Appeals from the Superior Court of the District of Columbia. (F-7041-00) (Hon. Lee F. Satterfield, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,*fn1 and TERRY, Senior Judge.
Appellant O'Brien was convicted of second-degree murder of a young child, first-degree cruelty to children, two counts of assault, and obstruction of justice. On appeal she presents several claims of error. Her principal argument is that the trial court erred in denying her post-trial motion for a new trial based on newly discovered evidence that one of the government's expert witnesses allegedly committed perjury. She also maintains that the court erred in failing to strike that same witness' testimony when presented with evidence that he misrepresented his credentials at trial, and also erred in precluding her from calling witnesses who would support her claim. She further contends that the trial court erred in prohibiting her from introducing evidence of her mental retardation to negate the mens rea element of those offenses which require the government to prove specific intent. Appellant claims that the court abused its discretion by precluding her from introducing any evidence of the circumstances surrounding the victim's placement in her home. She asserts that the court violated her right to present a defense and committed constitutional error by refusing to allow her to offer evidence of bias by the police, prosecutors, and social workers, and by failing to conduct what she refers to as a "taint hearing." In addition, she argues that the trial court committed reversible error by admitting the medical examiner's secondary diagnosis of child abuse which, she maintains, was based purely on speculation, and by allowing the government to make use of several autopsy photographs in its closing argument. Finally, appellant argues that her conviction of obstruction of justice resulted from a constructive amendment of the indictment, in violation of the Grand Jury Clause of the Constitution. We reject all of these arguments and affirm both the judgment of conviction and the denial of appellant's motion for new trial.
Appellant was charged in eight counts of a ten-count indictment with conspiracy to commit second-degree cruelty to children (count one), second-degree cruelty to children (counts two and six), first-degree cruelty to children (counts three and seven), assault with a dangerous weapon (count four), first-degree felony murder (count eight), and obstruction of justice (count ten). All of these charges arose out of the death of twenty-three-month-old Brianna Blackmond on January 6, 2000.*fn2
1. Appellant's Mental Capacity
The government moved before trial to preclude appellant from presenting a diminished capacity defense. Appellant had previously given written notice that she intended to raise "cognitive deficits, including mental retardation . . . as a defense to the elements of the offense." The government argued that because "diminished capacity is not a recognized defense" in the District of Columbia, the proposed defense testimony was inadmissible, citing Bethea v. United States, 365 A.2d 64 (D.C. 1976).
In response, the defense argued that appellant's "cognitive impairment"*fn3 had "a significant impact on commission of the elements of the [charged] offenses." Defense counsel claimed that mental retardation should be an exception to the "basic principle" that "all individuals are presumed to have a similar capacity for mens rea," citing Bethea, 365 A.2d at 88. Counsel argued that expert testimony "would explain, as a form of accident or mistake defense, how [appellant] was unable to understand the consequences of her actions."
The trial court granted the government's motion. The court noted that this court not only had rejected diminished capacity as a legal defense in Bethea, but had declined to change course in subsequent cases. See, e.g., Doepel v. United States, 434 A.2d 449 (D.C. 1981). The court also observed that other courts with similar precedents considered evidence of mental retardation or a low I.Q. to be prohibited evidence of diminished capacity. Thus "any evidence relating to [appellant's] mental retardation or cognitive impairment would be evidence supporting a defense of diminished capacity" and "is not admissible in the District of Columbia."
2. Matters Relating to Child Witnesses
Appellant moved to exclude the testimony of certain child witnesses, claiming that "improper and unduly suggestive interrogation techniques" rendered the children's testimony and statements "too unreliable to be admitted pursuant to the Fifth and Sixth Amendments." In the same motion, appellant sought discovery concerning the investigative interviews that were conducted with the children, asking the court to "conduct a hearing to determine whether the witnesses have been tainted by the conduct of their questioners, requiring that their statements be excluded from the trial."
Initially, the trial court held the request for such a "taint hearing" in abeyance. The court did not "see how the defense can make that motion without having some knowledge or more knowledge and more discovery about the case." At the same time, however, the court authorized the defense to retain an "expert on child witness issues" such as "memory susceptibility and manipulation and fabrication." The court invited the government to file a motion on the admissibility of expert testimony on these issues, which were "la[id] out . . . in [defense counsel's] taint motion."
The government subsequently moved to preclude the defense from presenting expert testimony on the suggestibility of children,*fn4 citing Oliver v. United States, 711 A.2d 70 (D.C. 1998) (approving expert testimony on the psychology of child sexual abuse victims and the reasons for recantation); the defense responded that such expert testimony was admissible.*fn5 The court ruled that "it would be proper for [the] defense to have the [expert] witness testify as to which studies say what might influence a child [such as] repeated questioning, suggestive interviews . . . [and] those things that are listed in the pleading." The court reserved ruling on whether the expert would be permitted to comment specifically about the interviews in this case. However, after defense counsel filed a memorandum on the reserved issue, the defense expert was permitted at trial to give the full scope of testimony that the defense had requested, i.e., testimony about child interviewing techniques generally and also about the specific interviewing techniques used in this case.
