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11/27/91 GERMAN A. BARRERA v. UNITED STATES AMERICA

November 27, 1991

GERMAN A. BARRERA, APPELLANT
v.
UNITED STATES OF AMERICA, APPELLEE



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

Before Ferren, Schwelb, and Farrell, Associate Judges. Opinion for the Court by Associate Judge Ferren. Concurring opinion by Associate Judge Farrell. Associate Judges Schwelb and Farrell concur in Parts I-iv and VI-VII.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge:

A jury convicted appellant of committing an indecent act with a child under the age of 16 years, D.C. Code § 22-3501 (1989), and of one count each of oral and anal sodomy, id. § 22-3502. Appellant claims six trial court errors: (1) failure to grant his motion for judgment of acquittal at the close of all evidence; (2) abuse of discretion in denying his motion for either a mental evaluation of the ten year old complaining witness or an authorization to inspect the child's school records; (3) inadequacy of the standard jury instruction dealing with child witnesses; (4) failure to suppress impeaching statements appellant made to the police before being informed of his Miranda rights; (5) plain error in permitting the use of hearsay testimony about the complaining witness's delayed report of the sexual assault; and (6) allowing the government to present improper rebuttal testimony intended to show the bias of appellant's wife who testified on his behalf. We find no reversible error on five of the questions presented but must remand the case for further findings on the fourth issue: the suppression motion.

I.

On the evening of July 4, 1989, nine-year-old Milton Shephard, a special education student, told his friend, Alex Ortiz, that the appellant German Barrera, a neighbor who lived in the same apartment building, had sexually assaulted him the night before. The two boys reported the incident to Milton's sister's fiance. He went with the children to tell Milton's father, who in turn called the police. Detective Caesar Casiano responded to the call. Milton told Detective Casiano that Barrera had promised him a fish to come upstairs to Barrera's apartment and that he had bitten Barrera's penis at some point during the assault. Milton identified Barrera as his attacker, first by name and then by pointing to him when Barrera was outside the apartment building. At that point Detective Casiano told Barrera that he had been accused of a sexual assault and that the police wanted to talk with him at police headquarters. Barrera agreed. Pursuant to internal police regulations, Detective Casiano then notified the sex crimes unit about the alleged assault.

Soon thereafter, the police placed Barrera in handcuffs, drove him to police headquarters, and took him into an interviewing room. After removing one handcuff, Detective Casiano again spoke briefly to Barrera about the alleged assault. Sometime later, Casiano asked to check Barrera's genitals for evidence of the alleged bite. Barrera agreed to the inspection, which showed no marks. After interviewing Milton Shephard, Detective Diana Rodriguez of the sex crimes unit came to the interviewing room to interrogate Barrera. At that time, neither Rodriguez nor Casiano had yet read Barrera his Miranda *fn1 rights. Detective Rodriguez asked whether Milton had been in Barrera's apartment the day before, and Barrera responded "yes." She then asked whether Barrera knew what had happened, and he replied that he had been drinking and did not know or could not recall. Detective Rodriguez did not write down the exact words of the brief exchange and did not make an audio or video recording. No one else was present. Detective Casiano then reentered the room, informed Barrera that he was under arrest, and asked him to fill out and sign a "rights card" in Spanish. At that point, Barrera indicated that he did not wish to talk any further.

After talking with Detective Rodriguez at the police station, Milton's father accompanied Milton to Children's National Medical Center. There, Dr. Evaline Alessandrini, a pediatric resident, conducted an examination. Most of the conversation was between Dr. Alessandrini and Milton's father, with the doctor pointing to various parts of the body and asking Milton questions. Milton complained of pain around his anus and in his throat, as well as when having bowel movements and while urinating. The physical examination revealed multiple but slight abrasions of the superficial skin of the penis and an abnormal concentric abrasion pattern around the anus. At trial, Dr. Alessandrini also recalled a slight tearing around the anus, a detail she had failed to note in her written report. There was no evidence of any loss in anal muscle tone, and the complaint of a sore throat could not be confirmed.

