McLean v. United States, 11150.

• Decision Date: 02 September 1977
• Docket Number: No. 11150.,11150.
• Parties: Spencer R. McLEAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

377 A.2d 74

Spencer R. McLEAN, Appellant, v. UNITED STATES, Appellee.

No. 11150.

District of Columbia Court of Appeals.

Argued June 7, 1977.

Decided September 2, 1977.

Phillip L. Kellogg, Washington, D. C., with whom James L. Lyons, Washington, D. C., was on the brief, for appellant.

Jeffrey Blumenfeld, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Jason D. Kogan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, NEBEKER and YEAGLEY, Associate Judges.

KERN, Associate Judge:

Appellant was tried by a jury and convicted of rape, D.C. Code 1973, § 22-2801, and sentenced to a term of fifteen years under the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1970). On appeal, he urges that it was reversible error for the trial judge to exclude (a) testimony that the complaining witness had engaged in sexual relations with others on prior occasions, and (b) testimony that she had a reputation in the community for unchastity. Appellant offered this evidence to support his defense that the complaining witness consented to have intercourse with him.

The government's evidence disclosed that appellant and the complaining witness, who was seventeen at the time of the incident, were neighbors and had known each other for nine or ten years (Record at 66). On June 25, 1975 at about 9:30 p. m., complainant was at home with her friend, Diane Tyler, when appellant called and made arrangements with her to go to the movies. They left shortly thereafter in appellant's sister's car and drove to the vicinity of 14th and Sheridan Streets, N.W., where appellant told her that he had to speak to someone (Record at 70). Appellant went into an apartment house while complainant waited in the car. Several minutes later he returned and said that the stop-over would take longer than expected and invited her to accompany him inside. Moments after she entered the apartment three young men came into a room where she was sitting and with the assistance of appellant, forced her into an unlit bedroom. Complainant testified that she pleaded with appellant to make them stop, but instead he was helping them (Record at 73). The four men disrobed her, held her down, and according to her testimony, made comments while appellant had intercourse with her¹ (Record at 74-75). The other three in turn had intercourse with her and then left the room (Record at 75-76).

After the men left, she locked the bedroom door, turned on the light, found a telephone near the bed and called Diane Tyler. Verna Avery, Diane's sister, testified that she was awakened by the call and that complainant sounded "anxious or panicky" (Record at 193) when she told her to tell Diane to come to pick her up at 14th and Sheridan Streets. As complainant hung up the phone she heard a "picking" sound at the door (Record at 77) and a man then entered the room, turned out the light, and asked her to perform oral sodomy. When she refused and turned on the light she realized the man was Raymond Foster, one of appellant's friends. He immediately recognized her and apologized saying, "Wow, I didn't know who you were" (Record at 84) and then left the room.²

The complainant dressed, left the apartment and started to walk home. Several blocks from her house, two men whom she knew as Barry and "Seabird" and another woman saw her crying and offered her a lift home (Record at 87-88). However, instead of taking her directly home, the men dropped the woman off first and then went to a party in Maryland. Barry and Seabird went into the party while complainant waited for them in the car. Minutes later Seabird returned and said that he had heard about what happened and asked complainant to have sex with him (Record at 117). She then ran away from the car.

Officer Thomas Wass, a Maryland police officer, testified that while on duty in his patrol car, he spotted a woman running from a car and when she saw his cruiser she ran to his car, banged on the window, and said "Let me in, let's get out of here . . ." (Record at 139-40). The officer testified that she was "upset and hysterical" (Record at 140) and after a few minutes she calmed down and told him that she had been raped. The officer alerted the Metropolitan Police that he had a possible rape victim and minutes later turned her over to a District of Columbia police officer at the D.C. line.

Complainant was taken to police headquarters and interviewed by Detective Baker of the Sex Squad. He testified that they returned to the Sheridan Street address where she said the rape occurred and then went to D.C. General Hospital (Record at 185). Dr. Charles Franklin testified that he examined complainant at about 4 a. m. (Record at 165) and found no external injuries or bruises (Record at 166). The doctor conducted an internal examination and observed several lacerations and scratches that would be "consistent with intercourse of normal duration . . . [or] prolonged duration . . . [or] multiple intercourse over a short period of time" (Record at 169).

