Bernal v. United States
| Decision Date | 29 June 2017 |
| Docket Number | No. 15–CF–1001,15–CF–1001 |
| Citation | 162 A.3d 128 |
| Parties | Angel BERNAL, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Daniel S. Harawa, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.
Peter S. Smith, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Danny Nguyen, and Rebekah Holman, Assistant United States Attorneys, were on the brief, for appellee.
Before Blackburne–Rigsby, Chief Judge,** McLeese, Associate Judge, and Ferren, Senior Judge.
Following a jury trial, appellant Angel Bernal was found guilty of sexually abusing, over the course of a year-and-a-half, E.A., the minor daughter of appellant's common law wife.1 The government's evidence included testimony from appellant's common law wife, Jacqueline Alvarez, and E.A., and DNA evidence that matched semen found on E.A.'s perianal-buttocks and external genitalia to appellant's saliva recovered from a police buccal swab. Appellant's sole argument on appeal is that the trial court erred in granting the government a one-week continuance prior to trial. The continuance gave the government enough time to procure a second buccal swab of appellant and match his DNA to semen recovered from E.A. after the trial court had suppressed the first buccal swab on Fourth Amendment grounds. We conclude that the trial court did not err, and accordingly did not abuse its discretion, in granting the government a one week continuance. We affirm.2
Appellant was in an eight-year relationship with Ms. Alvarez and lived in the same household as Ms. Alvarez and E.A. since E.A. was one year old. E.A. refers to appellant as "my dad." According to E.A., appellant sexually abused her about "twice a week" starting in the second grade. The abuse included both oral and vaginal penetration.3 Ms. Alvarez did not know about the abuse because it always occurred at night when Ms. Alvarez was at work at a nearby restaurant. However, Ms. Alvarez discovered the abuse on May 23, 2014, when she left work at around 11:00 p.m. without first texting or calling appellant, as she normally would do. When she got home, she noticed that the bedroom door was locked and, upon unlocking the door with a key, Ms. Alvarez saw appellant lying with E.A. on the bed. According to Ms. Alvarez, she saw that appellant "had his hands spread out on E.A.'s abdomen," and that E.A. was pulling up her pajamas. Ms. Alvarez also noticed that appellant, who was wearing nothing but shorts, had an erect penis as he stood up. Ms. Alvarez testified that she was in a state of "shock" and was "devastated."
On the morning of May 24, E.A. told Ms. Alvarez that appellant had vaginally penetrated her the night before. In response, Ms. Alvarez called 911. The police took E.A. to Children's Hospital National Medical Center, where a medical examination was conducted. The medical examination revealed semen present on E.A.'s perianal-buttocks and external genitalia.
Metropolitan Police Department ("MPD") Detective Jonathan Rosnick arrested appellant at his place of employment in the afternoon of May 24. Appellant, who was from El Salvador and of limited English-language proficiency, was interviewed by Detective Rosnick at the Fourth District with the assistance of Officer William Vega, a certified Spanish-language interpreter. In Spanish, Officer Vega read appellant his Miranda v. Arizona4 rights through the Spanish version of MPD's PD–47 form. In response to question three, "Do you wish to answer any questions?", appellant answered that he did not want to answer questions. Nonetheless, the police continued their interrogation. The government concedes that the government's failure to respect appellant's decision violated his Miranda rights. During the subsequent interrogation, appellant confessed to sexually abusing E.A.
Following appellant's confession, appellant was moved to the Central Cellblock at MPD Headquarters; at around 6:00 p.m., Detective Rosnick, alone, visited appellant for a buccal swab sample. In English and without the presence of a Spanish interpreter and without first securing a warrant, Detective Rosnick asked appellant for a saliva sample and appellant, in response, agreed to provide one. The DNA of the saliva sample matched the semen found on E.A.
Appellant filed pre-trial motions to suppress both his confession and DNA sample, and the trial court conducted a motions hearing on the matter on May 6 and 8, 2015. At the start of the hearing, the government conceded that appellant's confession was the result of a Miranda violation and, accordingly, the government agreed that it would not introduce the confession in its case-in-chief, and that it would only introduce the confession "for impeachment purposes should [appellant] testify." The court then heard testimony from Officer Vega and Detective Rosnick on their conduct in procuring the confession and saliva sample.
