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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 13-CF-741

                         JULIUS L. WORTHY, APPELLANT,

                                        v.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                            of the District of Columbia
                                   (CF3-507-12)

                         (Hon. Jose M. Lopez, Trial Judge)

(Argued April 15, 2014                                  Decided October 9, 2014)

     Justin Murray, Public Defender Service, with whom James Klein, Public
Defender Service, was on the brief, for appellant.

     Margaret Barr, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman and Michael
Marando, Assistant United States Attorneys, were on the brief, for appellee.

     Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
STEADMAN, Senior Judge.

      Opinion of the court by Senior Judge STEADMAN.

      Dissenting opinion by Associate Judge BECKWITH at page 9.
                                         2


      STEADMAN, Senior Judge:          Appellant Julius L. Worthy, convicted at a

bench trial of assault and attempted threats,1 challenges the introduction of a prior

consistent statement made by the victim relating to threats made by appellant. We

conclude that under the circumstances of this case, the prior consistent statement

was properly admitted into evidence.



                                       Facts



      This case arose out of a family quarrel between Worthy and his older sister,

Alexsandra Green, shortly after midnight on January 8, 2012. Green testified that

after Worthy said that he was “going to whoop [her] butt,” she ran from the

apartment and asked a building security guard to call the police. Worthy followed

her, the argument continued, and Worthy hit Green several times.



      Both parties challenged this testimony with prior inconsistent statements

made by Green. The government introduced Green‟s grand jury testimony, given

twelve days after the incident, in which she had said that Worthy had threatened

that “[h]e was going to kill [her].” The defense, for its part, impeached Green with


      1
         D.C. Code § 22-404 (2012 Repl.) (assault) and D.C. Code §§ 22-407, 22-
1803 (attempted threats).
                                          3


her statement to Detective Ricks on January 9, the day following the incident, that

her brother “did not do anything to [her].” 2



      The government in rebuttal called Detective Derek Bell. Over the objection

of defense counsel, Bell testified to a telephone interview with Worthy the morning

of the incident. During the interview, Green told Bell that Worthy “began to

assault her, striking her several times in the face,” and “at some point, he also

made threats towards her, stating that he will kill her.” The issue on appeal is

whether this prior consistent statement was admissible as an exception to the rule

against hearsay.



                                      Analysis



      As a general rule, prior consistent statements are not admissible to bolster

the credibility of a witness. Rease v. United States, 403 A.2d 322, 327 (D.C.

1979). The rationale for excluding such prior statements is lack of relevance.

“Mere repetition does not imply veracity.” Scott v. United States, 412 A.2d 364,



      2
         This statement appears to have been made by Green when she was
protesting the arrest of Worthy that was taking place at the time.
                                          4


373 (D.C. 1980). However, once a witness has been impeached, exceptions come

into play.



      One such exception has been codified in D.C. Code § 14-102 (b)(2)

providing for the admission of a prior consistent statement that “is offered to rebut

an express or implied charge against the witness of recent fabrication or improper

influences or motives.” Such a statement is deemed nonhearsay and constitutes

substantive evidence. This provision duplicates the almost identically worded

Federal Rule of Evidence 801 (d)(1)(B). See Tome v. United States, 513 U.S. 150,

156 (1995); Mason v. United States, 53 A.3d 1084, 1092 (D.C. 2012). A second

exception exists that where a witness‟s testimony has been impeached by a portion

of a statement, the remainder of the statement can be introduced insofar as it meets

the force of the impeachment. See Musgrove v. United States, 441 A.2d 980, 985

(D.C. 1982).



      Worthy in essence argues that apart from these two situations, the

introduction of prior consistent statements is barred. We cannot agree. As the

government correctly asserts, the overriding principle is that prior consistent

statements are admissible to rehabilitate a witness when the facts and

circumstances of the statement have particular relevance in refuting the theory of
                                         5


impeachment that has been advanced.          This very principle is reflected in a

proposed amendment to the Federal Rules of Evidence, which the Supreme Court

recently submitted to Congress, that would add a subsection 801 (d)(1)(B)(ii). The

proposed amendment would allow the admissibility of a prior consistent statement

as substantive evidence when the statement is offered “to rehabilitate the

declarant‟s credibility as a witness when attacked on another ground.”3



      Our own case law has recognized this ground of admissibility of a prior

consistent statement. As early as Rease, supra, 403 A.2d at 327-28, we noted that

