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Veney v. United States

August 2, 2007; as amended November 16, 2007

DAVID VENEY, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (F-3986-00) (Hon. Robert I. Richter, Trial Judge).

The opinion of the court was delivered by: Belson, Senior Judge

Argued February 6, 2007

Before FARRELL and GLICKMAN, Associate Judges, and BELSON, Senior Judge.

Appellant David Veney ("appellant") was charged with one count of first-degree child sexual abuse,*fn1 and one count of second-degree child sexual abuse.*fn2 The first count of the indictment alleged that appellant had penetrated the eleven-year-old victim's vulva with his penis; the second count charged that he had touched his penis to her genitalia with the intent to gratify his sexual desires.

Convicted on both counts, Veney appeals his conviction on the grounds that the trial court erred in failing to engage him in open court in a proper colloquy concerning the availability of independent DNA testing under the Innocence Protection Act of 2001 ("IPA"), D.C. Code §§ 22-4131 to -4135 (West Supp. 2006);*fn3 that the trial court erroneously permitted the prosecution to introduce evidence of uncharged crimes; that the trial court erred in admitting certain DNA evidence because the scientific methods through which it was derived do not meet the requirements of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923); and that the trial court erred in admitting testimony based on FBI laboratory reports and notes without an opportunity for confrontation, in violation of his Sixth Amendment rights.*fn4 He also appeals the trial court's denial of his post-conviction motion which asked that the trial judge engage with appellant in an on-the-record colloquy regarding the availability to appellant before trial of independent DNA testing pursuant to D.C. Code § 22-4132.

We consolidated the two appeals. Unpersuaded by appellant's arguments, we affirm the judgment of conviction and the denial of his post-trial motion.

I.

At trial, the government presented evidence that in July 2000, appellant -- thirty-seven years old at the time -- lived at 1454 V Street, S.E., Washington, D.C., with his girlfriend Teeka, her eleven-year-old daughter S.P., who was allegedly abused, and Teeka's two other younger children. Teeka's seventeen-year-old sister, Schunrear, also lived in the house.

Teeka's fifteen-year-old sister, Kenya, who was visiting from North Carolina, testified that on July 6, 2000, she went to look for her niece, S.P. Kenya stated that she encountered appellant standing in the dark in the basement of the house. Appellant told Kenya that he was in the basement looking for his keys, and that S.P. was "in the laundry room," which was also in the basement. Kenya observed S.P. in the laundry room "wiping something off her shirt." When Kenya asked what had happened, S.P. at first avoided answering, but eventually told Kenya when the two were alone in an upstairs bedroom that appellant had been "on top of her and moving around."*fn5 S.P. was crying during this exchange.

Kenya telephoned Schunrear to report the incident. When Schunrear returned home and asked S.P. what had happened, S.P. told her "nothing, . . . but she started crying." Later that night, while S.P.'s mother Teeka, Teeka's sisters Schunrear and Kenya, and S.P. were sitting in the dining room, Teeka asked her daughter what had happened. Schunrear heard S.P. say that appellant "did something to her, touched her, or something of that nature . . . ." When Teeka asked S.P. if she was sure, S.P. said "yes, and . . . it has been happening since [the family lived at] 601." "601" apparently refers to the family's prior address, which, according to S.P.'s trial testimony, was "6012 46th Place." The trial court admitted this statement only to show the context of S.P.'s report to her family on July 6, and the jury was instructed that it could consider the statement only for that purpose.

Metropolitan Police Department ("MPD") Investigator Dwayne Fails arrived at the house at about 1:45 a.m. on July 7, 2000. At that time, he interviewed S.P., who was "calm, but somewhat shaken." S.P. reported that appellant had told her to go into the basement of their house, which she did. Once there, according to the detective's testimony of the interview:

[Appellant] asked her to take off her shorts and underwear, and she did . . . . [H]e told her or asked her to lay on the floor, and she did . . . . [S]he said . . . that he got on top of her, but did not insert his penis inside, and started moving around. . . . [H]is pants were off . . . [and] stuff came out [of his penis]. . . . [S]he didn't know what that stuff was.*fn6

Teeka, who was "upset" and "angry," told Investigator Fails -- in front of S.P. -- that she did not believe what her daughter was saying. In addition to questioning S.P., MPD officials collected physical material from the residence. Specifically, they collected two towels, one pair of men's shorts, one pair of girl's underwear, and a "Washington Wizards" basketball T-shirt that someone had collected together and placed in a commingled pile in the family's dining room in anticipation of MPD's arrival. Investigator Fails then accompanied Teeka and S.P. to Children's National Medical Center.

