United States v. Huff

• Decision Date: 08 March 1971
• Docket Number: No. 22793.,22793.
• Citation: 442 F.2d 885,143 US App. DC 163
• Parties: UNITED STATES of America v. Edward L. HUFF, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

143 US App. DC 163, 442 F.2d 885 (1971)

UNITED STATES of America v. Edward L. HUFF, Appellant.

No. 22793.

United States Court of Appeals, District of Columbia Circuit.

Argued June 19, 1970.

Decided March 8, 1971.

Petition for Reconsideration Decided March 29, 1971.

Mr. Allan Palmer, Washington, D. C. (appointed by this Court) for appellant.

Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before LEVENTHAL, ROBINSON and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment entered on conviction of second degree burglary and assault with intent to commit rape, sentencing appellant to imprisonment for concurrent terms of from three to ten years on each of these offenses. Rejecting various contentions of appellant, we hold (1) that there was sufficient corroborative evidence to warrant submission to the jury of the charges of rape and assault with intent to commit rape, (2) that there was no plain error affecting substantial rights in the trial court's instruction regarding evidence of a prior sexual assault by defendant on complainant and (3) that the impeachment of two defense witnesses did not constitute plain error. However, the failure to permit the jury to consider the lesser-included offense of assault requires a remand, for either a new trial or a resentencing on the basis of simple assault.

Testimony

The Government's evidence showed that at about 11:40 p. m. on Saturday, February 17, 1968, complainant Mrs. Trivella M. Harrington, who lived with her common-law husband and their six-month-old child at 121 Galveston Place, S.W., left the child with a baby-sitter and went to buy cigarettes at a nearby liquor store. Her husband was visiting at his mother's house. Returning from the store, Mrs. Harrington met a young man by the name of Tommy Branch who informed her that a party was in progress in an upstairs apartment at 109 Galveston.

Mrs. Harrington visited the party for about ten minutes, then returned home, where she put the baby to bed and waited for her to fall asleep. She then changed into slacks and left again for the party.

As she was entering the apartment house at 109 Galveston, Mrs. Harrington met an acquaintance of hers by the name of "Junior" Askew, and had a brief conversation with him. She entered the hallway of the apartment house, and as she turned to go up the stairs to the apartment she had just visited, she saw appellant coming down the same stairwell. When appellant reached the bottom, he grabbed Mrs. Harrington, and when she began to scream for help, placed his hand over her mouth and knocked her down, causing her to strike a nearby milk box. He then began to choke her and she lost consciousness. The next thing she knew she was still lying in the hallway, and appellant was bent over her trying to insert his penis in her mouth. She passed out once more, and this time woke up in a strange apartment. Appellant was on top of Mrs. Harrington, and it felt to her as though he was having intercourse with her. (Tr. 17). When she finally regained consciousness, and was able to get up, she noticed that her girdle, slacks and pettipants were down between her knees and ankles. She managed to climb the stairs to Apartment 4, where the party was going on, knocked on the door, and collapsed crying when someone answered it.

The police arrived about ten minutes later, and when Mrs. Harrington told them that the apartment where the rape had occurred was probably Number 1, they examined that apartment, and found her missing shoe in one of the corners. Although the apartment was occupied, the tenants were not at home that night. The furniture in the apartment had been moved about, and the coffee table had been moved from the center of the floor. The police also found signs that the door to this apartment had been forced open either by kicking or by using a shoulder. Mrs. Harrington was then taken to D.C. General Hospital for examination, but the physician was unable to determine if there had been penetration. Tests for the presence of sperm on the clothing and the vaginal area were negative, and an examination of Mrs. Harrington's clothes revealed that they were not torn or ripped. But there was a bump on her forehead where she had struck the milk box.

Appellant was charged on April 15, 1968, with second-degree burglary (22 D.C. Code § 1801(b)), rape (22 D.C. Code § 2801), and sodomy (22 D.C. Code § 3502). At the close of the Government's case the sodomy charge was dismissed on motion for lack of corroboration.

There was a defense of alibi supported by the testimony of defendant's fiancee that he was with her that night. Also, Askew testified he was not near 109 Galveston Place as testified by complainant.

