Copes v. United States

• Decision Date: 21 May 1964
• Docket Number: No. 18131.,18131.
• Citation: 345 F.2d 723,120 US App. DC 234
• Parties: Clarice A. COPES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 234, 345 F.2d 723 (1964)

Clarice A. COPES, Appellant, v. UNITED STATES of America, Appellee.

No. 18131.

United States Court of Appeals District of Columbia Circuit.

Argued February 7, 1964.

Decided May 21, 1964.

On rehearing on Order entered November 2, 1964, adhering to opinion of May 21, 1964.

Mr. Ralph F. Berlow (appointed by this court), Washington, D. C., for appellant.

Mr. Anthony A. Lapham, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Robert X. Perry, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

On rehearing on sole issue of whether the Allen charge was properly given under the circumstances here presented. Order entered November 2, 1964, adhering to opinion of May 21, 1964.

WASHINGTON, Circuit Judge:

This appeal is from a conviction for attempted abortion. D.C.CODE § 22-201 (1961).

The principal question raised is an evidentiary one. The complaining witness Jo Ann Copeland charged the appellant-defendant with having attempted an abortion on her, and testified in some detail about the alleged attempt and her removal to a hospital in a desperate condition.¹ On cross-examination Mrs. Copeland was confronted with several prior inconsistent explanations which she admitted giving to various persons of the causes of her condition, e. g., that she had fallen down a flight of stairs, that she had undertaken a self-induced abortion, and so forth. She was also cross-examined intensively regarding a prior consistent statement, made at the hospital, inculpating Mrs. Copes, and defense counsel suggested to her at least three motives which might have induced her to fabricate the statement: (a) desire for freedom from police harassment, (b) desire to receive medical treatment, (c) desire to protect her husband. On redirect examination, Government counsel elicited testimony from her that she had made some of her prior inconsistent statements as to the cause of her condition because Mrs. Copes had asked her to do so and because she did not want to get Mrs. Copes, who "had been real nice to me," into trouble. Also, on redirect examination, she testified concerning the circumstances surrounding the making of the prior consistent statement, during which she said that she at that time told the truth "Because I was getting weaker and weaker all the time. I thought I was dying, * * * I figured I was close to death * * *." She stated further that she did not want to die with a lie on her soul. Defense counsel did not object to this, and, on recross-examination, intensively explored the witness' motive for having given the statement in the hospital, which accused the defendant of having caused her condition.

Before defense counsel had completed his initial cross-examination, but after he had elicited the fact that a prior consistent statement had been made and had suggested that the motive for it was to shield her husband, the prosecution called to the stand Dr. Hirsch, the attending physician at the hospital. Over objection, Dr. Hirsch testified that Mrs. Copeland had in his presence identified appellant as the person who had attempted the abortion, that he had told her that she was severely ill and that "we wouldn't guarantee what was going to happen." The doctor testified that he "couldn't recall exactly the words that we used," but that he "thought personally she was going to die." Subsequent to this, and after Mrs. Copeland's testimony had been completed, Detective Buch, also over defense counsel's objection, testified that he had been present and had heard the same statement by Mrs. Copeland, and said "At this time Dr. Hirsch told Mrs. Copeland she was dying, and at this time she said she knew she was dying, and she said she wanted to tell the truth of what happened." Both Dr. Hirsch and Detective Buch testified that the appellant-defendant was present when the prosecutrix made the statement accusing her and that she immediately denied the accusation.

The appellant urges that it was prejudicial error to allow Dr. Hirsch and Detective Buch to testify before the jury as to the statements made to them by the complaining witness which were consistent with her trial testimony. We think it was not error under the special circumstances present here, for reasons now to be explained.

