Court rules DNA testing problems at DFS not enough for new trial

Barber v. United States (decided March 1, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Pryor. Opinion by Chief Judge Blackburne-Rigsby. Matthew B. Kaplan for Mr. Barber. Trial Judge: Russell F. Canan.

Facts: Appellant Tavon Barber was convicted of theft, armed burglary, three counts of third-degree sexual abuse, and eight counts of possession of a firearm during a crime of violence (PFCV) in connection with two home invasions on June 4 and 5, 2013. The evidence of sexual abuse consisted of testimony to the effect that Mr. Barber slapped the bottom of a female victim during the second home invasion and then fondled and ran his gun barrel along her body. The government relied in part on DNA evidence in its case against Mr. Barber, using testimony both of a DFS employee and of independent expert Dr. Bruce Budowle. Dr. Budowle generally agreed with DFS’s conclusions as to whether or not samples collected from the scene “matched” the suspects and victims but voiced concerns about the statistical calculations underlying these conclusions. Following trial, both DFS and the U.S. Attorney’s Office engaged in an internal audit led by Dr. Budowle himself, and the panel’s report identified multiple systemic flaws in DFS’s protocol for interpreting forensic DNA tests and calculating “match” probability. Based on these findings, Mr. Barber filed a Rule 33 motion for a new trial on the theory that the report “unequivocally demonstrates the unreliability of DFS testing and invalidates the entire testing process” and thus significantly undermines the DNA evidence used to convict him. Judge Canan denied this motion, noting that the challenged DNA evidence was “not the ‘key evidence’” in the prosecution’s case and that even Dr. Budowle had no concerns about the particular evidence used against Mr. Barber. 

Issue 1: Did the trial judge err in denying appellant’s motion for a new trial based on newly discovered evidence?

Holding 1: No. Rule 33 imposes four requirements for motions for a new trial based on newly discovered evidence, two of which were contested here: whether the new evidence is “material…and not merely cumulative or impeaching” and whether the evidence is “of a nature that it would probably produce an acquittal.” The Court found that the Budowle Report failed both of these prongs. Regarding materiality, the Court of Appeals noted that the systemic issues identified after trial were essentially remedied in Mr. Barber’s case by Dr. Budowle providing his own, undisputed conclusions to the jury. The Court also found that any cross-examination of the DFS expert concerning the lab’s systemic issues would have served merely to impeach her, which cannot be the basis for a new trial under Rule 33.

With respect to the evidence’s probability of producing an acquittal, the Court of Appeals agreed with the trial judge, finding that the DNA was not crucial to the prosecution’s case. The government introduced various other pieces of evidence incriminating Mr. Barber, including fingerprint evidence in a stolen car, a hand-print from the scene, the identifying testimony of one of the victims, and a third-party witness’s relation of Mr. Barber’s detailed confession to the crimes. Accordingly, because the new evidence was merely impeaching and unlikely to have produced an acquittal, the Court of Appeals held that the trial court did not abuse its discretion in denying Mr. Barber’s motion.

Issue 2: Should the appellant’s three sexual abuse and eight PFCV charges have been merged into one charge of sexual abuse and one charge of PCFV?

Holding 2: No. Criminal acts do not merge when “there is an appreciable length of time between the acts…or when a subsequent criminal act was not the result of the original impulse but a fresh one.” Sanchez-Rengifo v. United States. For sexual assault cases, the Court of Appeals inquires whether “the defendant sought a ‘new and different kind of sexual gratifications,’ with each act committed against the victim, such that [the Court is] convinced that the defendant was acting ‘in response to a fresh impulse.’” The Court held that the three acts of sexual assault charged here—slapping the victim’s bottom, flipping her over to touch her breast, and touching the victim’s thighs and buttocks with a firearm—pass this test. In finding that the first two do not merge, the Court placed emphasis on appellant’s forcing the victim to change position, distinguishing the facts here from Cullen v. United States, in which acts of sexual assault had merged. In addition, the Court held that appellant’s use of the firearm implicates the third-degree sexual abuse statute’s specific mention of threats of bodily injury; this mention “denotes the legislature’s attempt to distinguish different counts … based on differences in the nature and character of the acts.”

Regarding appellant’s eight PFCV charges, such charges merge only when their predicate crimes merge, and here, all of the eight predicate offenses  were found to pass the “fork-in-the-road” test—“appellant was at a fork in the road an had an opportunity to reconsider his actions.”—Jackson Myers.

Read the full opinion here.

Although One "Cannot Aid or Abet Himself," It's Not Error To Instruct on Aiding and Abetting Where Government's Theory Is That the Defendant Was The Principal

Dickens & Fenner v. United States (decided July 20, 2017)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion by Judge Fisher. Separate statement by Judge Fisher. Jennifer Wicks for Mr. Dickens. PDS for Mr. Fenner. Trial Judge: Jennifer M. Anderson.

Facts: Fenner, Dickens, and Pitts were charged with his first-degree murder while armed as well as conspiracy to commit first-degree murder while armed resulting from the shooting death of Stanley Daniels. Fenner was also charged with possession of a firearm during a crime of violence (PFCV). Pitts pleaded guilty to the conspiracy charge and testified against Fenner and Dickens at trial.

