Petitions for Rehearing En Banc and before the Division Denied February 14, 1969.
Certiorari Denied May 19, 1969. See 89 S.Ct. 1765.
SPOTTSWOOD ROBINSON, III, Circuit Judge:
On the morning of June 14, 1965, a male intruder entered a residence and stunned an 80-year old occupant by inflicting a number of blows with a pistol. Somewhat later, a laundryman making a call was confronted by the intruder who at gunpoint took $285 from him, and left him bound and gagged in a bedroom. Shortly thereafter, a female neighbor came into the house, whereupon the intruder, pistol in hand, allegedly forced her to undress and submit to sexual intercourse with him.
As soon as the intruder left, the rape complainant reported these occurrences. Two articles taken for examination during an immediate police investigation of the premises contained fingerprints matching appellant's.
Appellant was placed on trial on an eight-count indictment, and the rape complainant identified him again.
When appellant surrendered to the police, his trial attorney, who accompanied him, requested that she be informed as to when a lineup would be held, leaving her card for this purpose and stating her desire to be present. Appellant testified that he had apprehensions about the lineup and wanted his counsel there as a safeguard against the unfairness of any identification. But without notice to counsel and in her absence, appellant was placed in a lineup and identified by the rape complainant. And at the trial the complainant not only again identified appellant in the courtroom, but also testified to her prior identification at the lineup.
Appellant asserted prejudice of constitutional dimension as a consequence of the lineup conducted in the absence of his attorney, but it is clear that the contention so postulated must be rejected. In United States v. Wade
Appellant now urges that we are free to apply retroactively the Wade-Gilbert principle, not as a matter of constitutional compulsion, but in the exercise of our supervisory power over the administration of criminal justice in the District of Columbia. He points to the fact that what is involved here is not a claim that he should have been supplied a lawyer for the lineup;
We perceive some merit in this contention, and are ourselves concerned over the collapse, albeit unintended, of counsel's arrangements,
Nor can we accept appellant's thesis that we might more appropriately confer retroactivity if it is confined to situations where the suspect had counsel who sought affirmatively to arrange for attendance at the lineup. We recognize that a dispensation so limited would ordinarily benefit only those who were financially able to engage counsel at or very shortly after arrest, and we are sensitive to the fact that most defendants in criminal cases in this jurisdiction could not have done so.
The evidence showed that the rape complainant promptly submitted to a medical examination, in the course of which vaginal smears were obtained for testing. A pathologist testified that analysis revealed that the smears contained human spermatozoa. In his charge to the jury, the trial judge instructed that corroboration of the complainant's testimony was essential to a conviction of rape, and that the jury, in ascertaining whether it was, might "consider all the facts and circumstances surrounding the alleged" act, including, among several the judge mentioned, "the medical testimony * * * as to the presence of spermatozoa in her vagina."
Appellant now argues, however, that the judge erred in telling the jury that, the circumstance quoted might be considered on the issue of corroboration.
In rape prosecutions, "corroboration, in the sense that there must be circumstances in proof which tend to support the prosecutrix' story, is required."
In our view, however, the challenged reference in the charge was not to any extent an abnegation of that responsibility. Certainly, the probative value of this development would have increased greatly had there been proof that the complainant had not, during the 72-hour period prior to the discovery, had sexual relations with anyone other than the intruder. But we think that when the disputed item is examined in the light of other corroborating evidence, the absence of such proof did not eradicate its tendency to in some degree lend credence to the version the complainant related from the witness stand. What we have here is an instance of the familiar phenomenon of a circumstance, ostensibly impartial when seen in isolation, absorbing color when viewed with its surroundings. When what appellant claims is a neutral factor is examined in total evidentiary context, it loses a good deal of its neutrality.
The record discloses an abundance of independent evidence corroborating the complainant. Spermatozoa were found, not only in her vagina, but on her underclothing as well. The occupant of the invaded residence saw the complainant when she entered, and the laundryman heard the complainant's entry and a brief conversation she then had with the intruder.
There is much else in the record to suggest the complainant's testimonial reliability. No observational deficiencies or handicaps appear, and she had both ample reason and opportunity over a 30-minute period to take a hard look at her
Even where the effort is to prove a fact, rather than less arduously to corroborate testimony, "[t]he competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth."
We think it clear that no more is required when the call is to place "circumstances in proof which tend to support the prosecutrix's story,"
On June 10, 1966, sentences of imprisonment were imposed on each of the six counts upon which appellant had been convicted.
On June 15, however, the judge recalled appellant and his counsel to the
It was the pronouncement of the sentences on June 10 that constituted the judgment of the court.
The law is well settled, too, that a sentence in all respects legal cannot be increased after service has begun.
We affirm the conviction, but remand the case to the District Court with the direction that the order entered on June 15, 1966, be amended to eliminate the provision purporting to designate consecutiveness in the sentences.
It is so ordered.
"It is your responsibility as jurors to determine if there are corroborating circumstances which support the testimony of [the complainant]. In determining whether [the complainant's] testimony was in fact corroborated, you may consider all the facts and circumstances surrounding the alleged assault as, for example, whether or not she promptly made a complaint, the medical testimony of her family doctor, the medical testimony of [name omitted], the pathologist, as to the presence of spermatozoa in her vagina, the stipulated testimony that spermatozoa was found on her underclothing, the testimony of [the laundryman] that she was completely nude when viewed by him and while telephoning to the police, any and all other circumstances which appear in the testimony which might tend in your mind to corroborate her statements. It is for you to determine whether these and other items that you may wish to consider are of such corroborative weight and value as to satisfy the legal requirement of corroboration wholly apart from the testimony of [the complainant]."
As to trial counsel's specific objection, we note that the charge on corroboration, see note 15, supra, did not mention and did not distinguish between the criminal acts and the identification. As so recently we reiterated, the standard proclaimed in Kidwell v. United States, 38 App.D.C. 566, 573 (1912), "generally requires corroboration of both the corpus delicti and the identification of the attacker." Thomas v. United States, 128 U.S.App.D.C. 233, 387 F.2d 191 (May 4, 1967) at 3. See also Franklin v. United States, 117 U.S.App.D.C. 331, 334-335, 330 F.2d 205, 208-209 (1964). This dual requirement, where applicable, contemplates reasonable instructional precision conducive to the jury's understanding as to the need for corroboration as to each. However, error is not assigned here on this account and the facts of this case, hereafter discussed in the text, in our view bring it within the holding in Thomas, thus eliminating the need for additional corroboration. The identification here was "based on adequate opportunity to observe," Franklin v. United States, supra, 117 U.S.App.D.C. at 335, 330 F.2d at 209, and that there was such an opportunity was corroborated, outside the complainant's statement, in some part directly by independent testimony and in greater measure indirectly by the surrounding circumstances.