      3
          The Judicial Conference of the United States‟ Advisory Committees on
Appellate, Bankruptcy, Criminal, and Evidence Rules specifically noted that the
existing rule dealt with only one basis for admission of a prior consistent statement
as substantive evidence. This change reflects the advisory committee‟s recognition
that such statements could be admitted on other bases solely for “rehabilitation,”
such as to explain an inconsistency or to rebut a charge of bad memory. The
committee concluded that the distinction between substantive use and that only of
rehabilitation was confusing and without practical significance. The committee
thus recommended the expanded application of the rule. In doing so, however, it
stressed that the amendment did not change existing limits on introduction of prior
consistent statements and that “[a]s before, prior consistent statements under the
amendment may be brought before the fact finder only if they properly rehabilitate
a witness whose credibility has been challenged.” See Sidney A. Fitzwater, Report
of the Advisory Committee on Evidence Rules (May 3, 2012), in PRELIMINARY
DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE,
BANKRUPTCY, AND CRIMINAL PROCEDURE, AND THE FEDERAL RULES OF EVIDENCE,
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES 213, 213-19 (Aug. 2012); Judicial Conference of the United
States, Summary of the Report of the Judicial Conference Committee on Rules of
Practice and Procedure 1, 29-32 (Sept. 2013).
                                         6


prior consistent statements could be admitted “for rehabilitation purposes” where

they “can be of very clear help to the factfinder in determining whether the witness

is truthful” and where the proposed evidence “is directed only at the particular

impeachment that occurred.”4 Subsequently, in Johnson v. United States, 434 A.2d

415 (D.C. 1981), we articulated much the same evidentiary standard in sustaining a

trial court admittance of a prior consistent statement where the witness had been

impeached specifically by a prior inconsistent statement, saying: “[T]here is „the

corollary principle [to the general rule of exclusion] that a prior consistent

statement . . . may be introduced into evidence to rehabilitate a witness.‟ United

States v. Smith, 160 U.S. App. D.C. 221, 225, 490 F.2d 789, 790 (1974) (footnote

omitted). Such rehabilitation is permissible when the witness‟ credibility has been

challenged, Rease v. United States, supra, 403 A.2d at 328 n.7, whether by

impeachment with a prior inconsistent statement or by implication that the witness




      4
         It is true that in Rease, supra, 403 A.2d at 327-28, we thought that this
would be an “exceptional situation” and sustained the trial court‟s exclusion of the
proffered consistent statement. While a footnote in Rease observed that the
“generally recognized exceptions” to the prohibition against use of prior consistent
statements were the two already noted above, we do not read Rease or any
subsequent cases as holding that these exceptions are all-inclusive. Several
subsequent cases have generally recited the Rease analysis. See, e.g., Battle v.
United States, 630 A.2d 211, 215-16 (D.C. 1993).
                                           7


has a motive to lie.”     Id. at 420-21 (bracketed addition in original; citations

omitted).5



      Green‟s statement to Detective Bell on the very day of the incident

comfortably falls within the limited conditions for admissibility to rehabilitate

propounded in Rease. Green‟s credibility was significantly brought into question

by the introduction of her statement to Detective Ricks only a day after the incident

that Worthy “didn‟t do anything to [her].” The relevance of the prior consistent

statement that was made to the police even closer in time to the incident borders on

being self-evident. It completely refutes any suggestion that the Ricks statement

reflected Green‟s original view of the facts as related to the police and that her later

statements to the grand jury and to the trial judge were falsified or based on a

fading memory. It plainly could be of “very clear help to the factfinder” in

determining truthfulness and was aimed squarely at the “particular impeachment



      5
         While we found that both conditions existed in the facts of Johnson, the
opinion by use of the disjunctive “or” suggests that either ground alone would have
been sufficient. To be clear, Johnson does not open the door to admissibility,
willy-nilly, of prior consistent statements simply because a prior inconsistent
statement has been used for impeachment, a point we made clear in Rowland v.
United States, 840 A.2d 664, 679 (D.C. 2004). As we noted in subsequently
distinguishing Johnson, the limitations imposed by Rease were effectively met in
that case. See McClain v. United States, 460 A.2d 562, 570 n.14 (D.C. 1983).
                                            8


that had occurred.” Rease, supra, 403 A.2d at 328.6 Furthermore, the government

made clear that the statement to Detective Bell was being proffered not for its truth

but solely for rehabilitation in this bench trial. In short, the trial court did not err or

abuse its discretion7 in admitting the challenged prior consistent statement.

