Pounds v. U.S.

• Citation: 529 A.2d 791
• Decision Date: 12 August 1987
• Docket Number: No. 85-214.,85-214.
• Parties: Andrew E. POUNDS a/k/a Eugene Wright, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

529 A.2d 791

Andrew E. POUNDS a/k/a Eugene Wright, Appellant, v. UNITED STATES, Appellee.

No. 85-214.

District of Columbia Court of Appeals.

Argued February 26, 1987.

Decided August 12, 1987.

Lawrence M. Baskir, Washington, D.C., for appellant.

Mary Incontro, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, and Kathleen E. Voelker, Asst. U.S. Attys., D.C., were on the brief, for appellee.

Before MACK, FERREN and TERRY, Associate Judges.

PER CURIAM:

After a jury trial, appellant was convicted of two counts each of rape, carnal knowledge, and incest.¹ On appeal to this court he alleges (1) that the trial court improperly admitted evidence of prior sexual contact between himself and the complainant; (2) that his conviction was not supported by adequate corroborative evidence; (3) that the trial court erred by failing to poll the jury and voir dire the jury a third time regarding prejudicial publicity; and (4) that his convictions for rape, carnal knowledge and incest merge.² We affirm.

I

At trial, the government presented the testimony of the fourteen-year-old complainant that her father, appellant, had been forcing her to have sexual intercourse with him since she was six or seven years old. The charges in this case stemmed from two such specific incidents.

Appellant challenges the introduction of evidence showing that he had engaged in sexual conduct with the complaining witness before the specific assaults in October and December 1983 with which he was charged. The trial judge admitted the evidence of prior bad conduct on the basis that it tended to show "gratification," i.e., "the predisposition to gratify special desires with that particular victim."

Evidence of "other crimes" or prior bad acts committed by a defendant but not charged in the indictment is inadmissible at trial unless it qualifies under one or more well-established exceptions. In Drew v. United States, 118 U.S.App.D.C. 11, 15, 331 F.2d 85, 89 (1964), the court set forth five exceptions to the principle that "evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged" (emphasis in original; footnote omitted). The court found that evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. Drew, supra, 118 U.S.App.D.C. at 16, 331 F.2d at 90. However, Drew, a robbery case, states that its list is "not necessarily all-inclusive," id. at 16 n. 10, 331 F.2d at 90 n. 10 and there are cases both before and after Drew which indicate that some theory of admissibility for evidence of prior sexual offenses in prosecutions for sex offenses may exist which is not included in the Drew list. See Hodge v. United States, 75 U.S. App.D.C. 332, 126 F.2d 849 (1942); Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944); Miller v. United States, 93 U.S.App.D.C. 76, 207 F.2d 33 (1953); Dyson v. United States, 97 A.2d 135 (D.C. 1953); Calaway v. United States, 408 A.2d 1220, 1227 n. 12 (D.C. 1979); Adams v. United States, 502 A.2d 1011 (D.C. 1986) (in chronological order).

While these cases allude to a theory of admissibility for evidence of sex offenses committed by the accused upon victims other than the one named in the indictment, we are not here faced with the thorny question of whether evidence of a defendant's past sex offenses committed on persons other than the complainant should ever be admissible on a theory of "predisposition." The question before us is more easily resolved, since the conduct in question was a history of incest between complainant and appellant, and we limit our holding accordingly. We decide only that in prosecutions for sexual offenses, evidence of a history of sexual abuse of the complainant by the defendant may be admissible on the theory of predisposition to gratify special desires with that particular victim.³

