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DIAZ v. U.S.

July 30, 1998



Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge:

[716 A2d Page 175]

Appellant Cristino Gomez Diaz was convicted of second degree child sexual abuse, in violation of D.C.Code § 22-4109 (1996). *fn1 He filed a timely appeal contending that the trial court committed reversible error by: (1) overruling his objections to certain parts of the government's closing and rebuttal arguments, and refusing to declare a mistrial; and (2) refusing, after the jury had begun its deliberations, to admit into evidence grand jury transcripts containing inconsistent statements made by two government witnesses. We conclude that the prosecutor made improper remarks during her rebuttal, but Diaz was not substantially prejudiced. We also conclude that the trial court did not abuse its discretion in refusing to reopen the case to admit into evidence two grand jury transcripts after the jury had begun its deliberations.


On May 29, 1995, eleven year-old M.B. and her ten year-old sister, J.J., were at the home of their aunt, B. Diaz. *fn2 At the time, Ms. Diaz lived in Northwest Washington, D.C., with her mother, Betty D.J.; *fn2 her thirteen year-old niece, S.J.; and her husband, appellant Diaz. According to testimony presented by government witnesses, M.B. and her sister watched the television program, "In Living Color" in their cousin S.J.'s room after dinner. Appellant Diaz, who had been drinking beer before and after dinner, was watching a different program in his room, located next to that of S.J. M.B. went to the doorway of Diaz's room to tell him that a funny character called, "The Head" was on, and that he should watch him. Diaz, who was lying on a bed close to the doorway, changed the channel as suggested, and sat on the end of the bed. M.B. leaned against the door of his room. "He grabbed [her] by [her] arms slowly and pulled [her] in slowly and sat [her] down beside him." M.B. did not try to fight or get away because "[she] didn't know at the time what [Diaz] was doing or what he was going to do."

Diaz "felt . . . [M.B.'s] chest outside of [her] shirt." M.B. did "[n]othing." She "was scared." Diaz then "put his arm around [M.B. and] put his hand in [her] shirt." He "wrapped his hand around [her] breasts" for about twenty seconds. M.B. was scared that Diaz "might do something to [her] like hit [her] or something" if she screamed or struggled. Diaz then put his hand in M.B.'s panties and "started feeling down below. . . . He was moving his hand. . . . [When h]e tried to stick his finger in [M.B.] . . . [she] got scared more. . . . It hurt. [She] just closed her eyes real tight." Diaz then "squeezed her nipple hard." When he tried to kiss M.B. on [716 A2d Page 176]

the mouth with his tongue, she moved her head out of the way. Diaz "laid down on the bed and tried to pull [M.B.] down . . . with him." M.B.'s "little sister came in the room and [M.B.] told her to wait for [her]." *fn3 Her sister left, and Diaz asked M.B. if she planned to tell anyone about what happened. M.B. said "no."

When she left Diaz's room, M.B. was "shaking and . . . crying . . . [b]ecause [she] was scared." *fn4 She told her sister and cousin what had happened. Her cousin, S.J., suggested that they go and tell their grandmother, Betty D.J. The girls woke Ms. J. up and told her about the incident. After hearing about M.B.'s experience, she instructed M.B. to call her mother, Arnita B. Ms. B. was at home with her mother and boyfriend when M.B. called. The three went to a District of Columbia police precinct to report the incident. Officer Eric Jackson of the Metropolitan Police Department accompanied Ms. B. to Diaz's address. M.B. was "shaking, crying" when Ms. B. saw her. Officer Jackson testified that M.B. "was upset, she had water in the bottom of her eyes. She was sort of shaking."

Diaz testified in his own behalf. He denied touching M.B. in a sexual way. He stated that M.B. came into his room to tell him to watch a television program, and she changed the channel. He told her to leave his room, and when M.B. refused, he grabbed her by the arm and took her out. Diaz asserted that M.B. threatened to do something to hurt him. On cross-examination, Diaz denied drinking on May 29, or having any beers with Thomas J., the son of Betty D.J. He also denied telling Thomas J. that he was drunk on May 29 and may have touched M.B. in the wrong way.

The government called Thomas J. as a rebuttal witness. *fn5 He indicated that Diaz "told me he was playing with [M.B.] And he stated he might have feeled [sic] her in a way that she probably thought that he was just feeling her wrong and she just I assume overreacted and just went and told my mom." Thomas J. recalled that he and Diaz had been drinking on May 29, 1995.

Just before Thomas J. was called to testify, the government had given defense counsel a copy of the transcript of his August 3, 1995 grand jury testimony. Defense counsel asked for a recess before cross-examining Thomas J. The trial court granted a fifteen minute recess. Defense counsel impeached Thomas J. with his grand jury testimony. Thomas J. told the grand jury, contrary to his trial testimony, that Diaz said he "didn't do it."

The Prosecutor's Closing Argument

During the government's relatively brief closing argument, the prosecutor recounted the story of what had happened to M.B. when she went to Diaz's door to tell him to switch television channels. She portrayed M.B. as an innocent child who knew nothing about sex, and Diaz as one who saw M.B. as "a sex object." Defense counsel objected to at least two of the prosecutor's closing remarks: (1) "[M.B.] is a very lucky girl. . . . [S]he got away before the defendant did anything further"; (2) "[M.B.] didn't want to tell [what had happened] because it's embarrassing . . . ladies and gentlemen [of the jury], . . . would any of you want to get up here and sit on this witness stand and tell us about some sexual experience you had?" Defense counsel's objections were overruled.

Defense Counsel's Closing Argument

In her closing argument, defense counsel asserted that M.B.'s account of the event "doesn't make sense." She stated: "You know it can't be the truth." She questioned M.B.'s credibility, and maintained that M.B. had a motive to lie because "Mr. Diaz had reprimanded her, pushed her out of his room." She emphasized that M.B. said she [716 A2d Page 177]

"couldn't" rather than "wouldn't" take her account of the event back. Defense counsel argued that "[M.B.] couldn't take [her account] back because it had gone too far." She also reminded the jury that M.B. did not "scream" or "yell" or "even say stop," and that M.B.'s mother did not take her to the hospital or the doctor upon learning of the event, even though M.B. stated that Diaz had tried to put his finger into her genital area. She suggested that a government witness, S.J., did not observe the incident, and only said that Diaz had been drinking beer on the evening in question, after "talking with" the prosecutor. She closed on a "reasonable doubt" theme, telling the jurors: "[I]f you were making an important decision in your life, you would not base that decision on any belief in the testimony of [M.B.]."

The Prosecutor's Rebuttal Argument

The trial judge later noted that the prosecutor's rebuttal was twice as long as her closing argument. At the outset of her rebuttal, the prosecutor stated: "The defendant's story . . . as to why [M.B.] supposedly fabricated this [account] makes no sense whatsoever." She reviewed the story of the encounter between M.B. and Diaz, and cast doubt on Diaz's version of the event. She compared M.B., a "respectful" and "thoughtful" child, to Diaz, implying that he was not respectful or polite. She asked "which one of these people [M.B. or Diaz] is the person that's trying to be honest here . . . [and] respectful of the rights of others. . . ." Defense counsel's objection was overruled. The prosecutor continued to recount the incident from the perspective of M.B., describing Diaz's actions, and explaining M.B.'s reactions and demeanor ...

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