Appeal from the Superior Court of the District of Columbia (F-986-00) (Hon. Rufus G. King III, Trial Judge).
Before Schwelb, Associate Judge, Steadman, Associate Judge, Retired,*fn1 and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
Appellant Vernon Williams appeals his conviction after trial by jury for two counts of first degree sexual abuse and two counts of second degree sexual abuse in violation of D.C. Code §§ 22-4108, -4109 (1981). Williams challenges the competence of the complainant, H.T., to testify, allowing H.T. to testify outside the courtroom and appellant's presence, use of a videotape statement of H.T. to a counselor as evidence, permitting limited government contact with H.T. over the course of her testimony, admission of an excited utterance, sufficiency of the evidence, and a fair trial issue respecting the prosecutor's closing argument. Each contention was preserved at trial. For the reasons stated herein, we affirm the convictions.
FACTS AND PROCEDURAL HISTORY
Facts adduced at trial established that, during 1999 and 2000, Williams sexually abused H.T., the daughter of his girlfriend, who was three and four years old at the time of the offenses.*fn2
H.T., her mother, and Williams lived together in two different apartments during the time in question, moving into the second, larger apartment in March of 1999. Williams is the father of three other children with H.T.'s mother, all of whom are younger than H.T. H.T. referred to Williams as "Daddy" and he played an active role in her life.
In February 2000, H.T. revealed what she called her "secret" to her grandmother, informing her that Williams had been "bad" and had touched her in a sexual manner. H.T.'s mother and grandmother took her to Children's National Medical Center, where H.T. explained to a physician in greater detail what Williams had done. At the time of revealing these events, H.T. exhibited a stutter and other nervous behavior. The examination did not reveal any trauma.
At trial, which began a few months after H.T. turned five, the court agreed to allow the prosecutor to conduct a competency hearing as the initial part of the direct examination. After voir dire by the prosecutor and defense counsel before the jury, the court determined that H.T. was 3 competent to testify. H.T. then testified that something "yucky" happened to her in her apartment, and she was able to identify male and female genitalia on an illustrative diagram, but as the prosecutor turned to questioning her about what Williams had done to her, H.T. consistently testified that she did not know. The trial judge granted a brief recess and when court reconvened the prosecutor revealed that H.T. was crying and that the prosecutor had called for a Child Advocacy Center counselor to come and help calm H.T. down. Upon taking the stand again, H.T. continued to be unable to testify about the events but did say that Williams had told her not to reveal what had happened to her mother.
After the trial court excused H.T. for the day, the prosecutor, on the theory that Williams' presence was inhibiting H.T., then proposed, pursuant to Hicks-Bey v. United States, 649 A.2d 569 (D.C. 1994), to continue H.T.'s testimony by way of closed circuit television in the jury room. The prosecutor asked that if isolating H.T. from Williams did not facilitate her ability to testify, then the prosecutor be allowed to impeach her with videotaped statements H.T. had made to a child advocacy counselor describing the abuse (hereafter, the "CAC videotape"). After hearing arguments on this issue, the following day the trial court agreed to take expert testimony from Ashlea Staunch, a clinical social worker at the Children's Advocacy Center. That testimony was about whether it would be traumatic to continue H.T.'s testimony in Williams' presence.
Staunch testified that she had diagnosed H.T. with post-traumatic stress disorder. When Staunch attended to H.T. in the witness room H.T. "appeared to me completely distressed and overwhelmed" and that "it seemed to me that she was re-experiencing her past as if it were the present." She noted that H.T. appeared not to want to go back into the courtroom and that, when she did return, "she was trying to avoid painful material." Staunch noted that symptoms of stress included stuttering, yawning, and avoidance. She concluded that it would be traumatic for H.T. to continue to testify in Williams' presence and that she thought "that the presence of the Defendant is -- causes -- is a trigger to very painful material that overwhelms her" and that this was cumulative to the stress she experienced simply as a result of testifying.
Based on Ms. Staunch's testimony, the court agreed to proceed with additional voir dire of the child in the jury room, outside the presence of Williams, in order to determine the impact of Williams' presence. A video camera recorded H.T.'s testimony while an audio link was provided between the courtroom and the jury room which allowed the judge to monitor and participate in the questioning. Present in the jury room were H.T., Ms. Staunch, the prosecutor, counsel for Williams, the court reporter and an audio-visual technician. The voir dire began on the afternoon of Friday, July 28, but H.T. was unresponsive despite Ms. Staunch's attempts to relieve her stress and provide reassurances. The court recessed for the weekend, giving the parties time to brief the issue of whether or not the prosecutor would be allowed to impeach H.T. with the CAC videotape. On Tuesday, August 1, the trial resumed. The session in the jury room proved unproductive, however, with H.T. continuing to respond that she forgot or did not know the answer to pertinent questions. H.T. did state, however, that Williams had put his "tail" on her "coochie" and that that made her "sad."
The prosecutor then began to impeach H.T. by playing portions of the CAC videotape statement and then asking H.T. questions about what they had just viewed. As a result of the impeachment, H.T. testified that Williams had licked her "butt," that he had touched her "coochie" and that he had licked her "coochie." Finally, after being shown a portion of the videotape when she had described Williams "pee"ing in her mouth, H.T. then testified that she had been "laying down," that the "pee" tasted "bad," and that she had spat it out.
The jury later viewed the videotape of H.T.'s testimony taken on both Friday, July 28, and Tuesday, August 1. The court admitted the portions of the CAC videotape used to impeach H.T., noting that H.T. had "essentially adopted" statements made therein. The court noted that those portions of the tape admitted could be used by the jury as substantive evidence "to the extent that the jury finds that she adopted" them.
After the completion of H.T.'s testimony, the prosecution sought to introduce evidence establishing that Williams had sexually assaulted An.J., a two-year-old girl, in 1991. The prosecution had filed a notice of intent to introduce "other crimes" evidence prior to trial in order to prove that Williams had an "unusual sexual preference," pursuant to Dyson v. United States, 97 A.2d 135 (D.C. 1953). Rather than introduce the evidence through testimony of the child witness, who apparently had been determined incompetent to testify in charges brought after the 1991 offense, the child's mother testified about what the child had told her as an excited utterance exception to the prohibition against hearsay.
After presentation of the remainder of the evidence, the jury returned a verdict finding Williams guilty of two counts of first degree child sexual abuse and two counts of second degree child sexual abuse. D.C. Code §§ 22-4108, -4109 (1996 Repl.).
Williams argues that the trial court's determination that H.T. was competent to testify was clearly erroneous. The determination of competency rests within the trial court's discretion, Galindo v. United States, 630 A.2d 202, 206 (D.C. 1993), and is based on whether the child in question satisfies three criteria: "(1) (s)he is able to recall the events about which (s)he is to testify, (2) (s)he understands the difference between the truth and a falsehood, and (3) (s)he ...