Argued
June 20, 2018
Appeal
from the Superior Court of the District of Columbia
(FEL-1057-85) (Hon. Todd E. Edelman, Motions Judge).
Valinda Jones, Assistant United States Attorney, with whom
Jessie K. Liu, United States Attorney, and Elizabeth Trosman,
Mark A. Aziz, and Eric Hansford, Assistant United States
Attorneys, were on the brief, for appellant.
Alice
Wang, Public Defender Service, with whom Samia Fam and
Jonathan Anderson, Public Defender Service, were on the
brief, for appellee.
Before
Blackburne-Rigsby, Chief Judge, and Beckwith and Easterly,
Associate Judges.
Blackburne-Rigsby, Chief Judge:.
On May
27, 1986, a jury found appellee Derrie Nelson guilty of
felony murder while armed of Robert Nichols, assault with
intent to kill while armed ("AWIKWA") and armed
kidnapping of a second victim, Leonard Kelly, first-degree
burglary while armed, and carrying a pistol without a license
("CPWL").[1] Nelson was thereafter sentenced to
forty-two years to life in prison. On direct appeal, we
vacated Nelson's armed burglary conviction as duplicative
of the felony murder but affirmed the remainder of his
convictions.[2] In 2015, Nelson moved to vacate all of his
convictions and for a new trial, pursuant to D.C. Code §
23-110 (2012 Repl.) and Napue v. Illinois, 360 U.S.
264 (1959), claiming that the government presented false and
misleading evidence - expert testimony on hair fiber
comparison - that prejudiced his trial and violated his
constitutional right to due process. The trial court vacated
Nelson's convictions, finding that the government
violated Nelson's due process rights by presenting false
and misleading expert testimony, and ordered a new trial. The
government appeals the trial court's order. The
government is only appealing the trial court's decision
to vacate Nelson's convictions for AWIKWA, armed
kidnapping, and CPWL. The government concedes that the hair
fiber comparison testimony was false, but maintains that it
was not material to Nelson's conviction for the
aforementioned charges. We affirm.
I.
Factual and Procedural Background
A.
The Trial
The
underlying facts of this case are recited fully in
Nelson, supra note 2, 601 A.2d at 585-91,
so we summarize them only in relevant part here. At trial,
the government's evidence showed that Nelson shot and
killed Robert Nichols and tried to kill Leonard Kelly in the
late evening and early morning hours of February 12 and 13,
1985. Nelson's motive for Nichols's murder was
unclear. Nelson had lived in Kelly's house for a short
time, from December 1984 until January 1985, as a
"roomer." Id. at 585. From the record, it
appears that Nelson and Kelly met through Nob Hill, a bar
that Kelly co-owned. Id. After Nelson moved out,
Kelly rented a room in his home to Nichols, whom he had known
for several years.[3] Id. Kelly, who survived the
assault, testified that Nelson entered Kelly's house,
presumably with the keys he had used when he was Kelly's
tenant, demanded his belongings that he had left at
Kelly's house, and then shot Kelly in the back of the
head. Id. at 585-86. After he shot Kelly, Nelson
grabbed Kelly by the arm and pulled him into the garage,
where a fight ensued. Id. at 586. Nelson tried to
force Kelly into the trunk of Kelly's car, but instead,
Kelly hit Nelson in the head with an umbrella and fled from
Nelson. Id. Nelson chased Kelly up the street toward
Nob Hill, slashed Kelly in the face several times with a
knife, and hit Kelly in the head with a cinder block.
Id. Ultimately, Nelson fled after Ralph Smith, the
manager of Nob Hill and acquaintance of both Nelson and
Kelly, came out of the restaurant and saw Nelson and Kelly.
Id.
Several
eyewitnesses corroborated Kelly's testimony. Kelly's
next-door neighbor, Tami Battle, saw "a man wearing bib
overalls, work boots, a rust-colored jacket, and something
blue on his head" approach Kelly's home and enter it
without "force" or "break[ing] anything to get
in." Id. at 585. Inside her home, which shared
a wall with Kelly's row house, Tami Battle and her
brother, Troy Battle, could hear what "sounded like a
fight" coming from Kelly's home, which ended with
the sound of two gunshots and someone running through the
house. Id. Another witness, neighbor Lynette
Edwards, saw Nelson beat up Kelly near Nob Hill and saw
Nelson flee the scene. Id. at 586. Kelly, Smith, and
Edwards identified Nelson as the assailant and gave similar
physical descriptions as Tami Battle - that Nelson was
wearing bib overalls and a red, orange, or
"rust-colored" shirt the evening of the assault.
Id. at 586-87.
After
Kelly called 9-1-1, officers investigated Kelly's house
and found Nichols's body upstairs. Id. at
586-88. An autopsy later revealed that Nichols died from five
gunshot wounds. Id. at 588. The police stopped
Nelson about four blocks from Kelly's house. Id.
at 587. He was found with a closed knife with blood on it and
with blood on his socks and shoes. Id. The blood
from Nelson's socks was tested and determined to be
"compatible with either Kelly's or Nichols's
blood," but not with Nelson's. Id. at 588.
Critical
to the government's case against Nelson was Special Agent
Michael Malone's expert testimony. Malone was a
fifteen-year veteran so-called hair and fiber expert with the
Federal Bureau of Investigation ("FBI") at the time
he testified at trial. Malone testified to his methodology,
which involved placing the unknown hair fiber next to an
identified hair fiber to compare the two fibers based on
twenty characteristics and eliminate the comparison as a
possible match. Malone testified that he examined and
compared hair fibers taken from Nichols's body with hair
from Nelson's head as well as fibers from the cinder
block, with hair from Kelly's head, and concluded that
the two sets of hairs "microscopically matched" and
"were completely indistinguishable." When
testifying to the validity of his results, Malone stated that
he had examined "hairs from about 10, 000 different
people," and he had only twice ever failed to
distinguish between two hair fibers. Malone admitted that
hair fiber comparison analysis is not as precise as
fingerprint analysis because "there are not two
fingerprints exactly alike" but "it's
possible" that two hair fibers belonging to two
different people may be indistinguishable.
Throughout
the government's opening, closing, and rebuttal
arguments, it referenced Malone's expert testimony. The
hair fiber testimony and evidence was critical to the
government's case against Nelson for the Nichols murder
as there was no other evidence that placed Nelson in
Kelly's home at the time of Nichols's murder.
Further, the government's theory of the case, that
Nichols's murder provided the motive for the assault on
Kelly to cover up the Nichols murder, required the jury to
draw the reasonable conclusion that the ...