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Porter v. United States

March 15, 2001

KEVIN PORTER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Before Ruiz and Washington, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Washington, Associate Judge

Appeal from the Superior Court of the District of Columbia Hon. Reggie B. Walton, Trial Judge Hon. Henry H. Kennedy, Jr., Motions Judge

Argued September 7, 2000

After a jury trial, Kevin Porter was found guilty of carnal knowledge in violation of D.C. Code § 22-2801 (repealed). *fn1 Porter filed a timely notice of appeal to this court arguing that 1) the indictment against him was not timely filed by the government within the six-year statute of limitations period for rape and carnal knowledge; 2) the trial court abused its discretion by denying his request for funds to consult with a possible expert witness; and 3) the trial court abused its discretion by refusing to declare a mistrial because an expert witness for the government testified outside of the boundaries of the trial court's pre-trial order. We affirm.

I.

On February 28, 1990, an indictment was returned against Porter, charging him with rape and carnal knowledge. Prior to trial, the government moved to admit DNA evidence obtained from Porter, the victim ("L.F."), and the scene of the crime. The trial court denied the government's motion, and the government filed an interlocutory appeal to this court. This court vacated the trial court's order and remanded the case to the trial court for further proceedings in United States v. Porter, 618 A.2d 629 (D.C. 1992) (Porter I). The case was scheduled for trial on January 17, 1996, after extensive pre-trial hearings and several continued trial dates. On the day of trial, the government was not ready primarily because the assigned prosecutor had been promoted to a supervisory position and was unavailable to try the case on that date. *fn2 The trial court dismissed the case without prejudice for want of prosecution.

On August 7, 1996, the grand jury returned a new indictment against Porter, charging him with the same offenses (rape and carnal knowledge). On January 14, 1997, the trial court declared a mistrial when the jury was unable to reach a unanimous verdict on either count. On August 12, 1997, a second jury found appellant guilty of carnal knowledge, but the jury was unable to reach a unanimous verdict on the rape charge. The trial court declared a mistrial on that count, and the government dismissed the charge.

The Government's Evidence

L.F., the younger sister of Porter's then-girlfriend, Marietta Foust Jimmerson, testified that on April 6, 1989 Porter raped her. She was fourteen years old at the time. In April 1989, L.F., her mother, and older sisters lived at 1331 Ives Place, S.E., and Porter frequently stayed at the home. L.F. and her mother shared the master bedroom, Porter and Ms. Jimmerson shared the second bedroom, and a second sister stayed in the basement. Before April 6, 1989, L.F. never felt threatened by Porter and looked up to him as an older brother. However, L.F. had never been alone in the home with Porter before this date.

On April 6, 1989, after Ms. Jimmerson left for work that morning, L.F. and Porter were home alone. L.F. went into the bathroom to wash before leaving for school. L.F. was wearing only her underclothes after washing, and before returning to her room she looked to see if Porter was in the hallway because she did not want him to see her in her underclothes. L.F. did not see Porter in the hallway, and she ran from the bathroom to her bedroom. She closed the bedroom door and began looking for socks to wear. L.F. did not see anyone in her bedroom, but she noticed that the closet door was slightly open. She did not pay any attention to the closet door, until Porter suddenly jumped out of the closet. Porter banged his hand on the door and scared her. L.F. told Porter to get out because she was not wearing any clothes. Porter then closed the bedroom door. L.F. moved from the bed and began to cover herself up because she felt uncomfortable. She again told Porter to leave, but he did not. She then tried to push Porter out of the bedroom. Porter told L.F. that he was not playing, that he was not going to get out, and that he "wanted to see how big [L.F.] was."