Pediatric nurse practitioner Carleen Townsend-Akpan, who was the sexual assault nurse examiner ("SANE nurse") on duty in the emergency room during the early morning hours of July 7, 2000, interviewed and examined S.P. pursuant to the directives of a sexual assault kit. The examination revealed that S.P.'s hymen "was thick [and] . . . appeared to be swollen" and there was also an abrasion on the hymen at the "eleven o'clock position." S.P., who "was very calm, but very quiet," told Nurse Townsend-Akpan that

[S]he had been asleep, and . . . she got up to go upstairs to the bathroom, and her stepfather, David, told her to go down to the basement. He proceeded to take her shorts and her panties off, and then he got on top of her, and started moving. . . . She said ["]he put his penis in my vagina,["] and then she said a liquid came out of his penis.*fn7

The SANE nurse collected several items for the forensic "rape kit," including the bathing suit that S.P. wore to the hospital. MPD officers collected the panties and T-shirt that S.P. had worn earlier in the day on July 6, 2000, along with other items of clothing and towels. All of those items, including a slide with a vaginal smear obtained by the sexual assault nurse during her examination of S.P., and a blood sample from the appellant, were delivered to the FBI for forensic analysis.

At trial, Dr. Jennifer Luttman, a forensic DNA examiner in the DNA analysis unit at the FBI laboratory, who was qualified as an expert in forensic serology and DNA analysis, testified that DNA present in stains found on S.P.'s panties, bathing suit, and T-shirt matched appellant's known DNA. Dr. Luttman also opined that, because the DNA profile found in those stains was so uncommon, appellant was the source of the DNA to a reasonable degree of scientific certainty. That opinion was based on Dr. Luttman's calculations of the extremely low statistical probability that the DNA profile found in the evidence stains would be found in an unrelated individual chosen at random from major population groups. Further, the examiner also said that there was one intact sperm cell on the slide with one of the vaginal smears obtained by the sexual assault nurse at the time S.P. was examined at Children's Hospital. Dr. Luttman testified, however, that no DNA testing was done on that sperm cell, because one sperm cell in "an ocean of cells from the vagina . . . is not going to give [DNA] results."

Dr. Kathy Woodward, M.D., a physician in the Child and Adolescents Protection Center at Children's Hospital, testified as an expert in "pediatrics, child sexual abuse, and child sexual abuse examinations." She reviewed the medical records prepared during S.P.'s initial examination on July 7, 2000, and examined S.P. herself on September 28, 2000. Dr. Woodward testified that the swelling, and the "abrasion at eleven o'clock" outlined in the medical records from July 7 "would suggest that there had been acute genital contact and trauma." Because abrasions to mucosal surfaces like that of the vagina usually heal rapidly, Dr. Woodward opined that the abrasion seen on July 7 was "something relatively recent, and certainly not older than probably three days."

The SANE nurse's July 7 examination also revealed "rolled edges" on S.P.'s hymen, which Dr. Woodward confirmed when she examined S.P. in September; she explained that such rolled edges are "usually evidence of vaginal penetration." Dr. Woodward also explained that penetration of the vagina necessarily involves penetration of the vulva. The fact that the edges were worn smooth also was consistent with vaginal penetration, the most likely source being "penile vaginal intercourse."

Testifying at trial, S.P. denied that she told her aunt Kenya or aunt Schunrear that anything had happened with appellant, although she admitted that she was alone in the basement with him on July 6, 2000, and that it was dark. When questioned by the prosecutor, she did "not remember" whether she told the SANE nurse that appellant had told her to come down to the basement and then had taken off her shorts and panties, nor did she remember telling MPD Detective Fails that appellant "got on top of [her] and rubbed his private against [her] private part." She also denied telling the SANE nurse that appellant "put his penis in her vagina." S.P. was then impeached with portions of her grand jury testimony, excerpts of which were later admitted as a government exhibit.*fn8 In that grand jury testimony, S.P. confirmed much of what she had told her aunt Kenya, Investigator Fails, and the SANE nurse, with the exception that S.P. denied that appellant had put his penis inside her, although she admitted that he tried to do so. S.P. also told the grand jurors that "it was real embarrassing to talk about" what had happened.

