Appeal from the Superior Court of the District of Columbia (F-2687-99) (Hon. Ann O'Regan Keary, Trial Judge).
Before Ruiz and Washington, Associate Judges, and Kern, Senior Judge.*fn1
After a jury trial, appellant Ahmed Yousef Ahmed ("Ahmed") was convicted of first degree child sexual abuse,*fn2 second degree child sexual abuse,*fn3 and incest.*fn4 The complaining witness in the case was Ahmed's daughter ("H.A."). On appeal, Ahmed argues that the trial court erred when it: 1) failed to remove two jurors for cause, forcing him to use his peremptory challenges to excuse the jurors, 2) excluded expert testimony on the way children remember and relate events, and 3) allowed H.A. to testify outside his presence. For the following reasons, we affirm.
On February 22, 1999, Ahmed was indicted with charges relating to the sexual abuse of his teenage daughter H.A. During jury selection, defense counsel challenged the inclusion of two jurors based on their alleged partiality to the government. During voir dire, the jurors related that they had been victims of crimes, and both indicated that they would be inclined to believe the police or the complaining witness. Although Ahmed challenged both jurors for cause, the trial court refused to strike the jurors. In both instances, the trial court found that the jurors would be able to follow the court's instructions. Ahmed ultimately used his peremptory challenges to remove the two jurors from the panel, and made no objections to the jury that was ultimately empaneled.
During trial, Ahmed sought permission to call Dr. Mark Everson, a child psychologist specializing in child sexual abuse, as an expert for the defense.*fn5 Dr. Everson's proffered testimony focused on the narrow issue of whether H.A.'s account of the events of her sexual abuse was consistent with the way children remember events. Specifically, Dr. Everson would testify that when children recall and relate actual events in their lives, they generally do so by providing idiosyncratic detail. If a child relates events in straightforward, formulaic terms, "it's not likely to be the product of memory. . . ." Defense counsel further stated that Dr. Everson would not testify as to whether H.A. was telling the truth about the incidences of sexual abuse with her father, but that he would limit his testimony to his own research and personal experience. The government opposed the request, arguing that Dr. Everson's testimony would inappropriately evaluate H.A.'s credibility.
After lengthy discussions about Dr. Everson and his proffered testimony, the court denied Ahmed's request. The trial court explained its decision using the three-part test governing admissibility of expert testimony set out in Dyas v. United States, 376 A.2d 827 (D.C.) cert denied, 434 U.S. 973 (1977). First, the trial court found that Dr. Everson's testimony was "not beyond the kin [sic] of the average juror to evaluate the credibility of a child." The trial court noted that, although there was no case law on whether childhood memory issues are appropriate for expert testimony, the Court of Appeals had previously rejected admission of expert testimony relating to adult memory and perception. Second, the trial court stated that there was no reason to question Dr. Everson's credentials or expertise. Third, the trial court held that Dr. Everson's proffered testimony did not appear to be based upon generally accepted analyses and techniques for this field of study and, thus, was inappropriate to present as expert testimony.
During Ahmed's trial, H.A. was called to testify about the circumstances under which her father had allegedly sexually abused her. H.A. testified on November 28, 29, and 30, 2000. During this time, H.A. gave direct testimony and began to be cross-examined in Ahmed's presence. Through H.A.'s testimony, she often cried and stated that she was afraid of her father. On November 29, H.A.'s guardian ad litem noticed that H.A. was "in tremendous crisis" and requested that the rest of H.A.'s testimony be taken outside Ahmed's presence. The trial court denied the request.
The trial court held a hearing on November 30 to assess whether H.A. would be able to continue her testimony in the presence of her father. H.A.'s therapist, qualified as an expert in the area of clinical therapy and assessment, stated that the continuing testimony was beginning to have a "multiple effect" that would ultimately escalate H.A.'s stress to trauma. After the hearing, the trial court refused at that point to allow the remainder of H.A.'s testimony to be taken outside the presence of the defendant. The trial court did state, however, that at the "first signs of [H.A.] withdrawing," the court would allow the procedure. At this point, H.A. resumed the witness stand and was cross-examined.
Although H.A. was scheduled to continue her cross-examination the following Monday, December 4, H.A. did not appear at court. She also failed to appear on December 5. H.A.'s social worker later testified that on December 4, she and H.A. were preparing to go to court when H.A. asked to use the restroom. After H.A. did not return, her social worker unsuccessfully attempted to find her. H.A. returned to her foster home on the night of December 5. Her social worker learned that H.A. had gone to the City Place Mall in Silver Spring, Maryland during the day of December 4, and that she had slept outside the mall that night.
The trial court held a hearing on December 6 and 11 on H.A.'s ability to continue testifying in front of her father. The trial court heard testimony from H.A., her social worker, and her therapist. On December 6, during the trial court's questioning, H.A. would not respond. The trial court stated, "she has shut down." On December 11, H.A. again resumed the stand and testified that she was feeling okay, but that she did not "feel like [she] can be able to testify in front of [her] father."
On December 11, the trial court decided to allow H.A. to complete her testimony outside the presence of her father via closed-circuit television. Although the trial court had viewed this option as a "last resort," the trial court noted that "we have a fairly full record about a degree of stress and psychological trauma that this witness has experienced in the course of her testimony."
The trial court found that, based on the full record of the events that had transpired and the testimony from H.A., her social worker, and her therapist, H.A. "need[s] a special protection, that is, the ability to go forward in the courtroom without her father being present." The trial court also relied on both H.A.'s statements and her therapist's concerns that H.A.'s trauma stemmed from having to testify in front of her father. Finally, the trial court found that H.A.'s trauma was "certainly ...