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03/27/90 ROBERT H. HARPER v. UNITED STATES

March 27, 1990

ROBERT H. HARPER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior court of the District of Columbia; Hon. Robert M. Scott, Trial Judge

Rehearing Granted December 12, 1990. As Amended December 12, 1990.

Rogers, Chief Judge, and Newman and Belson, Associate Judges.

The opinion of the court was delivered by: Belson

BELSON, Associate Judge : Appellant was charged with various offenses arising out of a rape and burglary of Ms. R.D. on April 7, 1985, and a burglary and assault of Ms. P.J. on July 26, 1985. *fn1 After a joint trial on all eleven counts arising from the incidents, the jury convicted appellant on all but one count. *fn2 Appellant seeks reversal on the ground that the trial court erred in denying his motion to sever the counts arising from the two incidents. We agree with appellant that it was reversible error to permit the jury to consider evidence of the April 7, 1985, incident in determining the issue of intent in connection with the July 26, 1985, incident, but are satisfied that the jury's consideration of the events of July 26, 1985, in connection with the issue of the identity of the perpetrator of the April 7, 1985, offenses did not give rise to reversible error.

I.

Shortly after midnight on April 7, 1985, a man entered the home of Ms. R.D. on Minnesota Ave., N.E., through a second floor window. He wore a stocking mask and had a long knife, and forced the fifty-six-year-old Ms. R.D. to take off her clothes and then, at knife point, instructed her to lead him through various rooms of her residence. He then forced her back to her bedroom where he compelled her to engage in intercourse and sodomy. The man also stole some jewelry and money before he departed. Ms. R.D. testified that she had met appellant on the preceding morning when appellant walked by her residence as she and a friend, Ms. R.T., were conducting a yard sale and distributing religious literature to passersby. Appellant stopped and talked with the two women for ten or fifteen minutes. Appellant returned again to Ms. R.D.'s residence at about 7:15 p.m. of the evening preceding the crimes. He spoke with the women about religion for a half an hour, first outside, and then in the house. On leaving, he took some of the literature, and left with Ms. R.D. his name, address, and telephone number.

Ms. R.D. testified that she told the police that she believed the perpetrator was appellant based primarily on the fact that she had noticed that both appellant and the intruder had a sniffle and the same bad diction, and were of the same build, height, and size. She testified she had paid particular attention to his voice, because his mask kept her from seeing his face, and later she selected his voice from among those of several men who uttered certain phrases R.D. specified at a "voice line up." A copy of that "line-up" was played to the jury at trial. Ms. R.D. stated at first that appellant's voice "really stood out" but that another voice also sounded like her assailant's voice. After hearing the voices again, she was sure that appellant's voice was the one. She was impeached with her statement to a detective that she did not think that she could identify the intruder visually and that she was not "sure" it was appellant.

Ms. R.D. described the intruder as a black male, twenty-five to thirty-five years old, and slim, about 5'11" and 135 pounds, and wearing blue pants. She also testified that just before he left through her back door he dropped his cigarettes on the floor, and she noticed that their brand was "Kools." The government introduced evidence that appellant smoked Kools cigarettes and that, consistent with the intruder, appellant's blood type was AB.

On July 27, 1985, fourteen-year-old Ms. P.J. heard someone enter her home on Ely Place, S.E., around 11:50 p.m. She and a seven-year-old friend were watching television when they heard a noise, and then saw a bedroom doorknob shaking. The girls armed themselves with a knife and a pot from the kitchen, and pushed open the bedroom door. A man emerged from the bedroom wearing a stocking mask and holding a large knife. He looked at the girls while holding his knife upwards. He was wearing faded blue jeans, a gray cut-off sweatshirt, and white tennis shoes. The two girls screamed and threw the knife and the pot at the man. He then fled through the open bedroom window. Ms. P.J. described him as "a black male, late twenties, five nine in height, thin build, brown complexion, close cut hair, and . . . a beard." Ms. P.J. recognized the intruder as appellant, whom she knew from the neighborhood, and identified him for the police by pointing out his residence in the same block of Ely Place in which Ms. P.J. resided.

Appellant presented a defense of alibi and misidentification. Appellant's wife testified that on April 6, 1985, when her husband returned during the day from running some errands, he showed her a religious pamphlet with a telephone number and two names, those of Ms. R.D. and Ms. R.T. According to Mrs. Harper, appellant went out again but returned around 8:30 p.m. and did not leave the house again that night. She and her husband watched television, specifically watching for a lottery number. She went upstairs around midnight and continued to watch television in the bedroom, and appellant followed her shortly thereafter. She testified that appellant was wearing a white T-shirt, blue jeans, and tennis shoes that night.

Mrs. Harper also testified regarding July 26, 1985. She stayed home from work that day because she was sick. Her husband returned from his work around 7:30 p.m. He was wearing a gray sweat suit and he changed into blue jeans. He left the house again between 8:30 and 9:00 p.m. and returned around 11:30 p.m. with a man named Cecil. Mr. Harper and Cecil remained for about twenty to twenty-five minutes. At that time, however, he left the house again. (Ms. P.J. put the time of the burglary of her residence at about 11:50 p.m.) Appellant returned around 1:00 to 1:30 a.m., at which time Mrs. Harper informed him that Detective Fox had stopped by and wanted Mr. Harper to telephone him. Appellant did so.

II.

Over a month before trial, the United States moved to admit in its case in chief evidence of a rape committed on May 22, 1976, of which defendant had been convicted. According to the proffers in the government's motion, that crime bore several similarities to the rape of Ms. R.D. Appellant had gained entry to the victim's apartment through a bedroom window; he then forced the victim to walk through her apartment, checking each room, and remaining behind her throughout the walk. He then returned her to her bedroom where he raped her and, as in the R.D. case, made efforts to keep her from seeing him. After the rape, he went through her pocketbook, as the intruder had done in the R.D. case. He then had the victim go with him to the door of her apartment, and open it to allow him to escape, which was also similar to the rapist's conduct of the R.D rape. The government sought the admission of the evidence both on the issue of identity and the issue of intent.

About two weeks before trial, the defense made a motion to sever the counts which related to the April rape from the counts which related to the July assault with intent to commit rape. Later, the defense filed its opposition to the government's ...


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