Appeal from the Superior Court of the District of Columbia. (Hon. Henry H. Kennedy, Jr., Motions Judge). (Hon. Stephen F. Eilperin, Trial Judge)
Before Wagner,* Chief Judge, and Steadman, and Schwelb, Associate Judges. Opinion for the court by Chief Judge Wagner. Concurring opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Appellant, Cornelius Nelson, was convicted following a jury trial of one count of carnal knowledge of a child under sixteen years of age in violation of D.C. Code § 22-2801 (1989), and one count of taking indecent liberties with a minor child in violation of D.C. Code § 22-3502 (a) (1989). Appellant argues for reversal on the grounds that the trial court erred in: (1) restricting the scope of his cross-examination and argument into areas intended to show that a specific third person committed the offenses for which appellant was on trial; (2) precluding cross-examination of a witness about his perception of the meaning of a statement made by the complainant's mother when she first learned of the sexual assaults; (3) failing to compel disclosure of the complaining witness' medical and psychiatric counseling records of examinations or treatment after the offenses were committed; and (4) denying his Batson *fn1 challenge that the government exercised its peremptory challenges for gender discriminatory reasons. Finding no reversible error, we affirm.
We recount in this section the evidence presented at trial related to the commission of the crimes. The minor complainant, M.D., was eight years old at the time the offenses were committed on or about August 25, 1988. She was living with her mother, Risa Washington, her four year old brother and her mother's male companion, Peter Bolding, in an apartment in Southeast Washington. Appellant's sister, Lyn Nelson, was Ms. Washington's friend and neighbor, who lived in the same building. The two women would often baby-sit for each other, and M.D. played frequently at the Nelson apartment with Ms. Nelson's daughter, Montekea. Ms. Washington knew appellant, who was Lyn Nelson's brother, as "Pete" Nelson. Around August 25, 1988, at Ms. Nelson's request, she had let appellant into the Nelson apartment to take a shower.
According to M.D.'s testimony, one day in 1988 appellant was at the Nelson apartment, and he gave the children money to go to the store to purchase food. M.D. said she had seen appellant before in his ice cream truck, a fact which was confirmed by Montekea. When the children returned to the apartment, they went into Montekea's bedroom, but appellant called M.D. into the kitchen, ostensibly to get some napkins. M.D. said that "the lights were out and was sitting in the chair." M.D. recounted that appellant pulled down his pants and her pants and fondled her vaginal area. According to M.D., appellant touched her with "his privacy and his hand," and placed his hand and "his privacy" inside her "privacy." At trial, she demonstrated what occurred with anatomical dolls. Thereafter, appellant called Montekea into the kitchen and asked her to turn on the lights and bring him a beer.
Shortly after this incident, M.D. experienced pain on urination and noticed a yellowish-green substance on her underpants. That summer, while Ms. Washington and Ms. Nelson were doing laundry, Ms. Nelson also noticed a "very heavy discharge" in M.D.'s underwear, and she recommended that Ms. Washington take the child to see a doctor. Ms. Washington told Ms. Nelson that she thought the substance came from a sore on M.D.'s leg. Nevertheless, Ms. Washington took M.D. to her regular physician, Dr. Byung Lee. *fn2
Dr. Lee, an expert in pediatric medicine, testified at trial that he examined M.D. on September 21, 1988 and observed what appeared to be symptoms of a sexually transmitted disease. He took a culture and submitted it to a laboratory for examination to determine the cause of the infection. The results of the analysis showed that M.D. had gonorrhea. On September 28, 1988, Dr. Lee reported the test results to the police and told them that "there is no doubt has gonorrhea due to sexually abused." He also so testified at trial.
Dr. Elizabeth Keane, another expert in pediatric medicine, particularly sexual abuse cases, testified that she examined M.D. at Children's Hospital on September 26, 1988. Dr. Keane also observed symptoms of infection and took a culture. The results of the culture showed that the child had gonorrhea, and Dr. Keane gave the opinion that such a finding indicates that the "child has been sexually abused." Dr. Keane also recounted that M.D. became tearful and shook her head to indicate a negative response when asked whether anyone had touched her. However, Dr. Keane also said that it was not unusual for a child of M.D.'s age to deny initially any sexual contact.
During his testimony at trial, appellant denied ever having gonorrhea, any venereal disease, or any sexual contact with the child. Another witness testified that she had a sexual relationship with appellant between July and November of 1988, that they had unprotected sexual relations frequently, that she never contracted any venereal disease during that period, and that she saw no evidence that appellant had any such disease. A witness from the Sexually Transmitted Disease Control Program (CDC) testified that CDC's records reflected no reports for appellant for a sexually transmitted disease. However, this witness stated that the CDC would have such records only if the person was tested and treated by a physician who, in fact, reported it to them.
