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Kaliku v. United States

May 13, 2010

JOSEPH DESMOND KALIKU AND DAVID MATTHEWS, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (Hon. Lee F. Satterfield, Trial Judge)

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

Argued April 1, 2009

Before REID, GLICKMAN, and OBERLY, Associate Judges.

Appellants Joseph Desmond Kaliku and David Matthews were jointly charged in a twenty-five count indictment. Following a jury trial, Mr. Kaliku was convicted of assault with a dangerous weapon ("ADW"),*fn1 armed robbery,*fn2 possession of a firearm during a crime of violence ("PFCV"),*fn3 first-degree sexual abuse while armed (with aggravating circumstances),*fn4 and kidnapping while armed.*fn5 The jury found Mr. Matthews guilty of ADW, armed robbery, kidnapping while armed, first-degree sexual abuse (with aggravating circumstances), PFCV, and threatening to injure and kidnap ("threats").*fn6

Both men raise several constitutional, evidentiary and other challenges to their convictions. Discerning neither reversible error nor abuse of discretion requiring reversal, we affirm the judgments of the trial court.

FACTUAL SUMMARY

The government presented evidence showing that on April 30, 2006, at approximately 3:00 a.m., Jaundell Jones picked up Kimberly Hill, a prostitute, in the Northeast quadrant of the District of Columbia. They agreed that Mr. Jones would pay Ms. Hill $30 or $35 to perform a sex act. Mr. Jones parked on a residential street and paid Ms. Hill. As they were preparing for the sex act, a man wearing a black sweater with a stripe of red on the sleeve, later identified as Mr. Kaliku, opened the front door, placed a gun in Mr. Jones's face, and demanded his money. Mr. Jones gave Mr. Kaliku the money and, in response to Mr. Kaliku's command, moved to the backseat.

A few seconds later, another man wearing a black mask and an all-black coat, subsequently identified as Mr. Matthews, opened the back passenger side door, entered the vehicle, and pointed a gun at Mr. Jones's face. Mr. Matthews ordered Mr. Jones to the floor of the vehicle, but Mr. Jones opened the back driver side door and fled. He ran up the street to the Metropolitan Police Department's ("MPD") Fifth District station to report the robbery.

After Mr. Jones fled the scene, Mr. Kaliku demanded Ms. Hill's money; she said the money was in her purse in the back seat of the car. Ms. Hill heard shuffling in the back seat, as though Mr. Matthews was going through her purse.*fn7 Mr. Kaliku and Mr. Matthews exited the car, and Ms. Hill turned to look in the back seat to see if she could retrieve her purse, but Mr. Matthews opened the front passenger side door, grabbed her arm, placed something hard against her side, and told her to "come, you do what I say, and you don't get dead."

Mr. Matthews walked Ms. Hill across the street to an alley between two houses, next to a brick wall. Ms. Hill exclaimed, "I'll do what you want me to. Please don't hurt me. Please don't kill me." Mr. Kaliku soon joined Ms. Hill and Mr. Matthews in the alley, and announced that he "want[ed] to f**k." Mr. Matthews asked Mr. Kaliku for a condom, and Mr. Kaliku handed him a green, mint-flavored condom. Mr. Kaliku lifted his shirt, took out a gun, put it in the grass near the brick wall, and put on the condom, with Ms. Hill's assistance. Ms. Hill performed the sex act on Mr. Kaliku, while Mr. Matthews inserted himself into her "vaginal area from the rear." The men switched positions twice as they continued their sexual abuse of Ms. Hill. After they had finished with Ms. Hill, Mr. Kaliku retrieved his gun and both men left the area.*fn8

As Mr. Jones and a police officer were walking toward the place where Mr. Jones had parked his car, they encountered Ms. Hill.*fn9

When all three stopped, they heard noise that sounded like gun shots. Police officers began running toward the area where Ms. Hill had last seen Mr. Kaliku and Mr. Matthews. Another police officer arrived in a squad car and drove Ms. Hill and Mr. Jones back to the Fifth District police station.*fn10 Shortly thereafter, Ms. Hill attempted to leave the police station in order to avoid being involved in the robbery investigation and to return to Mr. Jones's car to collect her belongings. However, an officer took her and Mr. Jones to another location for a show-up identification.

MPD Sergeant John Haines testified that he was at the Fifth District police station when he heard a radio report about a robbery that had taken place near the station; the report described two armed black male suspects dressed in black clothing and wearing black hooded sweatshirts, one of which was black and red. He assisted in the search for the suspects. While he was in the alley in the 1800 block of 24th Street, Northeast, he saw a man dressed in dark clothing and a hooded sweatshirt coming out of the rear yard of one of the homes. When the man saw Sergeant Haines, he ran. Subsequently a second, taller man emerged from the same area, dressed in dark clothing and a hooded sweatshirt with the hood over his head. When he noticed Sergeant Haines, he turned and walked in the opposite direction. Sergeant Haines quickened his pace to catch up with the second man, who walked faster, and dipped down. The second man appeared to throw something underneath a Ford Expedition, after which he began to run. Sergeant Haines briefly lost sight of both suspects, and he initiated a broadcast for them.

Sergeant Haines looked under the Ford Expedition and observed "what appeared to be a semiautomatic handgun." He noticed movement near a parked vehicle. Soon, Sergeant Haines and another officer observed two men sitting in a car. Sergeant Haines asked the driver, later identified as Mr. Matthews, and the passenger, later identified as Mr. Kaliku, to exit the vehicle. Mr. Kaliku was wearing a black hooded sweatshirt with red stripes on the sleeve. The officers detained both individuals.

