United States v. Wiley

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 492 F.2d 547
• Docket Number: No. 72-1878.,72-1878.
• Parties: UNITED STATES of America v. David A. WILEY, Appellant.
• Decision Date: 12 October 1973

492 F.2d 547 (1973)

UNITED STATES of America v. David A. WILEY, Appellant.

No. 72-1878.

United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 1973.

Decided October 12, 1973.

Rehearing Denied January 4, 1974.

John G. Keller, Washington, D. C., with whom Lois J. Schiffer, Washington, D. C. (both appointed by this Court), was on the brief, for appellant.

William A. White, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee. Peter C. Schaumber, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, WISDOM,^* Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.

WISDOM, Circuit Judge:

David Wiley, the appellant, and Eugene Cunningham, a co-defendant, were arrested on March 17, 1971, in connection with an alleged sexual assault on the same date on twelve-year old Maxine Lewis. By a two-count indictment filed May 25, 1971, they were charged with carnal knowledge (22 D.C.Code § 2801) and taking indecent liberties with a minor child (22 D.C.Code § 3501(a)). Wiley was tried separately on May 22, 1972. After a jury trial the trial court dismissed the indecent liberties count and submitted the case to the jury on the charge of carnal knowledge. The jury found Wiley guilty, and on August 18, 1972, he was sentenced to a term of four to twelve years. The principal issue on appeal is whether there was sufficient corroborative evidence to take the case to the jury. We find that there was not sufficient corroborative evidence and therefore reverse.

I.

At about 5:00 p. m. on March 17, 1971, Maxine Lewis arrived at 240 W Street, N.W. to meet a friend, Sandra Wiggins, with whom Miss Lewis planned to visit a relative in the hospital. She was invited inside the apartment by Wiley's girl friend, Delores Smith. There, she encountered Eugene Cunningham, a friend of another woman who also lived in the apartment. Miss Lewis testified that Cunningham came and sat next to her. He "started feeling all over me and I try to get away from him, but I couldn't". Miss Smith went to a bedroom in the back of the apartment and returned with Wiley, who looked as though he had been sleeping. Miss Lewis testified that Wiley grabbed her by the legs while Cunningham was choking her. They dragged her into the bedroom, closed the door, put a dresser across it, and threw her on the bed. Cunningham held her in a choking grip and Wiley held her legs and pulled her clothes off. She testified that Cunningham then "had sex with me." Then, "David had sex with me". On closer questioning, Miss Lewis stated that the penis of each man had penetrated her and that each ejaculated. As soon as Wiley and Cunningham freed her, she went to the bathroom to "fix herself up", then ran out of the apartment, leaving her coat behind.

Miss Lewis found a telephone booth to call the police, but saw Wiley and Cunningham approaching. She hung up the telephone and fled. Shortly afterwards she noticed a police officer on a scooter talking to some people, but she was too embarrassed to approach him and continued on her way. She finally managed to call the police from a public telephone at 4th and U Streets, N.W. When Officers Dye and Kraigler responded to her call, Miss Lewis told these officers that she had been raped by Wiley and Cunningham.

Miss Lewis also testified about her relationships with the people involved in the incident. She had seen Wiley four or five times before the day of the assault, and he had "never said nothing to me out of the way". She stated that she had never dated Wiley or Cunningham and had only spoken a few words to either. When asked how she got along with Miss Smith, she replied: "She used to accuse me of doing things that I didn't do . . . like something missing of hers, like food stamps or some money, I always get the blame," although she never took any of Miss Smith's things. On cross-examination, she testified that she was angry at Miss Smith for not helping her during the incident but that she hadn't mentioned this fact to Miss Smith. She further testified that she could have known that Miss Smith wasn't going to help her "by the way she probably set him either Wiley or Cunningham up to do it".

Two police officers testified at trial about the events following Miss Lewis' departure from the apartment. Officer James Gordon, the police officer on the scooter, stated that on March 17 he was about two blocks from 240 W Street, N.W., when he noticed Miss Lewis. He said:

I observed a young lady coming off the intersection of 4th and Elm Streets, appeared to be crying. I noticed it was cold and she didn\'t have a coat, blouse was deranged on her, so I took notice of her and I think she took notice of me, so I made no effort to see what the problem was, she didn\'t come over.

