Arnold v. United States

• Decision Date: 03 May 1976
• Docket Number: No. 8282.,8282.
• Parties: James E. ARNOLD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 335

358 A.2d 335

James E. ARNOLD, Appellant, v. UNITED STATES, Appellee.

No. 8282.

District of Columbia Court of Appeals.

Argued En Banc December 8, 1975.

Decided May 3, 1976.

Frederick J. Sullivan, appointed by this court, and Robert Haas, Hyattsville, for appellant.

Henry F. Greene, Executive Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. McMullin, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Justin D. Simon and James A. Adams, Asst. U. S. Attys., Washington, D. C., also entered appearances for appellee.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, YEAGLEY, HARRIS and MACK, Associate Judges, and PAIR, Associate Judge, Retired.^*

PAIR, Associate Judge, Retired:

Charged in two counts of an indictment with two separate rapes,¹ one on May 30, 1973, and the other on June 12, 1973, appellant was found guilty after a jury trial of each offense and consecutive sentences of five to fifteen years imprisonment were imposed. This appeal followed and the contentions are that the trial court (1) abused its discretion in refusing to sever, for purposes of the trial, the two rape counts, (2) erred in denying appellant's motion for a judgment of acquittal at the end of the government's case, and (3) erred in refusing to instruct the jury that corroboration of the complainants' testimony must be found before returning a guilty verdict. A further contention is that the evidence was insufficient to support the guilty verdict. A rather detailed recital of the evidence is required to put the issues in proper perspective.

The First Rape

Sometime after 10:00 p. m. on May 30, 1973, Eugenia Dickerson was raped by a man later identified as appellant. Mrs. Dickerson was employed at that time at the City Post Office on a 10:30 p. m. to 7:00 a. m. shift. About 9:55 p. m. that night she was standing at a bus stop at Division Avenue and Grant Street, N.E., when appellant, driving a light blue Volkswagen, stopped and spoke to her. He stated that he knew her family, had seen her taking her little girl to nursery school and had been intending to speak to her. Mrs. Dickerson did not know appellant and had never seen him before. Appellant inquired as to her presence at the bus stop and she explained that she had missed the bus and was concerned that she would be late for her job at the City Post Office. Appellant offered to take her to work and she accepted and got in the front of the automobile.

Appellant, instead of driving to her place of employment, proceeded in another direction first to a liquor store and then to a gasoline service station. The station was closed, and after a brief conversation during which appellant stated that he was a counselor at D. C. General Hospital, Mrs. Dickerson insisted that he leave the station so that she could get to work. Appellant's demeanor changed abruptly and he turned to her saying in an angry tone, "I started to blow your head off when I first saw you on the corner. . . . I'm going to kill you." Observing that she was frightened appellant said. "You can't run, and you can't holler, because nobody will hear you. . . ." In reply to her questions as to why he had brought her there instead of taking her to work and why he wanted to kill her, appellant explained that her husband had hit appellant's brother's wife in the eye and injured her face.

Mrs. Dickerson was ordered to get in the back of the automobile and influenced by the threats made on her life and appellant's furtive motions under the seat of the automobile, she complied, after which appellant demanded and obtained her submission to sexual intercourse.

Following the incident appellant transported Mrs. Dickerson to her place of employment and she immediately reported to her supervisor that she had been attacked, felt unable to work and wanted to go to the nurse on duty. A few minutes later she informed the nurse that she had been raped but was, nevertheless, required to complete her work shift. The following morning, she reported the rape to the physician in charge of the Venereal Disease Clinic at D. C. General Hospital and was medically examined. She also informed her pastor of the rape and at the end of her work shift the following morning, she reported it to the Metropolitan Police Department. On June 21, 1973, and after appellant's arrest for the June 12 rape, she attended a police department lineup and immediately identified appellant as the man who raped her. Mrs. Dickerson's supervisor, her pastor, and the physician who examined her at D. C. General corroborated, in substantial detail, the account of the rape given the police.

