Summary
In Griffin, supra, a panel of this court determined that the Arnold holding does not embrace a prosecution for homosexual solicitation.
Summary of this case from Sweet v. United StatesOpinion
No. 13312.
Argued November 8, 1978.
Decided December 19, 1978.
Appeal from the Superior Court, District of Columbia, James A. Washington, Jr., J.
John Stanton, Washington, D.C., appointed by this court, for appellant.
Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.
Before KELLY, GALLAGHER and NEBEKER, Associate Judges.
This is an appeal from a conviction of solicitation for lewd and immoral purposes. D.C. Code 1973, § 22-2701. The solicitation was of a covert police officer who stopped his car and was approached by appellant. Only the officer testified for the government. The defense relied in its motion for judgment of acquittal on Kelly v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150 (1952), which held that corroboration of the officer's testimony is required. The government and the trial court were of the opinion that the rationale of Arnold v. United States, D.C.App., 358 A.2d 335 (1976) (en banc) abrogated the need for such corroborative evidence. We conclude that Arnold cannot be read to reach that result and under M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971), we are required to reverse and order a judgment of acquittal, the case being controlled by Kelly.
In Arnold v. United States, supra, this court abrogated the rule that a rape victim's testimony must be corroborated. The government argues that the en banc Arnold holding and rationale go beyond the offense of rape and fairly may be read as overturning the need for corroboration in prosecutions for this type of solicitation. A closer reading of the opinions in Arnold reveals that only three other judges subscribed, without reservation, to Judge Pair's opinion. It is that opinion which used such broad language as "in a sex case", id. at 343, "rape and other sex related offenses" and "rape or its lesser included offenses", id. at 344. This author specifically reserved concurrence in "the directive to eliminate for the future the need for proof of corroboration in rape and lesser included offenses . . .." Id. Three other judges specifically concurred in Judge Fickling's opinion in which he withheld application of the new rule to "a related sex case" until one was before us. Id. at 345 n. 1.
It is, therefore, apparent that the holding in Arnold is limited to rape and its lesser included offenses. We are unable as a division to deem ourselves free to depart from specifically binding precedent on the authority of Arnold v. United States, supra. M. A. P. v. Ryan, supra.
In Arnold v. United States, supra at 344, a majority of the judges of this court mandated only that
in the future no instruction directed specifically to the credibility of any mature female victim of rape or its lesser included offenses and the necessity for corroboration of her testimony shall be required or given in the trial of any such case in the District of Columbia court system.
The government also argues that the reasoning supporting the decision in Arnold applies with equal force to a homosexual solicitation. We do not pass on the merit of this point for it is clear to us that the M. A. P. rule respecting division authority in the face of binding precedent appropriately applies to holdings or "decisions", M. A. P. v. Ryan, supra at 312, not rationale or dictum.
The judgment of conviction is
Reversed and the case remanded for entry of a judgment of acquittal.
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), precludes, on double jeopardy grounds, retrial when the reviewing court holds that the evidence was insufficient for conviction.