Henry Walker v. United States

223 F.2d 613

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 16, 1955
• Docket: 12063_1
• Status: Published

Opinions

DANAHER, Circuit Judge.

Indicted in October 1945, appellant in December 1953 was convicted of rape. His appeal presents two complaints: (1) that the trial judge mistakenly instructed the jury that appellant had admitted' prior convictions of serious crimes; and (2) that the evidence is insufficient to support the jury verdict, particularly from the aspect of corroboration, or the lack of it.

I

The prosecutrix, one Della Woodley, married at the time of the occurrence to one Riley Woodley, (since deceased), gave the only direct testimony concerning the circumstances before the crime and the details of its commission. She identified the appellant as the perpetrator. In the absence of the jury, attorneys appointed by the District Court and the trial judge fully advised the defendant of his rights and urged him not to take the witness stand. The trial judge said finally, “ * * * this record of yours will undoubtedly be brought out and it may affect the weight that the jury is going to give your testimony.” The judge explained the nature of the charge he would give on this point, emphasized that the Government must prove guilt beyond a reasonable doubt, and then asked: “Do you understand what the Court ÍS' talking about?” Walker answered “Yes, sir.”¹ “Do you want to go on the stand or stay off the stand ?” “On the stand.” The Court: “You want to go on the stand despite what the Court has told you and despite the advice the lawyers have given you?” Walker replied “Yes, sir.”

Appellant taking the witness stand, said “Let me tell my story, then I will answer your questions.” ²

On cross-examination the accused was queried concerning various convictions thus:

“Q. Are you the same Henry Walker who in 1941 was convicted of rape and robbery in the State of Virginia? (No response.)

“The Court: Are you the same person, Mr. Walker?

“The Witness: When my prosecutor makes a statement against me here, then I am going to trial. I am not on trial.

•» * * * *

“The Court: Do you understand the question?

“The Witness: My complainant is Della Woodley. When she takes this stand and makes her complaint against me, then I know I am on trial. I am not on trial.

* * * * * *

“Q. The next question is, are you the same Henry Walker who in the year 1946 was convicted in the State of Pennsylvania of aggravated assault and battery? ³ (No response.)

“Q. Would you answer the question, please? (The witness shakes his head in the negative.)

“The Court: Which is your answer, that you will not answer the question or you were not convicted?

“The Witness: I thought I was being prosecuted by one Della Woodley. I know her as well as I know myself. That woman you all put up here, that ain’t no Della Woodley. I know her.

“The Court: How about this conviction that the District Attorney asked you about?

“The Witness: Well, that there was something or other that somebody else had me in the court room for. I am not being tried for that.

*****

“Q. Are you the same Henry Walker who in 1935 was convicted in North Carolina of larceny? (No response.)

*****

“Q. Did you know Riley Woodley? (No response.)

“Q. Did you work with Riley Woodley? (No response.)

“Q. Did you work with him in Alexandria, Virginia? (No response.)

“The Court: Did you hear the prosecutor, Mr. Walker?

“The Witness: I am not going to answer it.

* * * * * *

“Q. Did you know the young lady who took the stand here today, Della Woodley? A. It wasn’t Della Woodley that I know.

“Q. Did you know Della Woodley? A. I did, yes, sir. She is dead and buried now.

“Q. Where did she live when you knew her? A. She lived here in Washington.

“Q. When was that that you knew her? A. When she gets on the stand and tell you what happened—

“Q. Did you know her in 1944? A. — then I will answer your questions.

“Q. Did you know her in 1944? A. She haven’t made any complaints before this Court against me. Why should I get up here and testify against myself?

* * * * *

“The Court: What is your answer?

“The Witness: When Della Woodley makes her complaint against me, then I will answer him.”

And so it went, question and answer down to and including a denial by the appellant that he had ever seen the prosecutrix “until she got on the stand. This is the first time in my life.”

“The Court: Would the Court be correct that you say you did not take her?

“The Witness: I don’t know her.

“The Court: Then did you force her to have intercourse with you ?

“The Witness: I never seen her before. * * *”

‘ On redirect examination the appellant insisted that the Della Woodley of whom he spoke had died in the District of Columbia on August 12, 1953. A custodian of records from the Bureau of Vital Statistics testified that an examination of the records over a two year period failed to disclose the death of any person named Della Woodley.

