O'Brien v. U.S., No. 02-CF-175.

• Decision Date: 23 December 2008
• Docket Number: No. 02-CF-175.,No. 05-CO-313.
• Citation: 962 A.2d 282
• Parties: ANGELA O'BRIEN, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

962 A.2d 282

ANGELA O'BRIEN, Appellant v. UNITED STATES, Appellee.

No. 02-CF-175.

No. 05-CO-313.

District of Columbia Court of Appeals.

Argued June 15, 2006.

Decided December 23, 2008.

Allie J. Sheffield, appointed by the court, for appellant.

Lisa H. Schertler, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Roy W. McLeese, III, Thomas J. Tourish, Jr., James S. Sweeney, and Patricia A. Heffernan, Assistant United States Attorneys, were on the brief and supplemental briefs, for appellee.

Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,^* and TERRY, Senior Judge.

TERRY, Senior Judge:

Appellant O'Brien was convicted of second-degree murder of a young child, first-degree cruelty to children, two counts of assault, and obstruction of justice. On appeal she presents several claims of error. Her principal argument is that the trial court erred in denying her post-trial motion for a new trial based on newly discovered evidence that one of the government's expert witnesses allegedly committed perjury. She also maintains that the court erred in failing to strike that same witness' testimony when presented with evidence that he misrepresented his credentials at trial, and also erred in precluding her from calling witnesses who would support her claim. She further contends that the trial court erred in prohibiting her from introducing evidence of her mental retardation to negate the mens rea element of those offenses which require the government to prove specific intent. Appellant claims that the court abused its discretion by precluding her from introducing any evidence of the circumstances surrounding the victim's placement in her home. She asserts that the court violated her right to present a defense and committed constitutional error by refusing to allow her to offer evidence of bias by the police, prosecutors, and social workers, and by failing to conduct what she refers to as a "taint hearing." In addition, she argues that the trial court committed reversible error by admitting the medical examiner's secondary diagnosis of child abuse which, she maintains, was based purely on speculation, and by allowing the government to make use of several autopsy photographs in its closing argument. Finally, appellant argues that her conviction of obstruction of justice resulted from a constructive amendment of the indictment, in violation of the Grand Jury Clause of the Constitution. We reject all of these arguments and affirm both the judgment of conviction and the denial of appellant's motion for new trial.

I

Appellant was charged in eight counts of a ten-count indictment with conspiracy to commit second-degree cruelty to children (count one), second-degree cruelty to children (counts two and six), first-degree cruelty to children (counts three and seven), assault with a dangerous weapon (count four), first-degree felony murder (count eight), and obstruction of justice (count ten). All of these charges arose out of the death of twenty-three-month-old Brianna Blackmond on January 6, 2000.¹

A. Pre-Trial Motions

1. Appellant's Mental Capacity

The government moved before trial to preclude appellant from presenting a diminished capacity defense. Appellant had previously given written notice that she intended to raise "cognitive deficits, including mental retardation ... as a defense to the elements of the offense." The government argued that because "diminished capacity is not a recognized defense" in the District of Columbia, the proposed defense testimony was inadmissible, citing Bethea v. United States, 365 A.2d 64 (D.C.1976).

In response, the defense argued that appellant's "cognitive impairment"² had "a significant impact on commission of the elements of the [charged] offenses." Defense counsel claimed that mental retardation should be an exception to the "basic principle" that "all individuals are presumed to have a similar capacity for mens rea," citing Bethea, 365 A.2d at 88. Counsel argued that expert testimony "would explain, as a form of accident or mistake defense, how [appellant] was unable to understand the consequences of her actions."

The trial court granted the government's motion. The court noted that this court not only had rejected diminished capacity as a legal defense in Bethea, but had declined to change course in subsequent cases. See, e.g., Doepel v. United States, 434 A.2d 449 (D.C.1981). The court also observed that other courts with similar precedents considered evidence of mental retardation or a low I.Q. to be prohibited evidence of diminished capacity. Thus "any evidence relating to [appellant's] mental retardation or cognitive impairment would be evidence supporting a defense of diminished capacity" and "is not admissible in the District of Columbia."

