cor- pretrial testimony six and a bra Waters’ roborating evidence.” testimony. pages Marilyn pretrial half of Reed’s case, complaints, having 35. In this initial 38. infra 42. immediately following rapes, may See note made “spontaneous also be admissible as utterances” and received as substantive evidence. See Appellant’s “It at the retrial stated: counsel Fitzgerald (promptness cluding States, supra v. at United 8-9 government] position if [the is only now that our report pre- of and circumstances seeking go to these sources to other spontaneous support fabrication utter- testimony in order to cross-examination and exception). limiting ance given by No instruction may we rebut whatever additional material respecting judge the trial the manner present, willing present we are to no additional testimony in which of these first contacts was willing We to live with the cross- material. are to be received. testimony [appellant’s examination and ” at trial .. . that was done the first . counsel] respect 36. Three detectives testified with to attack; report Sharon Williams’ of one beyond pretrial full hearing nesses that which at testimony relating occurred to matters, noting first trial. In these we are appellant’s offenses. saying that appellant’s passive strategy pretrial suppression Nor can the at the penalize retrial should hearing testimony be rendered admissible However, ment. conclude under prior excep under the recorded statement case, the circumstances of this rehabilita- tion for otherwise inadmissible hearsay. impeached tion of witnesses at the first theory upon by This was the relied trial should pro- have beеn to that confined trial, government upon at which the ceeding. government opportu- decision, judge based his in accordance nity to rehabilitate its at the witnesses Curry, United States 471 F.2d 419 trial, it, and used twice means ex- (5th Cir.), cert. denied sub nom. Ciraolo v. cerpts from the hearing. Its use of States, 2150, 411 U.S. 93 S.Ct. additional testimony hearing from that (1973).40 ante, 36 L.Ed.2d 688 As discussed more in the of repetition nature than reha- requirements admissibility prior for bilitation. But if even we assume that are: testimony unavailability recorded complainants impeached at the first declarant, (2) testimony former un give to a second oath, (3) issue(s) substantially der same at chance to rehabilitate their testimonies in proceedings, opportunity the context of this case runs counter to the proceed cross-examine declarant at former policy expressed in Coltrane v. United States, ing. supra Henson v. United at See States, supra at 418 F.2d at hearsay judgment, excep our States, reiterated in supra Rease United inapplicable complainant’s pre tion is prior statements, at consistent testimony unavailability because the even purposes for rehabilitation should requirement is not satisfied. be admissible “exceptional in those situa- unavailability requirement embod- they tions where . .. could clear help be of ied in Henson is one of consti- standard determining the factfinder whether upon tutional dimensions is based the witness is truthful.” It is not at all necessity: principle “in conformance evident that in the instant allowance preference with the Framers’ for face-to- prior consistent statements served such a accusation, face Sixth es- Amendment government’s function. Moreоver the need .. necessity. tablishes rule of . [T]he to twice “rehabilitate” the same testimony prosecution produce or must either demon- compelling, is not especially when unavailability strate the of the declarant developing refrained from further against whose wishes to statement it use complainants’ inconsistencies in the testimo- Roberts, supra defendant.” Ohio ny, present and does type excep- (citations at at 2538 omit- warranting tional situation risk that ted). say more accurate to However it is jury, repetition imply mere will veraci- unavailability it declar- ty. As stated in Rease v. United testimony unavailability ant’s rather than supra consistent statement himself, that, by necessity, “may declarant attempt support not be used in an former admis- renders his sworn credibility generally by showing witness’ Thus, just supra sible. note 10. unimpeached that his See trial is present may physically consistent with “the witness his earlier statements.” Thus it was error allow nevertheless una- the sort of over- but vailable,” may physically broad “rehabilitation” which the declarant reading court, testimony ment jury undertook in to the his never- yet absent McCormick, Curry, supra, supra may 40. United States v. at 608. A declarant held admissi- (not retrial), testify suppression hearing ble at trial testimony be unavailable if he or asserts refuses witness, privilege memory of an unavailable as a well as his fails. Id. 611-12. testimony his later in-court statement that his was limited he was because intimidated government agent. presence of other errors in tion in view of theless available. is the situation Such trial, including complainant’s The full committed at the instant case. government recognized by the testimony on direct and cross-examination those not yet to rеgard from the first issue and others trial was available at are numerous fully presented jury. retrial and was to the be discussed. “Where there Moreover, trial, reviewing courts must nothing testimony in the at the errors in a pretrial hearing scope weigh impact.” the cumulative exceeded in the mat- Freeman, U.S.App.D.C. during ters or issues discussed the subse- States v. (1975), on other quent examination distin- 514 F.2d vacated at trial. We can F.2d 306 guish Curry, grounds, U.S.App.D.C. the case of United States here, supra, on We note however that as relied the trial court because there, States, D.C.App.,359 A.2d one of the witnesses’ statements sub- Tibbs v. United (1976), a convic- stantially rep- differed where we reversed from the other and prior truly grounds tion that a witness’ resented otherwise unavailable testi- mony prior police to a officer on a matter not covered at the consistent statement through policeofficer’s testi- hearing, namely, brought the effect of a threat government agent hearsay statements “resulted in mony, on the witness’ testimo- ny prior hearing. adding weight police at the of the officer’s hear- ing transcripts complainant’s testimony.” in this such to the case offer no status addition, complainants’ testimony new or own Any different evidence. variations suppression hearing between reinforced the two sets of are at- from the trial credibility tributable to differences in in their and bolstered their the manner complainants responded erroneously which the introduced “testimony.” to essen- tially questions police officers’ separate testimony namely, same court all of the appearances. Therefore, availability complainants’ reports, testimony about the transcript hearing the first trial pretrial suppression in effect rendered and all of the prior testimony, declarants “available” and made the aside from statements of pretrial suppression hearing transcript part a substantial description, un- formed necessary for purposes proving government’s case at trial. Even without errors, government’s against considering it is difficult to see appellant. other harmless. how these could be deemed government has admitted that at portion suppression hearing least one V as testimony,42 police well as all of the asserts, additionally testimony (other officers’ Appellant than the convictions, description testimony), erroneously grounds in- for reversal of However, erroneously permitted the troduced. con- by him to a light hear statements made jury tends these errors were harmless “in unequivocal probation of the three officer. The statements identifications operandi presentence report prepared employed common modus contained in a offenses,” essentially read to all three have re- after the first trial and which would officer, Leroy probation sulted in guilty jury verdict. We leave the question Swepson.43 of harmless error for later resolu- signifi- impropriety when a the same occurred 42. At the first Debra Waters was impeached suppression regard portion on cross-examination with of Sharon Williams’ cant hearing redirect, ability appellant. jury her the to see the On was read twice testimony by prosecutor retrial, part during appellant’s rehabilitated her first as using hearing portions suppression independent- transcript, of her testi- originаl and then mony. At the retrial the was read the ly, together consistent testimo- with additional trial, including proceedings entire the from the first ny. quotations suppres- rehabilitating from the thereafter, hearing, immediately sion again probation reads as officer’s 43. The suppression hearing brief, read testi- Waters’ follows: mony. reply In his notes that he had effectively yet