The record discloses that the appellant was discerning and acute under examination, talking readily and glibly when supplying answers which served his position, while evasive as to incriminatory matter or nonresponsive when interrogated about his record. As to the various questions concerning prior criminal convictions, had the accused answered in the affirmative, that would have ended the matter. Had he answered in the negative, the Government would have been bound to introduce the record of his conviction and identify him as the person named in that record. To many such questions he made no response whatever; to others he made replies such as may be discerned from the samples herein reproduced. The trial judge made it clear that the jury was not “to indulge in any inference or any presumption that there is any relation between what he may have been or may not have been convicted of before, and you are not to indulge any presumption against him. It is merely that he, as any other witness, when he takes the stand, may have his credibility or the credence or the weight of his testimony attacked by the alleged possession of an alleged criminal record, in order that you, as you are acquainted with that fact, may pass upon the credence or the weight or the credibility to [sic] which you will attach the testimony that he gave, and it is for no other reason.” ⁴

There was no obj ection at the trial to the instruction as given, despite the requirement of Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C. A.: “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Had such timely objection been made, the judge would have had an opportunity to correct any claimed error and to give appropriate instructions to the jury. Villaroman v. United States, 1950, 87 U.S.App.D.C. 240, 241, 184 F.2d 261, 21 A.L.R.2d 1074. The evasiveness of the appellant and his failure or refusal when a witness, under the circumstances described, might properly permit the jury to draw such inferences as the situation suggested. Raffel v. United States, 1926, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Caminetti v. United States, 1917, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442. The judge made it clear that the jury was “the sole judge of the facts,” and on the basis of the whole charge, highly favorable in general to the appellant, it cannot fairly be said that the trial judge invaded the jury's province. We do not doubt that it is always better practice for the government to establish prior convictions by introducing a proper record. We cannot say, in the light of the whole case, that the failure to do so was here prejudicial.

II

Although it is argued to us that the evidence is insufficient to support the verdiet, and more particularly, that the testimony of the prosecutrix lacks corroboration, we conclude otherwise. Because of the seriousness of the charge and of the unusual circumstances already suggested herein, we have carefully examined the entire transcript. In Kidwell v. United States, 1912, 38 App.D.C. 566, 573, this court said: “We are aware that a conviction for this offense will be sustained upon the testimony of the injured party alone. But where the courts have so held, the circumstances surrounding the parties at the time were such as to point to the probable guilt of the accused, or, at least, corroborate indirectly the testimony of the prosecutrix.” ⁵ *The Kidwell case has since been held to require corroboration in rape cases “in the sense that there must be circumstances in proof which tend to support the prosecutrix’ story, * * * and for lack of it Kidwell’s conviction for one offense was reversed.” Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 17, 135 F.2d 633, 636, certiorari denied, 1943, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145. See also, McGuinn v. United States, 1951, 89 U.S.App.D.C. 197, 191 F.2d 477. In the Ewing case we were asked to reverse the Kidwell rule, to “inquire again into the whole theory of the necessity of corroboration” and to adopt a requirement of “direct corroboration” in cases like this. This court rejected the suggestion saying:

“If by ‘direct corroboration’ is meant the testimony of an eyewitness, the result would be in most cases that conviction could not be had except upon the defendant’s confession.⁶ If it means less than that, it is hard to see how it could relate to anything other than circumstantial evidence which supports the prosecutrix’ story, and this is what the Kidwell case requires. * * *

“But to safeguard the defendant by requiring corroboration in this sense is one thing. To throw around him a wall of immunity requiring the testimony of an eyewitness or ‘direct evidence,’ which is more than circumstantial, in support of the prosecutrix’ story, is another. We are satisfied that the rule stated in the Kidwell decision is one which should not be overthrown.” Ewing v. United States, supra, 77 U.S.App.D.C. at page 17, 135 F.2d at page 636.

Although a strong argument can be made for the proposition rejected in the Ewing case and re-advanced here, the majority has concluded that the Kidwell rule as interpreted and applied in the Ewing case should be reaffirmed.