The judge instructed the jury on rape, as charged in count 2, and at the prosecutor's request, on assault with intent to commit rape as a lesser-included offense. On count 1, he charged on burglary, and on unlawful entry as a lesser-included offense, this to be available however only in the event defendant was not convicted of rape or assault with intent to commit rape. The jury retired at 12:25 p.m. to begin deliberations. Next day, at 11:30 they reported an inability to reach a verdict and were given an Allen-type charge.¹ After retiring again, the jury sent a second note requesting whether defendant could "be charged with the crime of assault with attempt sic to rape and unlawful entry." They were re-instructed as to their alternatives and retired again. The jury returned with verdicts of guilty of burglary, not guilty of rape, but guilty of assault with intent to commit rape.

Sufficiency of Evidence Corroborating Rape Charge

Appellant first contends that the corroborative evidence was insufficient to warrant submission to the jury of the charges of rape and assault with intent to commit rape. These sex charges may not be presented to the jury solely on the testimony of the victim, in the absence of corroboration of the crime. United States v. Jenkins, 140 U.S.App. D.C. 392, 436 F.2d 140 (Aug. 12, 1970); Carter v. United States, 138 U.S.App.D. C. 349, 427 F.2d 619 (1970); United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969); Kidwell v. United States, 38 App.D.C. 566 (1912). The degree of corroboration required varies with the case, dependent in large part upon the "danger of falsification" by a particular complainant. Thomas v. United States, 128 U.S.App.D.C. 233, 234, 387 F.2d 191, 192 (1967). Appellant says that in this case Mrs. Harrington had a "very real motive to fabricate a sexual attack upon her or, at the very least to honestly turn a simple assault into a sexually grounded one." (Appellant's brief at 15). Appellant lays a predicate for this assertion of motive in the testimony of Mrs. Harrington, elicited on cross-examination by defense counsel, that two years prior to the incident she had accused appellant of raping her at her home. She testified she had discussed this with Mr. Harrington but never made a report to the police.

While possibility of a motive to fabricate may exist, we think there was sufficient corroboration of the complainant's testimony to warrant submission of the sex charge to the jury. There was corroboration in the bump on her forehead, pointed out by her at trial, tending to corroborate her testimony that appellant had knocked her down in the hallway, and that she had struck her head on a nearby milk box. In corroboration of her testimony that she was raped in a strange apartment are the facts, established independently of her testimony, that the door to this apartment had been forced open, that the furniture had been disarranged, and that Mrs. Harrington's shoe was found in a corner. And there was corroborative evidence in the testimony of the lady who lived in the upstairs apartment, that when Mrs. Harrington got there, her clothes were in disarray. She was crying hysterically even when the police arrived, about an hour after the attack.

Instruction Regarding Evidence of Prior Sexual Assault by Defendant on Complainant

Appellant also assigns error to the instruction given the jury with respect to the prior alleged rape of Mrs. Harrington by appellant. As already noted this incident, which allegedly occurred in 1966, was brought out by defendant's counsel, while cross-examining Mrs. Harrington, to impeach her credibility by demonstrating her hostility toward appellant. However, in charging the jury, the trial judge stated that evidence of the prior rape was to be used, if at all, "solely for your consideration whether it tends to show a predisposition on the part of the defendant to gratify his sexual desires with the complainant."

Appellant's contention is that the evidence was not admissible because of its tendency to show criminal propensity, that it was admissible, and was introduced, solely for another purpose, to impeach the complainant for hostility to appellant, and that the judge made a compound error in improperly putting the evidence to the jury for consideration on the issue of criminal propensity, and improperly preventing the jury from considering it on the issue of bias, for which it was admissible.

There are difficulties with the charge, but we do not think they are grounds for reversal in view of the failure of defense trial counsel to object to the charge as given.

Under the circumstances we cannot hold that it was error to permit the jury to consider the evidence of the prior crime as bearing on a predisposition of defendant to gratify his sexual desires. The jury was instructed they could not otherwise consider it as tending to show defendant's guilt of the offense with which he was charged. Thus the charge as given did not go so far as to permit the jury to infer a disposition to commit rape, to gratify sexual drives over the resistance of the woman...