Appeal from the Superior Court of the District of Columbia (CF1-10682-09) (Hon. Russell F. Canan, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and BELSON, Senior Judge.
A jury found appellant Rashaun Gee guilty of
first-degree burglary while armed (knife), assault with intent to kill
while armed, aggravated assault while armed, malicious disfigurement
while armed, and
attempted first-degree sexual abuse while armed, all in connection
with an attack on victim Rachel Moretta. In this appeal, appellant
contends that he is entitled to reversal of his convictions and a new
trial because of "the trial court‟s error in admitting improper expert
testimony, in misapplying the Teoume-Lessane decision*fn1
to the facts of this case, and for improperly precluding the
use and admission" of a 2009 report by the National Research Council
of the National Academies of Science. Appellant contends in addition
that the trial court erred in refusing to grant a mistrial or other
sanction after the government belatedly disclosed a detective‟s notes
and a photograph of appellant. He also argues that the evidence was
insufficient to support his conviction for first-degree sexual
assault. For the reasons that follow, we affirm.
Moretta was a tenant occupying the basement bedroom of a house located at 548 14th Street, S.E. She shared the home with Carrie Shaffer and Lauren Behr, who occupied second-floor bedrooms. On the evening of October 6, 2008, Shaffer, who had just returned from a trip abroad and was jet-lagged, went to her room and fell into a sound sleep, and Behr left the house to meet with her parents. Moretta went to her basement bedroom and went to sleep. Moretta testified at trial that she was awakened by the sound of a "clanging" noise and dishes rattling in the kitchen sink. Moments later, she saw someone descending the basement steps, and after she said, "Hello," the person ran back up the steps. Thinking the intruder was a robber, Moretta walked into the basement bathroom and called 911 on her cell phone.
Moretta was still on her cell phone when a man armed with a knife appeared in her bathroom. He immediately began stabbing Moretta. Eventually,Moretta was able to push him away and to run into the adjacent laundry room, but she tripped and fell. The assailant caught up with her and continued to stab her. While Moretta was on her hands and knees and attempting to escape, the assailant grabbed her around her stomach and pulled her closer to him. Moretta heard him unzip his pants and state either, "Shut up, bitch" or "Come here, bitch," while he pulled her underwear down, partially exposing her buttocks. Moretta continued to struggle and kick her attacker, and suddenly, "he just left." Leaving a trail of blood,Moretta climbed the basement stairs and eventually exited the house and screamed for help.
Detective Wallace Carmichael testified that when he interviewed Moretta in the hospital on the day of the attack, she told him that her attacker was wearing "a dark hoodie" and light blue jeans. Similarly, Moretta testified at trial that the attacker was wearing "dark clothing," specifically, "a hoodie, like a hooded sweatshirt," and light-colored jeans. Moretta also testified that she looked at her attacker‟s face for "[a] second maybe, two, not even" and that the hood of his shirt was "over his face," "deep enough to where you couldn‟t fully see someone‟s face, like it would cast a shadow."
One of the officers who arrived at the scene was Officer Fred Brown of the Metropolitan Police Department ("MPD") mobile crime forensics unit. Officer Brown testified that the kitchen window (which was above the kitchen sink) was partially open, the screen to that window was "lifted up," a barbeque grill brush was sitting on the window ledge,and an outdoor chair was positioned against the outside wall beneath the window. Inside, several kitchen items were knocked over, some of which had fallen into the sink. Officer Brown recovered fingerprints from the inside bottom of the kitchen window.
Appellant was identified as a suspect when fingerprint analysis revealed that his fingerprints matched those found on the kitchen window.*fn2 In December 2008 (approximately two months after the stabbing), Detective Carmichael, accompanied by Detective Vandra Turner-Covington, interviewed Moretta in Houston, Texas (where she had returned to live with her parents) and showed her a photographic array containing appellant‟s photograph.From the photo array, Moretta identified three men (all of whom were "Afro-American") she thought resembled her attacker, but she was unable to make a positive identification from the photo array. Appellant‟s photograph was not among the photographs that Moretta said resembled her attacker.Moretta testified at trial that her attacker was an African-American man, and Detective Carmichael testified that during the inhospital interview, Moretta told him that the attacker was a black male.However,as discussed infra,there was also evidence thatMoretta described her attacker as a person of "Middle Eastern" descent.
