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.

Crying Wolf? Finding of Competency and Denial of Motion to Withdraw Affirmed in Light of Defendant’s Perceived Malingering and Bad Faith.

Christian D. Taylor v. United States (decided March 31, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Judge Nebeker. Nicholas B. Lewis, Anand V. Ramana, and Christopher D. McEachran for Mr. Taylor. Trial Judge: Thomas J. Motley.

Facts: Mr. Taylor was convicted on two counts of first-degree premeditated murder; four counts of felony murder, second-degree burglary while armed, and robbery while armed; and seven counts of possession of a firearm during a crime of violence (“PFCV”) for entering a store, demanding money at gunpoint, and shooting the cashier and his father, who co-owned the store.

Mr. Taylor refused to participate in his initial 24-hour competency screening. After a 45-day inpatient evaluation, the trial court found Mr. Taylor competent to stand trial. Mr. Taylor later complained of intermittent inability to speak and hear. Examiners at St. Elizabeth’s Hospital determined that he was malingering, and the court again found him competent.

Geoffrey Harris was appointed to represent Mr. Taylor with another attorney who later withdrew due to Mr. Taylor’s complaints about the representation and professed religious bias. Mr. Harris moved to withdraw, after Mr. Taylor filed a bar complaint against him. Having found that Mr. Taylor fienged his hearing/speech loss to avoid trial, the trial court similarly denied the motion to withdraw in light of perceived bad faith on Mr. Taylor’s part but appointed another attorney to act as co-counsel at trial. Mr. Harris twice renewed his motion to withdraw, including once, in light of Mr. Taylor’s alleged threats to his children. The trial court denied these motions, finding that they were also motivated by Mr. Taylor’s desire to avoid trial. The court declined to recuse itself from hearing these motions or presiding over the trial.

Issue 1: Whether the trial court abused its discretion in deeming Mr. Taylor competent to stand trial?

Holding 1: No. Mr. Taylor had no prior history of mental illness. He was deemed competent by two mental health professionals at St. Elizabeth’s Hospital. Lay testimony and the trial judge’s in-court observations further supported its finding. Mr. Taylor put forward no evidence to overcome the presumption that he was competent.

Issue 2: Whether there was an actual conflict of interest between Mr. Taylor and Mr. Harris that adversely affected Mr. Harris’ performance?

Holding 2: No. The court appropriately inquired into the potential conflict. Its remedy of appointing co-counsel for trial was sufficient to prevent any prejudice, as co-counsel took a lead role. Mr. Taylor has not complained about co-counsel’s performance and fails to identify any prejudice suffered as a result of Mr. Harris’ continued representation. Based on the record presented, the trial court correctly found that Mr. Taylor was just trying to avoid trial.

Issue 3: Whether the trial court erred in declining to recuse itself from presiding over the trial after presiding over Mr. Harris’ motion to withdraw?

Holding 3: No. The trial judge was in the best position to hear the motion to withdraw, having seen the relationship between Mr. Taylor and his attorneys, past and present. Efficiency may sometimes counsel preemptive recusal from a potentially prejudicial motion, but it is not necessary in all cases. The trial court was aware of its duty to self-recuse, if it became prejudiced. The record does not contradict its finding that there was no prejudice.

Issue 4: Whether the government presented sufficient evidence that the murders were premeditated and deliberate?

Holding 4: The issue is moot. Only one murder conviction per victim may stand. Because the sentence will be the same no matter which are vacated, the Court vacates the first-degree premeditated murder convictions and upholds only the two felony murder convictions predicated on robbery. (Mr. Taylor’s convictions for robbery merge with these felony murder convictions. Since the felony murder predicated on second-degree burglary is vacated, second-degree burglary does not merge.)

Issue 5: Whether Mr. Taylor’s PFCV convictions merge into a single conviction?

Holding 5: No. Mr. Taylor manifested a “fresh impulse” when he committed second-degree burglary, armed robbery, and then two first-degree murder.

Of note: The Court’s holding with respect to Mr. Harris’ motion to withdraw is best understood in the context of Mr. Taylor’s conduct throughout the case: “We agree with the trial court that appellant was malingering and that his attempt to manufacture a conflict of interest with his attorney was merely another effort to manipulate the court and avoid trial.” Attorneys facing threats to life or livelihood that may affect their representation should continue to bring those matters to the presiding judge’s attention, in ways that protect their client’s interests.  WC

Read full opinion here.

Sticks and stones may break my bones . . . but words will be punished more severely . . . when used in lieu of sticks or stones . . . to complete a robbery in D.C.

In re Z.B. (decided February 4, 2016).

The Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Senior Judge Pryor.  PDS for Z.B.  Trial Judge: Florence Y. Pan.

Facts:  The complaining witness flagged down a police officer to report the robbery of his cell phone moments earlier.  Ensuing radio broadcasts described “three young black male” suspects, including one six-foot-two-inches-tall seventeen-year-old, wearing a black jacket and blue gloves.  Following these broadcasts (which failed to mention the cell phone), two officers stopped Z.B., who was shorter than 6’2”, wearing one aqua and blue glove and a black ski mask that exposed his face, and carrying a cell phone that he put in his pocket upon seeing the police.  

The police brought the complaining witness to Z.B.’s location for show-up identification.  Upon positive identification, police placed Z.B. under arrest, at which point he asked: “How you going to say I robbed somebody?”  Subsequent search of Z.B.’s person revealed a cell phone that the complaining witness identified as his own. 

The trial court denied Z.B.’s motion to suppress the identification, his rhetorical question, and the cell phone recovered from him, as the fruits of an illegal stop under the Fourth Amendment.  It further adjudicated Z.B. involved with robbery, receiving stolen property, and two counts of misdemeanor threats to do bodily harm. 

Issue 1: Whether the trial court erred in denying Z.B.’s motion to suppress.

Holding 1: No.  “Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop.”

Issue 2: Whether Z.B.’s adjudications for robbery and misdemeanor threats to do bodily harm merge.

Holding 2: No.  Threats and robbery do not merge under Blockburger because each includes an element that the other does not.  Z.B.’s argument that it is an “absurd result” to punish the robber who uses threats more severely than the robber who uses force “misses the mark” because it fails to appreciate that the former has “not only committed an assault but also committed threats.”  WC

Read full opinion here.

Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:

• In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    

• The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Read full opinion here.