LEVI RUFFIN, APPELLANT, v. UNITED STATES, APPELLEE.
No. 15-CF-1378
DISTRICT OF COLUMBIA COURT OF APPEALS
Argued January 16, 2018 Decided November 21, 2019
GLICKMAN, Associate Judge
Appeal from the Superior Court of the District of Columbia (CF1-13804-14) (Hon. Rhonda Reid-Winston, Trial Judge)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Debra Soltis, with whom Paul Y. Kiyonaga and Marcus Massey were on the brief, for appellant.
Kristina Ament, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Kenechukwu O. Okocha, Akhi Johnson, and Eric S. Nguyen, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and FISHER, Associate Judges, and FERREN, Senior Judge.
I. The Evidence at Trial
The complaining witness at appellant‘s trial, whom we shall refer to as J.C., testified that a man wielding a silver folding knife attacked her when she arrived home on the evening of September 14, 2013. J.C. lived at the time in one of three apartments in a row house in Northwest Washington, D.C. Her assailant, who was later identified as appellant, came up behind her as she was unlocking the front door to the building. Putting his hand over her mouth and holding the knife to her face, appellant told her not to move and to drop what she was holding. He then pushed J.C. through the entrance into the common hallway of the row house, followed her in, and closed
At that point, J.C. grabbed the hand in which appellant was holding the knife and pushed him away. A fight ensued, during which appellant bit J.C. on her left cheek and her back. She yelled at him to stop. He pushed her to the floor and fled out the front door of the row house. After he was gone, J.C. went into her apartment and called the police.
A neighbor in an apartment down the hallway heard and saw part of the attack through the peephole of her door and called the police. The recording of that call was played at trial. It captured over 90 seconds of the assault.
J.C. was taken to the hospital by ambulance. She was treated for the bite wounds on her cheek and back, and for a lacerated finger (which required six stitches) and other knife cuts on her hands. A nurse swabbed J.C.‘s bite wounds for biological evidence that could help identify her attacker. After several months, the police acquired information linking appellant to the assault.1 In August 2014, officers went to his apartment to arrest him. In a pair of jeans that appellant asked to put on, the officers found a folding knife with a silver blade and a black handle. Over appellant‘s objection to its relevance, this knife was admitted in evidence against him at trial, along with the parties’ stipulation that it had been in appellant‘s possession “as early as November 2, 2013” (i.e., about seven weeks after the assault on J.C.).2
DNA testing identified appellant as J.C.‘s assailant. Two forensic scientists from the District of Columbia Department of Forensic Sciences (DFS) testified that they received and tested the swabs taken from J.C.‘s cheek and back wounds and a swab taken from appellant‘s cheek following his arrest in this case. These scientists performed the extraction, quantification, and amplification of DNA from each of those sources and generated DNA profiles from them for subsequent interpretation and comparison. They did not testify to that interpretation and comparison, however, because flaws had been detected in DFS‘s statistical computation procedures. These flaws reportedly “resulted in DFS‘s overstating the rarity of certain mixture profiles,”3 i.e., profiles obtained from samples containing DNA from more than one person. A panel of experts convened by the United States Attorney‘s Office identified “systematic concerns with DFS‘s interpretations of forensic DNA mixtures,”4 and an ANSI-ASQ National Accreditation Board (ANAB)5 audit of DFS likewise found serious
The government arranged for an accredited private laboratory, Bode Cellmark Forensics (Bode), to interpret and compare the profiles generated by DFS in this case. Over appellant‘s objection, the court allowed Karin Crenshaw, a forensic biologist at Bode, to testify that appellant‘s DNA profile matched the foreign DNA profiles recovered from the swabs of J.C.‘s back and cheek wounds.6 According to Ms. Crenshaw, the probability of randomly selecting an unrelated African American with the same profile as that of the foreign DNA from J.C.‘s back was 1 in 450 quadrillion; and the equivalent random match probability for the DNA from J.C.‘s cheek was 1 in 4.1 sextillion.7
II. Sufficiency of the Evidence
Appellant claims the evidence was insufficient to convict him of the first-degree burglary and kidnapping charges. Each claim turns on a question of statutory interpretation.