Two witnesses to the shooting testified that they saw a shooter wearing a light gray or white shirt and jean shorts. One, standing a block away, said the shooter was “[a]lmost bald” and had facial hair. Two other witnesses, including Pitts, said they heard Fenner say he shot Daniels.

The government requested an “aiding and abetting” instruction. Fenner’s attorney argued the jury should only be instructed on aiding and abetting as to Dickens, since the government’s evidence and charges pointed to Fenner as the principal. The judge denied the instruction because he said the witness identifications of the shooter were subtly different, and a reasonable juror could find Fenner was an accomplice to Dickens because “the murder was ongoing until they left the scene.”

At trial, counsel for Fenner argued to the jury that it should attribute any holes in the government’s case to the government, not to the defense: “[I]f there are any questions you want answered, ….witnesses you wish you heard from, like the other people supposedly up there in the car with [Dickens], evidence you wish you had…” This line of argument was interrupted by the prosecutor's objection, and the judge told the jury to “ignore that one argument about people that were up there that you didn’t hear from.”

During deliberations the jury specifically asked whether a person had “to have a gun in hand” to have committed first-degree murder while armed, to which the judge answered no. The jury ultimately acquitted Fenner of PFCV, but found both Fenner and Dickens guilty of conspiracy and first-degree murder.

After trial, Dickens discovered new evidence. While preparing a presentence report (PSR) for Pitts before the trial, the Court Services and Offender Supervision Agency (CSOSA) interviewed him, and he made statements that weren’t given to the defense until the trial was over. Some of the statements contradicted Pitts’ testimony at trial.

Issue 1: Was it error to instruct the jury on aiding and abetting as to Fenner where the government's theory and evidence identified him as the principal?

Holding: No. The Court found there was sufficient evidence to convict Fenner under an aiding and abetting theory.

Fenner had relied on Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991), which overturned a conviction where the aiding and abetting instruction was wrongly given because “[o]ne cannot aid or abet himself.” Fenner argued that the jury’s question and his acquittal on the PFCV charge showed the jury convicted him of aiding and abetting, and that such a charge was inconsistent with the government’s theory and the evidence presented at trial.

The Court disagreed, citing Inyamah v. United States, 956 A.2d 58, 62–63 (D.C. 2008) (holding that convictions may be sustained “where two correct theories of illegality are presented in the instructions and there is sufficient evidence to convict only on one”). Fenner had also argued, however, that Inyamah didn’t apply because the jury’s acquittal on the PFCV charge ought to rebut any presumption that the jury convicted him as a principal.

The Court dodged the PFCV question. Instead, it held the evidence sufficient in this case to have supported a conviction under either accessory or principal liability. The Court also noted that the jury’s conviction on the conspiracy count “provid[es] powerful evidence that it believed that the government had proven the requisite intent for aiding and abetting as well.”

Issue 2: Did the trial court commit reversible error in striking a portion of Fenner’s counsel’s closing argument?

Holding: No. The Court held that, without deciding whether the objected-to argument was improper, that because counsel was later able to “argue at length,” and argue that reasonable doubt could be based on the “lack of evidence in the case,” “there was no abuse of discretion.”

Issue 3: Did the government violate Brady or Superior Court Criminal Rule 33 in failing to turn over Pitts' statements in the PSR about Dickens until after Dickens’ trial?

Holding: No. On Brady, Dickens had argued that the government had an obligation to search for and acquire the statement even if it did not have it in its possession, and that CSOSA was acting as an agent of the prosecution in undertaking its investigation. The Court said that CSOSA assists the court in sentencing, not in prosecution. The Court also noted that the government “did not know the content of the report until it was able to access the PSR after trial.”

It held that though “there might be circumstances in which the government could be found to be in constructive possession of materials in the hands of CSOSA, those circumstances are not presented here.”

On Rule 33, the Court held that Dickens was not diligent in seeking out Pitts’ statement to CSOSA as demanded by Rule 33, and so did not reach the other prongs of the test.

Issue 4: Did the trial judge abuse his discretion in failing to conduct further inquiry into a pre-trial complaint Dickens made about his counsel?

Holding: No. The Court credited the judge's determination that the only issue in the attorney-client relationship was a continuance Dickens disagreed with, where he found that “I can’t appoint [Dickens] new counsel because you couldn’t get the date changed.” Dickens’ attorney agreed that was the primary issue. But he had also said there “may be other matters” leading Dickens to desire a new lawyer.

The Court called this “may be” statement a “fleeting and vague reference” that the judge was not required to investigate after delving into Dickens’ main complaint about counsel. The Court also noted that Dickens “did not voice displeasure” with his counsel at subsequent pretrial hearings.

The Separate Statement: Judge Fisher wrote separately to address what he called “enduring mischief” in Brooks that he believes invites the “pointless exercise” of distinguishing between accomplices and principals. Instead, Fisher wrote, trial courts “should focus on whether the evidence shows that the defendant acted alone or with one or more persons.”

LT

Read the full opinion here.

