Whitaker v. US, 91-CF-674.

• Decision Date: 10 November 1992
• Docket Number: No. 91-CF-674.,91-CF-674.
• Citation: 616 A.2d 843
• Parties: Howard WHITAKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

616 A.2d 843

Howard WHITAKER, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-674.

District of Columbia Court of Appeals.

Argued September 9, 1992.

Decided November 10, 1992.

Elaine M. Gordon, Public Defender Service, with whom James Klein, Elizabeth Taylor and Allie Sheffield, Public Defender Service, Washington, D.C., were on the brief, for appellant.

Peter H. White, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. Mcleese, III, William M. Blier, and Robert A. Meyer, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and SULLIVAN, Associate Judge, and BELSON, Senior Judge.

ROGERS, Chief Judge:

Appellant, Howard Whitaker, appeals his convictions by a jury of mayhem while armed, D.C.Code §§ 22-506, -3202, assault with intent to rape while armed, id. §§ 22-501, -3202, assault with a dangerous weapon, id. § 22-502, and kidnapping. Id. § 22-2101.² On appeal, appellant raises the principal claim of error that he was denied due process when the government misrepresented and withheld evidence significant to the motion to compel a mental examination of the complainant and when the trial judge refused to hear significant evidence which would have raised a "red flag" demonstrating the need for that examination. Appellant also contends that the trial judge erred by instructing the jury on kidnapping as a lesser-included offense of kidnapping while armed, that the evidence of mayhem while armed and of assault with intent to rape was insufficient, and that his conviction of kidnapping merges with the convictions of assault with a dangerous weapon, assault with intent to rape while armed, and mayhem while armed. We affirm.

I

On September 27, 1988, the complainant was beaten, stabbed, and left in the 1700 block of First Street, S.W. Early the next morning, appellant discovered the complainant lying on the loading dock of Super Salvage, a scrap yard at 1711 First Street, S.W., where appellant had worked for seven years.

The government's evidence at trial showed that on the evening of September 27, 1988, the complainant changed into clean clothes and left her home to visit her friend Ann, who lived on Queen Street, N.E. After visiting with Ann, the complainant went around the corner into an alley, where she smoked PCP with two acquaintances named Donnie and Mike. After a short while, the complainant returned to Queen Street, where she saw appellant, whom she had known for one or two months. The complainant asked appellant to take her to McDonald's; when he agreed, the complainant got into appellant's car, a gray Ford with a burgundy interior, and they drove away.

Instead of taking the complainant to McDonald's, however, appellant drove her to Anacostia Avenue. There, the complainant tried to get out of the car, but appellant forced her back in. Appellant then agreed to take the complainant home, but instead drove past her house and over the bridge into Southwest Washington. Appellant stopped the car again, in an area where the complainant had never been before; all she could remember about the area was that there was a building to the right of where appellant parked the car and an iron fence.

The complainant testified that after appellant stopped the car, he told her that he wanted "some pussy." When she said "no" and tried to get out of the car, appellant hit her, pulled her back in, and, using a knife, began to unbutton her blouse. Thereafter, all that the complainant could remember was trying to unlock the car door in an effort to escape.³

Paul Kaplan, the manager of Super Salvage, testified that on the morning of September 28, 1988, he opened for business at approximately 6:00 a.m. Appellant was working that day, and approximately five or ten minutes after opening he told Mr. Kaplan that he had heard a noise coming from the loading dock. Together, Mr. Kaplan and appellant went to the door from the building to the loading dock, unlocked and raised the door, and discovered the partially naked complainant lying on her back on the loading dock floor. Mr. Kaplan testified that the complainant's clothing was down around her ankles, that he "thought the young lady was raped," and that he "knew she was hurt, but didn't know how bad." Mr. Kaplan then called police.

Detective Robert Catlett of the Sex Offense Branch testified that he responded to the call from Super Salvage at approximately 6:30 a.m. that day, and that an ambulance and other police officers were already on the scene when he arrived. Detective Catlett saw the complainant was lying on the loading dock driveway wearing only her panties; her pantyhose were around her ankles and her bra and T-shirt were up around her neck. The complainant's face was swollen and bloody; her ear was cut, and she had a gaping hole in her left temple, which at first appeared to Detective Catlett to be a gunshot wound.

