Keene v. United States

TERRY, Associate Judge,

concurring in part:

I agree that the evidence of the prior incidents in which appellant had “counseled” *1080or “disciplined” L.K. was erroneously excluded, and that appellant’s conviction must be reversed because of this error. Accordingly, I join in parts I, III, and IV of Judge Fer-ren’s opinion for the court. I therefore do not consider the tape recording, which to me presents a much closer question of admissibility; consequently, I do not join in part II of Judge Ferren’s opinion.

I add these few cautionary words to emphasize that our decision today should not be read too broadly, for it is in no way a retreat from the holding of McLean v. United States, 377 A.2d 74 (D.C.1977), and its progeny.1 McLean firmly established in this jurisdiction the principle that, in the trial of a case involving a sex crime,2 specific prior sexual acts of the complainant “with someone other than the defendant are not admissible to attack the complainant’s credibility or to show consent on a particular occasion.” Ante at 1076. As we said in Brewer, supra note 1, “[t]he time is long past when a defendant charged with [a sex offense] could put his victim on trial.” 559 A.2d at 320. The instant case, however, presents us with one of those rare exceptions recognized in McLean. See 377 A.2d at 78 n. 6 (discussing “unusual circumstances”).

Because the two prior incidents in this ease involved sexual activity, McLean made them inadmissible unless the defense could show “unusual circumstances” that made them admissible on other grounds. I am satisfied that this strict standard was met here, and that the defense adequately established “that the fact that appellant had disciplined L.K. for engaging in sexual misbehavior provided L.K. with a powerful motive to retaliate against appellant by accusing appellant himself of sexual misbehavior.” Ante at 1078 (emphasis added). In other words, what put the evidence on the track toward admissibility was the fact that appellant had disciplined L.K., which gave L.K. a motive to retaliate. What ultimately made it admissible was the sexual connection between the prior incidents and the events on which the pending charge was based. The sexual nature of the prior incidents strongly suggested a “tit-for-tat” motive on the part of L.K. to fabricate testimony of a sexual nature, as Judge Ferren explains more fully, ante at 1079. On this basis I agree that the trial court abused its discretion and that the conviction must therefore be reversed.

NEWMAN, Senior Judge, concurring:

I join fully the court’s opinion. However, in view of the concurrence of my brother Terry, I write separately to emphasize that the Kitchen1 exception to the McLean2 rule remains fully alive and viable.

The rationale of the McLean prohibition is that “[gjenerally the law disfavors the admission of evidence of a person’s character in order to prove conduct in conformity with that character_” Id. at 77. We thus rejected evidence of prior sexual conduct of the prosecutrix, the relevance of which is based on a “propensity” rationale, i.e., evidence whose probative value depends on the human tendency to repeat. We recognized, however, among the exceptions to these general prohibitions: (1) evidence of bad reputation for truth and veracity, (2) certain prior convictions, (3) so-called Drew3 evidence, and (4) as is the case here, where the alleged prior misconduct “bears directly upon the veracity of the witness in respect to the issues involved in the trial.” Id. at 77 (quoting Kitchen v. United States, supra, 95 U.S.App.D.C. at 279, 221 F.2d at 834). We thus recognized that where the relevance and probative value of the evidence does not de*1081pend upon a “propensity” rationale, the McLean prohibition is inapposite. This is so whether the prior misconduct is of a sexual nature or otherwise (as was the case in Kitchen).

How frequently the Kitchen exception will present itself in the trial court (and thus whether it will be “unusual”) is something I lack the necessary data to ascertain. On this note, I reiterate, I fully join the court’s opinion.

. Brewer v. United States, 559 A.2d 317 (D.C.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990); Meaders v. United States, 519 A.2d 1248 (D.C.1986); see also Fed.R.Evid. 412.

. McLean involved a charge of rape, but there is no sound reason to restrict its holding to rape cases. Its rationale applies equally well in cases involving other sex offenses, such as sodomy or sexual abuse of a minor.

. Kitchen v. United States, 95 U.S.App.D.C. 277, 221 F.2d 832 (D.C.), cert. denied, 357 U.S. 928, 78 S.Ct. 1378, 2 L.Ed.2d 1374 (1958).

. McLean v. United States, 377 A.2d 74 (D.C.1977).

. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); compare Fed.R.Evid. 404(b).