A. First-Degree Burglary While Armed
The crime of burglary in the first degree is defined in
The burglary statute does not define the term “dwelling,” and this is the first time this court has been called upon to construe it. Its meaning in the statute, and whether it encompasses a common hallway in a multi-unit residential building, are questions of statutory interpretation that we decide de novo.9 Where, as here, statutory terms are undefined, we presumptively construe them according to their ordinary sense and plain meaning, taking into account the context in which they are employed, the policy and purpose
To begin with, the term “dwelling” is not limited to single-family occupancies. Apartment houses and other multi-unit residential structures also are included within standard dictionary definitions of “dwelling,” particularly when that word is used in burglary and similar statutes. Black‘s Law Dictionary, for example, states that “dwelling” is the short form of “dwelling-house,” a term meaning, in criminal law, virtually any “building . . . , part of a building . . . , or []other enclosed space that is used or intended for use as a human habitation.”13 We think it informative and noteworthy that a number of federal courts, tasked under the Sentencing Guidelines with determining the “generic” meaning of “burglary of a dwelling,” have accepted this definition.14
In construing the District‘s first-degree burglary statute, we have no reason to reject the broad ordinary meaning of “dwelling” as any enclosed space used for human habitation, nor any reason to narrow the definition of “dwelling” to exclude some types of habitation. Section 22-801(a) states that it applies to entries into “any dwelling” without qualification or exception. “[T]here is no indication in the legislative history to the contrary.”15 Congress enacted the first-degree burglary statute in 1967.16 As explained in the report on the bill by the Senate Committee on the District of Columbia, up until then, “the crime of breaking and entering in the District of Columbia [was] called housebreaking” and did “not distinguish between dwellings and other premises.”17 The authorized penalty for housebreaking, imprisonment for up to 15 years, was the same regardless of the character of the premises.18 The 1967 enactment amended the housebreaking statute to create two degrees of burglary and specify different minimum sentences for each.19 The graver offense, first-degree burglary of an occupied dwelling or sleeping apartment, carried an enhanced penalty of no less than 5 nor more than 30 years of imprisonment. Burglaries of other
Accepting the broad, ordinary definition of “dwelling” best serves the evident legislative purpose behind the enactment of the first-degree burglary statute. Burglaries of occupied residences are singled out for heightened punishment because they “pose an increased risk of physical and psychological injury.”21 In such burglaries “there is a much greater possibility of confronting the resident and a substantial risk that force will be used and that someone will be injured, than if one burglarized a building that was not intended for use as habitation, such as an office building after office hours or a warehouse.”22 This elevated risk exists whether the human habitation in question is a single-family home or apartment, a row house with a few units, or a multi-unit apartment building. “[T]he unique wounds caused by residential burglary are independent of the size or construction of the dwelling. They are the same for the mansion house and the boarding house, the tract home and the mobile home.”23
So J.C.‘s row house was a “dwelling” within the meaning of our first-degree burglary statute. The evidence clearly sufficed to prove that her assailant entered this dwelling with the intent to commit a crime inside it, and that someone else was present there when he did so. This latter statutory requirement, which is not in dispute, was satisfied in two ways. First, it suffices that J.C.‘s neighbor was in the row house even though she was in her own apartment; a residential burglary violates
It is immaterial that the entry and the subsequent assault went no further than the interior common hallway of the row house. This hallway was behind a locked door; in no way was it a space so open to the public at large as to be considered outside and not part of the private dwelling area. And as far as
Appellant argues that this conclusion is foreclosed by our decision in Edelen, in which this court held that the defendant committed first-degree burglary when he entered the complainant‘s apartment, even though he began his attack on her in the common hallway outside her apartment.26 This argument is not correct. In Edelen, this court had no occasion to consider, and therefore did not consider, whether the defendant committed a first-degree burglary when he entered the apartment building. The issue before the court was only whether his entry into the apartment constituted a first-degree burglary. The two possibilities are not mutually exclusive. Section 22-801(a) recognizes both possibilities by specifying that a first-degree burglary can be committed by entering either “any dwelling” or any “room used as a sleeping apartment in any building.”
We reject appellant‘s restrictive interpretation of
B. Kidnapping While Armed
To convict appellant of kidnapping J.C. in violation of
This argument is not a new one. It has been made to us before, and we have rejected it. As this court stated in Richardson, the argument is “foreclosed” by “binding precedent.”29 We have held that “[t]he plain language” of
Accordingly, we hold that the evidence in this case was sufficient to sustain appellant‘s conviction for kidnapping while armed.
