United States v. Bryant

• Decision Date: 11 December 1969
• Docket Number: No. 22511.,22511.
• Citation: 137 US App. DC 124,420 F.2d 1327
• Parties: UNITED STATES of America v. Mack J. BRYANT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 124, 420 F.2d 1327 (1969)

UNITED STATES of America v. Mack J. BRYANT, Appellant.

No. 22511.

United States Court of Appeals District of Columbia Circuit.

Argued September 26, 1969.

Decided December 11, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Paul J. Mode, Jr., Washington, D. C. (appointed by this court) for appellant.

Mr. Sandor Frankel, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., Roger E. Zuckerman and Nicholas S. Nunzio, Asst. U. S. Attys., were on the brief, for appellee. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee.

Before WRIGHT, LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge.

In this case we hold that appellant's conviction for assault with intent to commit rape (in violation of D.C.Code § 22-501) must be reversed because the trial judge failed to instruct the jury on the need for corroboration of the testimony of the victim on the elements of the sex offense. However, both the evidence and the findings of the jury plainly support a conviction for assault, and in the interest of justice we do not require a new trial but remand to the district court to determine, after hearing from counsel, whether to enter judgment and sentence for assault or to order a new trial. In the event of new trial, the judge should provide clarification of the instructions in other respects as set forth in the opinion.

I. THE EVIDENCE, AND THE CORROBORATION OF COMPLAINANT'S TESTIMONY, WAS SUFFICIENT TO GO TO THE JURY.

The chief witnesses at trial were the complainant and the appellant, who told substantially different versions of the incidents surrounding the alleged assault with intent to rape.

A. The Complainant's Testimony

Complainant testified that on April 24, 1968, she was in her second-floor apartment in northeast Washington, when appellant, the brother of her next-door neighbor, whom she had previously met only casually, knocked on the door, began a conversation, and asked for a drink of water. She allowed him in, gave him the water, refused the offer of one of the two beers he had in a paper bag, and left the living room to tend to her napping child. As she was returning from the child's room, appellant met her in the corridor between the bedroom and living room, put his arm around her, and told her in unmistakable street language that he wanted to have sexual intercourse with her. Appellant then tugged at her — "he just kept tugging at me" — until the two fell to the floor. After a brief struggle, complainant broke free and ran toward the front door. Appellant caught up with her in the living room and grabbed at her, tearing the strap of her dress off her shoulder just as she reached the door and fled from the apartment. She screamed for help and no one came to her assistance. Appellant left her apartment and she ran back inside, closing the self-locking door as she entered. She went to the kitchen, but returned when she heard someone "jiggling" the handle. A look through the peephole revealed that it was appellant, and she secured another lock on the door. She then called the police, and while waiting for their arrival five minutes later, she ironed and changed into a fresh dress.

When the police arrived they saw appellant at the foot of the basement stairway and brought him up to complainant's apartment where she identified him as "the man that tried to rape me."

B. Appellant's Testimony

Appellant gave quite a different account. He testified that he had been in complainant's apartment on three or four previous occasions, "smooching," and had once convinced complainant to go with him to a tourist home to have sexual relations, though she ultimately refused because she was afraid that her fiance would find out.

On the day in question he stopped at her apartment with six cans of beer in a paper sack. The two sat down in her living room and began drinking the beer. She told him they could be friends if he would just stop drinking and "straighten up." When he objected to her demand an argument began and there was some name-calling. The argument lasted 15 to 20 minutes and she became emotionally upset. Finally she said she was going to quit appellant because he would not "straighten up," because she was pregnant, and because she was afraid that her fiance would find out about their relationship. She asked appellant to leave and he did so immediately, going to a nearby corner to catch a cab. Unable to find one, he returned and knocked on his sister's door. Hearing no answer, he went back downstairs and encountered the police as he was leaving and they were entering the building.

C. The Sufficiency of the Evidence and of the Corroboration of Complainant's Testimony.

Appellant argues both that the evidence was insufficient to warrant submission of the case to the jury, and that there was lacking the corroboration of her testimony required by law.