In his cross-examination of the complaining witness defense counsel introduced the subject of a prior consistent statement by eliciting admissions from her that she had made prior consistent statements, as well as prior inconsistent statements. He did not object when the prosecutor on redirect examination asked her to testify — with reference to her accusation at the hospital — that she then told the truth because she feared impending death.² Furthermore, defense counsel, on his cross-examination of the prosecutrix, had suggested that the complaining witness had a motive to lie, in accusing Mrs. Copes. His cross-examination thus directly raised issues for the jury as to the credibility of the testimony of the complaining witness, and as to her true motive in making the prior statement in the hospital, as well as the inconsistent ones. Certainly in these circumstances it was open to the prosecution to offer the testimony of other persons, who were present along with the accused defendant when the prior consistent statement was made, indicating the content of the statement and the circumstances under which it was made. Such testimony was plainly relevant and proper to an evaluation of the credibility of the prosecuting witness which was under attack. See Harris v. United States, 50 App.D.C. 139, 269 F. 481 (1920), and United States v. Leggett, 312 F.2d 566 (4th Cir. 1962).³ The credibility of the prosecutrix' testimony could not of course be resolved solely by her reiteration on redirect examination that her testimony on direct examination was true. The prior statement made when she was in fear of imminent death and in the presence of the accused defendant could be viewed by the jury as highly pertinent on credibility, and be weighed with the prosecutrix' testimony that the prior inconsistent statements by her were not true and were made for stated reasons.

The questioned testimony was also relevant and proper to an evaluation of her motive for making the prior consistent statement, her motive having been put in issue by the defense. The testimony of the doctor and Detective Buch showed the condition of the declarant and, if believed, tended to confirm that she thought that she was near death at the time.⁴ Their testimony could be construed by the jury, if credited, as an indication that her accusation of the defendant and her testimony at the trial were not mere recent fabrications.⁵ In this connection, it is important to note that the inconsistent statements and the consistent statement were close together in point of time. The first of the inconsistent statements was made two days after the attempted abortion, others were given on the two succeeding days, and, according to the prosecutrix, they were lies, told at the direction and request of Mrs. Copes for the purpose of protecting her. The accusatory consistent statement in the hospital was made on the fifth day after the attempted abortion, at a time when the condition of the prosecutrix had grown more serious, and she and her attending doctor believed that she would die. It is further to be noted that the independent witnesses did not suggest in any way that the declaration they heard implicating the defendant was true.⁶ And it is of great significance that the accusatory statement was made in the presence of the accused, who promptly denied it, and that the doctor and the detective testified as to this. The jury thus had before it the statement of the accuser, the circumstances in which it was made, and the spontaneous denial of the accusation by the accused. Finally, the declarant was available and was subjected to extensive cross-examination both as to her testimony and as to all prior statements made by her. See Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963), cert. denied after resentence and denial of petition to appeal in forma pauperis, 376 U.S. 972, 84 S.Ct. 1139, 12 L.Ed.2d 86 (1964), and Harrod v. United States, 58 App.D.C. 254, 29 F.2d 454 (1928). In the latter case we said that since the declarants were available and testified, "It could not, therefore, substantially prejudice the defendant to have the police officers state to the jury that they had been told the same story by the same witnesses." Supra at 255, 29 F.2d at 455.

We are not persuaded by Conrad v. Griffey, 52 U.S. (11 How.) 480, 13 L.Ed. 779 (1850), that we should hold the testimony here inadmissible for the reason that the declarant's prior consistent statement was made after, rather than before, the prior inconsistent statements.⁷ From a factual standpoint we find much more pertinent the cases cited in the margin⁸ which for purposes of rehabilitating credibility, in circumstances more nearly comparable to those here, upheld the admissibility of hearsay testimony as to a prior consistent statement of a prosecuting witness, without special emphasis on the time it was made, where his or her credibility had been assailed through the showing of prior inconsistent statements, or by an attempt to show that the complainant's testimony was motivated by something other than the truth.

Although the District Court did not specifically instruct the jury that they were to treat the testimony of the doctor and the detective, insofar as they related what they heard Mrs. Copeland say in the hospital, as bearing only on the credibility of Mrs. Copeland as a witness before them and not as proof of the guilt of Mrs. Copes, such an instruction was not requested either before or after the District Court gave its charge, and the failure to give it has not been asserted as error here....