Submitted May 3, 2017
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.
Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge,
and Pryor, Senior Judge.
Blackburne-Rigsby, Chief Judge.
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. 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.
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
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
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.
government's evidence at trial proved to the jury that
appellant, with the help of another individual, DeAundre
"Dre" Williams,  committed two home invasion burglaries
in Northeast Washington, D.C. between June 4 and June 5,
2013. The government also proved that, during
the course of the second home invasion, appellant sexually
assaulted the female occupant.
1105 Sixth Street, Northeast
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, 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.
police recovered appellant's fingerprint from the
interior bottom frame of the open kitchen
window. 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 and Dr. Budowle agreed 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.
2432 Second Street, Northeast
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., 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."
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.
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
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.
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,
the jury convicted appellant for crimes related to his
involvement in the 1105 Sixth Street and 2432 Second Street