New Expert Testimony on Difference Between MDMA and MDMC, Quantity Consistent With Personal Use, Did Not Warrant a New Trial on PWID

Green v. United States (decided July 20, 2017)

Players: Associate Judges Fisher and McLeese, Senior Judge Ruiz. Opinion by Judge Fisher. Dissent by Judge Ruiz. Kerri L. Ruttenberg & William D. Coglianese for Mr. Green. Trial Judge: Robert I. Richter.

Facts: A search of Mr. Green’s home produced what was later identified as slightly over 8.2 g of MDMC powder. A cell phone found in the search had text messages from several months prior that discussed selling “Molly.”

At trial, an expert witness testified that the 8.2 g of MDMC found might make 82 capsules. She based her estimate on each capsule containing .1 g. Another expert witness testified that MDMC is different but chemically similar to MDMA; that MDMC is more potent than MDMA; and that the street name for MDMC is “Molly.”

Judge Richter found Mr. Green guilty of PWID on June 12, 2013. The judge held that while “the quantity alone might not be enough, [and] the text messages alone might not be enough, . . . together they clearly constitute proof beyond a reasonable doubt.”

On June 17, 2013, Mr. Green asked for and received an extension on the deadline to file a motion for a new trial pursuant to Rule 33. The new deadline became September 9. On July 8, Mr. Green asked for and received another extension to October 9. Within this time, Mr. Green filed his motion. The motion included an affidavit from an expert witness who stated that “Molly” was the street name for MDMA, not MDMC. The motion also included an affidavit from another expert witness, who suggested that the quantity was not inconsistent with personal use. He stated that the amount of MDMC found in the apartment would only make between 16 and 41 capsules of MDMC. The motion argued that the evidence was insufficient to prove PWID in light of the affidavits. Alternatively, Mr. Green requested a new trial on the PWID charge.

Judge Richter denied the motion, ruling that the “new assertions . . . would not have resulted in a different verdict.” The judge characterized the motion as a “post-trial change in tactics” and “too late.”

Issue 1: Was the evidence insufficient to prove PWID in light of the affidavits attached to Mr. Green’s Rule 33 motion?

Holding: No. The test for sufficiency of the evidence is based only on the evidence actually before the fact-finder when it made the finding of guilt. The court was correct not to include the new evidence in the sufficiency analysis.

Issue 2: Does this appeal qualify for review under the “interests of justice” standard despite being filed outside the time frame designated by Rule 33?

Holding: Yes.  Rule 33 provides a mechanism for a new trial in “the interests of justice” or when there is “newly discovered evidence.” A motion only qualifies under “the interest of justice” standard if it is filed with 7 days, or with a period designated by the court during that 7-day period. The second extension here was not set within the original 7-day period. However, the government forfeited its argument that the more restrictive standard of review for “newly discovered evidence” applies, because they did not object to the two extensions given Mr. Green by the court. The court must evaluate Mr. Green’s motion under the “interests of justice” prong of Rule 33.

Issue 3: Is a new trial required in "the interests of justice"?

Holding: No. A Rule 33 motion for a new trial in the interest of justice should be granted only if exceptional circumstances prevented the defendant from having a fair trial. This is a very fact-specific inquiry, but prior cases provide some guidance.

The DCCA has found exceptional circumstances when the victim’s mother gave an affidavit stating that she no longer believed her daughter’s testimony, which was the only evidence against the defendant. Benton v. United States, 188 F.2d 625 (D.C. Cir. 1951). The DCCA has also held that a defendant’s diligence may be one factor in the “interests of justice” inquiry, but the burden is not on the defendant to prove her own diligence. Brodie v. United States, 295 F.2d 157 (D.C. Cir. 1961). A defendant was held to have been denied a fair trial when he alleged that he had received threats against him and his family if he testified against his co-defendant. Lyons v. United States, 833 A.2d 481 (D.C. 2003). A defendant’s motion was denied when he failed to impeach an officer with transcripts available to him at trial. Huggins v. United States, 333 A.2d 385 (D.C. 1975).

Mr. Green did not demonstrate that exceptional circumstances prevented him from receiving a fair trial. The evidence submitted in his motion was available prior to trial. Counsel could have requested a continuance to call a rebuttal witness, especially because this was a bench trial.

The Dissent: Judge Ruiz dissented, asserting that the judge’s stated reasons for denying the Rule 33 motion were not supported by the record. The motion was not a “change in tactics,” because counsel disputed both the testimony that MDMC was called “Molly” and that the amount was inconsistent with personal use. When rendering the guilty verdict, the court specifically mentioned that the evidence on neither of these two points was sufficient by itself. The new evidence in the motion directly contested those two points. The court should have examined the affidavits more carefully in these circumstances.

According to Judge Ruiz, the majority mistakenly categorizes the assertions as “new,” when they were all raised at trial. Judge Ruiz also suggested that the majority contravened Brodie by focusing too much on Mr. Green’s diligence. It would have been easy to reopen a bench trial to hear more evidence on these points. In light of the court’s acknowledgment that these points in the case were insufficient on their own, the court cannot so easily say that the new information would not have resulted in a different verdict. 

LS

Read the full opinion here.