HICKS-BEY v. U.S.

• Decision Date: 07 November 1994
• Docket Number: No. 91-CF-644,91-CF-644
• Citation: 649 A.2d 569
• Court: D.C. Court of Appeals
• Parties: Rural HICKS-BEY, Appellant, v. UNITED STATES, Appellee.

649 A.2d 569

Rural HICKS-BEY, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-644.

District of Columbia Court of Appeals.

Argued November 17, 1992.

Decided November 7, 1994.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, JOSEPH M.F. RYAN, J.

Stephen O. Russell, Oxon Hill, MD, for appellant.

Ann K.H. Simon, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III, and Julieanne Himelstein, Asst. U.S. Attys., were on the briefs, for appellee.

Before FERREN, TERRY, and SULLIVAN, Associate Judges. ^**.

Former Chief Judge ROGERS was a member of the division that heard oral argument in this case. After her departure from the court, Judge FERREN was selected by lot to replace her.

Opinion for the court PER CURIAM.

Opinion by Associate Judge SULLIVAN, concurring in part and dissenting in part at page 576.

PER CURIAM.

Appellant, Rural Hicks-Bey, seeks reversal of his conviction for carnal knowledge, D.C. Code § 22-2801, on the ground that the trial judge violated his Sixth Amendment right to face-to-face confrontation with the minor victim by permitting the minor to testify at trial over closed-circuit television. Specifically, appellant contends that, in the absence of enabling legislation authorizing the use of closed-circuit testimony for minor victims, the trial judge lacked the authority to employ that kind of procedure; the witness's removal from the courtroom to testify over closed-circuit television violated appellant's Sixth Amendment right of confrontation; and, in any event, the trial judge failed to make a specific finding of "necessity" required to invoke the television procedure. Appellant also urges reversal on the ground that the evidence the government presented at trial was insufficient to support his conviction for carnal knowledge.

We conclude that, even in the absence of local enabling legislation, the trial judge's ruling met the requirements specified by Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Accordingly, we affirm.

I. PROCEEDINGS

A. The Competency Hearing

A grand jury indicted appellant on one count of carnal knowledge, D.C. Code § 22-2801, and one count of taking indecent liberties with a minor child, id. § 22-3501,¹ arising from an assault on his then six-year-old stepdaughter, O.H.B.²

The court held a hearing to determine whether O.H.B. was competent to testify. During the hearing, the child testified that she recalled being home alone with "Edmond"³on the "night when she was given some beer." She testified that "something bad" had happened that night and that appellant "did it" to her. Initially, however, she declined to describe the incident for the court, saying only that she was scared to testify and scared of appellant. At that time, the prosecutor requested that the remainder of the child's testimony be taken out of appellant's physical presence. Despite defense counsel's strenuous objection that the procedure violated his client's confrontation right, the trial judge granted the prosecutor's request.⁴ To support his ruling, the trial judge made the following specific factual findings about the child's behavior at the hearing:

1. She was quite disturbed;

2. She was terrified to testify;

3. At one point, she was so frightened that she attempted to hide under the witness stand; and

4. Her fear was due to appellant's presence in the courtroom.

When the competency hearing resumed, appellant was placed in a witness room separated from the courtroom by a one-way mirror from which he viewed and heard the proceedings. The child then resumed the witness stand. She testified that on the night when appellant had given her beer, which she had drunk, she and appellant had been in her mother's room, on the bed. No one else had been in the room. Appellant had disrobed O.H.B. and had removed his own clothing in her presence. She then testified that "[appellant had] put his privates in [her] privacy." On the basis of this testimony, the trial judge found her competent to testify.⁵

B. Before Trial

Before trial, the prosecutor requested that O.H.B.'s trial testimony be taken out of appellant's physical presence. Specifically, the prosecutor proposed that O.H.B. be placed in the jury room and her live testimony shown over closed-circuit television to appellant, his counsel, and the jury. Appellant's counsel objected, stating that it was "an abridgement of [his] client's right of confrontation if the [c]ourt allows anything other than having the complaining witness present in this courtroom and present before [his] client."