al meant that not Superior 32(b)(1) Ct.Cr.R. states in rele- part, Swep- time presentence report guilty vant that a “shall been found at the Officer gave not be or before the submitted to the court its contents son his presentence Resort to the anyone disclosed to unless the defendant the second trial. contendere, impermissible pleaded report has under guilty, or nolo or was therefore ” which 32(b)(1), evidently restriction guilty.. . . Rule a been found Our reversal not the trial court.44 convictions the first tri- was considered Okay. you he asked for smoke. He admitted sex and Would read from Q. ment’s Exhibit No. Govern- all, they agreed. alleged first of whatever went inside an she He respect empty building. Mr. Warren said with to the case of The defendant admitted he Marilyn Reed? had agreed. Williams whom he said sex with Miss Reed, A. In the the defend- version, gave ant offense, me this his this, version group in After two other males way. and it went this defendant had sex with Miss Williams. While she was alleged that he knows Miss Reed from Feder- dressing, all left. The defendant admitted City College. alleged al He further that he high very that beer Miss Williams was on worked, complainant knew where the and they get any marijuana, could and and not proper pick up location to on her, they sense so left her there because into evening of the offense. they get for did not want to stuck with her According defendant, Miss Reed night. alleged asked him for a ride home. He also way that on the home he asked her to have Appellant suppress to moved him, They agreed. sex with to which she inculpatory pretrial report in the statements alley stopped in an and she had a sex relation grounds given that he was no Miranda agreed with the defendant. She also and had warnings, (2) knowingly he did not waive co-defendant, sex relations with the John Da- rights, should be exclusion ordered vis, voluntarily. “supervisory pow- of the court’s exercise it, charged taking Davis with She John but guarantee unimpeded an ers” fairness and anything did about it not do at the time. sentencing process. The trial court held that Later, both were arrested. The defendant apply Miranda the statements were did not denied force leged either. defendant al- involuntary. supervi- exercise of As to the he that he denied knew Miss Reed sory power, recognized the court that questioned Squad when he was in the Sex Columbia, policy there the District of are during Room because of John expressions admissibility against state- wife, meaning Davis’ this was co-de- for the ments similarity circumstances bear some under fendant’s best interest. Thus, those here involved. alleged Mr. Warren also he believed that (D.C.Code Agency 23-1301 § Bail Act complainant brought any would not have seq.) provides et that information secured gone action if John Davis had not for back may divulged except agency that bail-setting days more two or three later. purposes but other limited Now, respect to Sharon Q. Elizabeth during prosecu- not for use as evidence Williams, you did Mr. Warren tell what his Similarly, tion’s perior at a trial. Su- case in chief respect version of the. events were with Rule 111 that Juvenile directs Court lady? counsel, “unless advised statement gave A. his version Sharon He case of probation a a child made to ... officer ... Williams. Elizabeth ” against shall Also, used not be child.... you Would tell us what that was? version Q. A. the federal courts and else- both in alleged The defendant he and Paul where, made to statements picked Fletcher and Paul Brooks plainant the com- inadmissible, psychiatrist are are state- Street, up U alleged at 13th and Northwest. jail employee ments to a for routine made The defendant further that he had Killough purposes. classification past in the known Miss Williams and knew U.S.App.D.C. F.2d junkie. They dope she was on rode (1964). [Footnotes omitted.] area and around the Cardoza Miss Williams other, ultimately parties It directed the asked for some smoke. defendant said bodies, noting policy-making gave According he some and it to her. questions presumably such as defendant, It is because Miss Williams wanted some jurisdiction-wide usually cocaine, these involve they proceeded so to find a friend fashioning policies of ex- might court-wide clusionary who have some. policy gener- basis has apartment building rules on They went to an (as ally legislatively