859 A.2d 130 (D.C. 2004)
During 1999 and 2000, Vernon Williams sexually abused H.T., the daughter of his girlfriend, who was three and four years old at the time of the offenses.1 H.T., her mother, and Williams lived together in two different apartments during the time in question, moving into the second, larger apartment in March of 1999. Williams is the father of three other children with H.T.’s mother, all of whom are younger than H.T. H.T. referred to Williams as “Daddy” and he played an active role in her life.2
In February 2000, H.T. revealed what she called her “secret” to her grandmother, informing her that Williams had been “bad” and had touched her in a sexual manner. H.T.’s mother and grandmother took her to Children’s National Medical Center, where H.T. explained to a physician in greater detail what Williams had done. At the time of revealing these events, H.T. exhibited a stutter and other nervous behavior. The examination did not reveal any trauma.3
At trial, which began a few months after H.T. turned five, the court agreed to allow the prosecutor to conduct a competency hearing as the initial part of the direct examination. After voir dire by the prosecutor and defense counsel before the jury, the court determined that H.T. was competent to testify. H.T. then testified that something “yucky” happened to her in her apartment, and she was able to identify male and female genitalia on an illustrative diagram, but as the prosecutor turned to questioning her about what Williams had done to her, H.T. consistently testified that she did not know. The trial judge granted a brief recess and when court reconvened the prosecutor revealed that H.T. was crying and that the prosecutor had called for a Child Advocacy Center counselor to come and help calm H.T. down. Upon taking the stand again, H.T. continued to be unable to testify about the events but did say that Williams had told her not to reveal what had happened to her mother.4
After the trial court excused H.T. for the day, the prosecutor proposed to continue H.T.’s testimony by way of closed circuit television in the jury room. The prosecutor asked that if isolating H.T. from Williams did not facilitate her ability to testify, then the prosecutor be allowed to impeach her with videotaped statements H.T. had made to a child advocacy counselor. After hearing arguments on this issue, the following day the trial court agreed to take expert testimony from Ashlea Staunch, a clinical social worker at the Children’s Advocacy Center. Based on Ms. Staunch’s testimony, the court agreed to proceed with additional voir dire of the child in the jury room, outside the presence of Williams. On Tuesday, August 1, the trial resumed. The session in the jury room proved unproductive, however, with H.T. continuing to respond that she forgot or did not know the answer to pertinent questions. The prosecutor then began to impeach H.T. by playing portions of the CAC videotape statement and then asking H.T. questions about what they had just viewed. As a result of the impeachment, H.T. testified that Williams had licked her “butt,” that he had touched her “coochie” and that he had licked her “coochie.” Finally, after being shown a portion of the videotape when she had described Williams “pee”ing in her mouth, H.T. then testified that she had been “laying down,” that the “pee” tasted “bad,” and that she had spat it out. The jury later viewed the videotape of H.T.’s testimony taken on both Friday, July 28, and Tuesday, August 1. The court admitted the portions of the CAC videotape used to impeach H.T. After the completion of H.T.’s testimony, the prosecution sought to introduce evidence establishing that Williams had sexually assaulted An.J., a two-year-old girl, in 1991. The child’s mother testified about what the child had told her as an excited utterance exception to the prohibition against hearsay. After presentation of the remainder of the evidence, the jury returned a verdict finding Williams guilty of two counts of first degree child sexual abuse and two counts of second degree child sexual abuse.5
Whether the trial court erred in determining that H.T. was competent to testify?6
The determination of competency rests within the trial court’s discretion and is based on whether the child satisfies three criteria: (1) able to recall the events about which she is to testify, (2) understands the difference between truth and falsehood, and (3) appreciates the duty to tell the truth.7
No. The ESTABLISHED FACTS show that after the competency hearing conducted as the initial part of direct examination before the jury, H.T. identified genitalia on a diagram and described something yucky that happened, satisfying the recall element once stress was addressed through impeachment.8 Voir dire established that H.T. understood the difference between truth and falsehood.9 She appreciated the duty to tell the truth when she stated the first rule in the courtroom is to always tell the truth and that the judge would punish her for lying.10 The trial court’s implicit finding that initial unresponsiveness stemmed from stress rather than inability to recall aligns with the three criteria applied to the specific facts of H.T.’s age, living situation with Williams, and post-recess testimony after the CAC videotape impeachment.11
The trial court did not err in determining that H.T. was competent to testify.12
Whether the trial court erred in permitting H.T. to testify via closed-circuit television outside the presence of the defendant?13
To allow a witness to testify outside the presence of a criminal defendant via one-way closed circuit television, the trial court must find (1) that the procedure is necessary to protect the welfare of the particular child witness, (2) that the child would be traumatized not by the courtroom generally but by the presence of the defendant, and (3) that the emotional distress is more than de minimis.14
