ROUNDTREE v. U.S.

• Decision Date: 02 October 1990
• Docket Number: No. 86-1382,86-1382
• Citation: 581 A.2d 315
• Parties: Michael W. ROUNDTREE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

581 A.2d 315

Michael W. ROUNDTREE, Appellant, v. UNITED STATES, Appellee.

No. 86-1382.

District of Columbia Court of Appeals.

Argued May 9, 1989.

Decided October 2, 1990.

Appeal from the Superior Court, District of Columbia, Sylvia Bacon, J.

Charles A. Kubinski, Washington, D.C. appointed by this court, for appellant.

Thomas C. Black, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.

Before NEWMAN, STEADMAN and SCHWELB, Associate Judges.

STEADMAN, Associate Judge:

Appellant was convicted by a jury on one count of sodomy, D.C.Code § 22-3502 (1989), and one count of tampering with physical evidence, id. § 22-723. On appeal, he challenges the trial court's refusal to permit him to cross-examine the complaining witness about her previous allegations of sexual assaults by other men. Additionally, appellant claims that the trial court improperly excluded evidence about the condition of the genitalia of the complaining witness, who was allegedly suffering from a venereal disease at the time of the incident. He also contends that the trial court improperly instructed the jury as to the elements of the crime of sodomy. We affirm.¹

I

On May 12, 1985, appellant, a correctional officer, was on duty at the D.C. Jail. According to Karen Brock, another correctional officer at the Jail, appellant was quite forward that day about his fondness for cunnilingus. Brock testified that she overheard appellant telling a woman named Sheila over the telephone how much he had enjoyed "going down" on her, which Brock understood to mean performing oral sex on her,² during the past weekend. Later, according to Brock, appellant, who was "[v]ery flirtatious" and "[c]oming on to" her, said that "going down" on a woman "(really turns him on," and that he would like to do so with Brock.³ Brock rebuffed appellant's advances.

After this rebuke by Brock, appellant's attention apparently shifted to seventeen-year-old W.D., the complaining witness in this case. W.D. was the sole female prisoner in custody in that area of the D.C. Jail at the time.⁴ Appellant asked a male prisoner near the female section of the jail if he knew how old the "young lady across the hall" was. He then entered the portion of the jail where W.D. was being held, and, upon his return, said to the male prisoner, "I've got to have her."

W.D. testified that she had been asleep when appellant came to her cell in the female section of the jail, ostensibly to inquire whether she wanted to be released from her cell for some recreation time. After he unlocked and opened W.D.'s cell door, however, appellant grabbed W.D. and started kissing her face and neck. Despite W.D.'s efforts to push him away, appellant lifted her nightshirt, placed his lips around her vagina, and licked her genitalia with his tongue.⁵ After engaging in this activityfor "a couple of minutes," appellant took out his penis, put W.D.'s hand on it, and moved her hand back and forth until he ejaculated into a nearby trash can. Afterwards, appellant wiped himself clean, threw the soiled tissues into the same trash can, and left the female section of the jail.

A few minutes later, W.D. reported the incident to other jail officials, and an investigation ensued. Three jail officials testified that they saw semen and tissues in a trash can near W.D.'s cell. One of the prison officials retrieved the liner from the trash can and placed it in a brown paper bag, which he then stapled shut and labelled "evidence." The official placed the bag on top of a file cabinet in an administrative office in the jail. Soon after, in that same office, appellant was interviewed by his supervisors; they confronted him with the evidence in the bag. At the conclusion of their interview, however, the jail officials left appellant alone in the office with another correctional officer, also appellant's union representative, who did not know of the bag containing evidence. The union representative testified that he saw appellant stumble over a desk in the office and gather up, among other things, a brown bag which had been stapled shut and had writing on it. Another jail official later saw appellant walking by himself with a folded brown bag in his back pocket. Before long, officials discovered that the evidence bag had disappeared, and it was never found. However, during a strip search conducted in an effort to locate the missing evidence, investigating officials did discover semen stains on appellant's underpants.

