SHEPARDSON R. BLAIR, APPELLANT,
UNITED STATES, APPELLEE
Argued April 9, 2014
[Copyrighted Material Omitted]
Appeal from the Superior Court of the District of Columbia. (CF1-18057-11). (Hon. Thomas J. Motley, Motion Judge). (Hon. Ronna Lee Beck, Trial Judge).
Daniel Gonen, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Amy H. Zubrensky Cassidy K. Pinegar and Ann K.H. Simon, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.
Thompson, Associate Judge.
In this matter, appellant Shepardson Blair was convicted of kidnapping, first-degree sexual abuse with an aggravating circumstance, and assault with significant bodily injury (felony assault). He seeks reversal of all of his convictions, arguing that the government obtained his DNA that tied him to the crimes pursuant to an invalid warrant. The warrant was invalid, appellant contends, because the government sought it and the court granted it on the basis of tainted information: a report received from the FBI about a match between (1) DNA left on the sexual-abuse victim and (2) DNA taken from appellant without statutory authorization, and in alleged violation of his Fourth Amendment rights, while he was incarcerated in 2005 on a theft conviction. We reject appellant's claim for relief because we conclude that the judge who granted the government's warrant application on the basis of the DNA match did not err in declining to apply the exclusionary rule and that the DNA evidence obtained through the warrant was properly admitted at trial.
Appellant also raises two insufficiency-of-the-evidence claims: He contends that the evidence at trial did not establish that there was penetration of the victim's vulva and that the evidence therefore was insufficient to support a conviction for the completed
offense of first-degree sexual abuse. In addition, he argues that his felony assault conviction must be reversed because the evidence was insufficient to prove that the victim sustained significant bodily injury. For the reasons explained below, we reject both arguments. Accordingly, we affirm appellant's convictions.
At trial, the government presented evidence that as the victim C.H. was walking home on the evening of July 14, 2003, an assailant -- identified through DNA evidence as appellant -- grabbed her by the throat and started to strangle her, dragged her through the grass, pulled her into some bushes, repeatedly slammed her face into the ground, and then pulled down her pants and underwear and tried to push his penis into her vagina. C.H. was eventually taken by ambulance to a hospital, where an emergency department doctor collected samples from her using a sexual assault kit.
The DNA profile obtained from the sexual assault kit samples was entered into the Combined DNA Index System (" CODIS" ). Initially, no match was found in the system, and the case went " cold" for several years. In the meantime, on July 28, 2005, while appellant was incarcerated at a federal prison in Maryland as a result of a District of Columbia conviction for first-degree theft, a Bureau of Prisons (" BOP" ) employee drew a sample of appellant's blood (the " 2005 sample" ) so that his DNA profile could be included in CODIS. However, apparently because of a " significant backlog of samples," the DNA profile from appellant's blood sample was not uploaded into CODIS for over four years. On November 20, 2009, after FBI personnel had finally uploaded the profile into CODIS, they discovered that appellant's DNA matched the DNA profile obtained from C.H.'s sexual assault kit. By letter dated May 5, 2010, the FBI Laboratory Director reported that result to the Metropolitan Police Department (" MPD" ) Crime Laboratory. The letter also explained that the blood sample had been obtained from appellant without authority of the DNA Analysis Backlog Elimination Act of 2000, Pub. L. 106-546, § 4, 114 Stat. 2726, 2730 (the " DNA Act" or the " Act" ).
The DNA Act requires the Director of the BOP to " collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense," 42 U.S.C. § 14135a (a)(1)(B), or of a " qualifying District of Columbia offense," 42 U.S.C. § 14135b (a)(1). The Act further requires the Director of the Court Services and Offender Supervision Agency for the District of Columbia (" CSOSA" ) to do the same with " each individual under the supervision of [CSOSA] who is on supervised release, parole, or probation who is, or has been, convicted of a qualifying District of Columbia offense." 42 U.S.C. § 14135b (a)(2). In addition, the Act provides that " [t]he government of the District of Columbia may determine those offenses under the District of Columbia Code that shall be treated . . . as qualifying District
of Columbia offenses." 42 U.S.C. § 14135b (d).
