Gardner v. US, 93-CF-654

• Decision Date: 29 May 1997
• Docket Number: No. 93-CF-654,93-CF-1312 and 93-CF-1357.,93-CF-654
• Citation: 698 A.2d 990
• Parties: Anthony D. GARDNER, Willie J. Walker, and Michael A. Thomas, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

698 A.2d 990

Anthony D. GARDNER, Willie J. Walker, and Michael A. Thomas, Appellants, v. UNITED STATES, Appellee.

Nos. 93-CF-654, 93-CF-1312 and 93-CF-1357.

District of Columbia Court of Appeals.

Argued March 5, 1996.

Decided May 29, 1997.

Michael L. Spekter, Washington, DC, appointed by the court, for appellant Gardner.

Mark J. Rochon, Washington, DC, for appellant Walker.

Deborah L. Harris, Public Defender Service, with whom James Klein and David Reiser, Public Defender Service, Washington, DC, were on the brief, for appellant Thomas.

Lisa A. Hertzer, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Patricia Stewart, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, SCHWELB, and FARRELL, Associate Judges.

TERRY, Associate Judge:

The three appellants appeal from their various convictions resulting from a gang rape of a young woman. After a jury trial, appellants Gardner and Walker were convicted of three counts of rape,¹ one count of sodomy,² and one count of assault with intent to commit sodomy.³ Appellant Thomas was convicted of two counts of rape and one count of sodomy.⁴ On appeal, all three appellants present two arguments: (1) that the trial court committed reversible error when it restricted defense counsel's cross-examination of the victim, and (2) that the court erred when it permitted the prosecutor, over objection, to make certain statements during her closing argument which, they maintain, raised an issue about the victim's chastity. Thomas contends in addition that his two rape convictions should merge because rape is an offense that arises out of a continuous course of conduct. We reject all of these arguments and affirm the convictions of all three appellants.

I

A. The Government's Evidence

At about 11:00 p.m. on July 10, 1991, a young woman whom we shall call Jane Smith (not her real name) was raped and forcibly sodomized by appellants Gardner, Walker, and Thomas in an alley in the 200 block of V Street, Northwest. A few minutes earlier, Ms. Smith had left her home⁵ with her friends Catrice Prailow, Deirdre Jones, and Thomasina Thompson, intending to walk Ms. Thompson home and then take a bus to Ms. Prailow's house in Southeast Washington. As they approached a fast food restaurant on Georgia Avenue, Ms. Smith and her friends saw a blue Rodeo four-by-four truck drive past them. Ms. Smith did not see who was in the truck, but Ms. Thompson said to Ms. Jones, "There goes your boy friend."

The four women continued walking and eventually arrived in the 200 block of V Street. There they saw the same blue Rodeo truck, from which a group of men emerged, including the three appellants. The women walked in the direction of the truck and stopped at a fenced-in courtyard area. There Deirdre Jones spoke with her boy friend, appellant Thomas, while Thomasina Thompson talked with appellant Gardner, and Catrice Prailow spoke to two other men whom Ms. Smith did not know.⁶

As Ms. Smith stood alone next to the fence, appellant Walker approached and began feeling her buttocks and legs. She immediately told him to stop and pushed his hands away. Walker then started "humping up against her" while holding onto the fence, but once again she pushed him away. In the meantime, Walker's companions taunted Ms. Smith by saying, "Ah, look at her, look at her, look at her." Walker said to Ms. Smith, "Don't play with me," and struck her in the face. He then began to choke Ms. Smith from behind by putting his arm around her neck with his elbow at her throat. The other men continued their taunts, saying such things as "Put her in the car" and "Make her walk, she's going to walk." Walker said he was "going to put her to sleep," to which Gardner replied, "I'm going to wake her up."

Greatly frightened, Ms. Smith gripped the fence behind her so that Walker could not pull her away. As the taunting continued, however, Walker began to choke her harder until eventually she had difficulty breathing. She looked toward Ms. Thompson and asked for help, but Thompson replied that there was nothing she could do "because she didn't know him." Ms. Smith then tried to yell to Deirdre Jones, but by then Walker was choking her so hard that she could not speak. Thinking that Walker was only trying to "show off' in front of his friends and that he would let her go once they were away from the crowd, Ms. Smith agreed to go with him, up V Street toward Florida Avenue. Walker continued to choke her as they walked, but eventually he put his arms around Ms. Smith as if he were "hugging" her.