Terrace, in the apartment housing exercised Kenilworth Act); by highest Agency they of a Bail area. The friend not home and (as g., parked According State People decisions [e. in the California the area. to the defend- Hicks, ant, Cal.Rptr. high Cal.3d Miss Williams on beer and 32(b)(1)’s jury. report was counterpart Rule federal The fact that the States, interpreted Gregg v. United jury’s verdict in the first prepared after 394 U.S. 22 L.Ed.2d 442 S.Ct. import, trial is of no since that verdict was (1969).45 Gregg, In pеtitioner argued report The con- appellant. nullified as to jeopardizing that his conviction for the lives appel- tained information elicited from the postal employees robbing while them concerning same case for which he lant judge should be reversed because the trial very separately retried.47 The was later presentence read the report jury before the report directly in presentence nature of a is verdict, returned its in violation of Fed.R. adversary conflict with the nature of a tri- Crim.P. Supreme 32. The Court affirmed Information, quite prejudicial, al. often is Gregg’s ground conviction on the there was making discretionary obtained and used in no direct evidence in the record that indi sentencing. reports are decisionsabout The judge cated the trial report had read the informal documents. Information in them before the jury returned its verdict.46 sepa- hearsay pertain can be based on or Court, however, Supreme strongly indicated having rate matters no relation to the crime interpretation given to be to Rule 32: charged. with which defendant has been explicit. Rule 32 is It asserts that present during Counsel is not the interview “report shall not be submitted to the upon report which ‍​​‌‌‌‌​​​​​​‌‌​‌​‌‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌‌​‌​‌‍the is based.48 It would court . . . unless the plead- defendant has be the essence of unfairness to use such guilty ed or guilty.” has been found against appel- information as evidence language clearly permits preparation lant. presentence report guilty plea before purpose sentencing report or of the is to conviction but it equally clear that not, the report sentencing process. pri- must aid “The undеr circum- in the stances, be objective “submitted to the court” be- mary presentence report fore the pleads guilty defendant or is light person- to focus on the character and convicted. report Submission of the to ality of the defendant and to discover those the court point before that constitutes factors that underlie of- commissionof the error of the [Gregg clearest kind. general.” fense defendant’s conduct in States, 491-92, supra, 394 Note, Reports, Presentence 58 Geo.L.J. 1136; footnote omitted.] (1970). 455-56 This information is essential making discretionary decision sen- appellant’s “error of the clearest tencing. Allowance of information as kind” has been committed. Statements appellant presentence guilt in the evidence of defendant’s would have a report were heard judge, chilling the trial but also effect interview. (1971)] presentence pretrial ruling 484 P.2d 65 It was because of the officers); probation statements admissible at trial these statements would be acting (as jury rule-making capacity judge in its that the trial instructed the at the Superior 111). appellant Court Juvenile Rule Similar had once before been con- outset apply very question considerations victed of the being crimes for which he non-coerced, voluntary exclusion of state- retried. probation ments to officers. Though counsel was not we note that Superior 45. Where the Court Rule is “substan- present by Of- when was interviewed tially counterpart” the same as its federal Swepson, argument ficer we do not reach the here, “consistently this court has construed it presentation presentence report vio- with the federal rule.” Waldron v. United right lated Sixth Amendment States, D.C.App., (1977); 370 A.2d States, Md.App. counsel. See Hall v. United 590, Campbell D.C.App., see also v. United (1981) (rebuttal testimony by 425 A.2d 227 295 A.2d impeaching probation officer defendant’s trial testimony was not a violation of defendant’s additionally 46. The Court held there was no counsel, right although no Sixth Amendment prejudice petitioner’s rights since even if the present counsel was at defendant’s interview judge report had read the after the retired officer). probation it could not have affected the verdict.

