Appeal from the Superior Court of the District of Columbia (J-2093-04) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 11, 2009
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, and NEWMAN, Senior Judge.
Appellant J.F. was charged with first-degree felony murder, second-degree murder, first-degree child sexual abuse, assault with a dangerous weapon (ADW) and second-degree theft. All of the charges, with the exception of second-degree theft, were related to J.F's younger sister, A.F.*fn1 The trial court found appellant "involved" on all counts except second-degree murder and ordered his commitment to a juvenile facility until his twenty-first birthday.*fn2 J.F. appeals, arguing that the trial court erred: (1) in excluding certain hearsay statements; (2) in finding his other younger sister, L.F., incompetent to testify; and (3) in finding his statements to the police neither custodial nor involuntary. J.F. also challenges the sufficiency of the evidence underlying the court's findings of guilt on the first-degree child sexual abuse, felony murder, and ADW charges. Finally, he argues that his adjudications for felony murder and first-degree child sexual abuse should merge. We conclude that J.F.'s confession of sexual assault was both custodial and involuntary and should have been excluded, and that the trial court's error in admitting that confession was not harmless. We also conclude that there was insufficient evidence to support the adjudication for ADW. We thus hold that J.F.'s adjudications for first-degree sexual abuse, felony murder, and ADW cannot stand. We remand for further proceedings consistent with this opinion.*fn3
J.F. was convicted on March 2, 2006, after a four week bench trial. The facts most relevant to this appeal are as follows: At the time of arrest, J.F., a fourteen-year-old boy, lived with his grandmother, V.R., and three siblings: Jo.F (an eight-year-old boy), L.F. (a five-year-old girl), and A.F. (a four-year-old girl). L.F. and A.F. had moved in with J.F. and his brother Jo.F. only three weeks before the tragic events which led to this criminal case. On the night of September 14, 2004, V.R. came home to find A.F. lying on a bed in the children's shared bedroom and looking sick. A.F. told her grandmother that her stomach hurt. A.F. was weak and uncomfortable, "act[ing] like she wanted to fall down" and "wrap[ping] her legs around [V.R.]," so V.R. decided to take A.F. to the hospital. J.F. insisted on accompanying them to the hospital, but he did not offer any explanation as to why A.F. was ill. On the way to the hospital, A.F. tossed and turned in the backseat.
Around 3 a.m., after A.F. had been taken into surgery and V.R. and J.F. had returned home, emergency room physicians sought a consultation with Dr. Tonya Hinds, a pediatrician at the Children's National Medical Center and a medical school lecturer on sexual assault, because they "were concerned that [A.F.] had been physically abused or assaulted." While examining A.F., Dr. Hinds noted external injuries including bruising on the right side of the forehead, both arms, right thigh, both sides of the trunk below the nipples, and about fourteen circular lesions on her left thigh, each about four millimeters in diameter. A.F.'s internal injuries included lacerations to the liver, spleen, and pancreas; fractures of her left sixth through tenth ribs; and bruising to the left kidney.
As an expert in child abuse, Dr. Hinds felt the pattern of A.F.'s external injuries was significant because the injuries were "relatively symmetrical," creating "concern about someone punching her using perhaps a right and a left hand to both sides of her abdomen."*fn4 Though she could not definitively state whether the external injuries occurred at the same time as the internal injuries, Dr. Hinds felt comfortable assuming that this was indeed the case because "one does not walk around with a lacerated liver, spleen, pancreas, bruising to the kidneys and blood loss that was documented radiographically." In addition, Dr. Hinds found that A.F. had vaginal bleeding, circumvental discoloration and swelling around the anus, as well as loss of normal perirectal anal folds, which led her to consider sexual assault. Despite the fact that A.F. was suffering from disseminated intravascular coagulopathy (DIC), a clotting problem that exacerbates internal bleeding, Dr. Hinds testified that "nothing in [her] understanding of DIC  would allow the vaginal mucosa to be bleeding before . . . any other orifice . . . and so that combined with [her] concern about her anal findings caused [her] to be concerned about sexual assault."
A.F. died of multi-system organ failure on the afternoon of September 16, 2004, approximately thirty-nine hours after being brought to the emergency room. Before A.F. died, the ER team performed many procedures to try and save her life, including operations to release the pressure and accumulation of fluids caused by DIC, the injection of fluids, blood products and drugs to attempt to stabilize her condition, and at least one resuscitation after her heart stopped, all of which subsequently complicated the medical experts' ability to definitively determine the nature of some of her injuries.
Medical Examiner Dr. Constance DiAngelo, an expert in forensic pathology, performed an autopsy on A.F. and determined that the cause of death was homicide by blunt force trauma. A.F. had bruises and abrasions scattered over her body, particularly her head (including her chin, forehead, the sides and back of the neck, the right earlobe, and scalp), chest, sides, hips, and back. She also suffered internal hemorrhaging within the anterior chest cavity, both sides of the back, and the buttocks -- all injuries consistent with blunt trauma. The number of injuries and impact sites (at least twenty-three) were consistent with punches, kicks and stomps, not with a fall or an accident.
Dr. DiAngelo also described injuries to A.F.'s genital region. She could not determine whether the hemorrhaging in A.F.'s left labial and groin area was caused by blunt trauma or the insertion of a catheter during attempts to save her life; however, a contusion around the anus and a superficial abrasion both suggested blunt trauma in that area. Likewise, a hemorrhage that extended through the entire thickness of the wall above the anus and rectum, as well as tissue damage and hemorrhaging in the wall of the vagina and the wall of the bladder, suggested blunt trauma consistent with something being inserted into the anus and rectum.
Dr. Janice Ophoven, an expert in forensic pathology, with a specialty in pediatric forensic pathology, testified for the defense.*fn5 Dr. Ophoven deemed A.F.'s death a homicide, agreeing that A.F. "died of complications of blunt force trauma to the abdomen," but opining that the combined effects of abdominal compartment syndrome (ACS), wherein the blood enters the abdomen but cannot get out, and DIC caused the vaginal bleeding and distortion to the anus.*fn6 Dr. Ophoven disagreed that A.F. was the victim of sexual trauma, specifically observing that there was no tearing of the anal ring or laceration to the anus or rectum, as she testified there would certainly be in the case of sexual assault, and concluding that a finding of sexual assault "is not based on the current evidence in the case." She emphasized that, where a person bleeds as profusely as A.F. and is kept alive by injections of large amounts of fluids, "interpreting the pattern of injuries has to be done really, really carefully, and . . . if there's not tears to the actual genital tissues that make a diagnosis of sexual injury obvious, in my opinion, . . . you don't say sexual injury unless you can prove it because it has . . . such horrible implications."
Jo.F, who was then almost ten years old, testified via closed-circuit camera that he was asleep in the room the children shared when J.F. "started beating my little sister [A.F.] up." He was awoken by A.F.'s screaming and ran downstairs to see "him hitting her with a belt and punching her in the face," stomach, and chest. Jo.F. tried to convince J.F. to tell their grandmother the truth when she returned home, but J.F. refused and threatened to hurt Jo.F. When Jo.F. was questioned by a police ...