Before Schwelb and Ruiz, Associate Judges, and Newman, Senior
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Robert I. Richter, Trial Judge)
Argued September 12, 2000
A jury found Ronald L. Anderson, M.D., guilty of one count of obstruction of justice and one count of criminal contempt of court. Dr. Anderson's co-defendant, William Brown, Jr., M.D., was convicted of one count of obstruction of justice. The charges which led to the prosecution of the defendants, each of whom is a physician, arose from the two men's alleged attempts to induce Mrs. M.W.J., *fn2 who was a patient of both defendants, not to testify for the prosecution in a criminal case arising out of Dr. Anderson's alleged sexual abuse of Mrs. J. The abuse charge against Dr. Anderson was tried as a misdemeanor by the judge, sitting without a jury, at the same time as the other charges were tried to the jury. Dr. Anderson was acquitted of sexual abuse.
On appeal from their convictions, the defendants have asserted numerous claims of trial court error, several of which we find to be lacking in merit. *fn3 We conclude, however, that the trial judge unduly restricted certain defense expert testimony relevant to Mrs. J.'s credibility. In addition, the prosecutor made a number of improper arguments in closing and, especially, in rebuttal. Although the trial judge took some remedial action in response to two of the prosecutorial improprieties, we conclude that the measures taken could not fully dispel the severe prejudice to the defendants resulting from a fundamentally unfair presentation by the prosecutor.
In order to prove obstruction of justice, the government was required, inter alia, to establish beyond a reasonable doubt that the defendants acted corruptly with the intent to prevent Mrs. J. from giving, or to induce her to withhold, truthful testimony. See D.C. Code § 22-722 (a)(2) (1996). Mrs. J.'s credibility was therefore critical to the proper disposition of the obstruction of justice charges. We conclude, under all of the circumstances, that the cumulative effect of the court's restriction of the expert testimony and of the prosecutor's improper argument was sufficiently prejudicial, especially on the issue of credibility, to require reversal of the defendants' convictions for obstruction of justice. We affirm Dr. Anderson's conviction of criminal contempt.
I. THE TRIAL COURT PROCEEDINGS
A. The events of December 3, 1996.
This case began when Mrs. J., a grandmother in her fifties, complained that Dr. Anderson had sexually abused her during her visit to his office on December 3, 1996. Mrs. J. had made an appointment with Dr. Anderson, who had been treating her and her family for many years, because she was concerned that she might be developing glaucoma. After dilating her pupils, examining her eyes, and measuring the pressure within her eyeballs, Dr. Anderson diagnosed Mrs. J. as having "[b]orderline glaucoma[,] which means that we don't know that it's glaucoma yet." Dr. Anderson prescribed glasses and gave Mrs. J. an appointment for a visual field test. He explained that such a test, which is designed to determine whether the patient's peripheral vision has been impaired, is the only way to "actually diagnose" glaucoma.
At trial, Mrs. J. testified that after Dr. Anderson completed his examination of her, he made crude and unwanted sexual advances. Specifically, she claimed that Dr. Anderson felt her breasts under her clothing, placed her hand on his penis, and ejaculated on her clothes. Mrs. J.'s trial testimony differed in significant respects from her earlier accounts, see pp.36-37, infra, but she has insisted since December 3, 1996 that Dr. Anderson sexually abused her.
Dr. Anderson denied at trial that he molested or harmed Mrs. J. in any way. Dr. Anderson asserted that Mrs. J. attempted to engage him in a flirtatious or quasi-romantic conversation. According to Dr. Anderson, he declined to participate in such a discussion and changed the subject instead. In Dr. Anderson's defense, his former receptionist testified that, to her knowledge, nothing untoward occurred in the office on the day of the alleged offense. There was also evidence that at the conclusion of her appointment, Mrs. J. proceeded routinely to a nearby optician to order the spectacles that Dr. Anderson had prescribed.
After returning home, Mrs. J. telephoned her sister and told her of the alleged sexual abuse. The sister called the police, and Mrs. J. subsequently proceeded to the Metropolitan Police Department's Sex Branch and described the incident to Detective Ozell Richmond. Shortly thereafter, the United States filed a one-count criminal information against Dr. Anderson. On December 26, 1996, Dr. Anderson was arraigned on one count of misdemeanor sexual abuse, and he was released on his own recognizance. As a condition of his release, Dr. Anderson was ordered to stay away from Mrs. J.
