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Barber v. United States

Court of Appeals of The District of Columbia

March 1, 2018

Tavon Barber, Appellant,
United States, Appellee.

          Submitted May 3, 2017

         Appeal from the Superior Court of the District of Columbia (CF1-11157-13) (Hon. Russell F. Canan, Trial Judge)

          Matthew B. Kaplan was on the brief for appellant.

          Channing D. Phillips, United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Elizabeth H. Danello, Sharon Donovan, Lindsay Suttenberg, and Patricia A. Heffernan, Assistant United States Attorneys, were on the brief for appellee.

          Before Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge, and Pryor, Senior Judge.

          Blackburne-Rigsby, Chief Judge.

         This case asks us to decide what impact, if any, revelations of systematic concerns with the District of Columbia Department of Forensic Sciences' interpretations of DNA test results had on appellant Tavon Barber's trial, in which the government presented DNA evidence to prove his involvement. Following a jury trial, appellant was convicted of numerous charges stemming from his participation in two burglaries and a sexual assault.[1] There was DNA evidence, as well as testimonial, fingerprint, and documentary evidence, linking appellant to these crimes. The District of Columbia Department of Forensic Sciences ("DFS") conducted DNA testing and analysis, and one of its forensic scientists testified to DFS's findings at appellant's trial. However, another DNA expert, Dr. Bruce Budowle, disagreed with some, but not all, of DFS's statistical interpretations of the DNA evidence found in appellant's case, and Dr. Budowle testified as to his own findings. Nevertheless, both DFS and Dr. Budowle came to the expert conclusion that appellant or his partner in crime, DeAundre Williams, were possible contributors to at least some of the DNA samples collected.

         Post-trial but pre-sentencing, the government disclosed to appellant that a panel of experts, which included Dr. Budowle, convened by the United States Attorney's Office ("USAO"), had identified certain, systematic issues with DFS's interpretations of DNA evidence, based on Dr. Budowle's work in appellant's case. Based on this disclosure, appellant filed a motion for a new trial, which the trial court denied. See Super. Ct. Crim. R. 33 ("Rule 33").

         On appeal, appellant challenges the trial court's decision to deny his motion for a new trial. He claims that DFS's systemic problems undermined the reliability of the DNA evidence presented at his trial and, thus, confidence in the verdict. Appellant also argues merger; he claims that his three third-degree sexual abuse convictions for acts committed against one victim merge into one count, and that his eight possession of a firearm during a crime of violence ("PFCV") convictions also merge into just one count.

         We affirm the trial court's denial of appellant's motion for a new trial. We conclude that the government's post-trial disclosure regarding systematic concerns with DFS's interpretations of DNA evidence would not have changed the outcome of appellant's case. The jury heard from Dr. Budowle as to his concerns with DFS's DNA analysis, as well as his own calculations and interpretations of the DNA evidence. Further, the DNA evidence constituted a relatively minor portion of the government's evidence in the totality. We also affirm on the issue of merger. Appellant's three third-degree sexual abuse convictions and his eight PFCV convictions do not merge because each count is predicated on a distinct act.

         I. Factual Background

         The government's evidence at trial proved to the jury that appellant, with the help of another individual, DeAundre "Dre" Williams, [2] committed two home invasion burglaries in Northeast Washington, D.C. between June 4 and June 5, 2013.[3] The government also proved that, during the course of the second home invasion, appellant sexually assaulted the female occupant.

         A. 1105 Sixth Street, Northeast

         The first incident occurred at a townhouse located at 1105 Sixth Street, Northeast. At around 11:00 a.m. on June 4, one of its residents, Ameya Bhende, [4]discovered that his laptop and book bag, along with his roommate's laptop, were missing. Mr. Bhende also noticed that the keys to his vehicle, a gray Mitsubishi Galant, were missing, and that the vehicle itself, which Mr. Bhende had parked "just around the corner, " was gone. Inspecting the house, Mr. Bhende detected that one of the kitchen windows, along with the window screen, was open, and that the front door was already unlocked, which Mr. Bhende thought was "a little unusual." The Metropolitan Police Department ("MPD") subsequently recovered Mr. Bhende's vehicle around the 2500 block of Second Street, Northeast, near the site of the second burglary, and towed the vehicle to a consolidated forensics laboratory.

         The police recovered appellant's fingerprint from the interior bottom frame of the open kitchen window.[5] From Mr. Bhende's vehicle, the police recovered appellant's fingerprint from the exterior front passenger door window frame and Mr. Williams's fingerprint from the exterior front passenger door window. The police also recovered DNA samples from inside Mr. Bhende's vehicle that were consistent with appellant's and Mr. Williams's DNA profiles. Specifically, expert witnesses DFS DNA Analyst Krystyna Hopkinson[6] and Dr. Budowle[7] agreed[8] that neither appellant nor Mr. Williams could be excluded as possible contributors to DNA found on a cigarette butt recovered from the vehicle and from DNA recovered from the steering wheel. Additionally, they agreed that Mr. Williams's known DNA profile matched the major male contributor samples recovered from the interior driver's door handle and from the interior passenger door handle.