Professor Wigmore’s treatment of the problem proffers a rationale not dissimilar to our earlier opinions and to the thinking upon which we base our present ruling. See 7 Wigmore, Evidence §§ 2061-2062 (3d ed. 1940). In any event, and in each case, the ultimate effect to be accorded to “corroboration” can be achieved through the exercise by the trial judge of his power to direct a verdict of acquittal whenever the government’s case is inadequate, or to set aside a verdict when he is convinced it has been returned upon insufficient evidence.

In this case the prosecutrix was in her early twenties at the time of the attack and was married to a man known to have engaged in gambling and fighting.⁷ About 8 P.M. on the night in question, she was approached at her residence by-Walker. He told her that her husband was in trouble, hiding out, that he needed her, that Walker had him in a secluded spot where her husband awaited her. He told her not to get excited but her husband “wants you right away, because he had assaulted this fellow very badly and the police was looking for him.” She went to her room, put on her hat and coat, and went with Walker a half block to a trolley line where they boarded the streetcar. At a transfer point they changed cars and continued their ride. In conversation en route, after the prosecutrix had told Walker of her efforts to stop her husband’s gambling and fighting, Walker said “He was a nice boy, a little quick-tempered.” They sat together for about a half hour, got off the streetcar in a secluded neighborhood and walked down a street running toward a railroad track “where he said he had my husband waiting on me.” There he throttled her and by force pulled her down through knee-high bushes and grass, and after a struggle, assaulted her. She pleaded with him and told him if he would let her go she would not tell the police but would return home. She lost her hat at the scene. The prosecutrix then walked, perhaps a mile, before encountering a motorcycle officer whom she told “just what had happened to me and he called the scout car.” Sgt. Howe of the Sex Squad saw her at the Tenth Precinct station. “She alleged she had been raped.” Counsel thereupon objected, but the Government was entitled to the fact of her complaint. The officer described the back of her coat with several mud stains on it and a number of twigs. The sergeant called Policewoman Brown-low at the Women’s Bureau and “directed her to report to the 10th Precinct and transport, the complainant to Gallinger Hospital for a pelvic examination * and added that she did so.⁸ The prosecutrix testified she was taken to the Women’s Bureau, thence to the hospital where she was examined and where her bruises were painted. Sgt. Howe took the prosecutrix to the scene the following day. There they found a hat belonging to the prosecutrix. There was evidence that the ground, some 50 feet from the railroad tracks, “had been considerably disturbed.” The officer described the strip of brush and grass some 30 feet wide adjacent to the paved road. The scene was a “good eighth of a mile” from the nearest house.

There was no slightest suggestion of proof of any motive on the part of the prosecutrix to charge Walker with the offense. Her identification of him was positive and unchallenged. Indeed it is entirely reasonable to expect that she would never forget him, under the circumstances narrated, after riding the lighted streetcars for some thirty minutes, and then being attacked, as has been described. She testified that Walker left the scene and walked down the railroad tracks as she set out on foot and walked until she found the policeman. Her narrative was unshaken despite vigorous and competent cross examination. Highly important further were the circumstances attendant upon the appellant’s taking the witness stand. He answered glibly enough on every point which he recognized to be favorable to himself and he either sparred or evaded or was silent otherwise. It is not likely that the jury was oblivious to his claim that the prosecutrix was “not the Della Woodley” he knew. The jury might have concluded that he failed to identify her. He testified that “Della Woodley” was dead but the records were otherwise. He refused to affirm or deny that on the night of the crime he had taken her “out riding by Catholic University,” or “down near a railroad line,” or “seized her by the throat” or to state whether during the relevant period he was working in Virginia with the husband of the prosecutrix. His attitude when “questioned also might have been regarded as corroborative to some extent.” Ewing v. United States, supra, 77 U.S.App.D.C. at page 17, 135 F.2d at page 636. Other circumstances which need not be set forth also corroborated her testimony.

The charge as a whole was highly favorable to the accused. The jury saw and heard the witnesses, evaluated their testimony and found the appellant guilty. The accused exercised his own choice in taking the stand. Bruno v. United States, 1939, 308 U.S. 287, 294, 60 S.Ct. 198, 84 L.Ed. 257. We cannot say that the jury could not fairly conclude guilt beyond a reasonable doubt. Curley v. United States, 1947, 81 U.S.App.D.C. 389, 160 F.2d 229, certiorari denied, 1947, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850. We can say with fair assurance, after pondering all that happened, that if there be error, the judgment was not thereby substantially swayed and substantial rights were not affected. Kotteakos v. United States, 1946, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557. It therefore is our duty to affirm the conviction.

