Coltrane v. United States

• Citation: 418 F.2d 1131,135 US App. DC 295
• Decision Date: 23 May 1969
• Docket Number: No. 21843.,21843.
• Parties: Phillip COLTRANE, 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 295, 418 F.2d 1131 (1969)

Phillip COLTRANE, Appellant, v. UNITED STATES of America, Appellee.

No. 21843.

United States Court of Appeals District of Columbia Circuit.

Argued November 8, 1968.

Decided May 23, 1969.

Petition for Rehearing Denied October 10, 1969.

Mrs. Jean F. Dwyer, Washington, D. C. (appointed by this court), for appellant.

Mr. David A. Clarke, Jr., Special Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Theodore Wieseman, Asst. U. S. Atty., were on the brief, for appellee.

Before BURGER, TAMM and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

A jury in the District Court found appellant guilty on all charges preferred by an indictment in four counts of taking indecent liberties with a child¹ and three counts of sodomy² with the same child. He was sentenced to terms of imprisonment of from two to ten years on each of the sodomy counts, and from two to eight years on each of the others, all terms to be served concurrently. He attacks the conviction on the grounds that the child-complainant's testimony was not corroborated sufficiently to authorize conviction on any of the counts, and that the Government was improperly permitted to rehabilitate the complainant as a prosecution witness by use of a pretrial statement he had given to the police. We sustain each contention partially, and reverse appellant's conviction.

I

On the night of January 23, 1967, the complainant, a 15-year old boy, and a neighbor were approached by appellant, who inquired as to whether someone could call at his house for some photographs he had made for the neighbor's 17-year old son. The complainant had some previous acquaintance with appellant, and at the neighbor's request accompanied appellant to the house. There, said the complainant at trial, he was taken to a bedroom and shown pornographic pictures for several minutes before he rejoined the neighbor with the picked-up photographs.

The complainant then testified to a series of bizarre events, allegedly transpiring in appellant's bedroom during the next four days, on which the charges specified in the indictment were predicated. On the nights of January 24 through 27, the complainant declared, he visited appellant at the latter's invitation³ and they engaged in homosexual activities.⁴ In substance, the complainant avowed, on January 24 and 25, appellant committed oral sodomy;⁵ on January 26, appellant performed an act of rectal sodomy with the aid of a lubricant described as Vaseline;⁶ and on January 27, appellant rubbed their sexual organs together.⁷ The indictment characterizes each night's activities as separate instances of taking indecent liberties with the complainant, and those of the first three nights as sodomy.

The pretense for one of appellant's invitations to visit, the complainant continued, was appellant's offer to make photographs of the complainant. On January 25 and 26, in appellant's basement darkroom, the complainant added, appellant took pictures, developed them, and later gave them to him, apparently on his visit on January 27. Two photographs, ordinary head views, were introduced into evidence at the trial.

Indisputably, shortly after the dates to which the complainant referred, he began to suffer from the first symptoms of what soon turned out to be a venereal disease. This came to light on February 3, when his mother noticed a bloody discharge on his underwear. Taken to a hospital on February 4, it was discovered that he had an advanced case of gonorrhea. He refused to tell the doctor or his mother how he contracted it, but apparently implicated appellant in conversation with a friend. The mother testified that on February 5 she was first informed that appellant was the source of the disease by someone other than her son, presumably one of his friends. On the next day, the complainant and his mother went to the police, to whom he gave a statement.

A police officer, called by the Government, testified to the results of a search on February 6, authorized by a warrant, of appellant's bedroom and darkroom. In a wastepaper basket in the bedroom, they found an empty Vaseline jar, which the complainant said resembled the one appellant had on January 26. The search failed, however, to turn up either pornographic photographs or negatives of the pictures appellant is said to have made of the complainant. The officer's descriptions of the bedroom and darkroom coincided generally with the descriptions the complainant had previously given from the witness stand.

