Carter v. United States, 22187.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: WILBUR K. MILLER, Senior Circuit , and McGOWAN and ROBB, Circuit
• Citation: Carter v. United States, 427 F.2d 619, 138 U.S.App.D.C. 349 (D.C. Cir. 1970)
• Decision Date: 30 April 1970
• Docket Number: No. 22187.,22187.
• Parties: William A. CARTER, Jr., Appellant, v. UNITED STATES of America, Appellee.

138 US App. DC 349, 427 F.2d 619 (1970)

William A. CARTER, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 22187.

United States Court of Appeals, District of Columbia Circuit.

Argued October 29, 1969.

Decided April 30, 1970.

Mr. J. Patrick Hickey, Washington, D. C. (appointed by this court), for appellant.

Mr. John Ellsworth Stein, Asst. U. S. Atty., for appellee. Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Victor W. Caputy, Asst. U. S. Atty., and Robert P. Watkins, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Daniel E. Toomey, Asst. U. S. Attys., also entered appearances for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN and ROBB, Circuit Judges.

ROBB, Circuit Judge:

After a trial by jury in the District Court the appellant was convicted of rape (22 D.C.Code § 2801), assault with a dangerous weapon (22 D.C.Code § 502), and carrying a dangerous weapon (22 D.C.Code § 3204). He was sentenced to serve not less than seven nor more than twenty-one years for rape, from forty months to ten years for assault, and one year for carrying a dangerous weapon, all sentences to run concurrently. On this appeal he contends that the district judge erred in refusing to give a requested instruction as to the necessity for corroboration of the testimony of the complainant, identifying the appellant as her assailant. He argues that the error was compounded when the court failed to give adequate guidance to the jury on the subject of corroboration. He submits further that the court erred in not sending to the jury room, on request of the jury, a statement signed by the complaining witness which had been marked for identification and used by defense counsel on cross-examination, but which was never offered or received in evidence. We affirm.

At the time of the rape charged in the indictment the complainant was employed as a nursing assistant at St. Elizabeths Hospital. She testified that about half past eleven on the night of April 26, 1967, she alighted from a bus, entered the extensive hospital grounds though Gate 4, and walked along her usual path towards the Dix Building where she was to go on duty. It was raining and she was carrying an unbrella.

The complainants route took her by the head of a stairway leading down to the entrance into a tunnel or underpass. When she got to this point a man came up the stairs with a gun in his hand and told her not to scream. Thinking the man wanted money she tried to hand him her pocketbook but "he didn't take my pocketbook or anything, and he asked, he started asking me whether or not I knew him or had I seen his face or — and I told him no, and he told me to come this way". She complied with the gunman's demands and he walked her down the stairs, passing under a light at the entrance into the tunnel. Threatening her continually with his gun he then took her to a parking lot in another part of the grounds. On the way, as they were crossing the street, an automobile with its headlights on almost hit them. The car "pulled almost to a stop", and at this time the man ran ahead and then "drifted back" and took the complainant by her arm, "and it was a pause". The complainant testified that she had an opportunity to see the man's face in the light at the entrance to the underpass and again in the lights of the automobile.

When the assailant and his victim arrived at the parking lot "he said that he was going to try a few cars to see if any of them were open, and the one that he did try, it was open and we got in on the driver's side." The man made the complainant remove her underclothes, pushed her down on the seat, kissed her, and then forced her to have sexual intercourse with him. There was some light in the car from the street lamps, enabling her to see the man's face, and she felt his face during the act of intercourse.

Following the rape the assailant lit a cigarette, after telling the complainant not to look at him. He then allowed her to light a cigarette and talked to her for "maybe about five minutes, ten minutes", saying that she "would probably have him hung for this but it didn't make any difference because he was going to Viet Nam soon and it just didn't make any difference." She testified that "after I put on my clothes and he put his cigarette out, we got out of the car and we crossed the street and he walked me to Blackburn Laboratory and he told me not to look back and he wasn't walking, holding my arm, at this time I was walking in front of him". Somewhere between the Blackburn Building and the Dix Building the rapist disappeared.

