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United States v. Ausby

United States District Court, District of Columbia

August 16, 2017

UNITED STATES OF AMERICA
v.
JOHN MILTON AUSBY, Petitioner/Defendant

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         On the evening of December 14, 1971, Deborah Noel was violently raped and murdered in her apartment in northwest Washington, D.C. Around 5 P.M. that day, Noel had left work early to prepare dinner for her boyfriend, but when he had arrived at her apartment close to an hour later, he received no response when he knocked on her door. After knocking again more forcefully, he heard Noel scream and then heard a gunshot. With the help of building staff, the door to the apartment was opened and inside, Noel's body was found lying on her bed next to an open window. Noel was unclothed from the waist down and had been shot point-blank in her temple. At the crime scene, the police found, among other things, labeled vials of scented oil, a single usable latent fingerprint of the defendant, the bullet that killed the victim, and hairs of unknown origin. Three days later, in New York City, the defendant John Milton Ausby was arrested in possession of a gun, which was loaded except for two spent cartridges with the same type of bullet used in the murder, and a small unlabeled vial of oil, which were similar to the oil vials found on the murder scene that had been sold to the defendant shortly before the murder.

         At trial, the prosecution presented overwhelming evidence of the defendant's guilt. The oil vials and fingerprint were conclusively linked to the defendant, and the testimony of two expert witnesses established that the defendant's loaded gun fit the profile of the likely murder weapon. Three witnesses saw the defendant in the apartment building in the week preceding the murder, one of whom saw the defendant loitering outside the victim's apartment on two separate evenings. Another witness, who lived two doors down from the victim, had her apartment broken into, and she found that whoever had broken in had left a rag doused in scented oil. In addition to this evidence, a forensic examiner from the Federal Bureau of Investigations (“FBI”) testified that, based on his scientific analysis, the hairs found at the crime scene were microscopically similar to or microscopically alike known hairs of the defendant. The defendant was convicted of felony murder for which he was sentenced to life imprisonment, and “carnal knowledge while armed, ” for which he was sentenced to 10 to 30 years to run concurrently with his life sentence.

         In September 2015, following review of the defendant's case by the Department of Justice (“DOJ”) and the FBI, the government informed the defendant that the expert hair testimony presented at his trial was false and misleading, and that the government knew or should have known this at the time of the trial. Based on this concession, in September 2016, the defendant filed his first habeas petition, pursuant to 28 U.S.C. § 2255, forty-four years after he was sentenced to life in prison, challenging his conviction on the ground that the government's knowing use of the false hair testimony materially affected the outcome of his trial, in violation of the Fifth Amendment and Napue v. Illinois, 360 U.S. 264 (1959). Pet'r's Mot. Vacate under 28 U.S.C. § 2255 (“Pet'r's Mot.”), ECF No. 1. For the reasons explained below, the defendant's motion is denied.

         I. BACKGROUND

         The government reports that its files, “which presumably included reports, grand jury transcripts, witness statements, photographs and trial exhibits” as well as “all physical evidence recovered in this case no longer exist[].” Gov't's Opp'n Pet'r's Mot. (“Gov't's Opp'n”) at 3.[1]Consequently, the Court relies on the trial transcript, which is available in paper format. Following review of the evidence presented at the defendant's criminal trial and other relevant history of the case, the developments related to the use of comparative hair analysis in criminal trials is summarized.

         A. THE TRIAL

         The original indictment in this case not only charged the defendant with the burglary, rape, and murder of Deborah Noel, but also charged the defendant with the rape and murder of two other women, Sharan Tapp and Sherry Frahm. Gov't's Opp'n at 2, n.2; see also United States v. Ausby, 489 F.2d 1273 (D.C. Cir. 1974) (order affirming the defendant's conviction and noting that the accompanying memorandum was not published); United States v. Ausby, No. 72-2202, slip op. (“Ausby slip op.”) at 2 (D.C. Cir. Jan. 30, 1974). The charges related to Tapp and Frahm were severed and the charges related to Noel's murder were tried first. Ausby slip op. at 2. As discussed more fully below, see infra Part I.B, the defendant was also ultimately convicted of the murder of both Tapp and Frahm but those convictions are not at issue in this case.