The trial judge recognized that the prosecutor's request raised a novel issue in this jurisdiction. After hearing arguments from both the government and defense counsel, the trial judge agreed with the government that Maryland v. Craig, supra, controlled, and thus the judge undertook an inquiry to determine whether the closed-circuit television procedure was necessary on the facts of this case. In concluding that such a procedure was necessary to protect O.H.B.'s welfare, the trial judge made the following findings:

1. [T]he child witness would be traumatized by the presence of the Defendant and the emotional distress suffered by the child in the presence of the Defendant is more than de minimis;

2. [A]t the time of the initial hearing in the presence of the Defendant, the witness was withdrawn and hesitant and slow in answering. She hid her face with her hands over the microphone in this instance and she actually sank down in the witness chair and disappeared under the bench in front of the witness chair;

3. [W]hen the Defendant was removed and placed behind the one or two-way glass panel . . . in the second phase of the competency hearing, the witness did testify and she testified she was afraid of Edmond . . . the Defendant.

4. So, therefore, to protect the child witness from the trauma of testifying in the physical presence of the Defendant, which trauma I fear would interfere with the witness' ability to communicate, I think that the use of the t.v. procedure is warranted in this case.

The judge gave appellant three options to choose from regarding the manner in which the television procedure would be conducted.⁶ Although preserving his objection to any of these procedures on Sixth Amendment grounds, appellant chose the option which allowed him to be present in the courtroom with the judge and jury, while the child, the prosecutor, and defense counsel were in the adjacent jury room. Defense counsel had unrestricted access both to the judge, in order to obtain rulings on any objections counsel might have, and to appellant, in order to consult. Appellant also had unrestricted access to his attorney.

C. The Government's Evidence at Trial

Pediatrician Karen J. Narkewicz was the first government witness. She testified concerning her examination of O.H.B. at Children's Hospital. In her opinion, the child had been the victim of recent sexual abuse. Dr. Narkewicz diagnosed O.H.B. as suffering, on the night of the assault, from severe genital trauma secondary to sexual abuse and from ethanol intoxication. Her opinion was predicated upon the following medical findings: O.H.B. had arrived at the hospital very disheveled and dirty and smelled of alcohol. Vomitus had been caked on her mouth, and her pants had remained down. Although O.H.B.'s eyes had been open, she had been unresponsive and had had difficulty walking. A blood test had revealed a blood-alcohol level of .219. The legal level of intoxication in the District of Columbia is .10. The Poison Control Center advised that, to have had that blood alcohol level, O.H.B. would have had to drink two 12-ounce cans of beer within the previous six hours. The child had told a doctor that appellant had given her one and a half beers to drink.

Dr. Narkewicz also testified that further physical examination revealed that the child's panties had been stained with "sanguinous fluid," a clear fluid, probably her own vaginal mucosa or, possibly, semen, tinged with blood. There had been a bloody discharge on her perineum, plus one hair.⁷ The child's vulva had been very red and irritated, but not torn. Her hymenal opening had measured five by five millimeters, as compared with a normal hymenal opening for a six-year-old of five by one to two millimeters, and there had been no visible hymenal ring left. In Dr. Narkewicz's opinion, the child's condition had been consistent with a man recently having placed his penis into her vagina.

Next, O.H.B.'s sister, T.H.B., testified that on the night of the assault on her sister, she and appellant's wife (T.H.B.'s mother), along with appellant's girlfriend, had left the apartment to visit a friend. When they had returned several hours later, T.H.B. had found her sister lying face-down on her own bed and nude, except for her underpants, which had been pulled down to her knees. T.H.B. had alerted her mother to O.H.B.'s condition, and their mother had begun to argue with appellant, who was present in the apartment. T.H.B. and her mother then had gone outsideto summon assistance, as they had no telephone. They had flagged down Metropolitan Police Officer Pedro A. Garcia.

Officer Garcia testified that T.H.B. and her mother had been hysterical and that the mother had said her husband had just sexually abused her daughter. According to Officer Garcia, the mother had insisted that he accompany them to her apartment, where the officer had seen appellant, completely nude, walking from the bathroom to the bedroom. Officer Garcia had gone into O.H.B.'s bedroom and had found her lying face-down on the bed, nude from the waist down, and unconscious. There had been a wet spot on the bed where the child had been lying, and the room was littered with beer cans. Garcia had asked appellant if he had been in the...