Minutes later, Officer Gordon heard a radio run to check for a possible criminal assault at 4th and U Streets; he went around the corner to check the report, and talked to Miss Lewis. She pointed down the street toward the alleged suspects. Officer Gordon then passed the two men whom Miss Lewis later identified as Wiley and Cunningham.

Officer Kaigler testified that he was patrolling in a scout car with his partner, Officer Norman Dye. At 5:39 p. m., they received a radio run for a possible criminal assault. They went to the corner of 4th and U Streets, N.W., where they found Miss Lewis. Officer Kaigler stated:

She was a young lady, she appeared to be upset, she was crying as she walked up to the car. We asked the young lady did she call the police and she indicated she did.

Miss Lewis and the officers drove in the car toward the apartment. En route, she pointed out Cunningham and Wiley on the street and named them. Officer Kaigler testified that when Wiley and Cunningham saw the car coming, they turned down another block. The police stopped Wiley and Cunningham, and Miss Lewis identified them; they were arrested. Miss Lewis was then taken to a hospital where a doctor examined her.

Sandra Wiggins, the friend whom Miss Lewis was to meet at the apartment, testified that during that evening she was riding in a car when she saw Miss Lewis "standing at 4th and U by some phone booths". Miss Wiggins did not stop.

Wiley took the stand in his own behalf. He testified that on March 17 he had been asleep in one of the bedrooms of the apartment since 12:00 or 1:00 p. m. when Miss Smith awakened him and asked him to tell Cunningham to leave Miss Lewis alone. Wiley got up, and when he saw that Cunningham was bothering Miss Lewis, told him to stop it. Wiley then went back to sleep. Later, he was awakened by Cunningham. Both left the apartment to visit Cunningham's girl friend to get some money. Wiley stated that he did not see Miss Lewis in a telephone booth during their walk. En route, they were arrested by the police. Wiley stated that he did not see the police car until he was stopped.

Wiley expressly denied that he had helped Cunningham take Miss Lewis into the bedroom, that he himself had gone into the bedroom with Miss Lewis, and that he ever had sexual relations with Miss Lewis. Wiley stated that he did not hear Miss Lewis run out of the apartment crying, nor did he hear any argument in the bedroom while he was asleep. Also, he testified that Miss Lewis and Miss Smith "got along as I seen", and that he and Miss Lewis were good friends. As to the relationship between Miss Lewis and Cunningham, Wiley stated that Cunningham was "always picking at her", that he was "messing with her, all the time, arguing". He further testified that although they made repeated attempts, neither he nor his mother had been able to locate Miss Smith to have her testify.

Wiley was arrested on March 17, 1971. After a preliminary hearing on March 26, 1971, Wiley was indicted on May 25, 1971. Subsequent events delayed the trial date until May 22, 1972. By that time, Cunningham had fled the jurisdiction. Dr. Matthews, who had examined the complainant on the date of the incident, was not subpoenaed by the Government on May 22, 1972, because he was on vacation. Indeed, no medical testimony was introduced at trial.

At the close of the Government's case, the defense moved for a judgment of acquittal on the indictment on the ground that there was insufficient corroboration of the complainant's testimony. As noted, the trial court later dismissed the charge of indecent liberties and submitted the case to the jury on the charge of carnal knowledge. The court also submitted an aiding and abetting instruction.

The jury returned a verdict of guilty. After the trial court denied a motion for acquittal n. o. v. or for a new trial, Wiley appealed.

II.

It is established law in this jurisdiction that a person may not be convicted of a "sex offense" on the uncorroborated testimony of the alleged victim. Bailey & Humphries v. United States, 132 U.S.App.D.C. 82, 405 F.2d 1352 (1968); Duckett v. United States, 133 U.S.App.D.C. 305, 410 F.2d 1004 (1969); United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971). The corroboration requirement provides an essential safeguard in such cases where the risk of unjust conviction is high. Complainants all too frequently have "an urge to fantacize or even a motive to fabricate". Coltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131, 1135 (1969). Typically, the "innocent as well as the guilty have only their own testimony upon which to rely", and the nature of the charges "poses an unusual threat to the reliability of a judgment on credibility of the allegedly defiled vis a vis the alleged defiler". 418 F.2d 1135.

This Circuit has avoided imposing rigid rules concerning corroboration. See United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704, 708 (1970). In general, the degree of corroboration required will vary according to the danger of fabrication by a particular complainant....