Fitzgerald v. United States

• Citation: 443 A.2d 1295
• Decision Date: 19 March 1982
• Docket Number: No. 13607.,13607.
• Parties: Walter L. FITZGERALD, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 1295

443 A.2d 1295

Walter L. FITZGERALD, Appellant, v. UNITED STATES, Appellee.

No. 13607.

District of Columbia Court of Appeals.

Argued en banc September 22, 1980.

Decided March 19, 1982.

John F. Cooney, Washington, D. C., appointed by the court, for appellant.

Henry F. Greene, Asst. U. S. Atty., Washington, D. C., at the time the petition was filed, with whom Charles F. C. Ruff, then U. S. Atty., Carl S. Rauh, then Principal Asst. U. S. Atty., John A. Terry, Michael W. Farrell, Percy M. Russell, Jr., M. Lowell Brown, and Carol E. Bruce, Asst. U. S. Attys., Washington, D. C., were on the petition for appellee.

Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER, HARRIS^*, MACK, FERREN, and PRYOR, Associate Judges, and YEAGLEY and GALLAGHER^**, Associate Judges, Retired.

GALLAGHER, Associate Judge, Retired:

This case was heard before the court en banc and in accordance with custom the opinion of the hearing division (No. 13607, February 4, 1980) was vacated.

A jury found appellant guilty of assault with intent to commit rape. D.C.Code 1973, § 22-501.¹ Appellant urges reversal of his conviction on the grounds (1) there was legally insufficient corroboration of the minor female complainant's testimony to warrant submission of the case to the jury, (2) the trial court erroneously failed to instruct the jury that in order to convict, it must first find complainant's testimony corroborated by independent evidence, and (3) the court improperly admitted hearsay testimony regarding the alleged assault.² We reverse.³

I.

It was Saturday night of the 1977 Memorial Day weekend at 11 p. m. Appellant stopped by the house of his next door neighbor, Mrs. Neiome Geathers, to pay a social visit. Complainant, a 12-year-old girl, and her younger sister were houseguests of Mrs. Geathers that weekend, while their mother was out of town. As a friend of complaint's stepfather, appellant had known complainant since she was small. On this occasion, he followed her into the kitchen and remarked upon how much she had grown recently. Complainant told him to leave her alone. At that point, Mrs. Geathers entered the kitchen, and appellant sent complainant to his car for a bottle of liquor.

After Mrs. Geathers and appellant drank the liquor, he offered to make a trip to the liquor store to replenish the supply. Not wanting to go alone, he asked if complainant could accompany him to the "51 Club," a store located a few minutes away by car. Mrs. Geathers gave permission for complainant to ride with appellant.

According to complainant's testimony, the following events transpired during the trip, which took 25 to 30 minutes. Appellant did not stop at the "51 Club" since it was crowded, but continued several blocks south to Strick's Liquor Store. He purchased the liquor, and returned to the car. Before leaving the parking lot he touched complainant on the face and asked if she liked him. Complainant said no. Appellant then suggested that complainant show him their new house. He knew the family had recently moved to 15th Street, S.E., but did not know the exact house. They drove by the house, and then turned back in the direction of Mrs. Geathers' house. On the return trip, appellant asked complainant if she knew anything about oral sex. He also talked about buying clothes for her, and taking her out.

About two or three blocks from Mrs. Geathers' house, appellant pulled into an alley on the pretext of visiting a friend. He stopped, however, and locked the car doors. Appellant asked complainant to undress. She refused and started to hit him, but stopped when he threatened to strike her. Appellant took off complainant's pants and performed an act of cunnilingus. Then he took off his pants, laid her down on the car seat, and tried to achieve vaginal intercourse. While complainant was trying to resist his efforts, she unlocked the door and slid out of the car, hitting her head on the concrete. At that point, appellant desisted, and said he would take her home. He warned complainant not to tell anybody what had happened, or he would climb through her window and kill her.

Upon their return to Mrs. Geathers' house, complainant ran into the house crying. Mrs. Geathers asked what was wrong. Complainant said her head hurt and ran upstairs. Further inquiry by Mrs. Geathers was fruitless. She sent Levi Dyson, a friend of complainant, to speak with her.⁴

The next day during a picnic, complainant told her friend, Tawanda Coleman, of the previous night's events. Miss Coleman testified that complainant mentioned the act of cunnilingus, but not the attempted intercourse. Complainant's mother returned to Washington on Tuesday. However, complainant did not tell her of the incident. She learned of the attack the following Tuesday, ten days after the incident, from Mrs. Coleman, Tawanda's mother. Tawanda in a fit of anger at complainant told Mrs. Coleman the story, who then informed complainant's mother. After questioning complainant, her mother reported the incident to the police, eleven days after the assault. Complainant was taken to a local hospital by police officers but the medical examination did not reveal physical evidence of assault.