3. Matters Relating to Alleged Government Agency Culpability and/or Bias
The government filed a motion to preclude, under Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc), "an anticipated defense theory that specific individuals and various institutions other than the defendant committed the crimes charged in the indictment," including evidence that "[these] offense[s] [were] the responsibility of an institution."
The defense then moved to introduce evidence of "bias by government's agents and of the defendant's innocence and state of mind." The motion outlined the alleged failings of the government agencies involved in removing Brianna from foster care, stressing "the role that [government] agencies played in creating, failing to prevent, or otherwise turning a blind eye to the overcrowding at [appellant's home], and how that environment contributed to the death of Brianna Blackmond."*fn6 The motion also asserted that media attention had made government agents "eager to avoid responsibility for their actions" and had affected police officers and prosecutors, who "pressed to close the case fast with an arrest." Investigators thus allegedly "ignored and obscured the culpability of . . . government agents in placing Brianna Blackmond in an overcrowded living situation and in failing to supervise her once there."*fn7
The defense sought to introduce a "bias defense," consisting of evidence "tend[ing] to show that government agents deflected culpability toward [the] defendant so as to escape responsibility and produce an arrest."*fn8 The defense also argued for the admissibility of "third-party culpability evidence" (i.e., evidence of government failings in the return of Brianna to her mother's custody and in Brianna's post-placement supervision), which "reduced" appellant's culpability and thus was "relevant to her innocence."
At a hearing on these motions, the court inquired how the defense argument was relevant to the issues in the case, namely "whether or not [Brianna] was murdered . . . and, [if so,] who did it." Defense counsel responded that if government agencies had placed Brianna in a house with "too many kids," the agencies would "want[ ] to cover up their own errors" by blaming Brianna's death on a non-accidental cause. When the court asked, "How is too many children in the house a causation factor to the child falling down the stairs?", defense counsel replied, "You can't supervise all those kids." The court then ruled:
I think we are getting very far afield. . . . I don't think that that argument has probative value, and you have not cited to the court any authority that will say . . . that is a valid argument under the law. . . . In the court's view, the agency's role [in] the child returning home . . . confus[es] the issues in this case. It's not probative, and I think it's highly prejudicial to the issues in this case, and it directs attention away from what the issues are. . . .
I think I need to be clear to the defense that you are not going to put Child and Family Services on trial in this courtroom [in] this case. . . . I am . . . preclud[ing] the defense from alleging that in any way agents of Child and Family Services caused her death.
You have not laid any proper foundation to allege that they were the direct actors in the cause of her death in any way. We all know from everything that has been reported and all of the investigations that have been done of the issues regarding the return of this child to that home. But once that child was returned home, that is what this trial is about.
It's not about what took that child to that place. . . . What the Child and Family Services agents did in this case did not cause the injuries to this child that resulted in this child's death. Again, the issue is solely whether or nor that child was murdered and who did it . . . .
I am not allowing that particular argument to be made, that agents of the Child and Family Services did not properly inspect the house, and caused a safety hazard that contributed to the child's death.
1. Government Fact Witnesses
In September 1998, six-month-old Brianna Blackmond and her two-and-a-half-year-old sister, Shdiamond Blackmond, were placed with a foster family, Mr. and Mrs. Lopez. Brianna and Shdiamond spent over a year in their care, during which time Brianna learned how to crawl, walk, and climb stairs.
On December 23, 1999, a social worker called Mr. Lopez and informed him that Brianna and Shdiamond were to be returned to their mother, Charissie Blackmond. The Lopezes packed the children's belongings, and that evening social workers returned the two girls to Ms. Blackmond, who with her infant daughter lived in a row house at 52 Bates Street, Northwest, along with appellant and her five children. Appellant was Brianna's godmother.
During the next two weeks, Brianna had a lot of trouble adjusting to her new living arrangement within appellant's home. Mary Scrivener, appellant's neighbor, noticed during visits to appellant's home that Brianna did not eat, talk, or interact with others. Appellant had also mentioned to her that Brianna was not eating. Concerned about Brianna's well-being, Ms. Scrivener gave appellant Ensure, a nutritional supplement, to give to Brianna and recommended that appellant take Brianna to the hospital. It appeared to Ms. Scrivener that appellant spent more time with Brianna than Ms. Blackmond did.
Waymond Moore, Ms. Blackmond's boy friend, also observed Brianna while she was living with appellant. Mr. Moore testified that soon after Brianna arrived, she "looked like something was wrong with her." Brianna would not play or respond to people, and on one occasion Moore saw her shaking "like she was cold." Mr. Moore recalled that appellant and Ms. Blackmond had once taken Brianna to the Hunt Place Clinic. On another occasion, Mr. Moore called an ambulance for Brianna, and when the paramedics arrived, they informed him that Brianna had a fever.
