Appeal from the Superior Court of the District of Columbia (F1040-02) (Hon. Robert I. Richter, Trial Judge)
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 27, 2006
Before FARRELL and KRAMER, Associate Judges, and NEBEKER, Senior Judge.
This appeal is from the second of two trials arising from the same set of facts.*fn1 Following a hung jury at the conclusion of the first trial, the government sought a superceding indictment that charged appellant, Sennayi TeoumeLessane (hereinafter, Lessane), with First-degree Child Sexual Abuse (vaginal penetration) and First-degree Child Sexual Abuse (anal penetration). The jury found him guilty of First-degree Child Sexual Abuse by vaginal penetration, but acquitted him of the anal penetration count. Lessane was subsequently sentenced to six years of incarceration, to be followed by a five-year period of supervised release with the conditions that he register as a lifetime sex offender and undergo sex offender treatment.
Lessane now raises several allegations of error. First, he argues that his conviction must be reversed because, contrary to provisions of the Innocence Protection Act of 2001 codified in D.C. Code § 22-4132 (2006 Supp.), the trial court failed to inform him before trial and on the record of his rights with respect to independent testing of the government's biological evidence. He also asserts that reversal is required because the addition of a new charge to the superceding indictment on retrial - i.e., First-degree Child Sexual Abuse (anal penetration) - triggers an unrebutted presumption of prosecutorial vindictiveness. Finally,
Lessane alleges several instances of prosecutorial misconduct, including impermissible burden-shifting and prejudicial comments made by the prosecutor during summation. Finding no reversible error, we affirm.
Evidence adduced by the parties at trial established the following sequence of events. On January 14, 2002, the complaining witness, J.P., then 14 years of age and a resident of Fairfax County, Virginia, took a dose of a friend's Aderall (a prescription amphetamine variant) while at school. She then left school early without permission and went to a friend's house in Fairfax County, where she spent the remainder of the afternoon using intoxicants, including alcohol and marijuana, that caused her to hallucinate. Later that day, J.P. was told that her parents were looking for her, and she became worried that she would get in trouble if her parents found out about the day's events.*fn2 Thus, she left her friend's house and made her way to the District of Columbia, where she and appellant Lessane, then age 32, shared drinks and conversation at a Georgetown bar. At approximately 12:30 a.m., J.P. and Lessane took a taxi back to Lessane's apartment in Southeast, where J.P. spent the night. The next morning, J.P. called a friend's mother, Virginia Wilson, from the District and told her that she had awakened in a strange man's apartment and could not remember what had transpired. Ms. Wilson instructed J.P. to take a Metrorail train back to Fairfax County.
At the train station in Virginia, J.P. was met by Fairfax County police officers and was eventually transported to the Woodburn Mental Health Center (Woodburn) in Fairfax County for a mental health evaluation. The supervisor of Woodburn's Emergency Service Crisis Intervention Team interviewed J.P. and her parents separately and then together and determined that J.P. did not require psychiatric commitment. When she was first interviewed, J.P. claimed that she had been abducted and raped, but she did not admit what she herself had done in the hours leading up to those alleged events. J.P. later testified at trial that she wanted to tell the truth, but she still feared the consequences of her parents finding out about her misbehavior. Eventually, however, she realized that "no one believed [her]," and that she would have to tell the truth to "get any help." J.P. therefore admitted that she had left school early the day before, used intoxicants, gone to a bar in Georgetown, met a man (i.e., Lessane), and accompanied him back to his apartment. There, she said, the man had forcibly raped her.
As a result of these disclosures, J.P. was taken to Children's National Medical Center (Children's Hospital) in the District during the night of January 15 to 16, 2002, where she was interviewed and examined by medical personnel, and a sexual assault kit was completed. No ligature marks or other external injuries were observed. The sexual assault examination, however, revealed a posterior fourchette*fn3 tear that would have occurred in the preceding 72 hours. Swabs were taken from inside J.P.'s vagina and rectum, as well as from her lips and the panties she wore during the night she spent in the District. She was also interviewed at Children's Hospital by a Metropolitan Police Department (MPD) detective, who then drove her through Southeast, where she identified Lessane's apartment building as the scene of the assault. J.P. additionally provided the detective with a description of her attacker, as well as a camera and film she had with her on the night in question which she had used the next morning to photograph the exterior of her assailant's apartment building. Twelve days later, J.P. viewed a nine-person photographic array arranged by the MPD and unhesitatingly chose a picture of Lessane as depicting her assailant. Subsequently, Lessane was arrested, a search warrant was executed at his apartment, and he was required to provide blood, hair, and saliva samples for DNA analysis; this analysis revealed that Lessane's DNA matched that of semen traces recovered from the swabs taken inside J.P.'s vagina and rectum during her sexual assault examination.
B. Additional Government Evidence
The government's theory was that Lessane approached J.P. in Georgetown, bought her drinks at a bar, and then took her back to his apartment, where he forcibly penetrated her vagina and then penetrated her anus after she lost consciousness following the initial assault. Dr. Ann Abel, an expert in pediatrics, child sexual abuse, and child sexual abuse examinations, testified as to the significance of the sexual assault examination's findings. A posterior fourchette tear, she stated, is ordinarily caused by a fall onto a penetrating object, such as a picket fence, or "direct sexual trauma" from a rigid object such as an erect penis. Given that J.P. had no other injuries, Dr. Abel surmised that direct sexual trauma was the most likely cause of the injury. Dr. Abel also testified that recent research in the field of sexual assault examinations has established that such assaults often leave no visible injuries. Finally, she noted that "it is more common for [youthful victims of sexual assault] not to immediately disclose [the assault] than it is for them to immediately disclose [it]."
