Gass v. United States

• Citation: 135 US App. DC 11,416 F.2d 767
• Decision Date: 29 January 1969
• Docket Number: No. 21198.,21198.
• Parties: William J. GASS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

135 US App. DC 11, 416 F.2d 767 (1969)

William J. GASS, Appellant, v. UNITED STATES of America, Appellee.

No. 21198.

United States Court of Appeals District of Columbia Circuit.

Argued March 19, 1968.

Decided January 29, 1969.

Mr. Louis P. Robbins, Washington, D. C., with whom Mr. Solomon Grossberg, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Albert W. Overby, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief for appellee. Mr. John A. Terry, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before WRIGHT, McGOWAN and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

A lone gunman entered a dry cleaning establishment shortly before its 7:00 p. m. closing time on February 3, 1966, and ordered a female employee to "hand over the money." The employee showed him a half-opened cash register drawer and stated that it contained no money. The lady manager of the business,¹ the only other person in the premises, was summoned from a back room, and she likewise denied that there was any money on hand.

Not to be deterred, the gunman escorted the two women into the back room and again told the manager to "get the money," whereupon the day's receipts were turned over to him. Acceding to his further demands, the women handed him a dollar each from their respective purses, which had been placed on a table nearby.

At this point, the gunman produced cord from his pocket, tied the manager's hands behind her back, and secured her in a bathroom. He then raped the employee, confined both women in the bathroom, and left. The captives eventually extricated themselves, and called the police.

About 9:30 that evening, the raped employee was given physical and gynecological examinations at a hospital. The physical examination disclosed no external bruises or evidence of trauma, and so was inconclusive as to recent sexual activity. The gynecological examination, however, was positive on that score; smear tests disclosed intact sperm.

Shortly thereafter, appellant was arrested and identified as the robber-rapist by the employee and the manager.² Tried in the District Court on an indictment in one count of rape³ and two counts of robbery,⁴ a jury rejecting his claim of alibi⁵ found him guilty on all charges.

On this appeal, appellant attributes error to (1) the admission into evidence of slides containing the smears; (2) his impeachment, after giving testimony in his own behalf, by use of a prior conviction; and (3) certain statements by Government counsel in closing argument.⁶ After careful study of the record in its bearing upon these contentions, we conclude that the conviction should stand affirmed.

I

The examinations of the raped employee were conducted by Dr. Marlene Nelson Kelly at the District of Columbia General Hospital. In the course of the gynecological examination, smears from the vaginal vault and cervix were taken on slides, on each of which Dr. Kelly had scratched the patient's name and her own. The slides were then turned over to a nurse, who took them to the hospital's laboratory for further examination.

On the next morning, Dr. Benjamin Turla, a pathologist, conducted the laboratory examination and, over appellant's objection, testified that one of the slides contained intact sperm taken from the cervix. Subsequent to the laboratory procedures, Dr. Kelly also performed a sperm test, and she was permitted to testify that she found intact sperm in secretions from the vagina. The slides themselves, also objected to, were admitted in evidence.

The crux of appellant's objections was that the Government's evidence failed to identify the slides that were examined as the slides upon which the smears had been placed, and fell short of establishing a chain of continuous custody and control of the slides from the time they were made until they were examined. Appellant relies heavily on Novak v. District of Columbia,⁷ where we reversed a conviction of driving an automobile under the influence of intoxicating liquor which had been predicated upon laboratory analyses of the accused's urine revealing a high alcoholic content. A police officer had testified that at the time of the arrest the accused furnished him a urine sample, and that he then put the accused's name and his own initials on the bottle containing the sample and delivered it to the District's Department of Health. At the trial, a laboratory report of the Health Department and testimony of a Health Department chemist established the analyses, and the fact that both of them had been made of urine samples taken from a bottle labeled with the accused's name, but the bottle was never identified or offered in evidence. We held that the report and the testimony were inadmissible. Since it had never been shown that the analyses were made from the urine sample taken from the accused, we held that "there is missing a necessary link in the chain of identification,"⁸ fatal to the conviction.

Were there no other pertinent considerations, we would conclude that the Novak rule was adequately satisfied here. For purposes of his examination, Dr. Turla identified the slides by the markings Dr. Kelly had placed on them, and at the trial both he and Dr. Kelly identified the slides by those markings. As we have stated, the markings contained the names of the examining physician and the patient, and Dr. Kelly testified that she marked no other slides with those two names. Thus the possibility that other slides may have borne the same combination of names was statistically remote indeed.

Moreover, Dr. Kelly had possession of the slides until she gave them to a nurse to carry to the hospital laboratory, and the slides were kept in the laboratory from then until they were examined. At most unaccounted for was the period when the nurse had them in transit from Dr. Kelly to the laboratory, and we do not think that calling the nurse as a witness was essential to the showing the government was required to make.⁹ The normal presumption that individuals entrusted with grave responsibilities discharge them with care¹⁰ "should apply a fortiori to doctors and nurses, whose professional training and traditions teach them to be meticulous."¹¹ The record is bare of any indication that the nurse mishandled or tampered with the slides. The Novak rule demands that the possibilities of misidentification and adulteration be eliminated, not absolutely, but as a matter of reasonable probability,¹² and the evidence complies with that standard here.

Subsequent to our Novak decision, we pointed out in Wheeler v. United States¹³ that evidence introducible under the Federal Business Records Act¹⁴ satisfies Novak requirements. The Act provides that "any writing or record * * * made as a memorandum or record of any act, transaction, occurrence or event" becomes admissible as evidence thereof "if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record" contemporaneously with or within a reasonable time after the event recorded.¹⁵ It further specifies that "all other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may * * * affect its weight, but * * * shall not affect its admissibility."¹⁶

Wheeler parallels in striking fashion the case at bar. There an examination was conducted in a hospital of an alleged rape victim to determine whether there had been an act of intercourse. Smears were placed on slides scratch-marked to identify both the examining physician and the patient, and were transmitted to the hospital's laboratory for testing. At Wheeler's trial, the examining physician and a laboratory bacteriologist so associated the slides by their markings so as to leave "no doubt that these slides were made and kept in the regular course of business and that it was the hospital's regular course of business to make them."¹⁷ We held that the slides, and testimony as to the laboratory findings upon their examination, were properly let into evidence, and that other circumstances went only to the weight to be ascribed to them. We distinguished Novak on the ground "that the specimen there was not taken in the business of the laboratory involved. Instead it was taken by an outside agency, the police, and only thereafter delivered to the laboratory."¹⁸

Appellant seeks, however, to avoid that consequence here by urging that while the evidence establishes that the slides were made in the course of the hospital's regular business it does not show that it was the regular course of the hospital's business to make such slides. Appellant is undoubtedly correct in his insistence that each of these conditions is prerequisite to admissibility,¹⁹ but the evidence establishes that both obtained here. As the Supreme Court has said, the essential determination on admissibility is to be made "according to the character of the records and their earmarks of reliability * * * acquired from their source and origin and the nature of their compilation."²⁰ Furthermore,

There is good reason to treat a hospital record entry as trustworthy. Footnote omitted. Human life will often depend on the accuracy of the entry, and it is reasonable to presume that a hospital is staffed with personnel who competently perform their day-to-day tasks. To this extent at least, hospital records are deserving of a presumption of accuracy even more than other types of business entries.²¹

In this case, Dr. Kelly testified that she had made about ten examinations similar to that conducted here during the rather limited period of her connection with the hospital. Dr. Turla answered affirmatively the prosecutor's questions as to whether markings of the examining physician's and patient's names on slides in such cases are "placed there no...