Porter came toward L.F. and they started to wrestle before he pushed her onto the bed. L.F. continued to struggle with Porter while on the bed and she tried to push him off of her. Porter then tried to pull L.F.'s underpants down while she held them up. While Porter continued to remove her underpants, L.F. said to him, "[O]kay, okay, okay, just wait a minute, I'm tired, wait a minute. . . . [L]et me up for a second, let me catch my breath for a second." She then asked Porter why he was acting this way, and he replied, "I want to see how big you are. . . . [Y]ou might as well let me get it over with." L.F. inquired from Porter, "[Y]ou have my sister, why [aren't you] having sex with my sister?" Porter told L.F. that Ms. Jimmerson would not have sex with him.

Although L.F. continued to refuse Porter, he raped her. After the rape, L.F. left the house and went to school. While at an assembly at school, L.F. began crying and told her friend Tosha, that her sister's boyfriend raped her. L.F. left the assembly with another friend, Rhonda Thomas, and L.F. also told Ms. Thomas that Porter raped her. L.F. was scared and wanted to talk with her god-brother, Wendel Jackson, with whom she "felt safe . . . and comfortable." L.F. called her older sister, Ms. Jimmerson, and asked her for Mr. Jackson's telephone number. L.F. was "very distraught" and crying, and Ms. Jimmerson was concerned that she was not in school. L.F. explained to Ms. Jimmerson that she was not in school because some girls tried to beat her up, although this was not true. Ms. Jimmerson told L.F. that she would tell Porter to meet her. L.F. told Ms. Jimmerson she did not want to meet with Porter, and again asked for Mr. Jackson's telephone number.

L.F. spent the rest of the day with Ms. Thomas walking around downtown and telling her about what happened. L.F. was scared to go home and was afraid to call her mother. She arrived home around 10:30 p.m. or 11:00 p.m., and was really upset and crying. L.F. told one of her sisters what had happened. Thereafter, her family confronted Porter, who denied the allegations and said that he and L.F. had been fighting over ice cream.

In April 1989, Ms. Jimmerson and Porter were having problems with their relationship, and had not had sex for about a week before the rape. They never had sex in the master bedroom where L.F. was raped. Ms. Jimmerson testified that the underpants L.F. was wearing on April 6, 1989, were not her underpants, and that she and L.F. never shared underpants. Also, when showed the fitted sheet from the bed where L.F. identified that she had been raped, Ms. Jimmerson testified that the fitted sheet was never on the bed in the room that she and Porter shared.

Detective Antonio Bruton of the Metropolitan Police Department's Sex Offense Branch responded to L.F.'s home around 11:15 p.m. on April 6, 1989. Detective Bruton described L.F. as "visibly upset." Officer John Allen, a mobile crime scene technician, at the Metropolitan Police Department, arrived around midnight to collect evidence. Shortly after midnight on April 7, 1989, Detective Bruton took L.F. to D.C. General Hospital, where she was examined and tests were run. The sex kit prepared for L.F., as well as her underpants and the fitted sheet, were sent to the Federal Bureau of Investigation ("FBI") laboratory for analysis. Porter provided samples of his blood, saliva, and pubic hair in June of 1989 and April of 1990 for analysis at the FBI laboratory. Ms. Jimmerson also provided a blood sample that was sent to the FBI laboratory.

Dr. Harold Deadman testified as an expert on DNA analysis. Dr. Deadman testified that he had examined the bed sheet, L.F.'s underpants, and the blood samples taken from Porter, L.F., and Ms. Jimmerson. The examination also revealed semen stains on the bed sheet. He testified the male fraction of the stain contained DNA material that matched Porter's blood samples. The female fraction of the stain contained DNA material that matched the DNA material taken from L.F.'s blood samples. Finally, the female fraction of the stain on the fitted sheet did not match Ms. Jimmerson's blood sample.

The semen stain found in the crotch area of L.F.'s underpants contained DNA material in the male fraction that matched Porter's blood samples. The female fraction of the stain could not be definitively linked to either Ms. Jimmerson or L.F. because of a significant amount of bacterial growth. Dr. Deadman concluded that the probability of a coincidental match was ...


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