As they approached Florida Avenue, Walker suddenly pulled Ms. Smith down a walkway between two buildings where her friends could not see her.⁷ He released Ms. Smith in the walkway, but grabbed her again around the neck when they reached the alley behind the two buildings. By then Ms. Smith was crying. She kept asking Walker "why he was doing this," but he "just kept telling her to shut up." Ms. Smith then asked, "What are you going to do to me?", to which Walker replied (in crude terms) that he was going to have sex with her. Ms. Smith turned around to see where she was, and at that moment appellant Gardner walked into the alley. When Walker asked Gardner why he had come, Gardner began to unfasten his pants and said, "You know what I want, you know what I want."

Walker then told Ms. Smith to take off her clothes. She pleaded with the two men not to "do this to her," but Walker pulled her jeans open. By this time, a ground of about ten young men had gathered around Ms. Smith in the alley and told her to pull her pants down. She complied with their demands because she was afraid of what might happen to her if she refused.

We need not describe in detail the events that followed, other than to say that Ms. Smith was subjected to a series of sexual indignities by all three appellants, including rape, attempted rape, and oral sodomy. At one point Thomas said to someone, "Go get the jaunt," which Ms. Smith believed was a gun. Moments later, while she was being held by Gardner, Ms. Smith caught a glimpse of her girl friends sitting on a bench just outside the alley. Finally, the assaults stopped when two other men walked into the alley, and the group of onlookers scattered. As Ms. Smith pulled up her pants, Thomas stood in front of her and told her, "If you tell the police, they are going to kill you." Ms. Smith replied that she must wanted to go home to her daughter. Thomas told her to stop crying, wiped away her tears, and then stepped aside.

Ms. Smith walked out of the alley and saw her girl friends still seated on the bench. She went past them without saying a word and headed down V Street in the direction of her home. Ms. Prailow and Ms. Jones followed after her, but Ms. Smith told them she was going home.⁸ She then said to Ms. Jones, "Deirdre, why did they do that to me?" Ms. Prailow asked, "What did they do to you?", and Ms. Smith replied, "They raped me." Ms. Smith then said to Ms. Jones, "He's supposed to be your boy friend. Why did he rape me?"

Ms. Smith proceeded to a bus stop on Florida Avenue. On her way she saw a police officer, but she did not stop to speak with him because she was afraid and because Thomas had threatened her. Ms. Smith took a bus home and told her sister she had been raped. Her sister immediately called the police.⁹

Officer Sheila Kelly and her partner responded to Ms. Smith's home at about 1:00 a.m. after receiving a radio run concerning the rape. Officer Kelly testified that Ms. Smith was very upset, pacing back and forth and crying, and that she shoved everyone out of her bedroom and said she could not talk to the police because "they're going to kill me." When Officer Kelly finally managed to speak with her alone, Ms. Smith said she had been raped and named Walker and Thomas by their nicknames ("Wee Wee and Mike") as two of the "three or four" perpetrators. She also gave descriptions of three of the men who raped her.

Officer Kelly contacted the police department's Sex Squad to report what she had learned and then took Ms. Smith back to the crime scene, where she was interviewed by Detective Keith Reid. Ms. Smith told Detective Reid that Thomas had raped her twice and that the order in which the first three rapes had occurred was Gardner first, Thomas as second, and Walker third.¹⁰ The three appellants were later identified by Ms. Smith at three separate lineups on July 23 (Walker), August 27 (Gardner), and October 9 (Thomas).

In the early morning hours of July 11, Dr. Rodney Hill examined Ms. Smith at Howard University Hospital.¹¹ Dr. Hill testified that he did not observe anything unusual in his examination. He added, however, that when a woman has been subjected to sexual intercourse against her will, observable signs of trauma such as bruising, bleeding, or tearing will not always be found, especially when the woman is of reproductive age and has already borne a child, as Ms. Smith had. Dr. Hill also testified that Ms. Smith had told him that eight to ten men had attacked her and that they wore condoms. Ms. Smith did not recall making this statement to the doctor, but she did remember telling him that she had heard a conversation about condoms.

Finally, the government called Officer Alfred Holmes, an evidence technician who collected evidence from the alley where Ms. Smith had been raped. He testified that two used condoms,¹² a pair of black sneakers,¹³ and a pair of white sweat socks were recovered from the alley in the early morning hours of July 11.

B. The Defense Evidence

Appellants' theory of defense was that Ms. Smith had engaged in consensual, casual sex to retaliate against her boy friend, Pee Wee, whom she suspected of being unfaithful. Chagrined by her actions, she then embellished her account of what had happened because she believed her girl friends were skeptical of what she...