Defense counsel requested a ruling at the beginning of trial whether he could offer witnesses who would testify that complainant had engaged in sexual intercourse with others in the past. The trial judge ruled that such evidence was not relevant to the issues at trial and therefore inadmissible (Record at 33-34, 106, 301-02). During trial appellant proffered two witnesses who testified in a hearing out of the presence of the jury that they had heard other members of the community comment on complainant's reputation for unchastity. The trial court refused to allow these witnesses to testify because they had not convinced the trial judge that there was an adequate basis for their knowledge of the prosecutrix's reputation (Record at 300-01).³

Central to appellant's position in the instant case is his assertion that the probative value of proof of complainant's prior acts of sexual intercourse with others outweighs the prejudice to the complainant. The prejudice of such evidence is readily seen: it diverts the jury's attention to collateral matters and probes into the private life of the victim of a rape. See Wynne v. Commonwealth, 216 Va. 355, 218 S.E.2d 445, 446 (1975). On the other hand, the probative value of the evidence is less easily recognized. Apparently, appellant views evidence of past sexual intercourse by a woman with others as admissible because it tends to establish her sexually promiscuous character which in turn tends to prove that on the particular occasion she consented to sexual intercourse with the accused rather than submitted against her will out of fear. We agree with the Supreme Court of Arizona in Pope v. Superior Court, 113 Ariz. 22, 28, 545 P.2d 946, 952 (1976), that "[t]he fact that a woman consented to sexual intercourse on one occasion is not substantial evidence that she consented on another, but in fact may indicate the contrary."

Generally, the law disfavors the admission of evidence of a person's character in order to prove conduct in conformity with that character, See 1 J. Wigmore on Evidence, § 198 (3rd ed. 1940); McCormick on Evidence, § 190 (E. Cleary 2d ed. 1972); Fed.R.Evid. 404(a). There are exceptions to this general proposition, however, but none appear to encompass the proffer here. Thus, one exception is impeachment of a witness' credibility by evidence that the witness has a bad reputation for truth and veracity. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). So too, a witness' credibility may be impeached by extrinsic evidence of a prior conviction of a felony or a criminal offense involving dishonesty or false statement. D.C. Code 1973, § 14-305. Indeed, evidence of prior misconduct short of conviction of a witness who is the accused may be admissible to show motive, intent, absence of mistake or accident, a common scheme or plan, and identity. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); Fed.R. Evid. 404(b). Alternatively, the federal court of appeals here has suggested that a witness other than the accused may be asked about a prior act of misconduct, not amounting to a criminal conviction, provided such misconduct "bears directly upon the veracity of the witness in respect to the issues involved in the trial." Kitchen v. United States, 95 U.S.App.D.C. 277, 279, 221 F.2d 832, 834 (1955), cert. denied, 357 U.S. 928, 78 S.Ct. 1378, 2 L.Ed.2d 1374 (1958).⁴ In our view the proffer in the instant case fits into none of these exceptions to the general rule prohibiting the admission of character evidence based upon proof of past acts.

We note that the recent trend in other jurisdictions is that specific acts of sexual intercourse on the part of the complaining witness are not admissible to prove that she consented to sexual intercourse with the accused. State v. Ruhr, 533 S.W.2d 656, 659 (Mo.App.1976); Pope v. Superior Court, supra; State v. Howard, 544 P.2d 466, 469 (Utah 1975); People v. Whitfield, 58 Mich.App. 585, 228 N.W.2d 475, 478 (1975); Wynne v. Commonwealth, supra; State v. Geer, 13 Wash.App. 71, 533 P.2d 389 (1975). We endorse the approach taken by these courts, viz., the exclusion from evidence of prior acts of sexual intercourse with others besides the defendant because such evidence is not probative to the issue of the prosecutrix's consent.⁵

Appellant has alternatively argued that the proffered evidence would impeach the credibility of the complaining witness. It should be obvious that evidence of prior sexual acts by the prosecutrix has no relevance whatsoever to her credibility as a witness and therefore defense counsel should be precluded from asking the prosecutrix questions concerning her past sex life. See State v. Geer, 13 Wash.App. 71, 73, 533 P.2d 389, 391 (1975), and note 8 infra. We therefore conclude the trial court properly excluded evidence of the complainant's sexual relations with others than...