The Second Rape

Portia Mills, the victim of the second rape, was at that time an employee of the Narcotics Treatment Administration at D. C. General Hospital. On June 12, 1973, Miss Mills participated in a work "Group Session" during which she experienced difficulty with some of her co-workers. Appellant, also an employee of the agency, was present and after the session he expressed sympathetic concern and his desire to counsel with her. Miss Mills had never socialized with appellant but because of his expressed interest in her work she invited him to her home for the discussion. Appellant declined and suggested that they talk in his automobile, a light blue Volkswagen. Appellant drove around for a while and at the insistence of Miss Mills he stopped the car at a small park near her home and continued the conversation while seated on a park bench near the street. Sometime later appellant went to his car and got a dark robe which he spread on the grass saying it would be much more comfortable than the bench. Miss Mills agreed and sat with him on the robe as they continued their conversation about her work. According to her testimony the following then transpired: "All of a sudden he just changed from the rational person that was talking to me before that had talked to me all evening . . . and said one or two things about wanting me, and all of this kind of stuff." Miss Mills requested that he take her home.

Appellant refused and told her that the real reason he had wanted to see her after work was to beat her for something she had done to him. He stated that "her good friend" had told him all about it and that he started to kill her, the complainant, the previous Saturday but changed his mind. Threatening her with assault and death, appellant demanded that she take off her underpants. She refused and appellant took off his belt and holding it in a threatening manner repeated his demand that she take off her pants. When she continued to say no appellant jumped on her and began to choke her saying that if she screamed he would kill her. Miss Mills, "scared to death" and convinced that he "meant business", submitted to sexual intercourse. She was then returned to her home, but was so disturbed that she sat for a while on her front porch rather than risk having her young niece discover, from her agitated condition, what had happened.

On the following day Miss Mills, still agitated, informed both her attorney and a close friend of the incident. Later that day her attorney accompanied her to a police precinct station to report the rape, and she was later taken to D. C. General Hospital where an examination of the cervical area disclosed the presence of spermatozoa. An examination of her underpants by an F.B.I. expert disclosed a semen stain. Miss Mills identified appellant as her assailant, identified the light blue Volkswagen which he was driving, and identified also the car robe on which she was raped. Both Miss Mills' attorney and her friend corroborated her initial account of the facts and circumstances surrounding the incident.

Before the close of the government's case, a police officer identified photographs of the interior and exterior of appellant's light blue Volkswagen, depicting a black interior and a dark colored robe on the rear seat.

The Issue of Joinder

We address first appellant's contention that the trial court abused its discretion in denying his motion for severance of the rape counts. D.C.Code 1973, § 23-311(a), permits the joinder of two or more offenses when each is charged in a separate count of the indictment, if such offenses . . are of the same or similar character . . . ."²

Appellant urges, however, that because the two rapes were unrelated and occurred at different times, by charging them in one indictment the jury was permitted to cumulate the evidence in support of each offense with prejudicial effect within the purview of Super.Ct.Cr.R. 14.³

Whenever similar but unrelated offenses are charged in an indictment to a single defendant, there is a possibility of some prejudice but, without more, such a joinder is permitted. Cupo v. United States, 123, U.S.App.D.C. 324, 359 F.2d 990 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967). The court pointed out in Drew v. United States, 118 U.S.App.D.C. 11, 17, 331 F.2d 85, 91 (1964):

[C]ourts, including our own, have . . found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials . . . .

See also and compare United States v. Miller, 145 U.S.App.D.C. 312, 319, 449 F.2d 974, 980 (1970); Hill v. United States, 135 U.S.App.D.C. 233, 418 F.2d 449 (1968).

Moreover, while the two rapes here involved occurred at different times, the methods employed by the rapist in each case were strikingly similar. For example, in each case the rapist, driving a light blue Volkswagen, invited the victim into the automobile as an act of friendly concern and for an apparently innocent purpose. In each case the friendly attitude of the rapist changed suddenly, and without provocation, to one of anger accompanied by threats of bodily harm and death, because of some injury allegedly perpetrated on him...