Accordingly, the judgment appealed from is




                                                 Affirmed.




      6
         We thus take issue with the dissent‟s assertion that “Ms. Green‟s statement
is not relevant to meet the force of her impeachment other than through the
“repetition implies veracity” inferential chain.”           However one reads the
government‟s assertions in the brief dialogue at trial, the issue before us is whether
the trial court itself at a bench trial erroneously admitted the evidence. And, as we
have already stated in footnote 5, we reject any suggestion that impeachment with
a prior inconsistent statement is itself enough to allow admission of a prior
consistent statement without meeting the stringent limitations required by Rease
quoted in the text supra.
      7
        “The trial judge has broad discretion with respect to the admission or
exclusion of prior consistent statements.” District of Columbia v. Bethel, 567 A.2d
1331, 1336 (D.C. 1990) (internal citations omitted).
                                         9


      BECKWITH, Associate Judge, dissenting: The government in this case sought

to admit a prior statement of Alexsandra Green to Detective Derek Bell the day of

the incident that was consistent with certain statements she made in the grand jury

two weeks after the incident that the government wanted the trial court to credit as

true. The government‟s theory of relevance for this prior consistent statement was

that it “rehabilitated” Ms. Green after she was impeached with an inconsistent

statement made to Detective Ricks a day after the incident. And the government‟s

theory for why the prior consistent statement rehabilitated her—that is, why it met

the force of the impeachment by inconsistency—was not that it showed that the

statement was not truly inconsistent, but simply that it tended to show that Ms.

Green was credible because “she‟s been consistent with her story.” In other words,

her repetition of the story implied its veracity. Because this fallacy is precisely

what the general rule of exclusion for prior consistent statements is designed to

prevent, the statement was, in my view, erroneously admitted, and I respectfully

dissent from the majority's contrary holding.



      Federal Rule of Evidence 801 (d)(1)(B) and its substantially verbatim

counterpart in the District, D.C. Code § 14-102 (2012 Repl.), codify the common
                                           10


law rule that prior consistent statements, while generally inadmissible, 1 are

admissible when they rebut a charge of “recent fabrication” and were made before

the motive to fabricate arose. See Tome v. United States, 513 U.S. 150, 156

(1995).    While the common law rule only admitted such statements for

“rehabilitative” purposes, Rule 801 (d) and § 14-102 label them as “non-hearsay”

and admit them for their truth. In McClain v. United States, 460 A.2d 562 (D.C.

1983), this Court held that an attack on a witness‟s testimony based on an alleged

inability to remember the incident, in the absence of “any specific suggestion of

fabrication,” was not a charge of recent fabrication for § 14-102 purposes. Id. at

570.   Here, Mr. Worthy‟s attack on the accuracy of Ms. Green‟s grand jury

testimony was an attack on her memory, not a suggestion that she had a particular

motive to fabricate—to deliberately make up—her claim to the grand jury that Mr.

Worthy tried to kill her. It thus seems clear that Ms. Green‟s statement is not

admissible for its truth under § 14-102.




       1
         See, e.g., United States v. Simonelli, 237 F.3d 19 (1st Cir. 2001) (noting
that before Tome, most federal courts had held that Rule 801 (d) did not “displace
the common law rule that prior consistent statements could be introduced in certain
situations to rehabilitate a witness,” which “[u]sually” meant situations where the
statement was necessary for completeness).
                                         11


      There does not appear to be any other provision of D.C. law that would

allow admission of Ms. Green‟s prior consistent statement to Detective Bell for its

truth. The Supreme Court in Tome noted that its holding (that prior consistent

statements are not admissible under Rule 801 (d)(1)(B) unless they predate an

alleged motive to fabricate) theoretically did not preclude admission of prior

consistent statements not meeting the strictures of Rule 801 (d) for their truth under

some other provision of federal law, such as Federal Rule of Evidence 807, the

“residual” hearsay exception. Tome, 513 U.S. at 158-59. But this court has not yet

recognized such an exception, Myerson v. United States, No. 12-CM-1642, slip op.

