Appeals from the Superior Court of the District of Columbia, (F- 4406-01) (Hon. Shellie F. Bowers, Trial Judge) (Hon. Craig Iscoe, Post-trial Motions Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before RUIZ, GLICKMAN and KRAMER, Associate Judges.
Appellant Raymond Mozee appeals his jury trial conviction for first-degree sexual abuse, in violation of D.C. Code § 22-4102 (now codified at D.C. Code § 22-3002). He contends that the trial court committed reversible error in failing to instruct the jury correctly on first-degree sexual abuse*fn2 and the affirmative defense of consent,*fn3 that it coerced the jury with an improper anti-deadlock instruction, that the prosecutor engaged in misconduct, and that he was prejudiced by the ineffective assistance of his counsel. While the trial court erred in instructing the jurors that they were not to consider evidence of consent unless they first found that the sexual assault had occurred, the appellant did not object to the instructions at trial, and the error did not affect the appellant's substantial rights. None of the appellant's other issues constitutes reversible error. We affirm.
The government presented evidence that on the day of the events underlying this appeal, the appellant raped the complainant, K.W., who was appellant's ex-girlfriend and the mother of their then two-year-old son. K.W. testified that she had known the appellant for about six years, had begun a sexual relationship with him when she was fourteen, and had lived with him, along with her small daughter, for about fourteen months, beginning in the summer of 1998. It was during that time that their son was born, and he was two-years old at the time of the events at issue here. K.W. had moved out when appellant began seeing another woman, but they continued their sexual relationship for a time. Ultimately, K.W. obtained a civil protection order barring the appellant from contacting her except through her mother for purposes of child care and visitation.*fn4
K.W. testified that on the day of the events that led to the charges here, the appellant called her to ask that she bring their son over for a visit at the appellant's sister's apartment. Although he had agreed to pick them up several hours before, he had not done so, complaining of fatigue. He also made clear that he wanted to have sex with her. She responded that she did not want to have sex. The appellant arranged for a cab to pick up K.W. at 8:00 p.m. The cab took K.W. and her son to the appellant's sister's apartment. K.W. testified that the appellant let them into the apartment, but that she went back outside to tell the cab driver not to leave even if the appellant told him that he could. K.W. testified that upon learning that she had told the driver not to leave, the appellant punched her in the face and kicked her in the chest. During this assault, her son was standing by her side holding on to her leg. Although K.W. tried to leave the apartment, the appellant dragged her into his sister's bedroom, pulling off her skirt in the process.
K.W. ran to the bedroom window and tried to open it, pulling at the window blinds in an attempt to get the cab driver's attention. At that point the appellant grabbed her and punched her again. During the ensuing struggle, K.W. hit the appellant with a nearby telephone, breaking it. The appellant grabbed her, punched her again and she fell to the floor, hitting her head on a dresser. He ripped off her panties and told K.W. that she "was going to give him some p**sy." He then raped her, despite her cries for him to stop. He told her that if he could not have her, no one could have her. After he ejaculated, he told her to "get up and get [your] son and get the f**k out." K.W. took off her sweater, wrapped it around her waist so "no one would notice that [she] was naked" and left. The appellant yelled at her "not to walk out there like that" and threw her skirt at her. She testified that she tried to put the skirt on while carrying her son in one arm and fleeing the apartment toward the waiting cab, but appellant had ripped the drawstring from the waist and it would not stay up.
K.W. ran to the cab and told the driver, "He raped me, he raped me," and asked him to call the police. The cab driver testified that he had seen "somebody grappling at the venetian blinds and then disappear," so he had already told his dispatcher to send the police. He testified that K.W.'s hair was messed up, her clothes were in disarray, and she was crying and trying to cover her "private area." A young man at the scene gave K.W. a towel to cover herself. The driver testified that the appellant shouted to K.W., "Come and get your goddamn child," and the boy ran to her.