On cross-examination, S.P. acknowledged that appellant, to whom she referred as her "step-father," "helped pay for things to run the household," that he "bought food for the family" and clothes and candy for her, and that she got her own room when the family moved to 1454 V Street, S.E. She also said that a day before the Fourth of July she got in trouble with her mother because appellant had caught her in the park with a boy, and told on her. When S.P. spoke with the people at the Children's Advocacy Center, she told them she had "made [the report of rape] all up because [she was] paying [her] mom back for when she had hit [her]." At other times, she claimed that she "made it all up" because Kenya was scaring her; she also testified that "Kenya put words in [her] mouth."*fn9

Appellant did not testify or call any witnesses, not even -- significantly -- a defense DNA expert identified to the court and the government before trial. He did, however, introduce several defense exhibits, including the entire draft DNA report prepared by FBI analyst Dr. Luttman. In closing argument, defense counsel relied on a portion of that draft report to argue that "[e]ven if there is male DNA on the crotch of the [victim's] panties, it's not David Veney's male DNA," thus implying that DNA from an unidentified male might have been found in S.P.'s panties.

The defense also introduced into evidence two statements that S.P. gave to Public Defender Service attorney Claire Roth on July 14, 2000, eight days after the alleged abuse. In the first statement, S.P. said that she was coming out of the laundry room about to go upstairs when I saw my step dad. . . . My step dad told me to get on the floor. I was still wearing my shorts. My step dad took off my shorts while I was on the floor. My step dad got on his knees. The lights were off. The laundry room light was on. My step dad pulled down his shorts. He pulled down my panties after he pulled down my shorts. My step dad touched himself. My step dad never put his hand between my legs. My step dad never put his penis between my legs. My step dad rubbed his penis with his hand. I was lying down while my step dad rub[bed] himself. I saw white fluid come out from his penis. The white fluid went on my stomach next to my belly button. . . . Th[at] was all that my step dad did to me.

Although this statement was in her handwriting, S.P. testified at trial that none of those things happened. In the second statement given to the defense attorney on July 14, S.P. similarly denied that anything happened. She further stated that her aunt Kenya, who she said did not like appellant, had forced her to inculpate the appellant falsely to her other relatives and to the police.

The jury convicted Veney on both counts, and he now appeals.

II.

Appellant's Rights Under the Innocence Protection Act of 2001 Appellant's reply brief emphasizes the trial judge's failure to advise him in open court of his rights regarding DNA testing, and asserts that "Veney was deprived, in violation of the [IPA], of his pre-trial right to obtain independent DNA testing of genetic material found on S.P.'s clothing, genetic material which the government claimed came from Veney, as well as a sperm cell . . . that the government claimed it could not test . . . but nonetheless urged jurors to infer came from Veney . . . ."

The government contends that the court acted appropriately in declining on the day of trial to conduct a colloquy regarding DNA testing with appellant, and to grant the further continuance of trial which DNA testing would require, since appellant had been advised substantially of his rights under the IPA, and the defense had represented to the court that it had actually retained a specific DNA expert, and had gained a continuance of the trial date to enable that expert to testify.

The provisions of the IPA that bear upon appellant's contention that the trial judge erred in failing to engage him in a pre-trial colloquy regarding independent DNA testing are as follows: D.C. Code § 22-4132 (b) provides:

A defendant charged with a crime of violence*fn10 shall be informed in open court:

(1) That he or she may request or waive independent DNA testing prior to trial or the entry of a plea if: (A)(I) DNA testing has resulted in the inclusion of the defendant as a source of the biological material; or (ii) [u]nder circumstances that are probative of the perpetrator's identity, DNA testing has resulted in the inclusion of the victim as a source of the biological material; and (B) There is sufficient biological material to conduct another DNA test;

(2) That he or she may request or waive DNA testing of biological material prior to trial or the entry of a plea if the biological material has ...


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