The evidentiary error committed with re- VII spect to allowance of Probation Officer The standard for reversal where Swepson’s testimony must be characterized recognized appeal more than one error is highly prejudicial since the sole defense impact is whether the cumulative of the at trial was unreliability of the com- errors substantially jury’s influenced the plainant’s and, identifications implicitly, the verdict. Kotteakos v. United lack of appellant connection between 750, 764-65, 1239, 1247-48, probation report crimes. The testimony (1946); L.Ed. 1557 United States v. Free directly theory conflicted with this since it man, supra at The F.2d contained by admissions the defendant di- evidentiary improprieties which we have rectly implicating him in two of the of- (1) reading complainants’ noted are: of the Swepson’s fenses. testimony effectively re- pretrial suppression (oth hearing testimony moved the issue of identification prior description (2) from er than testimony); case and appellant left with no police testimony relating complainants’ credible theory defense, reports (other jury prior description unless the could be than testi complaints appellant’s mony, rapе spontaneous convinced that statements to the probation utterances); (3) reading appel officer were hopes fabricated in presentence report by probation lant’s of a lenient theory sentence. This latter officer. was unsuccessfully argued jury by to the

defense counsel in closing. hearsay inadmissible evidence

presented sig- in this fashion constituted a part government’s nificant of the VI importance quantity testimony. both appellant’s final claim of error is one repetitious complain- narrations of the prosecutorial during misconduct closing reports ants’ and their argument. He convincingly argues that the artificially strengthened complainants’ prosecutor (1) improperly impugned the mo- identifications and had the additional effect tives integrity of defense counsel impressing upon sordid na- jury the distorting closing (2) counsel’s argument; jury ture of the crimes. Lest the have made several references to results of the involvement, appellant’s doubt about inviting the jury to misuse evi- probation officer’s would have verdict; previous dence of the guilty effectively it. removed It is an understate- improperly expressed opinion his own of the say improp- ment to of such admission witnesses; veracity improperly er and allowance of the tran- appellant’s commented on the silence at the script readings substantially swayed the time of Despite prima his arrest. facie jury’s verdict. The errors committed no error, allegations merit of these we do compelled guilt. finding less than At prosecutorial not rule on the issue of mis- retrial, depended the outcome of which during closing argument, conduct because entirely on the identifications made ab- the evidentiary recog- errors which we have witnesses, jury, sent of assum- instead nized in sections IV and V of our discussion fact, ing their function as arbiters of were a are sufficient in themselves to warrant re- captive audience to a dramatic reenactment versal of convictions. thusWe trial. Because none of the limit our review evidentiary matters like- complaining person witnesses testified ly again appellant arise should be tried a against appellant, credibility their could not third time for the offenses herein discussed. Instead, directly jury. assessed government In view of the fact that the they rely exclusively hearsay had to itself admitted to im- presented several instances of through litany rep- evidence proper argument jury, readings officially-imbued po- to the trust that etitious improprieties appel- those will be avoided if probation testimony. lice and officer We prosecuted lant is anew. must conclude that the errors we have not- testify did and his jury’s ed Since substantially influenced the ver- the second argued counsel dict. had failed to government Reversed. another, than prove appellant, rather ques- rapes perpetrator was the KERN, concurring: Judge, Associate tion, erroneous impact of court’s judgment I of conviction agree that part into evidence as admission the trial must be reserved because highly-incrimina- of this prosecution case allowing erred signifi- ting report from the material present jury to the in its case-in-chief at Accordingly, persuaded I am not cant.4 rape charges some of the this retrial Kotteakos error wаs harmless under presentence report prepared contents of the must be tried Regretfully, test.5 in a guilty after the first resulted error was substantial.6 again because the material, appellant In this verdict. incrimi- by admitting probation to his nated himself he

officer had had sexual relations complainants. with two of the Such rul-

ing Super.Ct.Cr.R. violated the terms of

32(b)(1),2 Supreme and the mandate of the States, Gregg

Court 394 U.S. 1134,

489, (1969).3 22 L.Ed.2d 442 89 S.Ct. prejudice possibility judge ruling pre- Rule 32 who rendered by appellant [Emphasis trial motion exclude did not added.] to avoid. intended preside over the retrial. prosecution withheld the contents of 4. Had the provides pertinent part: 2. This Rule presentence report from its case-in-chief report shall not be submitted to the appel impeach this material used anyone court or its contents disclosed to un- stand, lant, then its he have taken the should less the defendant had . . . been found State, proper. Hall v. would seem admission guilty.. . . n.4, 227, Md.App. A.2d 231-32 Hass, (1981), Oregon citing (at 492, 420 U.S. part n.4 3. The stated in Court relevant (1975), 1136-37): 43 L.Ed.2d 570 Harris S.Ct. S.Ct. York, New 401 U.S. 91 S.Ct. permit parte To the ex introduction of this (1971). L.Ed.2d 1 presen- of material sort contents of the [the report] judge pro- tence who will guilt nounce defendant’s or innocence 328 U.S. 5. Kotteakos v. United seriously . . . would contravene the rule’s 90 L.Ed. 1557 purpose preventing possible prejudice premature presen- submission of the agree majority’s treatment I report. therefore, judge, tence No trial ap- by appellant on contentions various other report should examine the while the peal, except that ‍​​‌‌‌‌​​​​​​‌‌​‌​‌‌‌‌​‌‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌‌​‌​‌‍I find the trial court’s admis- deliberating may upon since called he be hearsay to have been sion of the evidence give inquiries further instructions or answer under the circumstances. harmless error jury, in from the which event there would

Case Details

Case Name: Warren v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 9, 1981

Citation: 436 A.2d 821

Docket Number: 79-162

Court Abbreviation: D.C.