Gant v. United States

• Decision Date: 20 November 1986
• Docket Number: No. 84-1495.,84-1495.
• Parties: Ondrae GANT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

518 A.2d 103

Ondrae GANT, Appellant, v. UNITED STATES, Appellee.

No. 84-1495.

District of Columbia Court of Appeals.

Argued May 15, 1986.

Decided November 20, 1986.

Christopher Stone, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief for appellant.

Ann K.H. Simon, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., were on the brief, for appellee.

Before PRYOR, Chief Judge, and BELSON and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant Ondrae Gant was convicted by a jury of rape, D.C. Code § 22-2801 (1981), carnal knowledge, id., and enticing a minor child, id., § 22-3501(b). A new trial was granted based on the prosecutor's improper impeachment of Gant. Gant then moved to dismiss the indictment because of prosecutorial vindictiveness and double jeopardy. The motion was denied, and Gant appealed; this court affirmed the denial on double jeopardy grounds, but deferred, as premature, a decision on the issue of prosecutorial vindictiveness. Gant v. United States, 467 A.2d 968 (D.C. 1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984). At a second jury trial Gant again was convicted of rape, carnal knowledge and enticing a minor child. On appeal he assigns as error the denial of (1) the motion to suppress the clothes, shavings and razor seized from his home after a warrantless search; (2) the motion to strike expert medical testimony that the sexual intercourse between himself and the complainant had been forced rather than consenting; and (3) the motion to dismiss the indictment to sanction the prosecutorial misconduct during and after the first trial.

Upon review of the record we hold: First, the motion to suppress the clothes hairs and razor should have been granted because the record does not support either the exigent circumstances or plain view exceptions to the warrant requirement of the Fourth Amendment. However, because the physical evidence was relevant only to a collateral issue, the error was harmless beyond a reasonable doubt. Second, the motion to strike expert testimony was untimely since defense counsel elicited the expert's testimony on cross-examination and did not move to strike it until two other witnesses had testified. Therefore, any objection to the testimony was waived. Notwithstanding that the expert testimony intruded on the jury's function to determine the ultimate issue, the tactical decision by experienced defense counsel, to attack that testimony through cross-examination and presentation of a defense expert with a contrary opinion, precludes a finding of plain error. Third, the denial of the motion to dismiss the indictment was within the range of permissible decisions by the trial court in the reasoned exercise of its discretion. The new trial provided an appropriate remedy and Gant can point to no residual prejudice. Accordingly, we affirm the judgment of conviction.

I.

The evidence presented by the government showed that Gant forced the twelve-year-old, pre-pubescent female complainant into his car on the morning of September 22, 1981, and drove to a nearby playground while holding her hand. He then ordered her into the back seat. When the frightened complainant protested and cried, Gant gave her the impression he would pull out a knife if she refused. Once in the back seat, the complainant tried to escape through the door, but Gant choked her with both hands and told her to "cooperate." Then he pulled off her underwear and his pants, and inserted his penis into her vagina. The sexual intercourse was quite painful to the complainant, and by the time Gant finished, she was bleeding from her vaginal area. Gant told her to wipe herself with notebook paper. He wiped himself as well, threw the paper out the car window and returned to the front seat.¹ James Harrston, an off-duty police officer, who was wearing a cap with police insignia, approached the car to complain about Gant's littering. The complainant saw Harrston for a moment, but at Gant's instruction, crouched down in the back seat, and Gant drove off at high speed. Harrston did not see or hear the complainant, but identified Gant in a line-up as the driver of the car.

Gant let the complainant out of the car several blocks from her home. Upon arriving home, she immediately told her mother she had been raped; her mother called the police. Detective Clark took the complainant to Children's Hospital where she was examined by a pediatric resident, Dr. Sibyl Wescoe. Dr. Wescoe found the complainant somewhat restless, withdrawn and apprehensive, and in constant need of her mother. The physical examination revealed nothing abnormal, but during the gynecological examination Dr. Wescoe found a two millimeter tear in the complainant's hymen, which was "particularly" black and blue and swollen. The opening to the complainant's vagina and her labia also were red, bruised, swollen and tender. A routine laboratory test confirmed the presence of sperm in her vagina. In Dr. Wescoe's opinion, based on her physical and gynecological examinations, the recent sexual intercourse experienced by the complainant had been forced rather than consenting.