B. Dr. Brown's January 2, 1997 visit to Mrs. J.'s home.
Shortly after learning of the charges against him, Dr. Anderson contacted Dr. Brown, who had been Mrs. J.'s family physician for many years. It was Dr. Brown who had initially referred Mrs. J. to Dr. Anderson. Dr. Anderson informed Dr. Brown about Mrs. J.'s allegations. This conversation apparently precipitated a chain of events that led to the conviction of each defendant of obstruction of justice and of Dr. Anderson for criminal contempt of court. The precise nature of most of these events, however, was hotly contested at trial.
It is undisputed that, on January 2, 1997, in response to Dr. Anderson's call, Dr. Brown visited Mrs. J. at her home. All parties likewise agree that on that day, and in Dr. Brown's presence, Mrs. J. telephoned both the prosecutor in charge of her case and Detective Richmond to inform each of them that she wished to drop the charges against Dr. Anderson. It is also undisputed that Mrs. J. called the prosecutor again shortly after Dr. Brown left and explained that she did not really want to withdraw her allegations. The evidence is in conflict as to the other events that occurred during Dr. Brown's visit.
Mrs. J. and her daughter both testified that when Dr. Brown came to Mrs. J.'s home, he was accompanied by several other men, apparently doctors. According to Mrs. J., it was Dr. Brown who insisted that she drop the charges against Dr. Anderson, and he promised her money if she would agree to do so. Mrs. J. claimed that Dr. Brown offered her an envelope supposedly containing a large amount of cash. Mrs. J. testified that she disclaimed any interest in the money Dr. Brown offered to her. She told Dr. Brown that she wanted only an apology. Mrs. J. insisted that she made the telephone calls to the prosecutor and detective under duress and only because she saw no other way to get rid of her unwelcome visitors.
Dr. Brown, in contrast, testified that he was alone when he visited Mrs. J. on January 2, 1997. He stated that his visit was motivated by his concern regarding Mrs. J.'s mental and emotional well-being. Dr. Brown apprehended that Mrs. J.'s charge of sexual abuse against Dr. Anderson might have resulted from her "fantasizing." He testified that on a prior occasion, Mrs. J. had related fantasies regarding an imagined sexual relationship with a prominent public figure. According to Dr. Brown, Mrs. J. was acting entirely on her own initiative when she asked the prosecutor to drop the charges against Dr. Anderson. He acknowledged, however, that after Mrs. J. made the telephone calls to the prosecutor and the police detective, he suggested to Mrs. J. that Dr. Anderson might be willing to pay her $500 as a "little gift" in order to compensate her for her "grief and suffering."
C. The January 14, 1997 meeting at Dr. Brown's office.
It is undisputed that on January 14, 1997, twelve days after Dr. Brown's visit to Mrs. J.'s home, Mrs. J., her husband, and her grandson visited Dr. Brown at his office. Shortly after the group arrived, they were joined by Dr. Anderson. Mrs. J., Dr. Brown, and Dr. Anderson all testified that Dr. Anderson offered to pray with Mrs. J. and that Mrs. J. angrily refused. At trial, however, they agreed on little else regarding this strange encounter.
According to her trial testimony, Mrs. J. believed that she had been invited to come to Dr. Brown's office to discuss her continuing migraine headaches. Mrs. J. testified that she did not expect to see Dr. Anderson at all. *fn4 She further stated that, after Dr. Anderson arrived, he had a conversation with her and her husband in which he apologized to Mr. J. for his conduct and offered Mrs. J. money to "pay me off, to get rid of me so that I wouldn't go to court." Mrs. J. claimed that Dr. Anderson offered her $500 "to leave town . . . and stay until the court thing blow[s] over" and to induce her "not to talk to anyone from the DA's office; not . . . to Detective Richmond or anyone else." According to Mrs. J., she called Dr. Anderson a rapist and rejected as absurd his suggestion that they pray together.
Dr. Brown testified that he arranged the meeting at Mrs. J.'s request for the express purpose of enabling Dr. Anderson to apologize to her, and that he had so advised Dr. Anderson in advance. *fn5 Dr. Brown agreed with Mrs. J. (but not with Dr. Anderson) as to one disputed fact, namely that, as soon as Dr. Anderson arrived, all those present, including Mrs. J. and Dr. Anderson, were together in Dr. Brown's waiting room. According to Dr. Brown, Dr. Anderson spoke to Mrs. J. for at least twenty minutes. Dr. Brown testified that the only discussion of money concerned the "little gift" for Mrs. J. that Dr. Brown had hoped to obtain for his patient from Dr. Anderson.