So ordered.

1 . “The Court: Mr. Walker, you are the defendant at the bar and these two very fine attorneys have been appointed in your defense. * * * They are able men.

They have had a lot of experience.

“Now, they have advised me that, in turn, they have instructed you that you can either go on the witness stand as a witness in your own behalf or you can stay off the stand. You are fully aware that you have a bad criminal record. You have been ten times charged with rape. You have been convicted four times. You got 20 years one time and you were pardoned. You got a conviction in May, 1935, of larceny, six months. You have served five years for rape. You have served a year and six months for rape.

“You have also been convicted of assault and battery and aggravated assault, apparently assault with intent to kill, and you got 3% years to 7 on that.

“Now if you take the stand, those convictions can be brought out in evidence against you to affect your credibility as a witness.

“Now they have advised you, as they told me, advised you carefully. You don’t have to go on the stand. You have been examined by two psychiatrists within less than 30 days, and they say you are of sound mind.”

Appellant was 59 years of age and the prosecutrix was 22 at the time of the assault, according to the transcript.

2 . He then said: “Judge, Your Honor, and ladies and gentlemen of the jury, I was arrested in Pennsylvania, Philadelphia, Pennsylvania, the 25th day of June, and I was removed to Washington, D. C. on the 29th day of July, 1953, because a complaint had been made against me by one Della Woodley, November 28, 1944. Therefore, Della Woodley is my complaining witness, and if I am to go on trial this morning, according to the Ninth Amendment to the Constitution, she should be here to make her complaints before the Judge and the jury of this court.

“Della Woodley, my complainant, died August 12, 1953. Therefore, there is no complaining witness to appear before this Court to make any complaints against me however. And is it a lawful thing, Your Honor, to put a man on trial for his life four months and four days after the death of the complaining witness, to have gathered a group of people together to take this stand to tell the Court what somebody told them about me and what they believe about me without any facts, however, from Della Woodley?

“I know her as well as I know myself. I know her when I see her. This woman that taken this stand was not Della Woodley. I know her. I went with a long time, and this woman is not Della Woodley. Della Woodley, my prosecutor, is dead. That is all I got to say.”

3 . The record of this conviction was not in evidence but it appears that Walker was sentenced to serve 3% to 7 years for the offense. He was returned from Pennsylvania July 29, 1953, to stand trial in this case.

4 . In this same reference, the court further charged:

“Now in this particular case the defendant has taken the stand in his own behalf and he has testified to having a prior criminal record. If the Court should refer to the testimony in any wise, you are to understand that the Court is the sole judge of what the law of the case is and you are the sole judge of the facts, or what the testimony was. If your recollection differs from the Court’s, you will understand that your recollection controls. The Court’s recollection is that he was confronted with a record which showed convictions of the crimes of rape, and also of assault, assault with intent to kill, as the Court recalls.”

5 . Commenting on the crux of the issue as there presented, the court said: “In this case defendant was convicted under this count upon the bald statement of the prosecutrix that the acts had extended continuously over a period of three years in the house of the defendant, where his wife and family resided. In view of the respectable standing of defendant, as shown by the evidence, and the incorrigible character of the prosecutrix and her bad reputation for truth and veracity in the community where she resided and' was known, we do not think the evidence in support of this charge rises to the required standard.” Id., 38 App.D.C. at page 573.

6 . Cf. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158.

7 . Her husband, Riley Woodley, was employed in Alexandria. When Walker was questioned as to whether or not he worked in Alexandria with Woodley, he refused .to answer. Supra pp. 4-5 [223 F.2d 615].

8 . Miss Brownlow left the force the fol- .. lowing year and did not recall details of her doings, but remembered going to the. Tenth Precinct. “That was one of the few times I had been there. * * * I am aware that there was this complaint and that I interviewed the complainant. I certainly recognized the statement that I took as my type of wording, and so forth.”