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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 328.6Furthermore, 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 discretion7in 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,1are 

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 selfevident.” 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.