Appeal from the Superior Court of the District of Columbia (F-6601-98) (Hon. Ronna Lee Beck, Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Before REID, KRAMER, and OBERLY, Associate Judges.
This is a case of police depravity. In November 1999, appellant Vincent Andrews, then a Metropolitan Police Department officer, was convicted by a jury of first-degree sexual abuse of a ward,*fn1 tampering with physical evidence,*fn2 and obstruction of justice.*fn3 In addition, the trial court found Andrews guilty of simple assault.*fn4 The jury acquitted him of second-degree sexual abuse of a ward.*fn5 Andrews' convictions arose out of his insistence on having sex with a prostitute, Antoinette Keys, whom he had just arrested and taken into police custody. Ms. Keys, having been subjected to demeaning treatment and sexual abuse of a verbal nature in prior encounters with members of the MPD, felt that Andrews' conduct "had gone too far." She accordingly hid the condom she used in performing oral sex on Andrews in her clothing, planning to report the assault to Andrews' superiors and to use the condom as physical evidence of the sexual act. For his part, Andrews was desperate to cover up his actions. Suspecting that Keys had saved the condom despite telling him she had thrown it away, he grabbed her by her arm and pushed it behind her back and started beating her head against the table in the police station conference room, threw her on the floor, ripped off her pants and panties, grabbed the condom from between her buttocks, and flushed it down the toilet -- all in the presence of other MPD officers who did nothing to stop him.
On appeal, Andrews first argues that the trial court improperly excluded a statement that Latasha Turner, another prostitute who was arrested with Keys, made to a police officer about Turner and Keys "setting up" the officers who had arrested them. We reject this argument, holding that the statement was properly excluded as hearsay. We therefore affirm Andrews' convictions for first-degree sexual abuse of a ward, tampering with physical evidence, and simple assault. Second, Andrews argues that the government presented insufficient evidence to support the obstruction of justice charge. Andrews' conduct, although reprehensible, does not fit within the statutory definition of obstruction of justice charged by the government and we therefore reverse his conviction on that count.
In 1998, Andrews was working as a police officer in the vice squad of the D.C. Metropolitan Police Department. On the night of September 14, 1998, Andrews and two fellow officers, Bundy and Tyler, were working as undercover vice officers near 11th and M Streets, Northwest. Bundy and Tyler were sitting in a jeep when Keys approached the vehicle with her friend Turner. Keys, believing that Bundy and Tyler might be police officers, testified that she approached Bundy on the passenger's side of the jeep and asked him to "pull his penis out and put his hand down [her] shirt and feel [her] breasts and to give [her] a dollar," all as a means of determining whether or not the men were officers because "police officers are not supposed to do those things if they are cops." According to Keys, Bundy did pull his penis out and touched her breast, although she did not remember whether he gave her the dollar. Turner allegedly performed the same "test" with Tyler outside the driver's side of the jeep. The women then got into the jeep, with Keys sitting in the back seat with Bundy and Turner in the front seat with Tyler. As soon as the officers and the women reached an agreement to exchange sex for money, Tyler turned on the jeep's hazard lights as a pre-arranged signal to Andrews, who was observing from a nearby car. Andrews approached the jeep and assisted in the arrest of Turner and Keys for solicitation of prostitution. Tyler drove the jeep back to the police station and parked it in front of the building. Andrews drove separately back to the station.
Keys testified that the officers took her and Turner into the Snyder Conference Room at the police station and that the officers sat with the women at a table and filled out paperwork related to their arrests. Keys testified that her goal during this process was to be released on a citation, as opposed to being processed through "central booking." In her past experience, when she had been arrested for solicitation and had her driver's license with her as identification, the police would release her on a citation, which meant that she was released from custody a few hours after her arrest and given a future court date. The alternative, when she did not have her identification, was that the police would process her through central booking and she would have to spend the night in the city's central jail.
When she was first arrested, Keys had asked to use a telephone because she wanted someone to bring her identification to the station to increase her chances of getting released on a citation. The officers had not allowed her to use the telephone, but had begun filling out paperwork associated with the arrests. Andrews was only "minimally" involved during this process and walked in and out of the room several times. During this time, "there was a lot of sexual talk going back and forth" between Tyler and Bundy and the two women. Keys testified that she tried to laugh off any sexual comments the officers made during her processing so that the officers would release her on a citation. Bundy testified that Turner told him that if the police released her, she would have sex with them, but that the officers had laughed off this offer.
