Wheeler v. United States

• Decision Date: 27 November 1953
• Docket Number: No. 11440.,11440.
• Parties: WHEELER v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 159, 211 F.2d 19 (1953)

WHEELER v. UNITED STATES.

No. 11440.

United States Court of Appeals District of Columbia Circuit.

Argued June 22, 1953.

Decided November 27, 1953.

Petition for Rehearing Denied January 28, 1954.

Writ of Certiorari Denied June 7, 1954.

Mr. Claire O. Ducker, Sr., Washington, D. C., for appellant.

Mr. William J. Peck, Asst. U. S. Atty. at time of argument, Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Martin J. McNamara and E Riley Casey, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Mr. William R. Glendon, Asst. U. S. Atty. at time brief was filed, Washington, D. C., was also on the brief. Messrs. Charles M. Irelan, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty. at time record was filed, Washington, D. C., also entered appearances for appellee.

Before BAZELON, FAHY and WASHINGTON, Circuit Judges.

Petition for Rehearing in Banc Denied January 28, 1954.

Writ of Certiorari Denied June 7, 1954. See 74 S.Ct. 876.

BAZELON, Circuit Judge.

Appellant was convicted of having carnally known and abused a ten-year-old girl — the child of his common-law wife by a former marriage. The elements of the crime under the statute are (1) penetration (2) of a child under the age of sixteen.¹

The conviction followed a trial in which the child refused to testify against appellant, despite her earlier statements to police and grand jury incriminating him. Although the earlier statement to the police was introduced at the trial to impeach the child's testimony exonerating appellant, it did not constitute direct evidence of the crime charged.² Hence, the main props of the prosecution's case-in-chief are medical testimony indicating penetration and testimony of the child's maternal grandmother that she heard the child make a statement connecting appellant with the assault charged. There was also evidence, pro and con, that appellant had used threats to coerce the child and her mother to change prior accounts of what had occurred and that he sought unsuccessfully to coerce others to do the same. In addition, the child's mother, who had given an earlier accusatory statement to the police, solemnized her common-law relationship to appellant in a religious wedding ceremony before trial and then invoked the privilege not to testify against her husband. We discuss appellant's objections to the medical testimony and that of the grandmother before turning to other problems raised by this appeal.

To establish penetration, the prosecution relied primarily on the testimony of Dr. J. F. Mangum, an intern at Gallinger Municipal Hospital, and J. C. Stone, a bacteriologist and assistant supervisor of the hospital's laboratory.³ Dr. Mangum testified that, although his examination of the child about two hours after the alleged assault revealed considerable reddening of and recent traumatization to the genital area, he could not say "there had been any intercourse of this child within a matter of two hours." After stating that he had taken an urethral and a vaginal smear from the child and placed each upon a separate slide for delivery to the hospital laboratory for microscopic examination by technicians, he was shown two slides bearing smears and asked to identify them. In response, he said, "These are the slides of the type used for us to make our smears at Gallinger Hospital." He was then asked if he could identify them more specifically, to which he replied, "Yes. There is a name scratched on this slide," and proceeded to read the letters of the child's last name. Then the following occurred:

"Q. And are those the slides which you transmitted through channels to have examined by your bacteriologist, or by your bacteriological laboratory, in connection with this particular examination of the child? A. We have her name on them. I cannot say that these are definitely the slides that we have made; but they certainly have her name on them. They are the slides of the type that we use, and labeled as we label them.

"Q. Do you have a date on there? A. 8-11-51." (Emphasis supplied.)

Bacteriologist Stone testified that slides, marked by the admitting office with the date "8-11" and the letters of the child's last name and accompanied by a slip containing a request of "what they wanted us to look for," had been received by the bacteriological laboratory from the hospital admitting office in accordance with established hospital procedures. He then stated that his microscopic examination of the slides revealed sperm on the vaginal smear and that this information, as well as the written information previously on the slides and that contained in the accompanying slip, was placed on the slides in a non-erasable fashion. Dr. Mangum's and Bacteriologist Stone's testimony demonstrates that the procedures followed in this case were those regularly used by the hospital to make and keep a record of examinations of this kind.

Since Dr. Mangum was unable to say there had been sexual intercourse of the child about the time of the alleged assault, proof that she had been carnally assaulted rested substantially on the bacteriologist's testimony regarding the presence of sperm. That testimony, in turn, rested solely on the slides which were ultimately admitted in evidence over appellant's objection that they were not sufficiently identified by Dr. Mangum as those upon which he placed the smears taken from the child.

This objection is based upon appellant's view that the prosecution did not establish the necessary links in the chain of identification between Dr. Mangum's taking of the smears, their analysis by Bacteriologist Stone and their production in court. He refers us to Novak v. District of Columbia⁴ as authority for his position. We think, however, that Novak is not controlling and that the slides in question are admissible under the federal Business Records Act.⁵ That Act provides in pertinent part that:

"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

"All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

"The term `business,\' as used in this section, includes business, profession, occupation, and calling of every kind."

It makes admissible in all judicial proceedings, civil or criminal, records made in and pertaining to the regular course of business.⁶ It does not require that the person testifying in respect of the records have personal knowledge of their contents.⁷

There is no doubt that these slides were made and kept in the regular course of business and that it was the hospital's regular course of business to make them. Nor is there any question that the Act embraces hospital records.⁸ Under this and similar statutes, cardiograms, electroencephalograms, blood tests and clinical charts have been admitted as hospital records.⁹ We see no distinction between these types of records and the slides in this case. All are admissible "because they represent routine reflections of day-to-day operations."¹⁰ The recording of the data on the slide itself rather than on a separate sheet of paper gives still further assurance of accuracy. Any objections which appellant might have to Dr. Mangum's or Bacteriologist Stone's lack of personal knowledge of any of the steps from preparation of the slides to their production in court do not affect their admissibility but go, instead, to the weight to be accorded them.

As indicated above, we think Novak is clearly distinguishable. In that case, a police officer testified he obtained a specimen of the accused's urine in a bottle which he labeled with the accused's name and his own initials and delivered to the Health Department laboratory. A Health Department chemist then testified concerning his urinalysis of a specimen which had been withdrawn from a bottle produced in court and labeled with the accused's name. We held that testimony inadmissible on the ground that there was "missing a necessary link in the chain of identification" because the police officer was not asked to identify the bottle produced in court to establish that it was the same one which he delivered to the laboratory and from which the chemist's analyzed specimen was taken. The key fact which distinguishes Novak from this case is that the specimen there was not taken in the regular course of business of the laboratory involved. Instead, it was taken by an outside agency, the police, and only thereafter delivered to the laboratory.

Next, we think it was not error to admit testimony by the child's grandmother — under the spontaneous exclamation exception to the hearsay rule¹¹ — that she heard the child name the appellant as her assailant. The child made the statement under these circumstances. Within an hour, at most, after the attack was alleged to have occurred in appellant's home, the child left and went directly to her grandmother's home three blocks away. There was evidence that when she arrived she was highly distraught and in shock. The grandmother testified that the child was crying upon arrival and went into the bathroom where her mother was; that she (the grandmother) while standing "halfway in" the bathroom door heard her daughter (the child's mother) tell the child to "hush" her crying and "to tell her what was wrong"; that the child said, "Rodney the appellant just had something to do with...