at 2 n.3 (D.C. Aug. 28, 2014), and even if we had, it would surely be used—as is

the federal rule—“very rarely, and only in exceptional circumstances.”2



      The government alternatively claims, and the majority holds, that even if

Ms. Green‟s statement is not admissible for its truth, it is admissible simply for

“rehabilitation” purposes. That is, the statement‟s relevance is not to show that its

contents are true, but merely to show that Ms. Green is credible, by meeting the

force of some specific line of impeachment tending to show she is not credible. It

is worth noting at the outset that some federal circuits addressing the issue after

Tome have held that prior consistent statements are not admissible for any

      2
          Advisory Committee Note to Federal Rule of Evidence 807.
                                         12


purpose—even simply so-called “rehabilitative” purposes—if they do not meet the

strictures of Rule 801 (d). In so holding, these courts point out that any fine

distinction between these two concepts—a prior consistent statement coming in for

its truth and merely for “rehabilitation” purposes—is illusory. See, e.g., Simonelli,

237 F.3d 19 (1st Cir. 2001) (noting a circuit split on this issue and the reasoning

underlying it). It is nonetheless true that the “majority view” in the federal courts

is that prior consistent statements not admissible for their truth under 801 (d) might

still be admissible not for their truth, but simply to rehabilitate a witness. And the

recent proposed amendment to Rule 801 (d), cited by the majority here, seems to

validate that view.



      There is no such proposed amendment to § 14-102, and we have never had

occasion to address the issue that has split the federal courts after Tome—that is,

whether prior consistent statements, even if not admissible under § 14-102, might

still be admissible for a non-hearsay purpose, to “rehabilitate” a witness, and if so,

under what circumstances such rehabilitation would be allowed other than the rule

of completeness.



      While this is an interesting question, we need not resolve it here, because

Ms. Green‟s statement is not relevant to meet the force of her impeachment other
                                            13


than through the “repetition implies veracity” inferential chain. Even under the

majority federal view, a prior consistent statement is not admissible to

“rehabilitate” a witness simply because she has been attacked; the statement must

have some relevance in meeting the force of a specific line of impeachment that

goes beyond simply “repetition implies veracity.” The typical context in which

consistent statements are offered to rehabilitate a witness for a reason other than to

rebut a charge of recent fabrication is the rule of completeness.           See, e.g.,

Simonelli. But one could imagine other contexts. For example, as Justice Breyer

noted in dissent in Tome, a “postmotive” statement might be relevant to rebut a

charge of recent fabrication based on a motive to lie “when the speaker made the

prior statement while affected by a far more powerful motive to tell the truth.”3

513 U.S. at 172 (Breyer, J., dissenting).



      Another exceptional context in which a prior consistent statement should

arguably be admitted for “rehabilitative” purposes, even if not admissible under

      3
         Imagine, for example, a case in which a mother reports to a doctor that her
child was abused by a babysitter (where, say, the truth is important to save the
child‟s life). In a subsequent criminal trial of the babysitter for child abuse, the
mother testifies that she saw the babysitter hit the child. The defense claims the
report is false, motivated by a desire not to pay the babysitter. It would seem
appropriate that the government would be able to introduce the mother‟s prior
consistent statement to the doctor, not for its truth, but to meet the force of the
suggestion that her current testimony is primarily motivated by a desire not to pay
the babysitter.
                                       14


§ 14-102, might well be where the statement meets the force of an impeachment on

grounds of faulty memory or perception. The defense came dangerously close here

to justifying admission of the statement on such a ground, were we to recognize it

as a valid ground for admission. The defense intimated that Ms. Green‟s grand

jury testimony was affected by her ingestion of Seroquel, an antidepressant that

Ms. Green acknowledged affects her memory. If the government‟s theory of

relevance in introducing Ms. Green‟s statement to Detective Bell—which was

given at a time when Ms. Green was not under the influence of Seroquel—was that

it showed that Ms. Green‟s claim that Mr. Worthy had threatened to kill her was

not simply a product of a Seroquel-induced haze, then our task on appeal might be

rendered more difficult.