On February 9, appellant surrendered to the police and was immediately taken to a hospital, where an examination revealed that he did not have gonorrhea. A stipulation at the trial regarding the medical aspects of the disease elucidated its relevant characteristics.⁸ It can be contracted only by sexual contact with another person. More usually it is communicated through intercourse between persons of opposite sex, but it can be transmitted from male to male through contact of the sexual organs when one is in a state of suppurative discharge. The first symptoms appear after 48 hours, an advanced stage is reached within five days, and a cure by penicillin takes from one to seven days, depending upon the severity of the case.

The complainant's neighbor gave testimony buttressing the complainant's as to the circumstances under which he accompanied appellant to the latter's home on January 23. The neighbor's son related that about a month previously he had been in appellant's bedroom to give him some snapshots to enlarge, and was then shown pornographic photographs. His description of the photographs and the place from which appellant took them matched what the complainant had said in those respects.

Appellant's trial strategy not unnaturally included a strenuous effort toward impeachment of the complainant. On cross-examination, defense counsel brought out inconsistencies within the complainant's testimony at trial, and between that testimony and his statements at appellant's preliminary hearing and to the police on February 6.⁹ It was in response to that exhibition that the Government, on redirect examination, introduced in its entirety the complainant's February 6 statement to the police in an attempt to rehabilitate its star witness.

At the close of the Government's case in chief, appellant moved for a judgment of acquittal and, after the court denied the motion,¹⁰ sought to develop an alibi. A night school teacher testified that appellant was in a barbering class on the first three evenings at the times when the offenses specified in the first six counts of the indictment are supposed to have been committed. He also identified attendance records, allegedly made at the time by him in the ordinary course of the school's business,¹¹ that supported his testimony on that score. The jury, however, as we have indicated, accepted the Government's version, and returned verdicts of guilty on each of the seven counts.

II

In a long line of decisions,¹² we have consistently held that corroboration of the testimony of complainants in so-called "sex cases"¹³ is indispensably prerequisite to conviction, and for the cogent reason that for these offenses the risk of unjust conviction is high.¹⁴ We know from the lessons of the past that all too frequently such complainants have an urge to fantacize or even a motive to fabricate,¹⁵ while typically the innocent, as well as the guilty, have only their own testimony upon which to rely.¹⁶ We realize, too, that recriminations of that character pose an unusual threat to the reliability of a judgment on credibility of the allegedly defiled vis a vis the alleged defiler.¹⁷ Thus in prosecutions for sodomy¹⁸ and taking indecent liberties with a minor,¹⁹ like in other sex cases,²⁰ "the traditional skepticism of courts toward that sort of accusation"²¹ has generated the requirement that satisfactory corroboration of the complainant's account, as well as negation of reasonable doubt as to the accused's guilt, must precede any conviction.²²

In determining the corroborative power of particular evidence, two intertwined and sometimes vexing problems often appear. What aspects of the complainant's version must be confirmed? What may serve to adequately corroborate them? In responding to these questions, we try to steer between the Scylla of a corroboration requirement incapable of attainment and the Charybdis of gutting the corroboration safeguard.²³

As to the first of the problems, we have always deemed corroboration of the corpus deliciti essential, and have insisted that so much of the corroboration requirement be strictly observed.²⁴ And while, as more clearly emerges from our later decisions, corroboration of the identity of the perpetrator is ordinarily essential,²⁵ we have recognized that some circumstances which may corroborate the corpus delicti may also do service toward confirmation of the complainant's identification. In Franklin v. United States,²⁶ a rape prosecution, we pointed out that "the danger of an erroneous identification in a rape case is not of the same magnitude as the danger of a fabricated rape,"²⁷ and that "in the circumstances of a particular case, a convincing identification by the complaining witness based on adequate opportunity to observe need not be further corroborated * * *."²⁸ Very recently, our decision in Allison v. United States²⁹ forecast the application of similar considerations in other types of sex cases.³⁰ For in the final analysis, as to both the corpus delicti and the identification, "the need for corroboration depends upon the danger of falsification."³¹

We first addressed ourselves to the second of these problems more than a half-century ago in Kidwell v. United States.³² There, in reversing a conviction of carnal knowledge, we observed that such a...