III. Evidentiary Rulings
A. Admission of Expert Witness Testimony on DNA Match
Appellant argues that the trial court erred in denying his pretrial motion to preclude testimony by a DNA expert witness from Bode (Ms. Crenshaw) that was based on unreliable DNA testing data generated by DFS. “We review a trial court‘s admission or exclusion of expert testimony for abuse of discretion and only disturb the lower court‘s ruling when it is ‘manifestly erroneous.‘”31 Under Federal Rule of Evidence 702, which now governs the admissibility of expert opinion testimony in our courts,32 the court may allow such testimony based on a preliminary determination of its evidentiary reliability.33 The factors the court must consider in assessing reliability include whether the testimony is “based on sufficient facts or data”34 and is the product of “reliable principles and methods” that “the expert has reliably applied . . . to the facts of the
Federal Rule of Evidence 703, which this court also has adopted,36 permits an expert to base an opinion on otherwise inadmissible facts or data of which the expert has been informed “[if] experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” In other words, “the opinions of an expert witness may be based in part on hearsay or other inadmissible information as long as the hearsay or other inadmissible information meets minimum standards of reliability and is of a type reasonably (i.e. customarily) relied on in the practice of the expert witness‘s profession.”37 While the court may not abdicate its gatekeeping responsibility to ensure the evidentiary reliability of expert testimony, it typically must “accord an expert wide latitude in choosing the sources on which to base his or her opinions.”38 In general, “a properly qualified expert is assumed to have the necessary skill to evaluate any second-hand information and to give it only such probative force as the circumstances warrant.”39 Therefore, “[i]n most cases, . . . objections to the reliability of out-of-court material relied upon by [an expert] will be treated as affecting only the weight, and not the admissibility, of the [expert testimony].”40
Applying the foregoing principles, we conclude that the trial court did not abuse its discretion by denying appellant‘s motion to preclude Ms. Crenshaw‘s testimony. In his motion, appellant cited the criticism of DFS by the ANAB and the government‘s panel of experts; argued that Bode could not “attest to the accuracy” of DFS‘s DNA test results; and asserted (without evidence) that “it is not customary for an analyst from one DNA lab to simply review” and draw conclusions from raw test data provided by another lab. But the government successfully rebutted these contentions. It proffered the ANAB audit report and other documentation showing, as the court found, that the criticisms of DFS
At trial, appellant was able to cross-examine the government‘s three expert witnesses to identify any problems with the data and challenge the reliability of the DNA testing and analysis. The jury received an accurate picture of each expert‘s role. All three witnesses agreed that the issues raised by ANAB did not concern the procedures followed by the two DFS witnesses to generate the “raw data” sent to Bode in this case. Appellant elicited no evidence to the contrary. The two DFS witnesses described in detail the steps they followed to generate that raw data, including the measures followed to ensure the reliability of the results. Ms. Crenshaw testified that these steps were shown in the data she received and reviewed, and that it would have been evident to her from the “raw data” if those steps had been performed improperly. She found no problems or irregularities. This testimony was not impeached or contradicted.
We conclude that the trial court did not abuse its discretion in allowing Ms. Crenshaw to testify, and in trusting the jury to evaluate the reliability of her opinion and the information on which it was based.
B. Admission of the Knife
Appellant contends the trial court erred by admitting the knife recovered from his jeans pocket into evidence. He argues that the knife was irrelevant because it did not match J.C.‘s description of the one her assailant used and there was no other proof linking the knife to the assault. In overruling appellant‘s objection to the knife‘s relevance, the trial court found that the discrepancy between J.C.‘s description and the appearance of the knife went to the weight of the evidence but did not render it inadmissible. We agree.
“Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.‘”43 “The trial court enjoys particularly broad discretion in determining the relevance of a piece of evidence because
“An accused person‘s prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.”46 It is relevant and admissible as “direct and substantial proof of the crime charged”47 if the weapon is “linked to both the defendant and the crime” and the connection is not “too remote or conjectural.”48 In this case, two factors bear on the issue of relevance – whether the knife‘s appearance matched J.C.‘s description, and whether appellant was in possession of it around the time of the crime.49
As to the first factor, J.C. reported that her assailant wielded a silver folding knife. The knife recovered from appellant‘s jeans was a folding knife with a silver blade and a black handle. Although J.C. did not mention a black handle, the court reasonably could find that the recovered knife matched J.C.‘s general description, especially given the obvious likelihood that the handle of the knife was not clearly visible to J.C. when her attacker was grasping it and threatening her with it.50 Appellant argues that J.C. was not shown appellant‘s knife and never identified it as being, or looking like, the knife held by her assailant. The absence of such an identification does not diminish the probative value of the fact that the knife fit J.C.‘s general description of the weapon. As to the second factor, although the police did not find the knife until they arrested appellant eleven months later, appellant stipulated that he had it in his possession at a time only seven weeks after the crime was committed. This was not so long after the crime as to deprive the evidence of any probative value.51 We think the trial court fairly could conclude from these facts that appellant‘s possession of the knife was “some evidence of the probability of his
Appellant argues that any probative value the knife had was outweighed by the danger of prejudice, which he identifies on appeal only as the implication that “he was a violent man who carried a knife.”55 Appellant faults the trial judge for failing to balance the danger of such prejudice against the limited probative value of the knife.
The point is not well-taken, however. “In general, if evidence is relevant, it should be admitted unless it is barred by some other legal rule.”56 In other words, upon a finding of relevance, the knife was presumptively admissible. It is true that relevant evidence may be excluded, in the trial court‘s discretion, if the court finds that its probative value is substantially outweighed by a danger of unfair prejudice.57 Thus, if a defendant identifies a risk of unfair prejudice from proffered evidence and explains how that risk outweighs the probative value of the evidence, the judge must balance the probative value of the evidence against that risk. But “[j]udges are not clairvoyant.”58 The responsibility to identify the risk and raise the issue of unfair prejudice with specificity for the judge‘s consideration is on the party seeking protection from it – meaning, in this case, on appellant.59 It is not the judge‘s role to assume that responsibility, snoop out the facts, and construct the argument for the litigant. Yet when the relevance of the knife was argued and decided in this case, appellant did not argue that it posed any risk of unfair prejudice at all.60 Nor, in our view, was any such risk apparent. Contrary to appellant‘s unsupported claim (made for
We conclude that the trial court did not abuse its discretion by admitting the knife into evidence.
IV. Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court.