We limit our holding thus because in the circumstance of ongoing sexual abuse of the complainant by appellant, several factors combine to render the probative value of the evidence so high as to outweigh its potential for prejudice. See Graves v. United States, 515 A.2d 1136, 1139 (D.C. 1986); Campbell v. United States, 450 A.2d 428, 431 (D.C. 1982). First, the evidence of sexual contact occurred between the same parties. Second, the contact was incestuous. Third, the contact involved continuing conduct, beginning when complainant was a very young child. Finally, knowledge of the contact was pivotal, in some degree, to a determination of innocence or guilt; part of appellant's defense was that the story told by his daughter in the absence of certain physical manifestations, or an earlier complaint, was "impossible."⁴ It is true that without information concerning the history of sexual abuse by appellant, certain facts would remain inexplicable. Complainant's apparent lack of hysteria or trauma when finally reporting to a friend (and thereafter to the friend's mother, the police, and a doctor) what had been occurring, the matter-of-fact way in which she described the October and December incidents of sexual assault, and her failure to inform her mother,⁵ would be difficult to understand without the context of facts showing longstanding sexual abuse by her father. The circumstances are somewhat akin to those situations where we have found that the evidence was inextricably interwoven with the crime and therefore not Drew evidence. See Toliver v. United States, 468 A.2d 958, 960 (D.C. 1983) (evidence of other criminal activity within the circumstances immediately surrounding the charged offense is really "not other crimes evidence," as that concept is traditionally understood, "because it is too intimately entangled with the charged conduct").⁶

II

Appellant also contends that his conviction was not supported by adequate corroborative evidence. At the time of appellant's trial, the rule in this jurisdiction was that a defendant could not be convicted of a sex offense on the uncorroborated testimony of a youthful victim. Fitzgerald v. United States, 443 A.2d 1295, 1298 (D.C. 1982) (en banc). But "[c]orroboration then need only consist of circumstances which tend to support the victim's testimony, and need not consist of evidence corroborating every detail of the acts charged." Jackson v. United States, supra note 2, 503 A.2d at 1227 (citing Evans v. United States, 299 A.2d 136, 139 (D.C. 1973)). "Whether the evidence sufficiently corroborates a minorcomplainant's testimony depends on the totality of the circumstances . . . and is decided on a case-by-case basis." Curry v. United States, 498 A.2d 534, 545-46 (D.C. 1985). Given that complainant's testimony was supported by medical findings, the presence of appellant's hair on her bathrobe, her reasonably prompt report of the assault to her friend, her friend's mother, and then to the police and examining physician, as well as appellant's opportunity to commit the offenses, we find evidence sufficient to corroborate complainant's testimony.

III

Appellant next alleges that the trial court erred in failing to voir dire the jury concerning a broadcast the night before of a network news program on the issue of child sexual abuse. We find no error here.

The trial court had previously conducted voir dire twice concerning publicity on the subject matter of child sexual abuse, on one occasion admonishing the jury to avoid all such publicity and on the other, reminding the jury of its previous admonition. While the court agreed to voir dire the jury a third time, it apparently failed to do so inadvertently due to the jury's stated desire to resume deliberations prior to receiving additional instruction. Eventually, when the jury indicated that it had reached a verdict, defense counsel advised the court that he no longer wished the jury to be asked "that question." Under these circumstances, the court's actions were adequate to insure a fair and impartial verdict. See Welch v. United States, 466 A.2d 829, 836 (D.C. 1983) ("[it] is sufficient that the juror asserts he or she is able to lay aside his or her impressions and render a verdict based on the evidence presented in court and the court assures itself that this assertion is valid"). The jurors were adequately instructed on the matter of outside publicity "and there was nothing to indicate that the jurors had violated this instruction." United States v. White, 553 F.2d 310, 315 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977).

Also without merit is the claim that the trial court erred in failing to sua sponte poll the jurors individually following the return of the verdict. "The purpose of a jury poll is to ensure that no juror has been coerced or induced to join in a verdict to which that juror does not fully assent . . . and to eliminate any uncertainty as to the verdict announced by the foreman or forewoman." Arnold v. United States, 511 A.2d 399, 417 (D.C. 1986) (citations omitted). In this case, however, it appeared no coercion or confusion occurred in the jurors' assent to the verdict. After the verdict was announced by the foreman, the deputy clerk addressed the jury as a group both as to the general verdict and with regard to each individual count, and the jury indicated its assent. In the absence of a request for a poll of individual jurors, the trial court was not obligated to do more.⁷

IV

Appellant contends, finally, that his convictions for rape and carnal knowledge with respect to each of the two separate incidents for which he was convicted should be vacated because, he a...