The defense conceded Gant's factual guilt of carnal knowledge and did not present a defense to the charge of enticing a minor child. Thus, the only issue at trial was whether the sexual intercourse had been against the complainant's will.² Gant's defense to rape was that the complainant had consented to have sexual intercourse with him, then regretted her decision and cried "rape." Gant did not testify or offer affirmative evidence of the complainant's consent. Instead, he elicited through cross-examination inconsistencies in the testimony of government witnesses (principally the complainant and her mother), and presented two witnesses who disputed the complainant's testimony that she previously had not known Gant and that on the day of the alleged rape she had been unable to enter her school building because the door was locked. The defense also challenged Dr. Wescoe's opinion through cross-examination and presented a medical expert who testified that it was impossible to tell from the medical records whether the sexual intercourse had been forced or consenting.

II.

The Motion to Suppress. Gant contends that following the entry of his house by the police to arrest him,³ the police conducted a general search for evidence under circumstances which did not fall within the exceptions to the warrant requirement of the Fourth Amendment for evidence in plain view or exigent circumstances.⁴ The complainant saw Gant at an ice cream truck near her home six days after he had sexual intercourse with her, and ran home to tell her mother and sister. All three watched Gant walk across the street, run through a parking lot, jump a fence and enter a house at 224 50th Street, N.E. They called the police, who arrived minutes later. The police knocked at the door of 224 50th Street, announcing their presence for about 20 minutes, but no one answered. After the arrival of a canine unit, the police entered the house and found Gant in a second floor bedroom where he was immediately arrested. At the time Gant was freshly shaven and in his underwear, although the man at the ice cream truck had been described as having facial hair and wearing a blue knit shirt and blue jeans. The arresting officers discovered, and the mobile crime unit subsequently seized, a razor with hair particles from a bathroom down the hall and clothing matching the description from another bedroom.

Warrantless searches of a residence are presumed unreasonable unless they fall within carefully delineated exceptions. Thompson v. Louisiana, 469 U.S. 17, 18, 105 S.Ct. 409-410, 83 L.Ed.2d 246 (1984); see Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980). Exigent circumstances justifying a warrantless entry and search include "the need to protect or preserve life or avoid serious injury,"⁵ the need to prevent the escape of a suspected criminal,⁶ and the need to preserve evidence which may be destroyed, either through deliberate action⁷ or natural forces.⁸ Even so, "a warrantless search must be strictly circumscribed by the exigencies which justify its initiation." Mincey v. Arizona, supra note 5, 437 U.S. at 393, 98 S.Ct. at 2413 (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882-1883, 20 L.Ed.2d 889 (1968)). This court determines whether exigent circumstances existed by examining the facts perceived by the police at the time of entry or the initiation of the search. Derrington v. United States, 488 A.2d 1314, 1324 (D.C. 1985); Minick, supra note 3, 455 A.2d at 881; Brooks, supra note 3, 367 A.2d at 1302.

The plain view doctrine also is closely circumscribed. Plain view alone does not "justify the warrantless seizure of evidence." Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971).⁹ Rather, the officers must be lawfully present at the site of the search and seizure, and their discovery of evidence must be inadvertent. Brooks, supra note 3, 367 A.2d at 1305 (citing Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038). It also must be immediately apparent to the officers that they have evidence before them. Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038; Christmas v. United States, 314 A.2d 473, 477 (D.C. 1974). The government has the burden to prove that the circumstances of the search and seizure fell within the doctrines of exigency or plain view. See Brooks, supra note 3, 367 A.2d at 1308 (citing Coolidge v. New Hampshire, supra, 403 U.S. at 455, 464-73, 91 S.Ct. at 2032, 2037-42). We hold it has failed to do so.

Officer Wilson, who discovered Gant's clothing, testified that he was one of several officers who entered the house to arrest Gant. He was looking for a man whom the complainant and her mo...