Sheila Horton West, a registration clerk at the Hunt Place Clinic, testified that she received a telephone call from Ms. Blackmond and a second woman on January 3, 2000. Ms. West had previously met Ms. Blackmond as a patient at the clinic and had known her for over ten years. Ms. Blackmond was hysterical and told Ms. West that Brianna was shaking and was not talking or eating. Ms. West instructed Ms. Blackmond to bring Brianna to the clinic that afternoon. When she arrived at the clinic after the appointed time, Ms. Blackmond informed Ms. West that Brianna was in the car and was doing better. Because she had another appointment, Ms. Blackmond said, she could not bring Brianna into the clinic, but she agreed to bring Brianna in the following day; however, she did not appear the next morning.
Appellant's sister, Marsha Washington, also expressed concern about Brianna's weight and lack of speech. She testified that Ms. Blackmond had told her that she had taken Brianna to a doctor and that "the doctor said [Brianna] would come around and talk."
Appellant's son, Aaron O'Brien (age eleven), testified that appellant had handcuffed Brianna to a stroller on January 5, 2000, to prevent her from lying on the floor. Aaron then accompanied appellant to purchase shoes for Brianna and Shdiamond. Later that afternoon, Aaron said, his mother "picked Brianna up and then she dropped her on her head on the floor in front of the . . . fireplace" twice, "one after the other." Brianna's "head hit the floor" both times. Aaron's cousins and sisters and Shdiamond were all in the living room at the time. After Brianna's head hit the floor the second time, she was not moving, and her eyes were closed.
Aaron acknowledged that until just a few days before trial, he had said that Brianna had fallen down the stairs. He admitted that before the ambulance came for Brianna, appellant had instructed him to say this. On cross-examination defense counsel questioned Aaron about his differing accounts, playing multiple excerpts of Aaron's videotaped interviews on January 7 and April 11, 2000. Aaron repeatedly tried to explain that his prior account of Brianna's falling down the stairs was false:
Q: You heard three loud booms, didn't you?
Q: Okay. Let us hear what you said on January 7.
A: I know what I said on the tape.
Q: Okay. Well, the jury needs to hear it. So we are going to watch what you said on January 7, 2000, okay. [Tape played.] Did you hear that boom boom?
Q: Did you say it on the tape?
Q: That was you on the tape, wasn't it?
Q: And you were referring to the sounds that you heard right before you saw Brianna on the floor.
Q: And after you heard those sounds, you saw Brianna lying on the floor at the bottom of the stairs, didn't you?
Q: And Aaron, that is when you told your mom that it was Brianna who made the noise falling, didn't you?
Q: All right. We are going to watch what you said on 4-11-2000.
Q: You weren't just saying it. You were actually demonstrating where you found Brianna at the bottom of the stairs, weren't you? Weren't you?
Q: And when Brianna was on the floor, your mother ran to her and picked her up?
A: You are not understanding. That didn't happen.
Q: Aaron, you need to answer the question . . . .
On redirect, Aaron was asked to clarify his earlier testimony on cross-examination:
Q: Is what you said [on September 28, 2001] the truth or a lie? . . . That your mother dropped Brianna on her head?
Q: Yes, what is it, the truth or a lie?
Q: When [defense counsel] was asking you questions, at one point you said none of this happened. Do you remember saying that when she questioned you?
Q: What did you mean about that?
A: She kept saying the tapes that I, that I was saying she fell down the steps. I was trying to explain to her that none of that steps stuff happened.
Lakeisha O'Brien (age ten), Aaron's sister, testified that appellant was doing Brianna's hair on the couch*fn9 and that, frustrated because Brianna was moving around, appellant "got up . . . off the couch, and picked [Brianna] up by her shirt and slammed her." Using a doll, Lakeisha demonstrated to the court and jury that Brianna was on the floor before appellant picked her up and dropped her, hitting her face.*fn10
On cross-examination Lakeisha was impeached with her grand jury testimony and two videotaped interviews on January 7 and April 28, 2000, in which she had stated that Brianna fell down the stairs. Lakeisha admitted that she had told her aunt that her younger sister Antoinette had accidentally pushed Brianna down the stairs. Lakeisha acknowledged that her voice could be heard on the 911 call counting the steps that Brianna had allegedly fallen down and announcing that it was "five steps." However, Lakeisha insisted that those earlier accounts were false:
Q: Lakeisha, nobody hurt Brianna, did they?
Q: Didn't she fall down the steps?
Q: She did or she didn't?
Q: What you said on the radio when you called out, that wasn't right?
Q: It was right, wasn't it?
Q: No. When you testified in front of the grand jury, you weren't telling the truth?
Q: You were telling the truth, weren't you?
Q: Were you telling the truth or were you telling a lie when you testified in the grand jury?
Q: You were telling a lie. You took an oath, didn't you?
On redirect, Lakeisha explained her earlier testimony on cross-examination:
Q: What really happened? How did Brianna get hurt?
A: My mother dropped her.
Q: Why did you tell that story all that time about her falling down the stairs then?