Scott v. United States, 12104.

• Decision Date: 07 March 1980
• Docket Number: No. 12104.,No. 12265.,No. 12205.,12104.,12205.,12265.
• Citation: Scott v. United States, 412 A.2d 364 (D.C. 1980)
• Parties: Edwin L. SCOTT, Appellant, v. UNITED STATES, Appellee. Richard DEWS, Appellant, v. UNITED STATES, Appellee. William O. C. BROOKING, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 364

412 A.2d 364

Edwin L. SCOTT, Appellant, v. UNITED STATES, Appellee.

Richard DEWS, Appellant, v. UNITED STATES, Appellee.

William O. C. BROOKING, Appellant, v. UNITED STATES, Appellee.

No. 12104.

No. 12205.

No. 12265.

District of Columbia Court of Appeals.

Argued November 14, 1978.

Decided March 7, 1980.

Fred W. Bennett, College Pond, Md., for appellant Scott.

Thomas W. Farquhar, Washington, D. C., appointed by this court, for appellant Dews.

Lawrence Singer, Washington, D. C., appointed by this court, for appellant Brooking.

John W. Polk, Asst. U. S. Atty., Washington, D. C., for appellee. Earl J. Silbert, U. S. Atty., Washington, D. C., John A. Terry, Michael W. Farrell, and Joseph B. Valder, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Robert I. Richter, Washington, D. C., for appellee in No. 12104.

Richard C. Otto, Washington, D. C., for appellee in Nos. 12104, 12205, and 12265.

Carol E. Bruce, Washington, D. C., for appellee in No. 12205.

Ann P. Gailis, Washington, D. C., for appellee in No. 12265.

Before NEWMAN, Chief Judge, and PAIR and YEAGLEY, Associate Judges, Retired.

YEAGLEY, Associate Judge, Retired:

Appellants were found guilty by a jury of statutory rape under D.C.Code 1973, § 22-2801¹ and brought this appeal. Finding error in the record, we reverse.

At the time of the crime the complainant, herein referred to as A. J., was 13 years old. The day before the crime, her parents had forbidden her to see her boyfriend, Michael, then 15 years old. Nevertheless, on April 2, 1976, A. J. went to Michael's house after school and initiated sexual intercourse with him. A. J. requested him to let her stay overnight, but he told her she could not and began walking her home. While walking, they encountered Albert Abbot, an older man, with whom Michael was acquainted. Abbot was driving a car and agreed to give them a ride. When they arrived at A. J.'s house, she refused to get out of the car because she was angry with her parents and did not want to return home.

Abbot drove A. J. and Michael to the stables where he lived and worked in Forrestville, Maryland. The three appellants were at the stables at the time and were acquainted with Michael. Some time later when appellants Dews and Scott started to leave the stables in Dews' van, they agreed to give Michael a ride home. A. J. apparently simply followed him into the van. When they arrived at his house, he got out and told appellant Dews to take A. J. home. However, A. J. still refused to go home and instead went with Dews and Scott to appellant Brooking's apartment.

There was evidence that inside the apartment, A. J. engaged in sexual intercourse and oral sodomy with both Dews and Scott. A short time later when appellant Brooking returned to his apartment, Dews and Scott departed. Brooking took A. J. to a Mc-Donald's restaurant to get something to eat. They then returned to his apartment and had sexual intercourse. Thereafter appellant Dews returned to the apartment and took A. J. to a store to buy a snack, after which they rode around in his van. At about midnight, he dropped her off at Brooking's apartment, where A. J. spent the remainder of the night with Brooking²

Meanwhile, A. J.'s parents had been looking for her. They went to Michael's home and spoke with him and then called the police, who also went to his house to inquire as to A. J.'s whereabouts. Sometime during the evening Michael's sister called Brooking and informed him that the police were looking for A. J.

The next morning, Brooking dropped A. J. off at Michael's house, but his mother would not let her come into the house. A. J. went next door and the neighbors called her parents. A. J. was taken to the hospital where a medical examination by Dr. Karlos Vince revealed a fresh tear in her hymen and sperm in her vagina.³

According to appellants' evidence, when A. J. insisted that she did not want to be taken home, Dews and Scott dropped her off at a nearby gas station. Dews and Scott then parted company and spent the remainder of the night with their respective girlfriends.⁴ Appellant Brooking testified that the only time he saw A. J. was at the stables. After he left the stables, he visited friends and returned to his apartment around midnight.

