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In re D.E.

April 8, 2010


Appeal from the Superior Court of the District of Columbia Family Court (DEL900-06) (Hon. Zoe Bush, Trial Judge) (Hon. Anita M. Josey-Herring, Motions Judge).

The opinion of the court was delivered by: Oberly, Associate Judge

Argued December 1, 2009

Before REID and OBERLY, Associate Judges, and FERREN, Senior Judge.

Appellant D.E. was adjudicated a delinquent based on a charge of aggravated assault.*fn1 The charge was founded on evidence linking D.E. to a group attack on a fourteen-year-old girl as the victim was riding home from school on a bus. D.E. appeals her adjudication of delinquency, arguing, first, that there was insufficient evidence of the victim's injury to support the charge of aggravated assault and, second, that the trial court erred in excluding the testimony of one of D.E.'s witnesses. D.E. also challenges on equal protection grounds her assignment to a so-called "girls' court" within the Family Court.

We reject D.E.'s challenge to the sufficiency of the evidence of aggravated assault, but we agree with D.E. that the trial court erred in precluding a witness from testifying and find that the error was not harmless beyond a reasonable doubt. We therefore reverse D.E.'s adjudication of delinquency and remand the case for a new hearing at which D.E. is permitted to call the excluded witness. Further, although the record contains no details concerning the status of "girls' court" since the proceedings below, the consideration of that issue by the Family Court during the time of D.E.'s adjudication may have a lingering impact on the retrial of her case before the same judge. In an effort to avoid any possible spillover effect on the remand proceeding attributable to the "girls' court" issue, and the events surrounding the proposed testimony of the defense witness who was precluded from testifying, the Family Court may wish to consider reassigning the case to another judge, consistent with the factors outlined in this opinion (see pp. 20-21, infra) and the exercise of its discretion.

I. Facts

On the evening of April 4, 2006, fourteen-year-old K.B. was riding home on a bus when several individuals began asking K.B. questions about her age and whether she was in a gang. K.B. became nervous and moved to the front of the bus, telling the driver that she was frightened. As K.B. stood behind the driver, the boys and girls who had been asking her questions -- among them D.E. -- approached her and continued questioning her aggressively. When the bus stopped at an intersection, the driver stood in front of K.B. and closed the front doors of the bus, telling the riders to exit through the back doors. Some, but not all, of the passengers followed the driver's instructions, and one boy who remained on the bus was the first to hit K.B. in her face, causing her to fall back onto the driver's seat. K.B. was unable to get up "[b]ecause other people started to come and jump on [her]." K.B. was hit by at least two other people while she was lying on the driver's seat. After a few minutes, K.B. "felt [herself] being pulled out of the [driver's] window" by her hair. K.B. saw that the person pulling her hair was D.E. As she was hanging out of the driver's window, K.B. was struck "numerous times" in her face. Eventually, the bus driver was able to pull K.B. back inside the bus.

By the time the assault had ended, K.B. was unable to see at all -- her eyes were swollen shut and she was bleeding from her eyes, nose, and mouth. She also had a fractured nose that "hurt really bad." K.B. was taken to the hospital by ambulance and was released the following morning, but had to return to the hospital several times over the next week. She used medication in the form of eye drops for about three weeks. In addition, K.B. suffered "severe" headaches for three days after the attack, necessitating pain medication.

K.B. experienced lasting effects from the attack. She was unable to see clearly "for about two months" because "[t]here was blood surrounding [her] eyes" and she could see form, but no detail. At the time of D.E.'s delinquency hearing, six months after the attack, K.B. was still experiencing "sharp pains" in her left eye. She stated that her left eye "[hadn't] recovered well like [her right eye]."

While K.B. was testifying at the adjudication hearing, a police officer approached the court and informed the judge that A.W., the mother of D.E.'s co-respondent, had been in the bathroom discussing K.B.'s testimony with D.W. and R.W., who were both witnesses in the case. We describe the ensuing inquiry by the trial court in some detail as it bears importantly on our resolution of D.E.'s challenge to the exclusion of a witness she had planned to call to testify in her defense.

The trial court first questioned A.W. at the bench:

THE COURT: Now, I did observe you go outside and stay for awhile and come back, did you talk with anyone while you were outside?


MS. W.: No.

THE COURT: Is that right? You didn't see anyone you know?

MS. W.: Except for the girls that was out there earlier?....

MS. W.: Witnesses.....

THE COURT: Did you talk with them, did you talk with them when you were taking your break?

MS. W.: No, went to the bathroom. I had to go real bad.

THE COURT: And you didn't talk with anyone?

MS. W.: No, I told them, shhh, be quiet, because they was out there talking out loud....

THE COURT: Okay, thank you.

The court next heard from two other girls who were to be witnesses and who had been in the bathroom, as well as the police officer, each of whom contradicted Ms. W.'s denial of having talked with the female witnesses during a break.

The court then called all of the potential witnesses, as well as Ms. W., back into the courtroom to make sure they understood they were not permitted to talk about anything they might hear in court with ...

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