Appeals from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before: Ferren and Farrell, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Before us are consolidated appeals arising from two separate trials in each of which both defendants were charged with multiple crimes of violence, including armed rape or assault with intent to rape. The primary issues on appeal involve appellants' efforts at the second trial, in which their defense to the charged assaults was consent, either to question the two complaining witnesses about alleged prior acts of prostitution, or (in the case of appellant Hagins) to argue in summation that certain DNA evidence presented to the jury showed that the witnesses had engaged in prior prostitution. We affirm.
Appellants' first trial, resulting in the conviction of Hagins alone for assault with intent to commit rape, concerned events of September 4, 1990. Shortly after midnight, three young women stood on a street corner looking for a taxicab to take them to a particular dance club. Appellants pulled up in a car and Hagins, in the driver's seat, began to talk to the women, claiming he knew them from his old neighborhood; he offered them a ride to the dance club. The women agreed and did not protest when Hughes, who was driving, explained that the men first had to make a detour to get rid of some drugs. Hughes eventually stopped the car in a secluded area behind a school and pulled a handgun, telling the women "you know what it is." One of the women ran away and hid in nearby trees. Another ran but was caught by Hughes, while the third was detained in the car at gunpoint by Hagins. As Hagins ordered the two women to lie down and "spread 'em," Hughes went looking for the third. Hagins meanwhile fondled one victim's genitals and made her touch his penis. When Hughes returned unable to find the third woman, expressing fear that she had gone for the police, the men left the scene in the car. The two women found their companion in the woods and eventually flagged down a police cruiser. At trial both defendants conceded identification, but contended the women had agreed to go with them in the car to smoke marijuana, until Hughes's gun (which he used in his job as an animal control officer) accidentally fell to the floor and the women ran from the car screaming.
This trial, resulting in convictions of both appellants for, among other things, armed kidnapping and two counts of armed rape, concerned events of September 19-20, 1991. According to the government's evidence, D.M. (we refer to the victims by initials) visited her boyfriend in the afternoon of September 19 and they had sexual intercourse. She then went with her friend, B.W., to visit others and they eventually met B.W.'s boyfriend, who invited them to his house. While there, B.W. and the boyfriend had sexual intercourse. Afterwards, he was unable to drive the women home but instead gave B.W. $10 for a taxicab and dropped them off at the corner of Florida and Georgia Avenues.
As the women waited at about 1:00 a.m., Hughes and Hagins pulled up in a car and Hagins, the passenger, asked if they wanted a ride. When they refused the offer, Hagins got out of the car, put a gun to B.W.'s head, and told the women to "get your ass in [the car]." Hughes drove to a park, where Hagins ordered the women out of the car. He told them to undress, and when they complied he took B.W. to a bench and had intercourse with her, while Hughes had intercourse with D.M. on another bench. *fn1 When Hughes complained that she was uncooperative, the men changed partners and resumed intercourse. Eventually Hagins forced D.M. to perform sodomy and Hughes forced B.W. to do the same. Following the assaults, appellants forced the women to sit undressed in the park for an hour, during which the men flipped a coin to decide whether to kill D.M. Before leaving, they threatened to blow up the victims' houses if they reported the rapes to the police. The women walked around for two to three hours trying to find their way home. Eventually police approached them, and they told the police they had been raped.
DNA evidence was admitted at trial. *fn2 The FBI laboratory analyzed vaginal swabs and a pair of panties from B.W., and vaginal swabs, a pair of pants, and a pair of panties from D.M. DNA from the vaginal swab for B.W. matched Hughes but not Hagins. While there was only one male contributor to the semen on the vaginal swab, DNA from B.W.'s panties came from more than one male contributor, probably three (though none could be conclusively traced to Hughes or Hagins). Similarly, none of the DNA from D.M.'s vaginal swabs or clothing matched Hughes or Hagins. One person contributed to the semen on D.M.'s pants, and two to the semen on her panties (one of whom likely caused the semen on her pants). According to the government's expert, dried sperm can yield DNA suitable for analysis for weeks or months, unless deterioration has taken place.
Of the two defendants, only Hughes took the stand, claiming that the women had willingly entered the car to provide sex for $75. Once at the park, he had sex with B.W., but Hagins declared that D.M. had "refused" and he took his money back from her. The women were left behind at the park, angrily yelling that "you mother fuckers ain't shit."
As indicated, in the October trial the government presented DNA evidence linking Hughes to the sexual assault on B.W. Appellants did not object to the admission of this evidence; indeed, during the pretrial colloquy it becomes clear -- as the trial Judge stated -- that each side desired to "introduce the evidence to show what it wants to show. . . ." What appellants wanted to show was that, according to the DNA, B.W. had had sexual relations with as many as three males, and D.M. with two (including neither appellant), in the period shortly before the events charged. Appellants now contend that, having admitted the DNA evidence, the trial Judge improperly precluded their using it either in questioning the complaining witnesses or in closing argument to corroborate their defense that the present events consisted of voluntary sex for money, in keeping with past acts of prostitution (or at least ...