J.P. herself testified that on the evening in question, she had left her friend's house in Fairfax County alone. She first went to a Virginia Railway Express station to catch a train to the District. The trains had stopped running by that time of the night, however, so she caught a ride into the District with an elderly gentleman who had also missed his train. The man dropped her off in Georgetown, where she spent several hours walking, browsing in stores, and reading. While reading outside of a restaurant, she was approached by Lessane, who struck up a conversation with her. J.P. said she accompanied Lessane to a jazz club, where he paid her cover charge and got her past the doorman by saying she was with him. After they had conversed and shared a few drinks, Lessane offered to let J.P. sleep at his apartment. She agreed, she testified, but only after clearly informing him she had no sexual interest in him. According to J.P., Lessane assured her that he did not want her to do anything that made her feel uncomfortable. The two then traveled by cab back to appellant's apartment at 1101 Third Street, Southeast.
J.P. testified that after they arrived, Lessane told her to make herself at home. He then took a shower, while she drank some juice in the kitchen. J.P. testified that she heard the water in the shower stop, and then Lessane, who was naked, grabbed her from behind and forced her to the floor on her stomach. Using one hand to cover her mouth, Lessane used the other to pull down her jeans and panties. J.P. stated that Lessane then penetrated her vaginally from behind. As J.P. attempted to fight him off, he told her to hold still or it would hurt more. J.P. did not testify to any anal penetration.
J.P. testified that after the assault, she lost consciousness. The next thing she was able to recall was awakening after sun-up wearing only her shirt and bra; her hands had been tied with a necktie to the frame of Lessane's bed. J.P. testified that with Lessane still asleep in bed, she was able to extricate herself, whereupon she quickly and quietly gathered up her belongings and left through the unlocked door. She also stated that she noted Lessane's apartment number as she left and took pictures of the exterior of his apartment building with a camera she had brought with her. Not knowing where she was, J.P. walked to a nearby church, from which she telephoned Virginia Wilson, whom she trusted to give her good advice and to inform her about what was happening with her parents.
The defense theory was that J.P., fearing that her parents were on the verge of having her committed for substance abuse and mental health problems, concocted the story of the sexual assault. Testifying in his own defense, Lessane stated that J.P. was already at the bar when he arrived on the night in question, and that she approached him first by asking for a cigarette. Reasonably believing her story that she was a college junior because of her mature appearance*fn4 and her presence in a bar that routinely carded its patrons at the door, he then engaged her in conversation, bought her drinks, and eventually offered to let her stay at his apartment in response to her story that she did not have a ride home that night. Lessane stated that neither of them expressed any sexual interest in the other. According to Lessane, the only awkwardness that occurred between them was later at his apartment when J.P. asked if he had or knew where she could get some drugs. Once he informed her that he neither took drugs nor allowed them in his residence, the matter was quickly dropped. Lessane testified that he slept in his own bed, J.P. slept on the floor, and absolutely no sexual contact occurred between them. He also testified that J.P. left the next morning while he was in the shower, and that he neither saw nor heard from her again until after he was arrested.
In an apparent attempt to counteract the government's DNA evidence, Lessane also explained that earlier on the night he encountered J.P., he had sex in his apartment with a man named Tony, whom he had met a couple of days earlier at a lounge and to whom he had given his work telephone number. He testified that he did not know Tony's last name, address, or telephone number, and that Tony was between jobs when they met. Tony had called him, Lessane stated, and the two had arranged to have sex at Lessane's apartment. Lessane testified that while having sex with Tony, he had ejaculated into a condom, which he then removed, tied shut, and placed on its wrapper by the bed. He had then forgotten about the condom until the next day after work, when he was tidying up his apartment. As he picked up the bedding J.P. had slept on from the floor, he found the condom wrapper, but not the condom itself. Lessane stated that he had surmised, to his embarrassment, that J.P. must have seen the condom and thrown it away, but he acknowledged that he never saw it in his trash receptacle. While he had thought this was odd he did not dwell on it at the time. Lessane also presented expert testimony that semen in a tied-up condom would degrade more slowly than semen that had been emitted into a human orifice and that such semen could be removed from the condom and manually inserted into human orifices in such a way as to be detectable during a sexual assault examination.
In addition to his own testimony, Lessane presented three witnesses (the detective who met J.P. at the train station in Virginia, the supervisor who interviewed her at Woodburn, and one of J.P.'s former friends) who testified to contradictory accounts J.P. had given them of the night's events. He also presented the testimony of J.P.'s confidant, Virginia Wilson, who acknowledged that J.P. feared her parents were going to send her to an institution. The defense further established on cross-examination of Dr. Abel, the government's sexual assault expert, that in at least one documented case, a posterior fourchette tear had occurred when a person with long fingernails had gouged the area digitally and that no suturing was necessary to repair J.P.'s injury.
A. The Innocence Protection ...