Claimed Restriction of Cross-Examination
Appellant argues first that the trial court abused its discretion in limiting cross-examination which was intended to show that another individual committed the crimes charged. Appellant contends that the trial court's ruling in this regard violated his Sixth Amendment right to explore matters which would contradict, modify, or explore the witnesses' testimony. See Goldman v. United States, 473 A.2d 852, 857 (D.C. 1984) (citing Morris v. United States, 398 A.2d 333, 339 (D.C. 1978)). He also contends that the court's ruling violated his due process right to present the defense that a specific third person committed the crimes. See Brown v. United States, 409 A.2d 1093, 1097 (D.C. 1979). We find no abuse of discretion in the trial court's ruling.
Unquestionably, the accused's rights to confront and cross-examine the witnesses against him or her are essential to due process. Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); see also Davis v. Alaska, 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Johnson v. United States, 552 A.2d 513, 516 (D.C. 1989). However, these rights are not absolute, but rather are subject to the strictures of relevancy or "to accommodate other legitimate interests in the criminal trial process." Chambers, 410 U.S. at 295; Brown, supra, 409 A.2d at 1097.
A defendant may present evidence which tends to show that another person committed the crimes charged. Freeland v. United States, 631 A.2d 1186, 1189 (D.C. 1993); Watson v. United States, 612 A.2d 179, 182 (D.C. 1992); Johnson, supra, 552 A.2d at 516. However, before such evidence can be deemed relevant it must "clearly link" the other person to the commission of the crime. Brown, supra, 409 A.2d at 1097. As we subsequently have explained, this perhaps somewhat misleading phrase means simply "proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense." Johnson, 552 A.2d at 516. In determining whether to admit such evidence, even if relevant, the trial court must weigh its probative value against its prejudicial effect, including any tendency to mislead or confuse the jury. Id.; accord, Watson, 612 A.2d at 182; Brown 409 A.2d at 1097.
Appellant contends he was restricted in his efforts to show that it was Peter Bolding, the man who lived with the minor child and her mother during the critical time, who committed the offense. The minor complainant, M.D., testified during cross-examination that Peter Bolding had been living with her family for about two years and was still living with them at the time of trial. She also testified that she regarded Bolding as a father and that "maybe" she loved him.
Although appellant concedes that there was no direct evidence linking Bolding to the crimes charged, he argues that there was sufficient circumstantial evidence to support his efforts to establish this defense. According to appellant, that circumstantial evidence consisted of the following: (1) that Bolding's first name, Peter, was the same as the name by which appellant was known; (2) that the child had affection for the father figure who resided in her home; (3) that she delayed, and was reluctant in acknowledging abuse; (4) that her mother initially expressed disbelief that appellant had committed the offenses; and (5) the child's mother sent her to live with her grandmother after the incidents and made a statement to a police officer that she would kill the perpetrator of the crimes.
After a hearing outside of the presence of the jury and a review of the evidence related to the child's identification of the person who committed the offense, the trial court precluded appellant's trial counsel from questioning M.D. about the possibility of Bolding's involvement. In precluding the inquiry, the court was persuaded, and the record supports, that M.D. had identified appellant in specific terms as the person who committed the offense, including providing the name of appellant's sister. The court also found significant that the child had stated that she did not know where her attacker lived, and M.D. obviously knew that Bolding lived with her. The trial court concluded that the proposed line of questioning was no more than unsubstantiated speculation.
The court held a second hearing outside of the presence of the jury concerning the remark that the child's mother, Ms. Washington, made to a police officer that she would kill the person who committed the offense. The officer testified that Ms. Washington did not refer to anyone by name. Ms. Washington testified that she did not know who the perpetrator was and that she did not recall to whom she might have been referring when she made the remark. The trial court determined that there was no basis for appellant's trial counsel to explore further with the officer or with Ms. Washington whether Bolding had committed the offenses. The court pointed out that the mere opportunity, which was, in effect, the basis for appellant's position, was insufficient to allow appellant to suggest that a specific person, Bolding, committed the offenses.
On the basis of this record, we find no abuse of discretion in the trial court's rulings. The court could permissibly take the view that the evidence proffered fell short of the relevancy requirement that it sufficiently link the third person to the commission of the crime. See Watson, supra, 612 A.2d at 182; Johnson, supra, 552 A.2d at 516; Brown, supra, 409 A.2d at 1097. While there is no requirement that the evidence prove ...