At the close of the prosecution's case, defense counsel moved for a judgment of acquittal on grounds of insufficient evidence. As defense counsel stated:

I know the Court of Appeals eliminated the corroboration requirements. You have nothing here other than the statement of the girl claiming an allegation of oral sodomy. You have a delay in the report, you have a delay — no medical, no bruises, no cuts or anything, and I submit that this is just insufficient to send this to the jury.

The court denied the motion. Although the trial court observed that the corroboration requirement still applies to minor complainants in sex offense cases, it found sufficient corroboration in "the crying, . . . the running to her room, and the other things that you have heard in evidence."

Appellant testified on his own behalf. He denied complainant's allegations of sexual assault, claiming that he drove directly back to Mrs. Geathers' house from 15th Street.

In its charge, the trial court did not instruct the jury that it must find the complainant's testimony corroborated by independent evidence before it could convict. Instead, the court simply charged the jury as if a mature female complainant were involved. The jury found appellant guilty.

II.

It has long been established in this jurisdiction that a person may not be convicted of a "sex offense" on the uncorroborated testimony of a youthful victim. See, e.g., Douglas v. United States, D.C.App., 386 A.2d 289, 293-94 (1978); Robinson v. United States, D.C.App., 357 A.2d 412, 415 (1976); Konvalinka v. United States, D.C. App., 162 A.2d 778 (1960), aff'd, 109 U.S. App.D.C. 307, 287 F.2d 346 (1961); Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959). Courts have traditionally been skeptical of sexual charges by children, no doubt because

[i]t is well recognized that children are more highly suggestible than adults. Sexual activity, with the aura of mystery that adults create about it, confuses and fascinates them. Moreover, they have, of course, no real understanding of the serious consequences of the charges they make. . . . Guttmacher and Weihofen, Psychiatry and the Law (1952), p. 374. [Quoted in Wilson v. United States, supra at 227, 271 F.2d at 493.]

See also The Rape Corroborative Requirement: Repeal Not Reform, 81 Yale L.J. 1365, 1388-89 (1972). To minimize the danger of false accusations, the corroboration requirement imposes two safeguards in regard to infant complainants. First, the government must introduce corroborative evidence in order to meet its burden of proof and to survive a defense motion for judgment of acquittal. Second, even where the corroboration is legally sufficient, the jury must be convinced "beyond a reasonable doubt that the victim's account of the crime was not a fabrication." United States v. Gray, 155 U.S.App.D.C. 275, 276, 477 F.2d 444, 445 (1973), quoted in Robinson, supra at 416.

While corroboration is initially a matter for the trial court, as in any question concerning the legal sufficiency of the evidence, it is the jury's function to decide whether the standard of corroborative proof has been met. See, e.g., Robinson, supra at 415; United States v. Jones, 155 U.S.App. D.C. 328, 333, 477 F.2d 1213, 1218 (1973). Thus, the case must be submitted to the jury with specific instructions requiring a finding of independent evidence corroborative of the victim's testimony as a condition precedent to a guilty verdict.

The dispute here centers on the viability of the corroboration rule, as applied to child complainants, after Arnold v. United States, D.C.App., 358 A.2d 335 (1976) (en banc).⁵ In Arnold, id. at 344, we mandated that "in the future no instruction directed specifically to the credibility of any mature female victim of rape or its lesser included offenses and the necessity for corroboration of her testimony shall be required or given in the trial of any such case in the District of Columbia court system." (Emphasis supplied.) Arnold does not affect sex offense cases involving a minor victim. The issue was addressed by this court in Hall v. United States, D.C.App., 400 A.2d 1063 (1979), where we affirmed a conviction for taking indecent liberties with a minor child (7-year-old boy). There we assumed that corroboration of the minor victim's testimony was required and that Arnold eliminated the need for corroboration only where a mature female victim was involved. Thus, Arnold was not at odds with the earlier Robinson v. United States, supra at 412.

We took a similarly restricted view of Arnold in In re J. W. Y., D.C.App., 363 A.2d 674, 677 (1976), finding the case at issue, a prosecution for carnal knowledge of a 13-year-old female, "significantly dissimilar" to the Arnold fact pattern. We observed that Arnold ...