         1.The Prosecution's Opening Statement

         The government's opening statement outlined the charges against the defendant and its theory of the case: on December 14, 1971, the victim arrived home from work “about 5:40 and went into her apartment, where she lived alone.” Trial Tr. 8/21/72 at 137-38. The defendant was “already there” in the apartment and “seeing her alone attacked her.” Id. at 138-39. She screamed and resisted, and was “knocked [] temporarily unconscious” by the defendant, after which he took her “into [her] bedroom” and “raped her.” Id. at 139. At approximately 6:00 P.M., the victim's boyfriend arrived at her apartment and knocked on her door. Id. He received no response and knocked again, and then heard the victim scream followed by a gunshot. Id. That gunshot was the sound of the defendant “pull[ing out] a high velocity revolver, press[ing] it up behind [the victim's] left ear, and pull[ing] the trigger.” Id. The victim's boyfriend ran downstairs to get help to enter the locked apartment, during which time the defendant “opened th[e] bedroom window, ” jumped “to the ground and then effectuated his escape.” Id.

         The government next summarized the evidence that it would use to support this narrative. One witness had seen the defendant in the building on December 9 and December 10, 1971, “some three days before the crime occurred in front of and near the deceased's apartment.” Id. at 144. A fingerprint left in the victim's apartment would prove to be of the defendant. Id. at 142. The owner of the business who sold the defendant the “vial[s]” or “dram[s] of oil” would identify the defendant as the person to whom he had sold the vials a week before the murder. Id. at 141-42. Another expert would testify that certain hairs from the crime scene, under his analysis, were microscopically “identical” to the defendant's hair along “nineteen microscopic characteristics, . . . no more no less.” Id. at 142-43.

         The prosecution also planned to present witnesses to testify that the defendant “was arrested three days” after the murder “[on] December the 17th, ” in New York City, and that when the defendant was arrested, he had a “.357 Magnum” on his person, with “four live rounds and two empty casings in the chamber. Id. at 140, 144. The prosecutor stressed that the evidence would show that, although the bullet “recovered from the body of the deceased was too mutilated for the ballistics expert to make a positive match, ” an expert would testify that the bullet had been fired from a gun with a barrel that had “five lands and grooves and a right twist, ” and would testify that the defendant's gun had “five lands and grooves and a right twist.” Id. at 144.

         Defense counsel made no opening statement. See Id. at 136. (“[The defendant] do[es] not wish to make an opening statement”).

         2.The Government's Trial Evidence

         The government presented twenty-three witnesses over the course of the four day trial, including three witnesses who were in the building at the time the murder occurred; police officers who responded to the crime scene after the discovery of the victim's body; a vendor who sold the defendant the vials of oil found at the crime scene; four witnesses who were in the building in the week leading up to the murder; a witness and two officers who encountered the defendant shortly before and during his arrest in New York City; and five forensic experts.

         i. Witnesses the Day of the Murder

         (a) Grace Pyles

         Grace Pyles lived “two doors” from the victim's apartment. Id. at 145-47. Pyles testified that around 5:45 P.M. on the day of the murder, she “heard a blood-curdling scream, ” and ten minutes later, “heard a shot.” Id. at 146-47. Pyles knew the time of day when this occurred because she had been on the phone with her aunt, whom she always called “at that time.” Id. at 147. On cross-examination, Pyles admitted that she was not absolutely certain of the date on which this occurred, but was “pretty sure, ” that it was the 14th, the day of the victim's murder. Id. at 149.

         (b) Richard Ecroyd

         Richard Ecroyd had been the victim's boss for “[a] little longer than two years.” Id. at 151. He testified that on the day of her murder, the victim left work early, “about five, ” to go to her apartment to “prepare a meal for [him].” Id. He left the office around 5:25 P.M. and “went straight to [the victim's] apartment, ” where he received “no response” after he knocked on the door. Id. at 151-52. He knocked “[a] second time louder” and heard the victim scream, “right after” which he “heard a gunshot.” Id. at 152-54. He “went down to the receptionist, ” to get the key to the apartment, but when they returned, they found that the chain lock was engaged, so they had to “contact[] the maintenance man” for help. Id. at 152. The maintenance man was also unable to open the door when he first arrived and had to go “get a tool to open the door, ” and finally opened the victim's door. Id. Once inside, Ecryod and the maintenance man “found [the victim] . . . laying on the bed” with no pulse, blood next to her head, “her dress [] pulled up above her waist” and “down below her bust.” Id. at 152-53. Ecroyd also observed that a large window in her room was open. Id. at 153.

         On cross-examination, Ecroyd confirmed that he had been dating the victim prior to her death, id. at 155, and that he did not see “anyone in the hallway” when he arrived at the apartment building or “[a]t the time of the scream, ” id. at 160, 169. He knew the time he arrived at the victim's building because he “always look[ed] up at the clock” when he left work and had noted that it was “5:25” when he left. Id. at 167. The victim had not been home in a while because she had been “staying with her mother prior to [the murder]” for “about two weeks, ” and the murder “was the first day that she was back in her apartment.” Id. at 162. He provided more detail about the state of the crime scene, noting that the “bed [was] unmade, ” and the victim's coat was “on the floor between her legs.” Id. at 166-67.

