United States v. Nelson, 18-CO-53

217 A.3d 717

UNITED STATES, Appellant,

v.Derrie A. NELSON, Appellee.

No. 18-CO-53

District of Columbia Court of Appeals.

Argued June 20, 2018

Decided October 3, 2019

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, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (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 two crimes were connected and therefore the evidence was also connected. This point was emphasized by the government throughout the entire trial.

B. Section 23-110 Motion to Vacate Appellant's Convictions and for a New Trial

When Nelson's trial was held in 1986, hair fiber analysis was a generally accepted scientific methodology and expert testimony on the subject was used in criminal prosecutions. See Jones v. United States , 202 A.3d 1154, 1161 (D.C. 2019) (citing Nelson , 601 A.2d at 588 ). However, through scientific advances, post-conviction DNA testing became widely available, which led to exonerations for convictions which were based on no longer viable hair comparison evidence. Jones , 202 A.3d at 1161. This led to widespread internal investigations of criminal convictions involving hair comparison evidence. Id . In 1997, the Department of Justice ("DOJ") Office of the Inspector General ("OIG") released a report indicating misleading and/or illegal acts committed by Malone and other FBI laboratory examiners. THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (1997) , https://oig.justice.gov/special/9704a/https://perma.cc/4GGL-MC42 (last visited May 16, 2019).

In 2014, the DOJ OIG issued a follow-up report detailing significant irregularities in the work of thirteen FBI examiners, including Malone's work in Nelson's case. AN ASSESSMENT OF THE 1996 DEPARTMENT OF JUSTICE TASK FORCE REVIEW OF THE FBI LABORATORY (2014) , http://perma.cc/M5RD-WXKS (last visited July 18, 2019). The report noted that Malone's testimony in Nelson's case about a hair fibers requiring at least fifteen known characteristics for comparison, has no scientific basis, and had no known scientific basis at the time Malone testified in Nelson's case. Id . at 52-53. According to the January 1977 FBI manual on hair microscopy, "hairs do not possess a sufficient number of unique microscopic characteristics to be positively identified as having originated from a particular person to the exclusion of all others." Id . at 53. At Nelson's trial, Malone testified that "one in 5,000" "Negro[s]" "would have hairs with all 20 of" the characteristics found in the hair sample alleged to be Nelson's. Id . The report stated that despite Malone's testimony, there have been no published studies to confirm Malone's conclusions as to the probability of hair matches. Id .

On April 24, 2015, Nelson requested that his convictions be vacated under D.C. Code § 23-110, based on the government's use of false or misleading hair fiber comparison testimony on due process grounds under Napue . The government opposed the motion, and, despite agreeing with Nelson as to the baselessness of the hair testimony, maintained that Nelson failed to show that Malone's testimony prejudiced the verdict necessitating a new trial due to the overwhelming nature of Nelson's guilt. The government also argued that Malone's testimony on the limits of hair fiber evidence sufficiently mitigated any false testimony, and that the prosecutor made limited...