Appellant was indicted on December 19, 1989, and charged with committing an indecent act with a child under the age of 16 and with two counts of sodomy. At a jury trial beginning May 11, 1990, the government's case relied heavily on the testimony of the complaining witness, Milton Shephard. At times his testimony was inconsistent and non-responsive to questions. For example, Milton could not recall what he had said to the police or to Dr. Alessandrini; he misstated his age and could not identify his birth date, the date of Christmas, or the day of the week; he forgot that his father, a minister, took him to church almost every day; and he provided many incomplete and inconsistent statements about basic facts of the case. Milton Shephard did, however, clearly testify that Barrera pulled him into Barrera's apartment and "pulled [Milton's] clothes off." Using two dolls, Milton demonstrated what had happened, positioning the dolls so that the pants of the "small doll" were all the way down and the pants of the "big doll" were partially down. He then stated that Barrera put "his pee-pee" in Milton's mouth, and that after Milton had bitten Barrera's penis, Barrera had put his penis into Milton's "behind." Milton further testified that Barrera had touched Milton's penis, and that after completing the assault Barrera had given him a fish to take home. When asked why he had not told anyone what had happened until the next day, Milton replied that he had been afraid his parents would "hit" him.

Three other government witnesses provided circumstantial evidence tending to support Milton Shephard's story. Milton's father, Antonio Shephard, testified that on July 3rd around 4:00 p.m. he had seen Barrera in the alley behind the apartment building with some fish, sitting around drinking with his friends. Mr. Shephard found a fish in his freezer the next day and threw it out because he did not know where it had come from. Alex Ortiz, a twelve-year-old friend and neighbor of Milton's, testified that on July 4th Milton had told him about the sexual assault and that Milton had said Barrera had promised him an orange and a fish to come up to Barrera's apartment. Milton's sister's fiance, Rafael Antonio Sencion, testified that he had not seen Milton during the late afternoon and early evening of July 3rd but that he had noticed Barrera's windows were closed during that time period. Sencion had thought this was "unusual" because the day was very hot and he had not seen an air conditioning unit in the window.

For the defense, Dr. William Brownlee testified that there was no medical evidence of oral sodomy, that the superficial abrasions on the penis were consistent with dry skin and lack of cleanliness, and that the abnormal concentric abrasion pattern around the anus, considered in conjunction with normal anal muscle tone, was inconsistent with penetration required for anal sodomy. Dr. Brownlee also stated that his examination of Barrera's genitals showed no evidence of a bite.

Four of Barrera's friends testified that they had gone fishing with him during the afternoon and early evening of July 3rd and that the five of them had not returned until sometime around 9:00 p.m. Upon returning to Barrera's apartment building, they stood around outside in the alley for about twenty minutes and drank two beers each before departing. Silvia Salmeron, Barrera's wife, testified that Milton Shephard had not been in their apartment on the afternoon or evening of July 3rd. She said that she had returned home from work that day around 5:00 p.m., had gone out briefly to the supermarket, and had returned again by 6:30. She added that she and her two children did not leave the apartment until sometime the next day. She also testified that their apartment had a window unit air conditioner.

Barrera took the stand and testified that his friends had arrived at his apartment around 2:00 p.m. on July 3rd and that they had decided to go fishing. They did not return until after it was dark, whereupon they talked together for ten or twenty minutes in the alley behind the building and he drank not more than two beers. When he got back to his apartment, he said, his son was watching television and his wife was sleeping in the bedroom. Barrera denied that Milton had been in his apartment that day.

The jury found Barrera guilty of all three charges, and the court sentenced him to concurrent prison terms of two-and-a-half years to seven-and-a-half years for each offense. He filed a timely notice of appeal.

II.

Barrera contends, first, that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence. *fn2 The trial court is obliged to grant such a motion if, but only if, the evidence "is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." Curry v. United States, 520 A.2d 255, 263 (1987) (citing Austin v. United States, 127 U.S. App. D.C. 180, 189, 382 F.2d 129, 138 (1967)). In reviewing for insufficiency, this court applies the same standard the trial court uses. See id. In so doing, we conclude the trial court did not err in allowing the case to go to the jury; the evidence was sufficient for conviction.