The May 5, 2010, FBI letter explained to the MPD that at the time the BOP obtained the blood sample from appellant, appellant " d[id] not have a conviction for a qualifying federal and/or District of Columbia offense" under the DNA Act. The felony theft conviction for which appellant was incarcerated in a BOP facility was not a qualifying offense because the Council of the District of Columbia (" the Council" ) had not included theft on its list of " qualifying District of Columbia offenses."  The FBI letter advised that nevertheless,
[T]here is no information known to the FBI Laboratory that indicates the sample was collected and entered in other than a good faith belief that entry was appropriate and authorized by law. Therefore, based upon the facts and circumstances of this case, it has been determined that the offender's personally identifying information may be released to your laboratory, for its investigative lead value and any other action that you deem appropriate.
The letter provided identifying information for appellant, but further stated that " [a]n administrative removal" of the sample would be performed, " requir[ing] the destruction of the sample and its deletion" from CODIS.
On the basis of the FBI/CODIS match lead, appellant was arrested and, after a probable cause hearing, detained in the instant case in September 2011. By that time, the Council, through 2009 legislation, had expanded the list of qualifying District of Columbia offenses to include " [a]ny felony." See Omnibus Public Safety and Justice Amendment Act of 2009, Act 18-189, codified as amended at D.C. Code § 22-4151 (a) (1). On June 18, 2010, appellant was convicted of another " qualifying" felony offense: attempted burglary in the second degree. He was sentenced to 14 months' imprisonment and was again in BOP custody until his release on March 11, 2011. Thereafter, he was under CSOSA supervision from March 13, 2011, until March 13, 2012. Thus, appellant was once again under CSOSA supervision at the time of the preliminary proceedings in this case in the fall of 2011.
In connection with appellant's incarceration for attempted second-degree burglary and his subsequent CSOSA supervision, the DNA Act mandated that a sample of appellant's DNA be obtained. Nevertheless, it appears that neither BOP nor CSOSA had obtained a post-2005 DNA sample from appellant by the time of the proceedings in this case.
On September 29, 2011, the government filed a motion in this case in which it asked the court to order appellant to submit to " the taking of a blood sample." The government explained that, as part of its standard practice in cases in which a defendant has been identified through a CODIS match, it seeks a DNA sample in order " to confirm the results of the CODIS match" and to meet evidentiary requirements at trial. The government also explained that it sought a sample of appellant's DNA to allow for the testing of additional samples taken from C.H. during the sexual assault examination. Appellant opposed the motion, and after a hearing on the matter on October 13, 2011, the court (the Honorable Thomas Motley) granted the government's motion and ordered appellant to submit to DNA testing. The government's motion conceded that the taking of the 2005 sample " constituted a violation of the DNA Act, specifically of 42 U.S.C. 14135b (a)(1)[,]" and Judge Motley agreed with the parties that the 2005 sample " was taken in violation of the statutory framework . . . at the time that it was taken."  Judge Motley reasoned, however, that nothing in the DNA Act required suppression of the 2005 sample. He further reasoned that, even assuming (as appellant argued) that the taking of the 2005 sample constituted a Fourth Amendment violation, application of the exclusionary rule in this case would " not deter conduct." Judge Motley noted that appellant had an eligible conviction (the attempted burglary conviction for which, as noted above, he was then under CSOSA supervision), cited the " inevitability of [appellant's] DNA being compared to CODIS" as " clearly evidenced by the facts of this case," and reasoned that the testing authorized by statute " will go on[.]" He stated that even if there was a Fourth Amendment violation in the taking of the 2005 sample, he " believe[d] the police acted in good faith" and that he would " not exclude the CODIS hit" or " suppress the use of the DNA obtained in this case."
Acting on the warrant issued by Judge Motley, an MPD detective obtained a sample of appellant's saliva through a buccal swab on October 19, 2011 (the " 2011 sample" ). The DNA extracted from the sample matched the sample obtained from C.H.'s sexual assault kit. The 2011 sample was ...