Officer Robert Johnson testified that, hours after the incident at 548 14th Street, he searched in the alley adjacent to the house for potential items of evidence and came upon a T-shirt, with what appeared to be small bloodstains on it, lying on top of other items in a recycling can located at the rear of 1403 E Street, S.E.*fn3
Serological and DNA analysis confirmed that the stains on the shirt were blood and that the blood was Moretta‟s. DNA analysis of skin cells obtained from a swab of the shirt‟s neckline showed that the major contributor was appellant. Appellant was arrested after the MPD received the results of the DNA analysis.
The jury began its deliberations on September 16, 2010, and rendered its guilty verdicts the next day.
Before trial, the government filed a motion in limine in which it asked the court to rule that if the defense engaged in cross-examination that suggested "that the MPD‟s DNA [or] fingerprint . . . testing in this case was flawed" or that "ask[ed] the jury to speculate about untested DNA" or "suggest[ed] ineffective quality assurance procedures or unreliable testing procedures" in the MPD laboratories, the government should be permitted to "rebut the alleged deficiencies" by asking its relevant expert to inform the jury in rebuttal testimony that "the defendant had the right to independently test all items containing biological material and ha[d] an option of independently testing the latent fingerprints." Addressing the motion just before the government called its first witness, the court ruled more narrowly, stating that if the defense sought to show through the testimony of any of its witnesses that the government‟s analysts had acted in a "biased fashion or acted inappropriately, in terms of its conduct of the scientific tests," this would "open the door" and allow the government an opportunity to counter the implication of biased DNA testing by informing the jury about the defendant‟s right to test the evidence.
Appellant asserts that, proceeding cautiously in light of the court‟s
ruling, defense counsel "did not ask questions of the [government‟s]
DNA expert that would have directly challenged the expert‟s actual
findings concerning [appellant‟s] DNA, and instead focused on
explaining what testing was actually done on the shirt."*fn4
To wit,during the cross-examination of forensic biologist
Jessica Skillman, defense counsel elicited an acknowledgment that she
attempt to extract DNA from the shoulders, sleeves, armpits, back, or
front of the shirt found in the recycling bin. In a bench conference
thereafter, the prosecutor argued that the elicited testimony gave the
jury the impression that "had there been testing of those other areas,
a different result would have been the outcome" and urged the court to
grant the government‟s motion in limine. The trial court agreed that
the defense "certainly made it appear that the Government was only
testing that which they found a positive test and ignored others that
presumably might have been tested and could have exculpated your
client," which was "just unfair."
Reasoning that the situation before it "fell squarely within" this court‟s opinion in Teoume-Lessane, the court permitted the government to ask its DNA expert whether the shirt was maintained in a condition such that independent testing could be done (and the expert confirmed that this was the case). The court also took judicial notice and told the jury that "in the District of Columbia[,] the defense does have a right to have items, biological items, independently tested."
Shortly after the court‟s ruling described in the paragraph above, defense counsel sought an advance ruling about whether, if the defense called its own DNA expert,*fn5 the government would be permitted to ask the expert "what items did they receive." The prosecutor commented that "the truthful answer would include that [the defense expert] received item number 3, the T-shirt [found in the recycling can]. I don‟t want [the jury] to think that we‟re hiding evidence." The court ruled that the government would be permitted to ask the defense expert what items he received for testing, but would not be permitted to ask whether the defense expert actually tested the shirt. The court cited its previous reasoning about not leaving the impression that the government "somehow selectively decided to test [some] items and chose to ignore other items."*fn6 Not informing the jury of the defense right to test, the court reasoned, "would seem very odd and unusual, almost to a very prejudicial way, that the Government didn‟t also make available all the items that had DNA on it . . . subject to testing." Upon the court‟s ruling, the defense announced that it had decided not to call its own DNA expert to testify.
