U.S. v. Sheppard
| Decision Date | 24 February 1978 |
| Docket Number | No. 77-1364,77-1364 |
| Citation | 569 F.2d 114,186 U.S.App.D.C. 283 |
| Parties | UNITED STATES of America v. Herman SHEPPARD, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Andrew S. Krulwich, Washington, D. C. (appointed by this court), for appellant.
Jonathan Lash, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges.
Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.
Defendant Herman Sheppard was convicted by a jury of kidnapping "for the purpose of rape and assault" in violation of 18 U.S.C. § 1201(a) (Supp. V 1975) and 22 D.C.Code § 2101 (1973), as well as related firearms offenses. 1 His argument on appeal of these convictions is that the kidnapping offense with which he was charged is a "sex offense," that corroboration of the complaining witness' testimony is therefore required, and that for want of such corroboration his convictions must be reversed. We disagree, and we affirm his convictions.
The central factual issue at trial, which distinguished the accounts of the complainant and the defendant as to the events in question, was whether the complainant had consented to driving the defendant across state lines into Maryland and engaging in sexual intercourse with him, or whether she had been forced to do so at gunpoint. Compare Tr. 34-47 (complainant's account) with Tr. 227-238 (defendant's account).
At trial the complainant testified that the defendant entered her car from the passenger side as she was preparing to drive away from the beauty parlor on her way home. According to her testimony, he held a gun covered by a shirt on her and told her to drive him where he instructed. Acting under instructions from him, she drove across the District line into Maryland where she turned down a dead-end street. The defendant then took over the driving and drove to a wooded area where, the complainant testified, she was raped in the woods by the defendant. She stated that after the rape she persuaded the defendant to give her the gun, on condition she would see him again. They left, this time with her driving. When they were stopped at a red light in front of a police car, the complainant put the car in reverse, slammed into the police car, and jumped out of her car screaming, "He's after me." The police arrested the defendant, who had not attempted to escape.
The defendant took the stand at trial and testified that he had met the complainant on the street and that she had invited him into her car to get a sandwich. He testified that they stopped at two stores, where he purchased food and drink, and then drove into Maryland where she consented to intercourse. According to his testimony, the intercourse took place in the back seat of her car. The gun, he stated, was hers, and had been in her purse all along.
Evidence was also introduced at trial that the complainant had telephoned her husband from the beauty shop at 3:00 P.M. to say that she would be home by 4:00 P.M., in time for him to drive their car to his job, Tr. 31, 114, 148, and that twigs and crumbled leaves were in her hair when she was interviewed by a detective at the local police station. Tr. 187. In addition, the manager of a liquor store testified that he recalled defendant coming into the store and insisting that he be served quickly because he had just met a woman with her own car. Tr. 226. The store manager did not know, however, what day it was that he had seen the defendant, and he stated that he remembered it to be before 3:00 P.M. Tr. 269.
In reaching its guilty verdict, the jury obviously chose to believe complainant's account of the events in question rather than defendant's. Evaluations of credibility are, in our system, within the exclusive province of the trier of fact, who is in a position to take account of such factors as the demeanor and conduct of the witnesses. While our role as an appellate court requires us to determine whether the jury's conviction of the defendant is supported by substantial evidence, there is no general rule that the word of a victim, if believed by the jury, cannot constitute substantial evidence to support a conviction. 2
In this case, however, the defendant seeks to invoke the special corroboration rule which has been applied by this court in sex offense cases. Under that rule evidence of the crime of probative value outside of the complainant's testimony has been required to support a guilty verdict. See, e. g., United States v. Tremble, 152 U.S.App.D.C. 363, 470 F.2d 1272 (1972); United States v. Huff, 143 U.S.App.D.C. 163, 442 F.2d 885 (1971). Although such corroboration is generally not required in kidnapping cases, it seems clear to us that if a corroboration rule for sex offenses is justified, then those justifications apply with full force in this case. First, the defendant was not charged separately with the crime of rape; the kidnapping and rape were viewed by both the prosecution and the District Court as involving one "transaction." Tr. 4-5. Moreover, to the extent we are concerned with such factors as jury outrage at testimony of sex offenses, the difficulty of defending against such charges, the dangers of falsification, and the severe penalties involved, 3 these factors appear to be of equal weight whether the defendant is charged with kidnapping for the purpose of rape as he was here or with assault with intent to commit rape, see, e. g., Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963), cert. denied, 376 U.S. 972, 84 S.Ct. 1139, 12 L.Ed.2d 86 (1964), or with rape itself, see, e. g., United States v. Wiley, 160 U.S.App.D.C. 281, 492 F.2d 547 (1973). Any corroboration rule governing the latter two offenses seems to us equally relevant to the first.
Under the corroboration rule established in this court, "independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication." United States v. Gray, 155 U.S.App.D.C. 275, 276, 477 F.2d 444, 445 (1973). The rule has been described as a "flexible" one, where "(t)he quantum of proof required will depend upon such factors as the age and impressionability of the complainant and the presence or absence of any apparent motive." United States v. Wiley, supra, 160 U.S.App.D.C. at 284, 492 F.2d at 550. Applying this corroboration requirement with all its flexibility, it might be possible to find sufficient corroboration of the complainant's testimony to sustain the conviction in this case. At trial the complainant testified that when she and the defendant turned down the dead-end street, a man was standing on the road in front of a house. According to her testimony, the man talked to the defendant, who then decided to take over the driving and ordered her to shift places. Tr. 40-41. That night the complainant retraced the day's journey with the police and directed them to the house where she testified that she and the defendant had encountered the man. Tr. 50.
The man living at that house, a Mr. Geffen, testified at trial that he had seen a couple stopped along his street on the day he was interviewed by the police, that he had spoken to the man, and that he observed the man go around the car to shift seats with the woman. Tr. 120-127. Defendant, however, testified that he had never seen Mr. Geffen, that they did not stop at a location near Mr. Geffen's house, and that he did not get out of the car at that time. Tr. 249. Thus Mr. Geffen's testimony tends to confirm the complainant's account rather than the defendant's and, when coupled with the presence of twigs in the complainant's hair when she had just come from the beauty parolor, 4 might be considered sufficient to "permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication."
We recognize, however, that this is at best very weak corroboration of the complainant's testimony, and that it adds nothing to the essential disagreement between complainant and defendant as to whether the complainant consented to the trip and to the intercourse. As a result, we do not rest our affirmance of defendant's conviction on this basis. Rather, it is our view that corroboration of the complainant's testimony should no longer be considered a requirement for conviction in sex offense cases. 5
In recent years the requirement of independent corroboration in sex offense cases has come under increasing attack, 6 and the trend has been toward modification and abandonment of the rule in the minority of jurisdictions which have required such corroboration. 7 The requirement is grounded not in the common law, 8 which limited the corroboration requirement to charges of perjury, 9 but rather in the view that rape is a "peculiar" offense and that exceptional categorical rules limiting convictions are therefore needed. 10 Thus it was said that because charges of rape may easily be fabricated, 11 and because juries may be enraged by testimony of sexual assaults, 12 and because a defense to a rape charge is difficult to establish, 13 a corroboration rule is necessary in all such cases to protect defendants against unjust convictions. More recent studies, however, suggest that the factors invoked in support of the corroboration requirement do not justify that rule: strong disincentives exist to reporting a rape, whatever the individual motive; 14 juries generally tend to view rape charges with suspicion; 15 and convictions in the absence of aggravating circumstances are extremely rare. 16
The corroboration requirement poses a potentially severe obstacle to legitimate convictions for...
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