Dr. Anderson presented a third version of the events of January 14, 1997. He testified that he came to Dr. Brown's office solely in order to speak to Mrs. J.'s husband and to "calm him down." His purpose was to tell Mr. J. that he had heard "what's been going on, the trouble you've been going through with the detectives etcetera, and people harassing you." By his own account, Dr. Anderson knew that Mrs. J. would be in Dr. Brown's office, but he believed that she would not be in the same room with him; he expected to meet only with Mr. J. Nevertheless, and contrary to Dr. Anderson's claimed expectations, Mrs. J. and Dr. Brown both joined Dr. Anderson and Mr. J. in the room in which the two men were having their discussion. Dr. Anderson acknowledged that he then spoke with Mrs. J., that he described to her his humble origins and his profound respect for women, and that he offered to pray with her. He stated, however, that Mrs. J. rejected his suggestion that the two of them pray together. Dr. Anderson firmly denied that he was willing to pay Mrs. J. any money. He insisted, on the contrary, that "[t]he only thing I ever offered to her was prayer."
D. Mrs. J.'s tape-recorded conversation with Dr. Brown on May 27, 1997.
Dr. Anderson's trial was initially scheduled for April 14, 1997, but it was continued until May 30, 1997 because counsel were unavailable on the original date. On May 27, 1997, Mrs. J. again visited Dr. Brown's office. This time, however, the government lawyers sought to ensure in advance that means would be available to resolve conflicting accounts of any relevant discussions between Dr. Brown and his patient. By prearrangement with the prosecutors, Mrs. J. was "wired" with equipment that recorded her conversation with Dr. Brown on tape. For the first time in her life (so far as the record shows), Mrs. J. had become an undercover agent for the government of the United States.
The audiotape of Mrs. J.'s conversation with Dr. Brown discloses that the two of them discussed the case against Dr. Anderson at considerable length. The focus of the discussion was Dr. Anderson's trial, which was scheduled to begin three days later. Dr. Brown asked Mrs. J. several times whether she planned to testify. He indicated that it would be helpful to Dr. Anderson, and would "make a difference," if Mrs. J. did not show up. Mrs. J. assured Dr. Brown that she did not intend to go to court. For her part, Mrs. J. inquired rather insistently when she would receive the money that had allegedly been promised to her. Dr. Brown told Mrs. J. that she would be paid as soon as the case against Dr. Anderson was finally terminated. Dr. Brown explained that the charges would be dismissed if Mrs. J. did not appear in court on May 30. He assured her that "you will" get the money, but he warned her that she should "just keep your mouth shut." Dr. Brown also told Mrs. J. that he had received a letter from the United States Attorney's office. He apprehended that the government could charge him with obstruction of justice because of his conversations with Mrs. J. regarding whether or not she was going to testify.
On May 30, 1997, by pre-arrangement with the government attorneys, Mrs. J. did not appear in court for Dr. Anderson's trial. As a ruse, the prosecutor then moved to dismiss the charges against Dr. Anderson.
E. Mrs. J.'s recorded meeting with Dr. Brown on June 12, 1997.
On June 12, 1997, in the wake of the contrived dismissal of the sexual abuse charge, Mrs. J., who was once again wired with recording equipment, paid her last relevant visit to Dr. Brown's office. *fn6 Dr. Brown told Mrs. J. that on June 3, 1997, he had received a letter from the prosecutors directing him to appear before the grand jury that was investigating possible obstruction of justice in relation to the events at issue here. Dr. Brown was obviously upset, for he had become a "target" of the investigation. He complained that Mrs. J. must have been talking to the prosecutors. Mrs. J. again inquired when she would receive her money, and Dr. Brown indicated that she would be paid as soon as things calmed down.
On October 23, 1997, the grand jury returned a seven-count indictment against Dr. Anderson and Dr. Brown. The defendants entered pleas of not guilty to all charges. The misdemeanor sexual assault count was tried by the judge. All of the other charges were tried by the jury. The following table reflects the charges against the defendants arising out of the various incidents, as well as the disposition of each charge:
Bribery (D.C. Code § 22-713 (a))
Obstruction of of Justice (D.C. Code § 22-722 (a))
Criminal Contempt (D.C. Code § 23-1329 (a))
Obstruction of of Justice