At the beginning of the second day of the motions hearing, government counsel moved for a thirty-day continuance in the trial, which at the time was slated for May 11, for two reasons. First, the government sought authorization and additional time to secure a second buccal swab based on the probable cause that existed at the time of appellant's arrest. In the government's view, this would solve the need to consider whether the first swab was taken illegally. Second, the government had received appellant's "expert notice for child suggestivity"5 only three days earlier, so the government sought additional time to consider whether it "would need to call its own expert for rebuttal." Appellant opposed continuance of the trial. Later that day, the trial court orally denied the government's motion to continue "based on the fact that both sides are ready otherwise." The court noted, however, that it viewed the government's request for authorization to obtain a second buccal swab "as being one that is separate from the motion to continue" for both obtaining and testing a second swab. The trial court reserved a formal ruling on the DNA sample procured by Detective Resnick.
On May 10, the government filed a written motion for the court to reconsider its denial of the thirty-day motion to continue based on the same two grounds it had asserted during the motions hearing on May 8. The government also asked the court to reconsider its request for appellant to submit to a second buccal swab. The government stated that, should the court deny its motion to reconsider its request for thirty days, "the government will request leave to file a dismissal of the indictment in this case, without prejudice, in order to seek a search warrant for [appellant's] buccal swab."
On May 11, the trial court in a written order granted appellant's motion to suppress the DNA evidence recovered from appellant by Detective Resnick at MPD Headquarters. The court concluded that the warrantless seizure of appellant's DNA was nonconsensual, even though appellant had agreed to the buccal swab, because his consent was not knowingly and voluntarily given. SeeMartin v. United States , 952 A.2d 181, 186 (D.C. 2008) () (citation and internal quotation marks omitted).6 Therefore, suppression of the sample was warranted as a violation of the Fourth Amendment. The trial court also concluded that the DNA sample should be suppressed on the alternative ground that Detective Resnick violated the District of Columbia's Interpreter Act. See D.C. Code § 2–1902 (e)(3) (2012 Repl.). The court ruled that the DNA evidence recovered from the buccal swab was inadmissible in the government's case-in-chief, but could be used during rebuttal if appellant "opens the door."
Thereafter, the parties met with the trial court to discuss pending matters before trial. The government stated that the court's order did not change its position on its still-pending motion for reconsideration of the trial court's denial of its motion for a thirty-day continuance. The parties and the court engaged in a brief colloquy and the court affirmed its decision to deny the government its request for a thirty-day continuance. However, the court then stated that it was willing to give the government "a week" based solely on the late expert notice by appellant's counsel. At the government's urging, the court also stated that it was willing to sign the government's motion for a second buccal swab because, in the court's view, the government has a "basis for asking for one, independent of [the sample that the court had] suppressed" earlier. The court emphasized, however, that "the late-breaking expert witness notice" was the only reason for the one-week continuance; and although the government could try, the trial court did not care whether a week gave the government enough time to procure a second DNA test. Indeed, the trial court expressed some doubts about the feasibility of a second test given the time constraints. With those conditions, the government agreed with the court's compromise of a one-week continuance.
The government took a second buccal swab of appellant and was ultimately able to procure a second DNA testing within the one-week confine. Appellant sought to exclude the second DNA test results as a Super. Ct. Crim. R. 16 violation, but the court denied appellant's motion. Thereafter the case went to trial where the jury heard that the semen found on E.A. matched the second buccal swab sample provided by appellant. This appeal followed.
On appeal, appellant challenges the trial court's decision to grant the government a one-week...
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...premise without deciding the question."; reversing judgment). Merger cases are a recurring example. See, e.g. , Bernal v. United States , 162 A.3d 128, 130 n.2 (D.C. 2017) ("The government concedes that Counts Three and Four, only, merge. Accordingly, we remand solely for the trial court to......