      Here, however, the government‟s theory of relevance was simply that the

prior statement tended to show that the grand jury testimony was credible because

the two stories were similar.   And that theory is undisputedly invalid. 4    The


      4
          The majority properly declines to embrace the government‟s argument that
this statement could also be admissible to show that the statement to Detective
Ricks the next day—that Mr. Worthy did not do anything to her—was not actually
inconsistent with her grand jury testimony. It also properly rejects the
government‟s invitation to create what in essence is an exception to the hearsay
rule for prior consistent statements of a domestic violence victim. Some states
have such a rule—California created one shortly after the O.J. Simpson verdict,
see, e.g., Cal. Evid. Code § 1370—but the District of Columbia does not.
                                          15


majority states that the “relevance of the prior consistent statement that was also

made to the police even closer in time to the incident borders on being self-

evident.” Ante at 7. Yet the timing of the statement does not change the fact that

the theory of relevance is ultimately nothing more than the “repetition implies

veracity” fallacy that the general rule of exclusion for prior consistent statements is

meant to prevent—that is, a contention that the witness said the same thing before

the inconsistency that she later said to the grand jury.



      To the extent the majority suggests that a prior consistent statement is

admissible for rehabilitative purposes so long as the witness‟s credibility has been

challenged “by impeachment with a prior inconsistent statement,” ante at 6, this

cannot be the law. Such a broad exception would swallow the general rule of

exclusion of prior consistent statements.       While some states have chosen to

explicitly allow prior consistent statements for this purpose, see, e.g., Cal. Evid.

Code § 791 (allowing admission of prior consistent statements when they predate

either a prior inconsistency or an alleged motive to lie), the District has not.



      I also decline the government‟s invitation to create a per se harmlessness

rule for the erroneous admission of prior consistent statements in bench trials.

Here, Ms. Green was the only witness to the alleged threat, her descriptions of that
                                           16


offense were contradictory, and the defense impeached her at every turn. The

government‟s rebuttal argument then relied heavily upon Ms. Green‟s prior

consistent statement to portray her as credible and to downplay the inconsistencies.

The prosecutor stated that Detective Bell‟s testimony showed that “Ms. Green was

consistent then. She was consistent with what she told officers very short in time

after the incident happened that morning with what she told a mere two or so

weeks later in grand jury.” As we have often stated, “[a] prosecutor‟s stress [upon]

the centrality of particular evidence in closing argument tells a good deal about

whether the admission of the evidence was meant to be, and was, prejudicial.”

Morten v. United States, 856 A.2d 595, 602 (D.C. 2004) (quotation marks

omitted).



      More significantly, the trial court explicitly relied upon the prior consistent

statement in its verdict, crediting Ms. Green‟s grand jury testimony that Mr.

Worthy “threatened to kill her” in part because “this is the story she gave the

police,” noting that “[i]t was consistent, as the officer also testified, that that‟s what

she related to him, Officer Bell,” and concluding in the very last sentence of its

findings that the government had proved beyond a reasonable doubt that Mr.

Worthy committed the offense of attempted threats “by saying „I‟m going to kill

you‟”—the words she used in the grand jury testimony that, in the court‟s view,
                                         17


had been so bolstered by the prior consistent statement. In other appeals from

bench trial convictions, we have readily held that a trial court‟s evidentiary error

was not harmless where the court specifically relied upon the erroneously admitted

hearsay in convicting the defendant. See, e.g., In re L.L., 974 A.2d 859, 866 (D.C.

2009) (finding that the erroneous evidentiary ruling required reversal “[b]ecause

the trial court expressly referred to the substance of the statement when explaining

its decision that [the defendant] was guilty”); Jones v. United States, 17 A.3d 628,

634 (D.C. 2011) (concluding that because the trial court, “in adducing appellant‟s

guilt,” relied on hearsay testimony that “never should have been admitted into

evidence,” the judgment “undoubtedly was substantially swayed by the error and

„it is impossible to conclude that substantial rights were not affected.‟”) (citation

omitted). At least with respect to the attempted threat charge, the government has

not established that it is “highly probable that [the] error did not contribute to the

verdict.” In re Ty.B., 878 A.2d 1255, 1267 (D.C. 2005) (citation and internal

quotation marks omitted). Julius Worthy‟s conviction on that count should be

reversed.
