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Powell v. United States

August 4, 2005

KENNETH D. POWELL, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (No. F-2989-99). (Hon. Frederick H. Weisberg, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued January 13, 2005

Before RUIZ and WASHINGTON, Associate Judges, and STEADMAN, Senior Judge.

This appeal arises from appellant, Kenneth Powell's, conviction at a bench trial for misdemeanor sexual abuse in violation of D.C. Code § 22-4106 (1981).*fn1 Shortly after he was convicted, appellant filed a motion to vacate the verdict which the trial judge denied. The issues appellant raises on appeal are the same as those that he argued to the trial judge at the motion to vacate. Appellant's arguments are tied to an evidentiary "sex kit" compiled from an examination of the victim a few hours after the assault took place. Appellant contends that the government did not disclose the existence of the kit, as well as the results of tests later performed on the kit, thereby violating Brady v. Maryland, 373 U.S. 83 (1963) and Super. Ct. Crim. R. 16. Appellant also contends that during the course of the trial the government, on two occasions, misrepresented the state of the evidence, thus violating his due process rights against the knowing use of false evidence, and entitling him to a new trial under what might be termed the Mooney/Napue line of cases.*fn2 We uphold the denial by the trial court of the motion to vacate and affirm the judgment.

I. The Trial

Appellant was convicted of misdemeanor sexual abuse for placing his finger in the vagina of a five-year-old girl, B.S. Appellant's wife, Shauna Kenny, had been B.S.'s babysitter since B.S. was approximately five months old. On the day in question, while on her way to work, B.S.'s mother, F.O., took B.S. and B.S.'s two-year-old sister to appellant's home at 4:35 a.m.*fn3 Appellant opened the door to the home. The mother placed the children in the bed with Shauna Kenny, and then left to go to work.*fn4

The mother returned to pick the children up at approximately 8:00 p.m. Appellant answered the door again and informed the mother that Shauna Kenny had gone to the grocery store. The mother then collected the children and walked home the three or four minute walk to their house.

Shortly after arriving home, the mother instructed B.S. to undress for a bath. B.S. went to the bathroom, began urinating, and started screaming, "mommie, it hurts, it burn [sic]." The mother testified that when she went into the bathroom, B.S. "was holding herself, and I said what's wrong, and I lift [sic] her up and there was [sic] little bits of blood dropping in the toilet." She further testified that when she picked B.S. up, she " laid her on the bed, and then that's when [she] saw the blood coming out of her." When questioned further, she described the amount of blood coming out of B.S. "as like medium blood, like you cut your hand, and you wipe it and it starts back bleeding, that kind of blood."The mother asked the child if she had scratched herself. B.S. replied, "no, Kenny touched me in my no-no, put his finger in my no-no.""No-no" was what B.S. called her vagina.

The mother testified that she then redressed the child in the same underwear, and took her to the Children's National Medical Center.The medical records entered at trial show that B.S. was seen by a triage nurse at 10:50 p.m. and then a Sexual Assault Nurse Examiner, Mary Allen-Rochester, performed a gynecological examination as well as a thirteen-step procedure for a police "sex kit" at approximately 12:13 a.m.*fn5 At trial, Nurse Allen-Rochester testified that there was "redness and tenderness to [the] touch in the area of [the child's] vagina around the hymen." She also testified that a test using ultra-violet light revealed an unidentified fiber in the vaginal area which the nurse testified was "not something that you normally find" in the vaginal area of a girl that age.*fn6 She testified that she "did not note any cuts" and that she did not see any blood on either the child or her underwear.The nurse also testified that the "procedure is that [after she completes the sex kit, she] put[s] it in the refrigerator and the police come and pick it up." She also testified that she was unaware if in fact someone had picked up the sex kit in this case.

B.S., who was six years old at the time of trial, testified that appellant stuck "his finger in [her] no-no." She testified that at the time of the assault, appellant was on the couch and she was sitting on the floor.She testified that after she had come home from the babysitter, she was urinating and then "start[ed] to bleed."*fn7

Appellant did not testify at trial. The only witness for the defense was a defense investigator who testified regarding a conversation he had had with the mother.*fn8 The defense also entered into evidence a stipulation that Detective Timothy Hairston had interviewed the mother during the course of his investigation. The stipulation was offered to impeach the mother's testimony that she had never spoken with a police officer or detective about the case.

The trial judge delivered his verdict the day after the trial had concluded. The trial judge noted that this "case is not without problems." He noted that the child had some difficulty with concepts including "time and space, what happened before or after something else happened and also had some difficulty understanding hypothetical questions about what things were true and what things were not true . . . [but] [t]hat's not surprising, given her age."Despite the fact that "[s]he is by no means a perfect witness and she gets things wrong, which is what causes some of the problems for a fact finder in determining what actually happened in this case, but I do not believe that she is incompetent to testify."He went on to say that "perhaps because of the passage of time between February 8th [the day of the event] and today . . . almost a year and a half later, and perhaps because of the trauma of the events and other factors . . . there are numerous discrepancies in her testimony . . . between the various things she has said beginning on [the day of the event] and continuing until yesterday, when she testified at trial." He then stated, ". . . having thought about it over and over again and review[ing] both my notes of the testimony and the tape of her initial interview and the transcript and the other evidence in the record, including the medical records of her examination on February 9th, I come away convinced beyond a reasonable doubt that [B.S.] did not make this up and that . . . [appellant] did place his hand and his finger in her vaginal area . . . ."He went on to state, "I do not know whether his hand was inside her pants or outside her pants, whether her pants were up or down, whether she was wearing short pants or long pants, whether he reached over to her while still sitting on the couch or came off the couch to where she was on the floor . . . I do know, however, beyond a reasonable doubt, that he did it; that she told him to stop, and he did; that he did it with enough force to cause her pain when she urinated that night, to cause bleeding, redness and tenderness to the touch, all of which was corroborated by other witnesses, including her mother and the nurse who examined her . . . ultimately I credit [B.S.] and credit the other witnesses on the essential facts of the assault."

II. The Motion to Vacate

Twelve days after the verdict was entered, appellant filed a motion to vacate the verdict.*fn9 The motion to vacate was precipitated by a very unusual set of circumstances involving the sex kit. Although both parties were or should have been aware prior to trial that a sex kit had been completed,*fn10 for reasons that are not explained in the record before us, neither side appears to have investigated into the current existence and contents of the sex kit or the results of any tests thereon. At trial, Nurse Allen-Rochester testified about completing the ...


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