Sergeant Haines arranged a show-up identification procedure for Ms. Hill and Mr. Jones. Although Ms. Hill and Mr. Jones initially arrived in one police car, Sergeant Haines instructed the officers to place the two witnesses in separate vehicles, and then he explained the show-up identification process to each witness. The officers drove to a point in the alley, about four car lengths from the individuals in custody, and turned on their lights. Ms. Hill was the first witness taken to identify the individuals; however, because she did not have her glasses, she was unable to make any identification at that time. When his turn came, Mr. Jones identified both Mr. Kaliku and Mr. Matthews as the perpetrators. After the police transported Ms. Hill to retrieve her glasses, she positively identified both men. As a result of the identifications, Mr. Kaliku and Mr. Matthews were arrested.

About seven hours after the arrest of both men, at approximately 10:20 a.m., MPD Officer Leother Strong, the crime scene technician, collected penile swabs from them.*fn11 In addition, Officer Strong took photographs of items as he found them at the crime scene (in the car where defendants were seated and on the ground near the car, between houses, and from the person of both defendants), and he identified the items at trial that he had retrieved from the crime scene: (1) lip gloss; (2) a leather ID holder; (3) a green latex condom; (4) four condom wrappers; (5) a BB gun; (6) two cell phones; (7) a cell phone holder; (8) a black sweat hooded jacket, and (9) a black ski mask. Officer Strong also obtained a buccal swab from Ms. Hill, and sent all of the evidence to the FBI forensic laboratory for testing.

Jennifer Luttman, a government witness and an FBI forensic DNA examiner for ten years, testified that she generally supervises a team of biologists, as in this case, by "determin[ing] which items of evidence will be worked, what exams will be done, which stains will be tested for DNA." In addition, Ms. Luttman's duties required her to "interpret all the results, draw the conclusions, write the report, and then testify as needed." At the time of trial, she had "managed over 800 cases." She was assigned to manage the evidence in this case, "did the comparisons between the items of evidence," prepared "the conclusions," and "wrote the report." She explained the process that was followed in the laboratory upon receipt of evidence. For example, with respect to the penile swab provided by Mr. Matthews, "[t]he biologist did the DNA testing," and Ms. Luttman "did the interpretation."*fn12 She found DNA from Ms. Hill and Mr. Matthews on the condom; the DNA from Mr. Matthews matched the DNA of the major contributor with respect to the condom . She also discovered DNA from Ms. Hill on the penile swabs from Mr. Kaliku and Mr. Matthews, and she determined that Ms. Hill could not be excluded as a potential source of the DNA found on Mr. Kaliku's and Mr. Matthews's boxer shorts. She conducted and discussed her "statistical calculation to determine the random match probabilities." She stated, for example, that "the probability of selecting an unrelated individual at random that would have the same DNA profile as the DNA from the major contributor (Mr. Matthews) that was found on [one of] the penile swab[s]," "is approximately 1 in 1.3 million from the African-American population, 1 in 4.8 million from the Caucasian population, 1 in 4.6 million from the Southeastern Hispanic population, and 1 in 2.3 million from the Southwestern Hispanic population." Her testimony clearly tied each man to Ms. Hill's DNA.

Harold Deadman, a fiber-comparison analysis expert for MPD who previously worked for twenty-five years at the FBI, explained the process for textile fiber examinations. According to his testimony, the fibers from the sweatshirt and mask recovered at the crime scene matched fibers on Mr. Kaliku's and Mr. Matthews's clothing.

As his defense, Mr. Kaliku attempted to show, through the testimony of MPD Officer William Rapp, that there was another man on the scene who wore dark clothing and who was seen running in the area of 24th Street, Northeast. Mr. Kaliku denied robbing the victims. Mr. Matthews testified in his own behalf. He maintained that he and Mr. Kaliku had had consensual sex with Ms. Hill, and he denied that they had robbed her and Mr. Jones.

ANALYSIS

The DNA Testing/Confrontation Clause Issue

Mr. Matthews argues, and Mr. Kaliku adopts the argument, that the admission of the DNA evidence through Ms. Luttman's testimony alone, and without presentation of the three FBI laboratory technicians who actually performed the DNA testing and other work, violated the Sixth Amendment right to confront witnesses. Both men maintain that the trial court's admission of the DNA evidence was not harmless beyond a reasonable doubt because it was "by far the most damning of the trial," and its admission thereby constitutes reversible error. The government contends that, assuming arguendo that the trial court admitted the DNA results as substantive evidence in violation of the Sixth Amendment Confrontation Clause, "the error does not require reversal under any standard of review," whether plain error for Mr. Matthews (who did not raise the issue at trial) or harmless constitutional error for Mr. Kaliku (who objected in the trial court and preserved the issue).*fn13

Where an appellant preserves a Confrontation Clause issue by making an objection at trial, we apply the constitutional harmless error standard of review. See Duvall v. United States, 975 A.2d 839, 843 (D.C. 2009) (citing Callaham v. United States, 937 A.2d 141, 146 (D.C. 2007)). "Under the heightened constitutional standard of review, the government bears the burden of demonstrating that the constitutional error was 'harmless beyond a reasonable doubt,' meaning that the verdict was 'surely unattributable' to the erroneously admitted evidence." Id. (quoting Fields v. United States, 952 A.2d 859, 866 (D.C. 2008)). "'[I]f a statement is improperly admitted, we will reverse where we find a reasonable possibility that the statement contributed to the defendant's conviction.'" Id. (quoting Callaham, supra, 937 A.2d at 147). If an appellant fails to make a Confrontation Clause objection either before or during trial, we apply the plain error standard of review, Callaham, supra, 937 A.2d at 145, which "requires an appellant to show (1) that there was ...


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