Detective Catlett also testified that he visited the complainant at D.C. General Hospital approximately fifteen times during the month following the assault, but that she was unable to speak to him until October 26, 1988.⁴ At that time, the complainant identified her assailant as "Junior," and described him as a heavy-set, dark-complected man who drove a small, gray, two-door car with a burgundy interior. The complainant later told the detective that she had known her assailant for over a month, that she had been out with him once, and that she had seen him on approximately ten different occasions during that period. On November 5, 1988, the complainant identified appellant from a photo spread shown to her by police; she also identified appellant's car from photographs shown to her.

The only physical evidence offered as linking appellant to the assault was a single red carpet fiber, which FBI Special Agent Wayne Oakes concluded came from the carpet in appellant's car. The fiber was found "in the debris" on a remnant of blue and white striped cloth in the area near where the complainant was found. The cloth, however, did not belong to the complainant.⁵

The principal defense witness was Dr. Jordan Grafman, who was employed by the National Institutes of Health and was Chief of the Cognitive Neuroscience Section at the National Institute of Neurological Disorders and Stroke. Dr. Grafman testified that he had reviewed the complainant's medical records, which showed "a moderate severity of head injury" resulting from injuries she sustained in the assault. Dr. Grafman opined that these injuries could result in behavioral disorders, problems with autobiographical memory and confabulation, which he described as the usually unintentional fabrication by a person who has suffered an injury to fill in memory gaps. The fabrication occurs because of the person's tendency to "confuse his autobiographical memory," and "to put in events they didn't necessarily experience."⁶ Dr. Grafman stated that the complainant's medical records showed that she suffered at least some posttraumatic amnesia and mild confabulation.⁷

The defense also called Sergeant Lorraine Kittrell of the Metropolitan Police Department, who testified that she visited the complainant in the hospital on October 7, 1988. Sergeant Kittrell had been contacted by the hospital on that day because it appeared that the complainant was able to talk. When Sergeant Kittrell "attempted to ask the complainant who sexually assaulted her ... she appeared to say `Edward.'" However, Sergeant Kittrell testified, she "couldn't be sure, because of the condition that the complainant was in, what she was saying." The complainant had clearly suffered brain damage and could only murmur, her jaw being wired, and the officer did not know if the complainant knew what was being asked of her.⁸

II

Appellant contends that he was denied due process and a fundamentally fair trial "because the trial judge's refusal to reopen the hearing on his motion for a competency examination of the complaining witness, coupled with the government's misrepresentation and withholding of evidence significant to that motion, created an unacceptably high risk that he was convicted on the testimony of an incompetent witness."

Appellant's defense focused primarily on the competency—in particular, the cognitive functioning and memory loss—of the complainant. On January 30, 1990, after receiving the complainant's medical records showing the extent of the injuries she suffered in the attack, the defense filed a motion to compel the complainant to submit to a pretrial mental and neurological examination. The defense argued that an examination was justified by the fact that the complainant had smoked an unknown quantity of phencyclidine (PCP) on the day of the assault and had suffered severe head injuries during the assault itself. The defense theory was that because of her serious injury, the complainant had unintentionally "confabulated," i.e., substituted appellant, with whom she was acquainted before the attack, and who found her the morning after the attack, for her real assailant.

A hearing on the motion to compel a mental examination was held September 10, 1990, before Judge Mildred M. Edwards.⁹ Dr. Grafman testified, based upon his review of the complainant's medical records available at that time, that he observed significant impairment in her cognitive functioning, and suggested additional testing to assess the degree of her memory impairment.¹⁰ He explained, however, that confabulation was a relatively rare occurrence that followed only massive head trauma, and that he was uncertain whether it was relevant to the complainant's case.¹¹ It was his opinion that a two month posttraumatic amnesia "would suggest, quite a severe injury...." Because the identification occurred during the state of posttraumatic injury, Dr. Grafman testified "it's very crucial that the testing is done to rule out familiarity alone as being the basis for identification...." The doctor...