There are weak points in complainant's testimony; for example, the fact that no one heard her screaming for help outside her apartment immediately after the alleged assault. But her testimony, in combination with the other evidence, was sufficient to support a conviction for assault with intent to commit rape. Two policemen testified that the complainant had bruises, which she showed them, when they arrived on the scene, and one indicated that she was shaking. They also testified that appellant was coming up the stairs from the basement of the apartment house when they arrived, and one officer indicated that appellant turned around and started back down the stairs when he saw the officer. This conflicted with appellant's testimony that he was at the door and about to leave the building when the police arrived.

We turn to the related but distinct issue of whether the evidence shows requisite corroboration of complainant's testimony. It is the law of this jurisdiction, settled by a long line of cases, that corroboration of the complainant's testimony is necessary for each element of a sex offense.¹ Of course corroboration need not be by the eyewitness testimony of another, but may be by evidence, real or testimonial, of circumstances that tend to support the complainant's account.

In our most recent comment, earlier this year, we noted that corroboration was required "for the cogent reason that the risk of unjust conviction is high. * * * Typically the innocent, as well as the guilty, have only their own testimony on which to rely."² The need for corroboration as an essential feature of these cases, pervades this branch of jurisprudence, and is an elemental requirement widely understood by courts and counsel. It is "hornbook law" in this jurisdiction.

We conclude that the dress with the torn shoulder strap offers enough independent corroboration of complainant's account to avoid the requirement that a verdict be directed for the accused.³ We also take note of the reasonably prompt complaint to the police, the bruises and complainant's shaking. The issue is not entirely free from doubt. The evidence is more clear as a corroboration that there was an assault which frightened the victim than as a corroboration of the defendant's intent to achieve a penetration by force, if necessary, to overcome the continuing resistance of the victim. Although the corroborative evidence is marginal, we think it suffices for purposes of the doctrine requiring corroborative evidence.

II. LACK OF INSTRUCTIONS ON NEED FOR CORROBORATION ON THE ELEMENTS OF THE OFFENSE.

The corroboration doctrines in this jurisdiction require not only the existence of evidence sufficient to avoid a directed verdict, but also that the case be sent to the jury with instructions making clear that a guilty verdict may not be based solely on complainant's testimony, even assuming that her account and demeanor appear convincing. The jury must also be told that corroboration of the complainant's testimony is essential, and that it is their responsibility as jurors to determine whether evidence which they credit establishes such corroboration. Borum v. United States, 133 U.S.App.D.C. 147, 151-153, 409 F.2d 433, 437-439 (1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969).

The rule is thus similar to that in perjury cases. In Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), the Supreme Court held that in perjury cases the judge must instruct the jury on the need for finding corroboration of the witness.⁴ It rejected the Government argument that the existence of corroboration vel non is a matter for the court and ruled that the function of determining the credibility of the corroboration "belongs exclusively to the jury. * * * To permit the judge finally to pass upon this question would enable a jury to convict on the evidence of a single witness, even though it believed, contrary to the belief of the trial judge, that the corroborative testimony was wholly untrustworthy." (323 U.S. at 610, 65 S.Ct. at 550-51.)

In this case the instructions are lacking in any hint to the jury, much less "proper and adequate guidance," concerning the need for the jury to ascertain, and to credit, independent corroborative evidence over and above any belief in the complainant's testimony based on her courtroom demeanor.

The Government in effect concedes the mistake, but urges that the failure to provide an instruction on corroboration was not reversible error because no request was made for such an instruction. In cases involving the issue of corroboration of identity this court has held that the existence of corroborative evidence avoids reversal when no corroboration instruction has been requested. Franklin v. United States, 117 U.S.App. D.C. 331, 330 F.2d 205 (1963); United States v. Dews, 135 U.S.App.D.C. 185, 417 F.2d 753 (April 1, 1969). However a different result obtains when the question is one of corroboration of the elements of the crime. The two issues differ markedly in importance....