The government presented multiple witnesses in support of K.W.'s allegations. Metropolitan Police Department Officer Alan Jenkins testified that he arrived on the scene, found K.W. in the back seat of the cab and noted abrasions on her face. K.W. told Officer Jenkins that the appellant had raped her. Tony Roberts, who lived below the appellant's sister, testified that he called the police after he had heard an altercation upstairs, including "[a] lot of bumping around" and a woman screaming for help. Metropolitan Police Department Detective Demetrica Carter accompanied K.W. to Howard University Hospital and testified that K.W. was "frightened," "distraught," and "really emotional." Detective Carter could clearly see that she had been beaten, noting that "her mouth was busted open." Finally, Dr. Jean Anthony, a sexual assault nurse examiner at Howard University Hospital, testified that K.W. was "very quiet and withdrawn" and reported that the appellant had raped her, but that she found no genital abnormalities or tears of vaginal tissue during the examination.
Police recovered K.W.'s torn panties and other physical evidence from the appellant's sister's apartment. DNA tests on the semen collected by Dr. Anthony confirmed that the appellant was the source.
In addition, the government introduced three tape recordings from K.W.'s home answering machine with messages left by the appellant in which he discussed their relationship and referred obliquely to events underlying these charges. In a message left five days after his arrest, the appellant stated in pertinent part:
Look, girl, I didn't mean to lash out on you like I did, but it's all bottled up inside me, and I tried to turn to you. I'm getting help right now, okay? I've enrolled myself in anger management class and in 101 psychological counseling. . . . . I hope like Hell that you okay. And I'm deeply sorry. I deeply regret, baby, that I can't be around you and talk to you or the kids until I get myself together. And I need this help bad because I've turned into something that I never wanted to be. And that's my f**king fault. My mother always told me, "If you gotta hit 'em, you don't need to be with 'em." And I love you too much. I don't respect my love by lashing out on you.
Five days later in another message left on K.W.'s answering machine, the appellant stated, in pertinent part:
I know that I messed up and made big mistakes with you, okay? But I know that I would love to reconcile, but I know that you have no trust in me, no honesty and so forth and like that. . . . I don't like to take my frustration and anger out on you in the manner that we have been going through. That's why I be asking you sometimes just to be with me and make love to me, to let me beat that p**sy up real bad. And you know, like you said that day, you know that I'm going to do so, and if I do so, I'm going to take all of that frustration out on that little p**sy. And I'm going to f**k all of that s**t out of you . . .
The following day, in yet another message left on K.W.'s answering machine, the appellant said:
I'm learning how to deal with all this anger, okay? Because you know I could snap and resort to violence once again, but I'm trying not to do so. I'm learning how to practice what they taught me, okay? And I said I apologize deeply, but I know you can't forgive me for that and I respect that, but there's no reason to keep my kids away from me, okay?
The theory of the defense was that K.W.'s injuries occurred after consensual sex when she became jealous of Mozee's relationship with Laquita Black, the appellant's girlfriend, and attacked him in a fury. On cross-examination, K.W. denied consenting to sex with the appellant on the day at issue. She did acknowledge that she had sex with him once in the six months preceding these events in exchange for the appellant providing child care. K.W. further testified that he had asked her for sex on other occasions, but that she had refused. K.W. denied being jealous of Ms. Black.
The appellant took the stand in his defense. He testified that he continued to have consensual sex with K.W. after their relationship ended, despite the fact that he was seeing Ms. Black. He specified that they had sex about twice a week in January of that year, ten times in February, and about four times in the month prior to these events.
He further testified that the sex on the date in question was "agreed upon." He asserted that K.W. called him that day and told him that she was bringing their son over so the appellant could watch him. When she arrived, they agreed to have sex in exchange for $100 that K.W. wanted from him. After they had sex, the phone rang. K.W. asked if it was Ms. Black. When he told her that it indeed was Ms. Black, K.W. "[w]ent into a rage," "lashed out" and hit him in the face. The appellant then admitted to hitting K.W. in the face. He claimed that K.W. fell to the floor, but "got back up and got to ...