Appellant's defense was a total denial. Though he admitted entering the female section of the jail and speaking with W.D., he denied having had any sexual contact with her. He also denied having propositioned Officer Brock or having had the phone conversation with Sheila described by Brock. Appellant admitted having a brown paper bag, but claimed he was carrying a chicken sandwich in it. He contradicted himself as to whether the bag had staples in it, and could not remember whether the bag bore any writing on it. His girl friend testified that she and Roundtree had made love during the lunch hour, and he claimed that this explained the presence of semen on his clothing. The prosecutor, who conducted a probing and highly professional cross-examination of Roundtree, exposed numerous contradictions in his account, severely damaging Roundtree's credibility.

II

Appellant first alleges that the trial court's refusal to permit him to inquire during cross-examination of W.D. about her past allegations of sexual assaults by other men violated his constitutional rights under the confrontation clause of the sixth amendment, or alternatively was an abuse of discretion.

A. The factual background

During discovery in a civil lawsuit in federal court by W.D. against appellant and the District of Columbia arising out of this incident, appellant learned of and obtained copies of W.D.'s juvenile records from her home state of Minnesota. Those records revealed that W.D. had claimed to have been raped or sexually abused by different men on at least eight occasions. Several allegations involved sexual abuse by family members or boyfriends of family members; others involved sexual assaults committed by pimps.⁶ In at least one instance, after initially telling a social worker that she had been sexually abused by her brother Hank, W.D. later denied that any such sexual abuse had occurred.⁷ She also gave inconsistent accounts of how frequently her brother had sex with her. Onthe other hand, the Minnesota records provide partial corroboration of at least some of W.D.'s claims. In May of 1983, W.D. claimed during a medical examination that she had been sexually assaulted by a friend of her sister's. The examining physician's report noted the presence of a "semen-like substance on [the] thighs, mons pubis, and within [the] vagina" of W.D. Additionally, medical tests conducted after a sexual assault which W.D. alleged occurred on January 11, 1985, indicated the presence of sperm on W.D.

The most fully documented incident in the record involved a claim by W.D. that a male counselor at a facility for teen-aged mothers called Juvenile Horizons had placed his hand on her buttocks in an inappropriately sexual manner, a claim denied by the counselor. During the course of a Ramsey County Human Services Department investigation into the matter, two members of the Juvenile Horizons staff and two social workers familiar with W.D. indicated that they did not believe W.D.'s allegation.⁸ The Human Services Department officials who investigated the allegation concluded that they were "unable to substantiate" W.D.'s charge, although they felt "that there was reason to suspect that the incident may have occurred."

After the parties had reviewed the contents of the Minnesota records, the government moved in limine to preclude any inquiry by the defense into W.D.'s prior allegations of sexual abuse. In response, appellant argued that the prior allegations were probative of W.D.'s credibility.⁹ After inspecting the Minnesota materials, the trial court indicated that there was "no basis for inquiry into prior accusations" because there had been no "firm determination" as to whether any of W.D.'s allegations "were false or true." Nevertheless,before making a final decision on the issue, the trial court decided to inquire about the prior allegations during a voir dire examination of W.D.

On voir dire, W.D. testified that she had been sexually abused by her brother Hank; she explained that she had later recanted that charge "because I didn't want my mom to find out and I didn't want the police involved." She reaffirmed her earlier allegation, documented in the Minnesota records, that she had been sexually abused by a friend of her mother's, but explained that she did not report the matter to the police because "my mom was going though a lot of problems and I didn't feel that she would trust me or believe me." W.D. also reasserted that several of the other sexual assaults mentioned in the Minnesota's records, including the incident with the Juvenile Horizons counselor, had in fact occurred.

At the conclusion of the hearing, the trial judge decided to preclude cross-examination about the prior allegations. She made clear that she would have permitted such inquiry had the prior allegations been fabricated. On the basis of the documents and her assessment of W.D.'s testimony, however, the trial court found that "there is no substantial basis for concluding that these assaults are fabrication." Following the trial judge's oral ruling, appellant filed a motion seeking reconsideration. In a brief written order denying that motion, the trial judge emphasized that appellant had failed to "show convincingly" that W.D.'s allegations were false.

B. Admissibility of evidence of prior allegations of sexual assault

Appellant sought to impeach...