At trial, Milton Shephard testified that Barrera placed his penis in Milton's mouth and anus and had fondled Milton's penis. That testimony alone is sufficient for convictions on all three charges, for in 1985 the Council of the District of Columbia repealed the requirement of independent corroboration of charges of sexual assault against minors. *fn3 See also Gary v. United States, 499 A.2d 815, 834 (D.C. 1985) (en banc) (judicial abolition of corroboration requirement in all sex offenses regardless of sex or age of victim or perpetrator), cert. denied, 477 U.S. 906, 91 L. Ed. 2d 568 , 106 S. Ct. 3279 (1986). In effect, the 1985 law, (supra) note 3, and the evolution of decisions in this court eliminated a presumption that a child complaining of a sexual assault is fabricating the story unless there is corroborating evidence. Today, we leave it to the jury to consider a child's testimony along with all the other evidence. As is true with any witness, a child's testimony at times may be inconsistent or confused; and just as with any witness, such confusion or inconsistency will weigh in the jury's determination of credibility. In this case, we believe a reasonable juror could have credited Milton's testimony regardless of defense counsel's efforts to discredit it and "might or might not have a reasonable doubt as to the guilt of the accused." Curry, 520 A.2d at 263.

Even if we assume some doubt about the sufficiency of Milton Shephard's testimony, Dr. Alessandrini's medical testimony established injuries consistent with an indecent act (fondling of the penis) and with anal sodomy. Barrera argues, based on the testimony of his medical expert, Dr. Brownlee, that the injuries around Milton's anus were inconsistent with anal penetration because the muscle tone of the anus was normal at the time of examination. Dr. Alessandrini's testimony for the government, however, contested Dr. Brownlee's Conclusion. Thus, the jury was left to compare and evaluate the testimony of two qualified experts. *fn4

The government, moreover, presented additional circumstantial evidence corroborating Milton's testimony. For example, Alex Ortiz testified that Milton told him about the incident; Milton's father testified that he saw Barrera at the apartment building around the time the assault took place and that he found an unknown fish in his freezer; and Mr. Sencion testified that the windows of the Barreras' apartment were closed during the hot afternoon and that this seemed unusual. Even though the defense attempted to discredit and rebut this circumstantial evidence, it was up to the jury to weigh the conflicting evidence and draw or refuse to draw any inferences that may or may not have supported Milton's own testimony. When viewed in the light most favorable to the government, our standard of review, the government's evidence was clearly sufficient for the trial court to deny Barrera's motion for judgment of acquittal.

III.

Barrera next challenges Milton Shephard's competency to testify at trial. He argues that: (1) the trial court abused its discretion by failing to order a pretrial competency examination of the child; (2) in the alternative, the court should have granted authorization for Barrera's counsel to examine Milton's school records; and (3) the court's jury instruction about the child witness's testimony was insufficient to protect Barrera against undue prejudice from that testimony. We conclude that the trial court did not abuse its discretion by not ordering a competency examination or disclosure of private records. Although the trial court in this case had an ongoing duty to monitor and evaluate Milton Shephard's testimony, his incomplete and inconsistent statements before the jury only raised issues of credibility, not competency to testify. Furthermore, the court's reading of the standard jury instruction on child witnesses adequately protected against prejudice.

A trial court has broad discretion to rule on the competency of witnesses. The decision whether a psychiatric examination is necessary for determining competency to testify at trial is a sensitive issue best left to the trial Judge on the scene rather than to a distant reviewer of the record. See Collins v. United States, 491 A.2d 480, 484 (D.C. 1985), cert. denied sub nom. Best v. United States, 475 U.S. 1124, 90 L. Ed. 2d 190 , 106 S. Ct. 1646 (1986); Rogers v. United States, 419 A.2d 977, 980 (1980). The trial Judge's decision "should not be disturbed unless plainly deficient." Vereen v. United States, 587 A.2d 456, 457 (1991). The dangers that a court-ordered mental examination may frighten, harass, or deter a witness from testifying, or impinge upon a witness's right to privacy, have led to a strong presumption against such judicial ...


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