Thomas v. United States

• Decision Date: 04 May 1967
• Docket Number: No. 20287.,20287.
• Citation: 387 F.2d 191,128 US App. DC 233
• Parties: George W. THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 233, 387 F.2d 191 (1967)

George W. THOMAS, Appellant, v. UNITED STATES of America, Appellee.

No. 20287.

United States Court of Appeals District of Columbia Circuit.

Argued January 9, 1967.

Decided May 4, 1967.

Mr. William P. Bernton, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert A. Ackerman, Atty., Dept. of Justice, with whom Mr. David G. Bress, U. S. Atty., and Messrs. Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.

PRETTYMAN, Senior Circuit Judge:

Appellant Thomas was indicted, tried before a jury, and convicted for carnal knowledge of a 15-year-old girl.¹ He seeks reversal on the sole ground that there was inadequate corroboration of the prosecutrix's testimony identifying him as her assailant.² We affirm.

The case for the Government was that the complainant-victim left her home at about 8:30 in the evening in mid-February to walk half a dozen blocks to visit a school girl friend. Halfway there she was accosted by Thomas, who told her he went to the same school she attended. He seized her wrist, threatened her, and caused her to sit with him on a nearby ledge. After several minutes' conversation, when she arose to go, he grabbed her, forced her to a nearby playground, and raped her. She ran screaming to her home, and the police were notified immediately. The testimony of one of the investigating officers and of her grandfather was that the girl was distraught, that there were red welts on her neck where she claimed her assailant had held her, and that her clothing was muddy and in disarray. Shortly after the arrival of the police, the girl, with her mother and the officers, retraced the route she had taken and returned to the scene of the crime. Later that evening she was taken to D. C. General Hospital, where medical examination established that she had been sexually assaulted and that the experience was her first. The girl positively identified the appellant as her assailant the next day, after he had been arrested. There was no evidence to indicate that the girl was emotionally unstable, that she had any incentive to implicate the defendant falsely, or that she had been pressured in any way to make the identification.

At the trial appellant rested his defense on the testimony of his mother that he did not own a red-checked shirt such as the victim said her assailant wore, and testimony by the dry-cleaner who periodically cleaned his clothes that he did not remember any such clothing. As we have said, upon this appeal Thomas presents as his only point the contention that the prosecution lacked the corroborating evidence necessary in a case such as this.

Appellant argues that the Government failed to establish circumstances in proof that independently "point to the probable guilt of the accused, or, at least, corroborate indirectly the testimony of the prosecutrix."³ He points out that this standard, first announced in Kidwell v. United States,⁴ generally requires corroboration of both the corpus delicti and the identification of the attacker.⁵

The need for corroboration depends upon the danger of falsification. The "danger of an erroneous identification in a rape case is not of the same magnitude as the danger of a fabricated rape".⁶ And where, as here, (1) there is no dispute that a rape in fact occurred, (2) consent is not an issue, and (3) there is no evidence undermining the trustworthiness of the complaining witness, her identification "based on adequate opportunity to observe" may need no further corroboration.⁷

This is not a case where the prosecutrix admittedly was unable to see the accused's face fully during the assault and was uncertain at the time she made the original identification. Nor is it a case where the victim's original description of her assailant did not fit the man whom she subsequently identified on a street corner while she was being driven by the police through certain neighborhoods in a random search for her attacker.⁸

The circumstances in this case substantially minimize any danger of mistake or falsification in the girl's identification. There is no dispute that the victim was attacked. And her description of the event was supported by her prompt report, the condition of her clothing, the welts on her neck, and her reported emotional condition. Nothing appears which casts doubt upon her testimony that she had abundant and unfettered opportunity to observe the accused prior to the crime, and she positively identified him the day following the crime. Her good character and credibility were unscathed by rigorous and extensive cross-examination.

We think the facts here presented were sufficient to send the case to the jury.

Affirmed.

BAZELON, Chief Judge (concurring):

If the victim's identification is "based on adequate opportunity to observe," perhaps no further corroboration is required. But here there is no evidence corroborating the victim's testimony that there was such an opportunity. See Walker v. United States, 96 U.S.App.D. C. 148, 156, 223 F.2d 613, 621 (1955) (dissenting opinion). I would, therefore, rest affirmance on a matter which appears in the record but was not discussed by the parties on this appeal.

During the first full day of trial, the victim testified that while her attacker was detaining her on the...