         (c) Charles Wesley

         The building's “maintenance engineer, ” Charles Wesley, confirmed that “the desk clerk” had called him up to the victim's apartment on the day of the murder, where he found Ecroyd. Id. at 173-74. After Wesley got the tool to disengage the chain lock, he and Ecroyd “entered the apartment” and saw the victim “lying across the bed . . . with [her] dress or sweater about midway up.” Id. at 175-76. He “immediately went to the telephone and called the ambulance, ” and stayed until “the police arrived.” Id. at 176. While he was in the apartment, he saw that “the kitchen door, ” which was an external “service entrance” for building employees, was “closed, but it was unlocked” and there were “a few scrape marks below the [kitchen] door knob.” Id. at 176-77.

         Wesley also testified that on December 10, 1971, four days prior to the murder, he had been “t[aken] by surprise” by a “negro” stranger whom he “couldn't recognize” walking around the first floor of the building “around 9:30” in “the morning, ” wearing “one of these African gowns [] and a fez.” Id. at 179-80. He also noted that, of the six entrances into the apartment building, two of them, “the front door and the Ashmead Street entrance, ” were left open until at least 7:00 P.M. each day. Id. at 177-78.

         On cross-examination, Wesley testified that he did not have direct access to each apartment, but had to get a key from the “switchboard” any time he needed to access an apartment to do work. Id. at 181-82. As for the stranger he had seen, Wesley explained that the man was alone, was not “conversing with anyone, ” and was “walking down the hall towards the elevators.” Id. at 183-85. When asked about entrances to the apartment building, he confirmed that “no one [was] specifically responsible for locking the Ashmead entrance” to the building, but noted that the pharmacists at a local drug store “usually [would] lock it when they leave.” Id. at 189. He admitted that if the pharmacists did not lock the door, it would remain unlocked until he or a resident locked it, which he did not do regularly. Id. at 190, 193-94. He further testified that the Ashmead entrance “permit[ted] access to the elevator portion[ of the building] without coming in contact with the receptionist's desk in the lobby.” Id. at 190.

         ii. Crime Scene Officers

         (a) Officer Donald Cherry

         Officer Donald Cherry arrived at the scene of the crime, Apartment 326, at approximately 6:45 P.M with three other officers. Id. at 202. A few officers were already at the scene, and in front of them was “the lifeless body of a young woman lying on her back across the bed.” Id. at 203. She was “nude from the waist down” and at the foot of the bed were “a tweet coat, ” “a black leather purse, ” “a pair of pantyhose, a pair of panties, [and] two shoes.” Id. at 203-04. A “small glass vial containing some sort of liquid” was protruding from under the coat, and another vial was “at the night stand.” Id. at 204. The vials were labeled “Jasmine” and “Man Ranjan, ” respectively. Id. at 219-20. Stockings were “tied around [the victim's] left wrist and [around] her neck, ” and the sheets around her “were in great disarray.” Id. at 203. Of the “three windows” in the room, “two of them were closed and the third was open.” Id. at 204. Officer Cherry “dusted extensively” for fingerprints, and found none suitable for comparison in the bedroom. Id. at 204. Officer Cherry also testified that he took as possible evidence the “coat lying on the floor at the foot of the defendant, ” the victim's dress and pantyhose, a “green towel” from the bedroom, carpet tile, the victim's pillow and blanket, the “slug fragments” of a bullet found next to the victim's head, and “loose hairs” from the bedspread and the “knees” and “stomach of the victim.” Id. at 209-18.

         On cross-examination, Officer Cherry testified that there was a “team” of officers reviewing the crime scene and denied seeing any of them “touching or moving anything” when he arrived at the scene of the crime. Id. at 237-38. He explained that other officers searched for fingerprints in other locations in the apartment, and testified that, to his knowledge, identifiable fingerprints were found elsewhere, but he did not elaborate. Id. at 243-45, 250-51.