During a subsequent discussion focused on cross-examination of the government‟s fingerprint expert Haywood Bennett, the court ruled: "If you want to say isn‟t it true, Mr. Bennett, that there are other methods, other than [those used in his] report that are more reliable and are used in the field, he can say yes, he can say no, but you very well may open the door by suggesting that they are using a methodology which is against your client, whereas they could be using other methodologies that might exonerate Mr. Gee. So that‟s the best I can tell you."*fn7
Appellant challenges each of the court‟s rulings described above. He contends that the trial court misapplied this court‟s holding in Teoume-Lessane. He also argues that the court‟s rulings "prevent[ed] the defense from properly and lawfully cross-examining the Government‟s expert witnesses, and from presenting the defense‟s DNA expert testimony, in a case where the credibility of the complainant and her description of her assailant was conflicting, and when the Government[‟s] proof was circumstantial."*fn8 He asserts in addition that the court‟s informing the jury that the defense had a right to retest the biological evidence improperly shifted the burden of proof to the defense. We disagree as to each of these points.
In Teoume-Lessane, the defense elicited during cross-examination of the government‟s DNA expert that although nearly thirty items of evidence had been collected during the investigation of the case and sent to the FBI laboratory, and although the MPD requested DNA testing on "all applicable items," some of the items had not been tested for the presence of DNA. 931 A.2d at 491. On re-direct, the government "sought leave to ask the analyst whether the defense, as well as the government, had the right to test the items." Id. The defense objected that allowing the proposed question would result in shifting the burden of proof to the defense. The trial court granted the government‟s request, observing that the defense‟s questions had "attempted to create the impression that the FBI‟s testing had been selectively performed to skew the results by focusing only on the items most damaging to appellant, while ignoring items that could have helped to exculpate him," and reasoning that "left unaddressed, the . . . questions would have tended to indicate that the FBI‟s testing procedures were biased." Id. The prosecutor then asked the analyst, "with regard to the items that were submitted to the DNA Analysis Unit for evaluation . . . in the District of Columbia[,] does the defense have the right to have those items also scientifically tested?" Id. (internal quotation marks omitted). This court concluded that the trial court did not abuse its discretion by permitting the government to ask that one question "to counter the implication that the FBI‟s approach to testing the evidence in this case was biased." Id.*fn9
As in Teoume-Lessane, we perceive no abuse of discretion in the trial court‟s reasoning that not allowing the jury to learn that the defense had the right to test the shirt and that the shirt was available for testing would have been unduly prejudicial to the government, creating the impression that the government had deliberately ignored, and then had withheld from the defense, evidence that could have called into question the government‟s DNA-based case. Nor, in light of our holding in Teoume-Lessane,can we agree that the trial court‟s ruling shifted the burden of proof to the defense. We note that defense counsel rejected the trial court‟s suggestion that the court include in its closing instructions to the jury a statement to the effect that while the court "took judicial notice of [the] rule that permits the defense to independently test . . . [,] this does not mean the defendant had any obligation to put on evidence [because] the burden of proof is solely on the Government." Butthe court did give the standard instruction that the government‟s burden of proof "never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence at all." Defense counsel, too, in his closing argument, emphasized to the jury that the "burden of proof never shifts to the defendant" and that "I don‟t have to prove anything. I didn‟t have to bring in any evidence. It‟s their burden." And, in the government‟s closing argument, the prosecutor made no mention of the defense right or opportunity to conduct independent testing.
These facts, in addition to the fact that the questioning and information appellant challenges were permitted only in response to defense questioning and only for the purpose of dissipating the prejudicial effect of the questions‟ implication of incomplete or selective government testing, persuade us that the trial court‟s evidentiary rulings did not result in impermissible burden-shifting. Cf. People v. Santana, 255 P.3d 1126, 1131-32 (Colo. 2011) (noting that when assessing whether the burden of proof has been shifted, "courts mainly consider the degree to which: (1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof; (2) the prosecutor‟s actions constituted a fair response to the questioning and comments ...