Dorsey v. United States

• Citation: 225 A.3d 724
• Decision Date: 27 February 2020
• Docket Number: No. 17-CO-654,17-CO-654
• Parties: James J. DORSEY, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

225 A.3d 724

James J. DORSEY, Appellant,

v.UNITED STATES, Appellee.

No. 17-CO-654

District of Columbia Court of Appeals.

Argued February 26, 2019

Decided February 27, 2020

Mindy Daniels for appellant.

Steven B. Snyder, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Chrisellen R. Kolb, Matthew P. Massey, and William Schurmann, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and Thompson, Associate Judges, and Ferren, Senior Judge.

Thompson, Associate Judge:

Appellant James Dorsey appeals from the trial court's denial, without a hearing, of his motion brought pursuant to D.C. Code § 23-110 (2012 Repl.), claiming ineffective assistance of trial counsel. We remand for a hearing.

I.

On June 7, 2013, Metropolitan Police Department officers executed a search warrant at an apartment (Apartment 31) located at 4701 Alabama Avenue, S.E., and found a .357 Magnum revolver located on the top shelf inside a cabinet in the apartment's kitchen. See Dorsey v. United States ("Dorsey I "), 154 A.3d 106, 110-11 (D.C. 2017). One of the officers later testified that as the officers were entering the apartment, he noticed appellant — who had been standing on the balcony of the apartment when officers arrived in the parking lot, but entered the apartment when he saw the officers approaching the building — "exiting the kitchen area" where the gun was found. Id. at 110-11. The government charged appellant with unlawful possession of a firearm ("UPF"), unlawful possession of ammunition ("UA"), and possession of an unregistered firearm ("UF"). A jury convicted him of all three charges, and this court affirmed his convictions. Id. at 110.

While appellant's direct appeal was pending, appellant filed through counsel a "Motion to Vacate Sentence, Set Aside Judgment, and Grant a New Trial Pursuant to D.C. Code § 23-110." In his motion, appellant argued first that his trial counsel, Raymond Jones, provided constitutionally ineffective assistance by failing to seek a voucher to pay for a DNA expert, failing to file an expert notice that was compliant with Super. Ct. Crim. R. 16, and failing to consult with a DNA expert or present expert DNA testimony (including testimony about the possibility that appellant's DNA could have been deposited on the gun without appellant's having ever touched the gun). Appellant also argued that his counsel provided deficient representation by failing to cross-examine the government's DNA expert concerning her romantic relationship with an Assistant U.S. Attorney; failing to interview and present the testimony of appellant's wife and son, who were in the apartment at the time of the search; and failing to seek suppression of the evidence (including most prominently the gun) retrieved during the search of the apartment. This appeal followed upon the trial court's June 7, 2017, order ("Order") denying appellant's motion without a hearing.

II.

To prevail on an ineffective-assistance-of-counsel claim, a defendant "must demonstrate both that his counsel's performance was constitutionally deficient, and that the deficient performance prejudiced his defense." Bost v. United States , 178 A.3d 1156, 1210 (D.C. 2018) (internal quotation marks and brackets omitted) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). As to the deficiency prong, " Strickland does not guarantee perfect representation, only a reasonably competent attorney[,]" and "there is no expectation that competent counsel will be a flawless strategist or tactician[.]" Harrington v. Richter , 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). As to the prejudice prong, the defendant's burden is to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Copeland v. United States , 111 A.3d 627, 630 (D.C. 2015) (internal quotation marks omitted). For the defendant to be entitled to relief, "[t]he likelihood of a different result must be substantial, not just conceivable." Harrington , 562 U.S. at 112, 131 S.Ct. 770 ; see also id. at 111, 131 S.Ct. 770 (explaining that "the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different." (citations omitted)).