No. The ESTABLISHED FACTS establish that clinical social worker Ashlea Staunch diagnosed H.T. with post-traumatic stress disorder and testified that Williams’s presence triggered distress causing H.T. to re-experience the abuse, satisfying the second and third Craig requirements.15 After H.T. broke down crying during initial testimony and remained unresponsive, the court permitted the Hicks-Bey procedure.16 This occurred only after expert testimony confirmed the trauma was cumulative and specifically linked to the defendant’s presence rather than the courtroom setting alone.17 The facts of H.T. waving at Williams initially but then shutting down when questioned about the abuse, combined with Staunch’s observation that the defendant’s presence made the environment unmanageable, support the trial court’s decision to proceed with closed-circuit testimony from the jury room.18
The trial court did not err in permitting H.T. to testify via closed-circuit television outside the presence of the defendant.19
Whether the trial court erred in admitting portions of the CAC videotape as substantive evidence after impeachment?20
When a witness testifies under oath and adopts a prior statement not made under oath, that prior statement becomes substantive evidence.21
No. The ESTABLISHED FACTS demonstrate that after the prosecutor played portions of the CAC videotape during impeachment, H.T. testified that Williams had licked her butt and coochie, touched her coochie, and peed in her mouth, thereby adopting those statements.22 The trial court admitted only the portions used for impeachment and instructed the jury to consider them as substantive evidence to the extent it found adoption occurred.23 Because H.T. was available for cross-examination and the adopted statements directly addressed the charged conduct, the rule permitted their use as substantive evidence under the facts of the impeachment sequence and H.T.’s subsequent testimony.24
The trial court did not err in admitting portions of the CAC videotape as substantive evidence after impeachment.25
Whether the trial court abused its discretion by permitting limited government contact with H.T. during her testimony?26
Nondiscussion orders for witnesses are a corollary of sequestration rules and matters of witness contact are left to the sound discretion of the trial court.27
No. The ESTABLISHED FACTS show that the trial court declined a formal admonition but directed the prosecutor to remain professional and avoid discussing testimony substance.28 The court permitted Ms. Staunch to provide counseling support to the five-year-old child overnight.29 The court recognized that separating H.T. from her treating counselor would be inappropriate given the child’s age and post-traumatic stress disorder.30 The limited contact described in the facts did not involve shaping testimony, as Staunch’s questions focused on H.T.’s comfort rather than content, and H.T. still required impeachment to provide detailed testimony.31
The trial court did not abuse its discretion by permitting limited government contact with H.T. during her testimony.32
Whether the trial court erred in admitting the mother's testimony about the 1991 incident as an excited utterance?33
A statement qualifies as an excited utterance if it satisfies three requirements: (1) the presence of a serious occurrence causing nervous excitement or physical shock, (2) a declaration made within a reasonably short period after the occurrence, and (3) circumstances suggesting spontaneity and sincerity.34
No. The ESTABLISHED FACTS establish that An.J.’s mother picked up the two-year-old from Williams’s apartment, prepared dinner, and upon learning An.J. could not urinate took her to the bathroom where the child, crying, spontaneously stated that Williams had put his tee tee in her toosy.35 The disclosure occurred the same day within hours of the event, satisfying the timing and spontaneity elements.36 The serious occurrence of sexual assault on a toddler and the context of the child crying while unable to urinate provided the required indicia of reliability under the three-part test applied to these facts.37
The trial court did not err in admitting the mother's testimony about the 1991 incident as an excited utterance.38
Whether the evidence was sufficient to support the conviction on Count III for first-degree child sexual abuse?39
When reviewing sufficiency, the court views the evidence in the light most favorable to the verdict, giving full play to the jury’s right to determine credibility and draw inferences, and will reverse only if no evidence supports guilt beyond a reasonable doubt; an on or about date allegation is satisfied by proof of a reasonably close date.40
No. The ESTABLISHED FACTS show that the CAC statement, properly admitted after adoption, indicated H.T. was three years old when the abuse began, and H.T. turned three on June 22, 1998, placing the conduct within the April 1, 1999 to February 3, 2000 period charged in Count III.41 H.T.’s testimony after impeachment that Williams put his tail in her mouth provided direct evidence of penetration.42 Viewed in the light most favorable to the verdict, the combination of the adopted CAC statement and H.T.’s courtroom testimony supplied sufficient evidence for a reasonable jury to find the offense occurred during the indicted timeframe.43
The evidence was sufficient to support the conviction on Count III for first-degree child sexual abuse.44
Whether the prosecutor's closing argument statements about H.T.'s stress and fear created reversible error?45
To determine whether prosecutorial comments require reversal, the court first assesses whether the comments were improper and then whether they caused substantial prejudice by considering the gravity of the remark, its relationship to guilt, corrective instructions, and the strength of the government’s case.46
No. The ESTABLISHED FACTS indicate that the prosecutor’s statements that H.T. curled into a fetal position due to stress and feared Williams were reasonable inferences from Staunch’s testimony and the observed breakdown during questioning.47 Even assuming the second remark about Williams instructing H.T. not to tell the secret was improper, it did not substantially prejudice Williams.48 The jury understood it as referring to the earlier instruction to keep the abuse secret rather than a courtroom event.49 The strength of the government’s case, including the adopted CAC statements and H.T.’s testimony, supports the conclusion that the remarks did not sway the verdict.50
The prosecutor's closing argument statements about H.T.'s stress and fear did not create reversible error.51