When she got to the Dix Building the complainant immediately reported the rape to her supervisor, who called in the Assistant Director of Nursing. The Assistant Director testified that the complainant was sobbing, hysterical, "blanched" and "tremulous". She kept repeating "he had a gun", "I don't want my mother to know about this" and "I feel so dirty". After about an hour she was able to give the details of what had happened and she said she thought she would be able to identify the man who had attacked her.

The police were called, and together with the complainant and members of the hospital staff, they retraced the path that the complainant had taken with her attacker. They searched the hospital grounds for the car in which the attack occurred, but it was not there. The complainant described the car as a Comet, Ambassador or Rambler with light blue exterior and interior, shiny upholstery and head rests which did not come with the car but were attached to the front seat. She described the gun used by her attacker as a dark colored automatic, which she was able to recognize because of her experience on her school rifle team. She said the rapist had a mustache and she could feel hair on his chin. She did not recognize the man, she said, but thought he looked "vaguely familiar" and might have been a patient at the hospital.

On the day after the rape the complainant went to the office of the Sex Squad of the Metropolitan Police Department and gave a statement which was reduced to writing and signed by her. This statement, which at trial was marked Exhibit 4-B for identification, and which defense counsel used on cross-examination of the complainant, included the sentences "I didn't see his face at all but I felt the goatee, mustache and hat. I wouldn't know him by sight if I saw him again but I am pretty sure I would know his voice". The complainant testified that she had made this statement "with reason", the reason being that she was afraid to look her attacker in the face, with "him knowing it."

A detective assigned to the Sex Squad testified that after a policewoman took the complainant's statement he interviewed the complainant "off to one side" and "she told me that she felt sure she could identify him when she saw him in person". He testified further, however, that he had written in his notes of that interview "Suspect unable to identify * * * I feel that it would be of no use to show her photographs as they don't click. * * * Lighting was bad, didn't take a good look at face, only profile".

Three or four days after the rape the complainant returned to her work as a nursing assistant in the Dix Building. This building is near the Gate 3 entrance to the hospital grounds and the complainant sometimes used that gate to enter or leave the grounds. Appellant Carter had been employed as a security guard at St. Elizabeths since January 1967 and on occasions was stationed at Gate 3. The complainant testified that after she returned to work she saw Carter on duty at Gate 3 perhaps "once or twice a week" and that she "several times" saw the automobile in which the assault was committed parked near Gate 3, and on one occasion saw Carter driving it near the hospital. After some two weeks she came to the conclusion that Carter was the man who had attacked her. She did not immediately report her conclusion to the police, but waited for two weeks more because "I felt embarrassed * * * I was afraid of being laughed at. It just seemed stupid that we both were working there and something like this would happen."

When the complainant did report her conclusion to the police they obtained a search warrant for Carter's automobile and upon executing it found a loaded .32 caliber automatic pistol in the glove compartment. On May 26, 1967, on the grounds of St. Elizabeths Hospital, the complainant identified the gun and automobile as those used in the attack, she identified William Carter as the attacker, and he was arrested. She likewise identified Carter at trial.

The evidence disclosed that the appellant's automobile was a 1966 Plymouth Fury. Its color was described by the complainant as "light blue" or "Dior blue". A police officer testified that it was "powder blue" and the appellant said it was "green". In the light of these varying descriptions the car itself was viewed by the jury. There was no dispute, however, that the headrests and upholstery in the car, and the pistol found in the glove compartment, matched the description the complainant gave to the police shortly after the assault. There was evidence also that at the time of the assault, Carter wore a mustache and had a patch of hair on his lower lip.

Testifying in his own defense the appellant swore that he had not been on the grounds of St. Elizabeths on the night of April 26. He said he had gone to work at St. Elizabeths at midnight April 25, and had worked until 8 o'clock the next morning; that April 26 was his day off; and that he had spent that entire day and evening at home with his wife. His wife and his sister-in-law testified in support of this alibi. The jury might have found that their credibility was impaired, however, when they swore that the appellant had likewise been at home during the entire night of April 25-26...