Appellants have made numerous assignments of error. However, in view of our disposition of the case, we discuss only the following five.

I. Impeachment Testimony

Appellants cite two instances in which they contend the trial court erred in permitting the government to impeach its own witness. Since we agree that certain impeachment evidence was improperly allowed, we necessarily conclude that the appellants were denied a fair trial and that the convictions in this case cannot stand.

A. Detective Lowe's Testimony. Three days after the crime, Michael made a statement to Officer Fitzpatrick in which he said that on the night in question the following events transpired: "Dews came over. Dews asked me what I had told the police. I said I told them that you dropped me off, or had left with A. J., and Dews left."

Six months later, at a conference of witnesses at which Michael, the prosecutor, and Detective Lowe were present, Michael gave a different version of that conversation, stating that it had been as follows:

Dews: What did you tell the police, Michael?

Michael: I told them you left with her in the van.

Dews: What did you do that for. She might say we took her some place or raped her.

When Michael was called as a government witness at trial, the prosecutor sought to have him relate these conversations to the jury. It became apparent that this attempt would be frustrated when he testified that on the night of the crime, appellant Dews came to his (Michael's) house before, rather than after, the police. If Dews arrived first, he could not have been concerned with what Michael told the police. Michael's previous statements clearly indicated that the police had spoken to him before Dews arrived. On further direct examination by the prosecution, Michael denied having made both the statement to Officer Fitzpatrick and the later statement to Detective Lowe and the prosecutor.

At a bench conference, the prosecutor admitted that two days prior to trial he had interviewed Michael and at that time he denied having stated that appellant Dews said: "What did you do that for. She might say we took her some place or raped her." Thus, the parties agree that while the prosecutor was surprised that Michael repudiated the statement he made to Officer Fitzpatrick, there was no surprise when he repudiated the statement made to Detective Lowe and the prosecutor. The trial court permitted the government to impeach him by calling Officer Fitzpatrick and Det. Lowe to testify to the two prior statements. The court ruled that even though there was no surprise as to the repudiation of his statement to Det. Lowe, the latter's testimony would constitute reasonable impeachment of the surprising testimony. We cannot agree.

Appellants claim that the government was improperly allowed to impeach its own witness with Det. Lowe's testimony insofar as it referred to appellant Dews' expression of fear that he might be accused of rape, since there was no surprise when Michael denied ever relating Dews' alleged statement. Appellants argue that the impeaching evidence should have been limited to the less damaging testimony on which the government was surprised. The government's position is that once surprise was established, it was permissible to impeach the witness with any prior statement which was inconsistent with any of the witness's material testimony. Since the determination of whether and to what extent impeachment of one's own witness should be allowed is within the trial court's discretion, Robinson v. United States, 113 U.S. App.D.C. 372, 308 F.2d 327 (1962), it is not one that we lightly disturb. However, we must conclude that it was reversible error for the court to admit Det. Lowe's impeachment testimony as to the statements of Michael with which the prosecutor was not surprised.

It is the rule of this jurisdiction that a party cannot impeach its own witness unless the court finds that the party was surprised by the witness's testimony:

When the court is satisfied that the party producing the witness has been taken by surprise by the testimony of the witness, it may allow the party to prove, for the purpose only of affecting the credibility of the witness, that the witness has made to the party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause. [D.C.Code 1973, § 14-102.]

As this section expressly provides, prior statements of the witness are admissible only as proof that the witness is unbelievable. Accordingly, they cannot be received as substantive evidence. The sole reason such impeachment is permitted is to cancel or neutralize any damaging effect of the surprising testimony. Byrd v. District of Columbia, D.C.Mun.App., 43 A.2d 46 (1945). Therefore, in order to justify impeachment, the party must demonstrate not only surprise, but affirmative damage to its case as well. As we noted in Byrd, supra, where there is no such prejudice, there is no occasion for impeachment.

In this instance, the damage to the government's case occasioned by the surprising testimony was that the government was unable to introduce certain evidence that it had expected to elicit from Michael. As we discussed at length in Byrd, supra, when a witness unexpectedly gives testimony which affirmatively harms the producing party's case, the party has a legitimate need to demonstrate to the trier of fact that the witness is not credible. In contrast, however, when, as in this case, the witness merely fails to give certain hope for testimony, it does not reach the problem nor advance the party's cause to attempt to prove that the witness is unbelievable. In the latter situation,...