Appeal from the Superior Court of the District of Columbia (F-8363-96) (Hon. Ann O'Reagan Keary, Trial Judge)
Before Wagner, Chief Judge, and Schwelb and Farrell, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appellant, Didiar Velasquez, was convicted following a jury trial of assault with intent to commit first-degree sexual abuse, D.C. Code § 22-501 (1981) (recodified as D.C. Code § 22-401 (2001)); and threatening to injure a person, D.C. Code § 22-2307 (1981) (recodified as D.C. Code § 22-1810 (2001)). *fn1 He argues for reversal on the principal ground that the trial court violated his Sixth Amendment right to confront the witness against him by limiting his cross-examination of the complaining witness. Finding no reversible error, we affirm.
The charges arose out of an incident which occurred while the complaining witness, S.L., was baby-sitting the three-year-old daughter of her cousin, Myra Fuentes, at an apartment which they shared on W Street, N.W. in the District of Columbia. Ms. Fuentes was Velasquez' common law wife, and they had two children together. According to S.L.'s testimony, Velasquez appeared at the apartment that day and asked to see his son, but Ms. Fuentes had taken him to work. He complained about his daughter being undressed and cold, which S.L. noted was true because the air conditioner was on. S.L. took the child into the bedroom and began dressing her, but noticed Velasquez at the bedroom door. She testified that Velasquez took her by the arms and said, "I like you and you are going to be mine." He then threw her on the bed and "threw himself over" her. She asked him to leave, but Velasquez put a pillow over her face and said that he would kill her if she screamed. S.L. testified that Velasquez was on her legs and started to take his pants off and show her "his parts." She protested, reminding him that his daughter was there and asking him to stop for her sake. However, she said that Velasquez continued to undress and threw himself on her, and his penis touched her legs and her vagina. She testified that Velasquez did not penetrate her because he had no erection. S.L. testified that she finally discouraged him by suggesting that they see each other away from their cousins. Velasquez, who smelled of alcohol, seemed to question her sincerity at first, but then went into the living room, put on his pants, and fell asleep on the sofa. After she was certain that he was asleep, S.L. telephoned the police and called Ms. Fuentes at work. She testified that she told Ms. Fuentes that Velasquez tried to abuse her. S.L. made a second call to the police when they did not arrive soon enough.
The first officer to arrive, Kenneth Dunn, testified that he found S.L. crying, nervous and shaken, in a crouch-down position, in the lobby of the building, along with the child. A Spanish-speaking officer, Kenneth Harvey, started to interview the complainant, but called for the sex squad, as required, when he learned the sexual nature of the assault complaint. *fn2 Detective Ricardo Proctor, who was then assigned to the Sex Offense Branch of the Metropolitan Police Department, came to the apartment and spoke to S.L. through another Spanish-speaking interpreter, Nelson Valdes. S.L. went with the officers back to the apartment where they found Velasquez asleep on the couch. Officer Harvey testified that he shook Velasquez' arm in order to awaken him, and when he came around, the officer asked him how he was doing. According to the officer, Velasquez responded, "I'm just, you know, laying here drunk." The officer asked him for identification, and Velasquez said, "I didn't do anything - I didn't do anything to her." *fn3 After Harvey interviewed S.L., the officers placed Velasquez under arrest, and he was described as becoming "very angry" and "ugly." Officer Valdes testified that Velasquez, directing his remark toward the bedroom area where S.L. was, said loudly, "you are going to regret this and - and I know where your daughter lives." *fn4
There was evidence that Velasquez' sweater, found in S.L.'s bedroom, was recovered by the police, along with the bedspread, a pillow and S.L.'s shorts and underwear. A hair was found on the sweater which was submitted for forensic examination. An expert in the area of hair and fiber examinations testified that the hair was "consistent with [hair] originating from [Velasquez], although hair comparison is not a form of absolute identification." The government also introduced evidence that Velasquez knew that he had a scheduled court date, and that he nevertheless told his cousin that he was going to Texas to look for work. Velasquez was arrested in North Carolina, where he was found using a North Carolina driver's license with his photograph and the name Mauricio Mendoza.
Myra Fuentes, testifying for the defense, denied that Velasquez ever asked where S.L.'s daughter lived or threatened S.L. or her daughter on the date of the offense. Initially, she admitted on direct examination that S.L. told her that Velasquez tried to abuse her. *fn5 Subsequently, in response to defense counsel's questions, Ms. Fuentes said that S.L. told her that nothing had happened and that she only called the police to scare Velasquez. Ms. Fuentes testified further that a few days later she again asked S.L. why she had called the police and that this time, S.L. said "so that [Velasquez] would respect women."
In rebuttal, a witness who was present during Ms. Fuentes' interview with the police and prosecutor testified that S.L. had said on the day of the offense, "come home, he's drunk," and something about "he tried," and then hung up. She said that Ms. Fuentes said that she then called S.L. back and that is when S.L. said that Velasquez tried to abuse her. Officer Harvey testified in rebuttal that when Ms. Fuentes spoke to Velasquez at the apartment, she asked him in Spanish what had happened, and he responded, "I don't know why they're here, I didn't do anything, you know. She's lying. Go back there and tell her that she's lying." Finally, S.L. testified that a few days after the assault, she had spoken to Ms. Fuentes who asked what happened. S.L. said that she told Ms. Fuentes that Velasquez had taken "his clothes off and started to show her his parts." S.L. later explained that she did not tell Ms. Fuentes that Velasquez touched her because she was ashamed and because she did not want her to talk about it at work.
Velasquez argues that the trial court erred in precluding him from cross-examining the complaining witness, S.L., concerning her mental illness after the assault. He contends that such evidence is relevant to the witness' bias and credibility. The government argues in response that Velasquez had no constitutional right to cross-examine the witness in this area because he could not establish that S.L.'s mental illness, three years after the assault, was relevant to her testimony at trial. Further, the government contends that Velasquez could not show convincingly that any delusional statements that S.L. made to her doctors were intentionally false, and therefore, he had no constitutional right to inquire. Thus, the government contends, the trial court acted within its discretion in limiting cross-examination.
A. Factual Context of Sixth Amendment Challenge
The government moved in limine to preclude cross-examination of S.L. concerning her suffering a mental breakdown which resulted in her hospitalization in May 1999, some three years after the offense date. *fn6 These medical records indicated that S.L. told her doctors that she thought that her pastor and his wife were trying to kill her. The government also represented that S.L. had been on medication (Haldol) at the time of her hospitalization and for one week thereafter, and that two weeks before trial, she completed using prescription medication to relieve the side effects of the Haldol. The May 1999 medical records referred to S.L.'s treatment in 1996 for depression following the assault. Defense counsel argued that ...