Burns v. United States

• Decision Date: 20 August 2020
• Docket Number: No. 17-CF-1347,17-CF-1347
• Citation: 235 A.3d 758
• Parties: Eugene BURNS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

235 A.3d 758

Eugene BURNS, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-1347

District of Columbia Court of Appeals.

Argued December 10, 2019

Decided August 20, 2020

Matthew B. Kaplan, Arlington, VA, for appellant.

Eric Hansford, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Kevin Flynn, and Charles Willoughby, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Fleming Terrell, Public Defender Service, with whom Samia Fam, Alice Wang, and Joshua Deahl, Public Defender Service, were on the brief, for Public Defender Service, amicus curiae, in support of appellant.

Before Fisher and Easterly, Associate Judges, and Kravitz, Associate Judge, Superior Court of the District of Columbia.^*

Kravitz, Associate Judge:

We issued a summary order of judgment on March 30, 2020 reversing appellant Eugene Burns's convictions in this case. We now issue this formal opinion stating the full reasoning underlying our decision.

A Superior Court jury found Mr. Burns guilty of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Onyekachi Osuchukwu. The government's theory at trial was that Mr. Burns killed Mr. Osuchukwu, his best friend, because he thought Mr. Osuchukwu was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together. Mr. Burns argued that he acted in self-defense, testifying that he shot Mr. Osuchukwu at close range only after Mr. Osuchukwu rushed him and tried to wrestle away his gun in an argument over the money.

The government prevailed at trial largely on the strength of data obtained from two cell phones seized from Mr. Burns on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Burns's phones; the data included highly incriminating records of internet search inquiries made by Mr. Burns in the days leading up to the homicide ("Are you capable of killing your best friend?" "How does it feel when you kill someone for the first time?" "Shot placement for instant kill?") and enabled the government to paint a compelling picture of Mr. Burns's premeditation and deliberation. The Chief Medical Examiner's testimony contradicted Mr. Burns's claims about the way the shooting unfolded with detailed information about the gunshot wounds

described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Osuchukwu's body.

On appeal, Mr. Burns contends that the trial judge committed reversible error in denying his pretrial motions to suppress the data obtained from his cell phones and to exclude the Chief Medical Examiner's testimony about the results of the autopsy. Mr. Burns argues that the search warrants were overbroad, lacking in particularity, and almost entirely unsupported by probable cause and were thus issued in violation of the Warrant Clause of the Fourth Amendment. He argues that the testimony of the Chief Medical Examiner conveyed testimonial hearsay statements of the deputy medical examiner who performed the autopsy and was thus presented to the jury in violation of the Confrontation Clause of the Sixth Amendment.

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone — typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device. Given the trove of information stored on many cell phones and the Supreme Court's ruling in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), that police generally must obtain a search warrant before they may examine the contents of a cell phone, search warrant requests seeking access to cell phone data have become a common feature of law enforcement investigations in the District, with warrant applications presented to the Superior Court by police in large numbers. At the same time, turnover and other personnel challenges in the Office of the Chief Medical Examiner have, with some frequency, led the government in homicide trials to offer testimony relating to the cause and manner of death from forensic pathologists who neither conducted nor attended the autopsies on which their testimony is based.

Yet despite the ubiquity of cell phones and cell phone search warrants, this is the first case in which this court has been called on to analyze the validity of a cell phone search warrant under the Warrant Clause. And although several of our previous decisions have addressed Confrontation Clause challenges to surrogate medical examiner testimony under the plain error standard, see, e.g. , Sheffield v. United States , 111 A.3d 611, 623 (D.C. 2015) ; Euceda v. United States , 66 A.3d 994, 1012 (D.C. 2013), this is the first case in which we have been required to consider the constitutionality of such testimony on the merits and, in particular, to determine whether autopsy records created and maintained within the Office of the Chief Medical Examiner contain "testimonial" hearsay statements subject to the Confrontation Clause under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. See Sheffield , 111 A.3d at 623 ("[N]either this court nor the Supreme Court has decided whether autopsy reports are testimonial[.]").

We conclude that Mr. Burns has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for "any evidence" of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Burns's motion to suppress all of the data collected from both phones. Separately, the Chief Medical Examiner's testimony plainly transmitted to the jury the findings of the deputy medical examiner who conducted the autopsy on Mr. Osuchukwu's remains. Because those findings, set forth in the autopsy report and other materials maintained in the autopsy file, were made in the context of an ongoing police investigation of a homicide, the findings were "testimonial" and their communication to the jury through the Chief Medical Examiner's testimony violated the Confrontation Clause. Both constitutional errors prejudiced Mr. Burns at trial, and in combination they cannot be deemed harmless beyond a reasonable doubt.¹

I. The Cell Phone Search Warrants

A. The Warrants and Their Supporting Affidavits

Metropolitan Police Department Detective Lee Littlejohn applied to the Superior Court on November 25, 2015 for search warrants for two cell phones seized from Mr. Burns on the day after the shooting. One of the cell phones was an LG, the other an Alcatel One Touch. The search warrants and their supporting affidavits were identical in scope and substance, differing only in the identification of the phone to be searched pursuant to each. The warrant for the LG, along with its supporting affidavit, is reproduced in full in the appendix to this opinion.

Under the heading "PROBABLE CAUSE," Detective Littlejohn stated in the warrant affidavits that police went to 2958 Second Street, S.E., Apt. 23 on Sunday, November 15, 2015 in response to a report of an unconscious person. On arrival, police found Mr. Osuchukwu dead on the living room floor, the apparent victim of a shooting. Also present in the apartment were Mr. Burns's mother, Mr. Burns, and a cousin — identified in the affidavits, respectively, as W-1, W-2, and W-3.

As relayed in the affidavits, Mr. Burns's mother (W-1) told police that she lived in Apt. 23 but had left home on Friday, November 13, 2015 to spend the weekend with family. She stated that Mr. Burns and Mr. Osuchukwu were best friends and that Mr. Osuchukwu had arrived in the District of Columbia from California at some point on Saturday, November 14, 2015. She said she returned to her apartment on November 15, 2015 with Mr. Burns and his cousin and found Mr. Osuchukwu on the floor, unconscious and unresponsive, as soon as they opened the door. She called 911.

The affidavits next summarized a police interview of Mr. Burns (W-2):

Homicide Detectives on the scene spoke briefly to Witness #2, hereafter referred to as W-2. W-2 stated that family members collectively gathered money and purchased the decedent an airline ticket to Washington, D.C. W-2 stated IT exchanged text messages with the decedent throughout the day. W-2 stayed at the apartment waiting for the decedent's arrival. According to W-2, the last communications via text with decedent was around 7:30 p.m. W-2 decided to leave the apartment to meet with friends and left the apartment door unlocked so that the decedent could gain access to the apartment. W-2 didn't return to the apartment until the following day. Detectives attempted to ask W-2 additional questions, but W-2 refused to provide any additional information. W-2 was found to be in possession of two cellular telephones at the time, which were seized pending the issuance

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