         (b) Officer Robert Laughery

         Robert Laughery, a technician for the “Mobile Crime Lab” of DC. MPD, testified that he arrived at the victim's apartment on the day of the murder at approximately 6:45 P.M., and while inspecting the crime scene, observed “two footprints” in the alley “directly” below the “windows of the apartment, ” and nearby he found “three perfume vials, ” one “chapstick, ” and a key. Id. at 258-59, 264. He took photographs of the area and plaster casts of the foot impressions. Id. at 260-61.[2] On cross-examination, Officer Laughery testified that he dusted the kitchen in the apartment and the chapstick he found in the alley for fingerprints, which returned a “negative result, ” and that he did not “dust the vials for fingerprints.” Id. at 269-71.

         iii. Oil Vial Evidence

         Artis Hinson, the owner of Phoenicia, Ltd., a store specializing in “oils, incense, anything that is imported into the United States, ” testified about his interaction with the defendant. Id. at 285-86. Hinson began selling oils in his store in December 1970, and as of October 1971, was selling roughly 40 different oils, all supplied by the same vendor in India. Id. at 288-89. Hinson testified that “it would be highly unlikely” for another person in the District of Columbia to import oils from this vendor, given that the vendor “promised [Hinson] an exclusive territory in the area” and told Hinson that he “had no one else at the time” in the Washington, D.C. area to whom he sold oil. Id. at 289.

         Hinson identified the defendant in open court as “Jahan, ” a “frequent customer” at Hinson's store. Id. at 290-91. The defendant would come in “once or twice a month” and would buy “oils and once in a while some [] Eastern clothes.” Id. at 291. He testified that on December 6, 1971, the defendant came into Hinson's store wearing a “robe” that was “brown or beige, ” and a fez, id. at 302, and purchased “five or six” “dram-size bottles” of different oils, named “Fantasia, ” “Gardenia, ” “Night Queen, ” “Jasmine 68, ” and “Manoranjan.” Id. at 293- 296. The defendant's purchase was an unusually “large sale” for Hinson, and so he not only gave the defendant a receipt, dated “12-6-71, ” but he also hand-wrote “the names of the oils on the labels [of the vials], ” which he only did when there was “some reason to expect the [customer] would get the oil mixed up.” Id. at 294-98. Hinson confirmed, both by his handwriting and by smell, that the vials of oil in evidence and collected at the crime scene were vials of his “Jasmine, ” “Night Queen, ” “Gardenia, ” and “Manoranjan” oils. Id. at 296-301. He noted that the vial of Manoranjan oil that he had sold to the defendant was “the first and only sale” that he had made of that oil. Id. at 298.

         Hinson further testified that “[a]pproximately a week later, ” the defendant returned and “purchased two drams of oil.” Id. at 303. Hinson found this unusual because the store “generally d[id]n't have repeat purchases yet on the same oils in such a small amount of time, ” and so Hinson “asked [the defendant] why” he was purchasing oils so frequently, “knowing he purchased such a large number the week before.” Id. at 305. The defendant responded that he had “lost [his previous purchases] going through a window.” Id. at 306. Hinson testified that he “would think [that day] was a Wednesday, ” which would be the day after the victim's murder. Id. at 306. In response to a question from the Court, Hinson testified that there was no doubt in his mind this interaction occurred “a week later.” Id. at 306.

         Defense counsel did not cross-examine Hinson.

         iv. The Defendant's Presence in the Building Prior to the Murder

         The government called three witnesses to testify about the presence of the defendant in the victim's apartment building in the week leading up to murder.

         (a) Dorothy Rager

         Dorothy Rager lived “right next door” to the victim. Trial Tr. 8/22/72 at 316. She testified that, on December 9, 1971, after returning home from her “nine to five” job, she saw a man “walking right in front of [the victim] 's door, ” dressed “in a robe, a long robe, that was red striped and sort of tan striped, . . . wearing a red fez.” Id. at 317-18. She testified that she “got a look at his face, ” and observed that the stranger “was black.” Id. at 318. The next night, after work, she “saw [the man] at exactly the same place” outside the victim's door, “but he was dressed entirely differently, wearing a tweed, gold and brown tweed jacket, ” and he was “carrying a . . . . sort of a fat case.” Id. at 319. She observed that he was “walking in front of [the victim's] door again, doors, ” clarifying that there were “two doors[] to each apartment.” Id. She was certain that the man was the same man as the night before, especially noting the shape of his nose and his beard. Id. at 320-21. She attributed her ability to recognize the defendant to her hobbies as “an artist and a sculptor.” Id. at 321.

         On February 17, 1972, Rager was shown “ten or so” photographs of “different individuals, ” by the prosecutor and “[t]wo detectives.” Id. at 325. She testified that she “went through them” and was “positive” that she picked out the picture of the man she “saw in the hall on those two evenings.” Id. at 322-24. In court, she again selected the defendant's ...


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