Failure to show "either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland , 466 U.S. at 700, 104 S.Ct. 2052 (emphasis added). Accordingly, it is not always necessary to evaluate both the performance and the prejudice prongs of an ineffective-assistance-of-counsel claim; "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Id. at 697, 104 S.Ct. 2052. In our review of a trial court's denial of an ineffective-assistance-of-counsel claim, "we accept the trial court's findings of fact unless they lack evidentiary support in the record[,]" but "[o]ur review of the trial court's legal determinations, including its conclusions with respect to deficient performance and prejudice, is de novo ." Blakeney v. United States , 77 A.3d 328, 341 (D.C. 2013).

"Ordinarily, there is a presumption in favor of holding a hearing on a § 23-110 motion asserting a claim of ineffective assistance of counsel." Little v. United States , 748 A.2d 920, 922 (D.C. 2000). Echoing the language of the statute, see D.C. Code § 23-110(c) ("Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon"), we have said that a hearing is not required when the motion is "capable of resolution on the existing record[.]" Fields v. United States , 698 A.2d 485, 489 (D.C. 1997). In particular, "a hearing on a § 23-110 motion is not necessary when the motion consists of (1) vague and conclusory allegations, (2) palpably incredible claims, or (3) allegations that would merit no relief even if true." Id. (internal quotation marks omitted). "Although we review the trial judge's denial, without a hearing, of [a] motion pursuant to D.C. Code § 23-110, for abuse of discretion, we must be satisfied that under no circumstances could the [appellant] establish facts warranting relief." Steward v. United States , 927 A.2d 1081, 1087 (D.C. 2007) (internal quotation marks and citation omitted). "Any question regarding the appropriateness of a hearing on a § 23-110 motion should be resolved in favor of holding a hearing[.]" Brown v. United States , 181 A.3d 164, 171 (D.C. 2018) (internal quotation marks and brackets omitted).

III.

As we recounted in Dorsey I , one of the government's witnesses at trial was Andrea Borchardt-Gardner, a DNA analyst with Bode Technology Group, who testified that she was able to develop a partial DNA profile (i.e., eight of the fifteen locations that would constitute a full profile) from the biological material collected from a swab of the gun police recovered. Dorsey I , 154 A.3d at 111. Ms. Borchardt-Gardner determined that the profile was from a single, male contributor.¹ Id. She testified that she compared that profile with appellant's known DNA profile and found that "every allele [she] detected in the evidence sample was consistent with [appellant]." Id. She concluded that appellant "could not be excluded as a possible contributor of the partial DNA profile recovered from the gun." Id. She further "determined that the probability of randomly selecting another individual unrelated to appellant with the same partial DNA profile as the one recovered from the gun was one in 290 billion in the U.S. Caucasian population, one in eleven billion in the U.S. African-American population, and one in 52 billion in the U.S. Hispanic population." Id.

The government's witnesses also included a crime scene technician, Officer Mark Dega, who testified that he eventually placed the gun officers had recovered on a kitchen countertop to photograph it.² Id. Anticipating that testimony, defense counsel Jones cross-examined Ms. Borchardt-Gardner about "secondary transfer." Ms. Borchardt-Gardner acknowledged that she had "read a scholarly article about the secondary transfer of skin cell DNA (e.g., the transfer of DNA from skin cells present on an object to another object when the two objects touch)," but had never encountered such a transfer in her own experience as a supervising and senior DNA forensic analyst. Id. She testified that she "would be surprised to see DNA transferred in that manner ...."

Appellant contended in his § 23-110 motion that Mr. Jones provided constitutionally ineffective representation in that he failed to timely procure and give Rule 16 notice of a defense DNA expert who could more forcefully have presented appellant's secondary (or tertiary) transfer and cross-contamination theories, and could thereby have caused jurors to have reasonable doubt about whether the presence of appellant's DNA on the gun meant that he had touched and possessed the gun. Appellant asserts that a remand is necessary so that the trial court can hear testimony from a defense DNA expert.

Courts have recognized that whether to call an expert is fundamentally a strategic choice to be made by an attorney, the decision on which — either way — may fall within "the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. As the Supreme Court has explained, Strickland does not "requir[e] for every prosecution expert an equal and opposite expert from the defense"; rather, "[i]n many instances[,] cross-examination [of the opponent's expert] will be sufficient to expose defects in an expert's...