2. Matters Relating to Child Witnesses

Appellant moved to exclude the testimony of certain child witnesses, claiming that "improper and unduly suggestive interrogation techniques" rendered the children's testimony and statements "too unreliable to be admitted pursuant to the Fifth and Sixth Amendments." In the same motion, appellant sought discovery concerning the investigative interviews that were conducted with the children, asking the court to "conduct a hearing to determine whether the witnesses have been tainted by the conduct of their questioners, requiring that their statements be excluded from the trial."

Initially, the trial court held the request for such a "taint hearing" in abeyance. The court did not "see how the defense can make that motion without having some knowledge or more knowledge and more discovery about the case." At the same time, however, the court authorized the defense to retain an "expert on child witness issues" such as "memory susceptibility and manipulation and fabrication." The court invited the government to file a motion on the admissibility of expert testimony on these issues, which were "la[id] out ... in [defense counsel's] taint motion."

The government subsequently moved to preclude the defense from presenting expert testimony on the suggestibility of children,³ citing Oliver v. United States, 711 A.2d 70 (D.C.1998) (approving expert testimony on the psychology of child sexual abuse victims and the reasons for recantation); the defense responded that such expert testimony was admissible.⁴ The court ruled that "it would be proper for [the] defense to have the [expert] witness testify as to which studies say what might influence a child [such as] repeated questioning, suggestive interviews ... [and] those things that are listed in the pleading." The court reserved ruling on whether the expert would be permitted to comment specifically about the interviews in this case. However, after defense counsel filed a memorandum on the reserved issue, the defense expert was permitted at trial to give the full scope of testimony that the defense had requested, i.e., testimony about child interviewing techniques generally and also about the specific interviewing techniques used in this case.

3. Matters Relating to Alleged Government Agency Culpability and/or Bias

The government filed a motion to preclude, under Winfield v. United States, 676 A.2d 1 (D.C.1996) (en banc), "an anticipated defense theory that specific individuals and various institutions other than the defendant committed the crimes charged in the indictment," including evidence that "[these] offense[s] [were] the responsibility of an institution."

The defense then moved to introduce evidence of "bias by government's agents and of the defendant's innocence and state of mind." The motion outlined the alleged failings of the government agencies involved in removing Brianna from foster care, stressing "the role that [government] agencies played in creating, failing to prevent, or otherwise turning a blind eye to the overcrowding at [appellant's home], and how that environment contributed to the death of Brianna Blackmond."⁵ The motion also asserted that media attention had made government agents "eager to avoid responsibility for their actions" and had affected police officers and prosecutors, who "pressed to close the case fast with an arrest." Investigators thus allegedly "ignored and obscured the culpability of ... government agents in placing Brianna Blackmond in an overcrowded living situation and in failing to supervise her once there."⁶

The defense sought to introduce a "bias defense," consisting of evidence "tend[ing] to show that government agents deflected culpability toward [the] defendant so as to escape responsibility and produce an arrest."⁷ The defense also argued for the admissibility of "third-party culpability evidence" (i.e., evidence of government failings in the return of Brianna to her mother's custody and in Brianna's post-placement supervision), which "reduced" appellant's culpability and thus was "relevant to her innocence."

At a hearing on these motions, the court inquired how the defense argument was relevant to the issues in the case, namely "whether or not [Brianna] was murdered ... and, [if so,] who did it." Defense counsel responded that if government agencies had placed Brianna in a house with "too many kids," the agencies would "want[ ] to cover up their own errors" by blaming Brianna's death on a non-accidental cause. When the court asked, "How is too many children in the house a causation factor to the child falling down the stairs?", defense counsel replied, "You can't supervise all those kids." The court then ruled:

I think we are getting very far afield.... I don't think that that argument has probative value, and you have not cited to the court any authority that will say ... that is a valid argument under the law.... In the court's view, the agency's role [in] the child returning home ... confus[es] the issues in this case. It's not...