At some point during the processing, Andrews came into the room with a Polaroid camera and took a mug shot-style photo of Keys at the back of the conference room. Keys testified that after he took the photo, Andrews took Keys' hand and put it on his erect penis. Keys stated that she pulled her hand away, but Andrews grabbed her hand and put it on his penis again. Although Keys felt the situation "was getting out of hand," she did not protest because she wanted to expedite her release and thought that someone would "slow up her paperwork" or make her go to the cell block if she complained. Andrews then told Keys he needed to take her property, something that Keys said the police normally didn't bother doing. Nonetheless, Andrews took off Keys' necklaces by standing behind her and pressing his penis up against her buttocks, telling her repeatedly to "stick [her] butt out" in a way that would have pushed her buttocks more against his penis. Andrews then took sexually suggestive photos of Turner. Andrews said he wanted a photo of the women together and directed Keys to lift up her skirt while he took a picture of the two women. At the time Andrews was taking these photos, Bundy and Tyler were at the conference room table. They testified that they were aware Andrews was taking photos of the women, but said they were not paying attention.
Andrews then took Keys to make the phone call she had asked to make earlier. When Keys finished making her call, Andrews told her to come with him and they walked outside the police station and approached the jeep in which the police had earlier arrested Keys and Turner. The door to the jeep was locked, so Andrews walked back into the police station and asked Tyler for the keys. Tyler gave Andrews the keys and Andrews again told Keys to come with him as he walked out to the jeep. Andrews and Keys got into the jeep and Andrews drove a couple of blocks away from the police station. He parked the jeep and, when Keys mentioned that he was at a fire hydrant, he told her "it didn't matter because he was the police." He and Keys then moved from the front seat to the back seat, where Andrews pulled his erect penis out of his pants and told Keys that he "would like to see [her] pretty lips on here." Keys put a condom on Andrews and performed fellatio on him. When she was finished, and while Andrews was "getting himself together," she took off the condom, tied it with a knot, and slid it into her underwear between her buttocks. She intended to "tell on him" because she was angry that "things had gone too far." Andrews then came around to Keys' side of the car and searched the ground with a flashlight while asking her where the condom was. Keys told Andrews that she had thrown the condom on the street, and when Andrews was not able to find it, he got back in the car and drove back to the station. On the way, Keys asked Andrews if she was "going to get out" on a citation and Andrews said that he would "process [her] out" and give her a later court date.
After they returned to the police station, Keys told Andrews she needed to go to the bathroom. Andrews took her to the ladies' bathroom and stood outside as Keys went in by herself. While in the bathroom, Keys wrapped the condom in a piece of toilet paper because she was worried about Andrews' semen seeping out of the condom and then she put the toilet paper containing the condom back between her buttocks. Keys and Andrews then went back to the conference room and Keys sat next to Turner, telling Turner "not to worry" because she was "going to tell."
Andrews seemed to become suspicious of Keys shortly after their return to the conference room. He offered to take her to make another phone call even though, as Keys testified, "if you can get one phone call, it's a miracle." Keys declined Andrews' offer because she already had called a friend to bring her identification. Andrews offered again. Again, Keys declined. Andrews then said he needed to talk to her outside the conference room, and she acquiesced. He asked her where the condom was and she told him that it was outside on the street. Keys then "panicked" and went "flying back" into the conference room, saying to Andrews that he should get a sergeant. She testified that she knew she had the condom, and she feared Andrews was becoming suspicious, so she wanted to talk to a sergeant about the incident. Upon reentering the conference room she repeatedly asked the other officers there to get a sergeant. Andrews followed her into the conference room and Keys told him that if he wanted to speak to her anymore, he would need to get a sergeant.
Andrews briefly left the conference room to get a sergeant as Keys had requested. Keys testified that when he came back, but before a sergeant had arrived, he grabbed her arm, pushed it behind her back and started beating her head against the table and saying she had drugs on her person. Officers Bundy and Tyler testified they did not recall Andrews beating Keys' head against the table, but that Andrews threw Keys to the floor. Andrews then ripped Keys' underwear off her body and put his hand between her buttocks as he tried to get the condom, which fell from Keys' body. All the while, Keys was screaming but no one came to her assistance. Andrews ...