         B. 2432 Second Street, Northeast

         The second incident occurred at a house located at 2432 Second Street, Northeast. The upstairs bedroom was shared by husband, J.B., and wife, E.H., [9]while the basement bedroom was occupied by their friend, Allison Schneider. During the early-morning hours on June 5, 2013, Mr. B. and Ms. H. were sleeping in their bedroom when they were suddenly woken up by two masked men, one pointing a handgun directly at them and one holding a knife. The government's theory at trial was that the gunman was appellant, while the man with the knife was Mr. Williams. Mr. B. described the gunman as being roughly six foot, "slender build, " and "medium to dark complexion, " which approximated appellant's physique. Mr. B. also noted in court that appellant looked "[v]ery, very similar" to the gunman based on his height, "the long arms, his torso, just the structure of his body."

         Upon waking up Mr. B. and Ms. H., the gunman repeatedly yelled, "[W]here's the money at, where's the money at" and "[S]hut the f**k up, " and ordered them to "[p]ut [their] head[s] underneath [their] pillow[s]." Both Mr. B. and Ms. H. complied by rolling onto their stomachs and putting their faces on their pillows. Mr. B. also informed the men that his wallet was in the adjacent office. The gunman thereafter directed the man with the knife to, "Get it all, let's get it all, " and, in response, the man with the knife exited the bedroom, went into the office, and then moved downstairs, ostensibly to find other things of value to steal.

         Meanwhile, the gunman, now alone with Mr. B. and Ms. H., approached Ms. H.'s side of the bed and lifted off the duvet covers, thereby exposing Ms. H.'s nightgown and bare bottom. Appellant then "slapped [Ms. H.'s] a**, " while repeatedly saying that, "He really liked this. This is what he wanted." When Mr. B. became unnerved by the gunman's comments and turned to look at him, the gunman pistol whipped Mr. B. in the head. Turning his sights back on Ms. H., the gunman threatened that he was "going to be, you know, all up in this." He forced Ms. H. to roll onto her back and stroked the front of her body, including her breasts, stomach, and upper thigh. Ms. H. instinctively flipped back onto her stomach and recalled that the gunman then "took the barrel of the gun and sort of moved it in between [her] legs and in between [her] buttocks." The gun was so high up Ms. H.'s thighs that it was "very, very close" to the outside of her vulva. The gunman next grabbed Ms. H.'s "hips and threw her on to her knees, " and pulled her towards his pelvic region. He also pistol whipped Mr. B. again. Having positioned Ms. H., the gunman attempted to unzip his pants. To prevent his wife from being raped and seeing an opening, Mr. B. lunged at the gunman and made an effort to grab the handgun.

         A struggle between the gunman and Mr. B. ensued. As the two men fought, Ms. H. "raced out of the room" and "ran down the steps, " while yelling for Ms. Schneider to call 911. Meanwhile, during the ensuing struggle, the gunman started yelling for his cohort to come help him. Mr. B. heard the gunman say "Jay, Jay, " which sounds like Mr. Williams's nickname, "Dre." Both intruders then started to beat Mr. B., and as they attempted to escape the residence, the gunman fired one round at Mr. B., but missed. The intruders stole Mr. B.'s wallet, containing fifty dollars and his debit and credit cards, a MacBook Pro computer, a Dell computer, two iPhones, and a backpack. The police subsequently recovered a clear imprint of appellant's left palm on the hand railing inside the residence. Dr. Budowle further testified that neither Mr. B. nor Mr. Williams could be excluded from a knife recovered from the scene, and that Mr. Williams also could not be excluded from a shirt recovered from the scene.

         C. Appellant's Confession

         The government's evidence also included key testimony from Jamir Graham, a friend of appellant and Mr. Williams. Mr. Graham testified that in the early-morning hours of June 5, he was sleeping at home when he was woken up by Mr. Williams standing near him while holding two iPhones and an unfamiliar wallet. Appellant arrived shortly after and appeared "[w]orried" and "eager to leave." Then, a few days later, Mr. Graham ran into appellant again, whereupon appellant confessed to his involvement in the burglary and sexual assault at 2432 Second Street, Northeast. Appellant told Mr. Graham specific details of the crime. He told Mr. Graham that he and Mr. Williams went up the steps of the house, and that he yelled at the couple, "[W]here's the money at?" Appellant also admitted to "pull[ing] the covers off the lady, " "[s]mack[ing] the lady on her a**, " and putting the gun to her "p**sy." He said that the "husband charged at him, " and that he "f**ked up" by yelling "Dre['s] name" for help. Lastly, he admitted to firing the gun at the husband and thought that he had hit him before fleeing the scene. Based on the above evidence, in addition to other evidence, [10] the jury convicted appellant for crimes related to his involvement in the 1105 Sixth Street and 2432 Second Street home invasions.

         II. ...

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