Lewis v. United States

• Decision Date: 02 December 2021
• Docket Number: No. 18-CF-676,18-CF-676
• Parties: Jerome C. LEWIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

263 A.3d 1049

Jerome C. LEWIS, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-676

District of Columbia Court of Appeals.

Argued January 28, 2021

Decided December 2, 2021

Deborah A. Persico for appellant Lewis.

Anne Y. Park, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney, and Elizabeth Trosman, John P. Mannarino, Michelle D. Jackson, and Kimberley C. Nielsen, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and McLeese, Associate Judges, and Steadman, Senior Judge.

Glickman, Associate Judge:

Jerome Lewis appeals his convictions after a jury trial of first-degree felony murder with aggravating circumstances, the underlying felony of first-degree cruelty to children, and second-degree murder as a lesser included offense of the charge of first-degree felony murder (arson). (The jury acquitted appellant of arson and of first-degree felony murder predicated on that felony.) These charges were based on evidence that appellant set a fire in the basement of his house in the middle of the night — a fire that filled the upper floors with smoke and resulted in the death from smoke inhalation of a four-year-old child. Appellant's principal claim is that the trial court erred by admitting unreliable expert testimony as to the origin and cause of the fire. He also asserts that the court erred by refusing his request to instruct the jury on civil negligence; that the evidence at trial was not sufficient to support his murder and child cruelty convictions; and that the court erred by denying his motion for a new trial in the interests of justice. We are not persuaded by appellant's arguments, and we affirm his convictions.

I. The Evidence at Appellant's Trial

This appeal is from a retrial held after the jury could not reach a verdict on the main counts at issue in appellant's first trial, which was in 2016. Although the jury in that first trial found appellant guilty of one count of threats to do bodily harm, he does not challenge his threats conviction. In what follows, therefore, we summarize only the pertinent evidence presented by the government at the retrial. Appellant presented no evidence at that trial.

A. Factual Background

Appellant owned and resided in a house located at 2616 33rd Street in Southeast Washington, D.C. He occupied the basement of the house and rented the upper floors to his cousin Shirley Jenkins-Holland, her husband Alex Holland, their adult daughters Sarah and Alexis, and Sarah's two young children, S.M.J. and M.J. There was a stairway down to appellant's basement apartment from the first floor kitchen area. The basement also had a door opening to the backyard. In the basement, appellant had his own kitchen and his private living space. He slept on a mattress there. Shirley testified that appellant had "basic linen" (i.e., a cotton or polyester "sheet") and a fleece blanket or cover on the mattress; she could not say exactly what material the sheet and blanket were made of. Alexis also recalled the blanket on appellant's mattress but did not know whether it was made of cotton or a synthetic material.

Initially, appellant got along well with the Jenkins-Holland family and spent considerable time socializing with them upstairs. The two young children, S.M.J. and M.J., were fond of appellant and frequently visited him in his basement apartment.

Over time, however, appellant's relations with the family deteriorated. Appellant complained about their failure to pay the bills and the odor of the seasonings the family used in cooking their meals. To prevent the unpleasant cooking smell from bothering him in the basement, appellant put up a plastic tarp from the ceiling to the floor at the top of the stairs leading down from the first-floor kitchen.

The government presented evidence that, by 2013, appellant was in need of money. His primary source of income was the rent he received from the Jenkins-Holland family and from the tenants of a second house he owned, which amounted in total to only about $1800 a month. On three occasions between January 2012 and January 2013, appellant sought to borrow money from family members to finance two trips he took to Africa. One of those family members, appellant's uncle, testified to his impression that appellant's financial situation in 2012 was tenuous and that he needed money in a hurry because he spent it as soon as he got it. When appellant returned home in January 2013 from his second trip to Africa, he said he had found a wife there and asked the Jenkins-Holland family to move out. Shirley and Alex told appellant they could not afford to move out immediately. He agreed to give them six months and to lower their rent by $200 a month to enable them to save some money.

B. The Fire

A month later, on February 16, 2013, Sarah and Shirley noticed the curious fact that appellant had removed his television and his father's military burial flag from the basement and left those items outside in the backyard. That night, Alexis and Shirley put the children down to sleep and then went to bed. (Shirley's husband Alex was out of town.) Shortly after 3:00 a.m., Alexis was awakened by smoke filling her room on the second floor. She ran to the children's room. However, only M.J. was there; four-year-old S.M.J. had gone to sleep in her grandmother's room. Alexis took M.J. and went to wake up Shirley, who immediately ran down to the first floor bedroom to awaken Sarah and her boyfriend. Shirley saw smoke but no fire on the first floor until she opened the door that led to Sarah's bedroom and the basement stairwell. At that point, Shirley saw fire coming up the stairs from the basement, and the plastic tarp appellant had hung at the top of those stairs was engulfed in flames. Blocked by the fire from reaching Sarah's bedroom, Shirley screamed for her to wake up. Alexis, who ran down the stairs with M.J. to join Shirley, also saw flames coming from the basement. Alexis did not see fire in any other room. Screaming at her mother to "come on," Alexis, Shirley, and M.J. went out the front door of the house. The door shut behind them and automatically locked. Alexis then realized S.M.J. was still somewhere inside the house, but she did not have a key to get back inside.

Sarah was awakened by her mother's screams. She smelled the smoke and ran to her door. When she opened it, she saw the fire moving toward her from the basement and the tarp at the top of the stairwell. Sarah sustained second-degree burns

to her arms, shoulder, and back. She woke up her boyfriend and they jumped out their bedroom window into the backyard.

There Sarah saw appellant standing and facing the house, silently watching the fire. He was calm, smoking a cigarette, and fully dressed. He had not alerted anyone in the house to the fire and he ignored Sarah and her boyfriend's narrow escape. Sarah ran to the front of the house, where she found Shirley, Alexis, and M.J., and realized S.M.J. was still inside the home.

At about 3:15 a.m., Metropolitan Police Department (MPD) Officer Mark Abbey saw smoke coming from the vicinity of appellant's house and went to investigate its source.¹ As he neared the house, Officer Abbey heard a man pacing in the darkness and muttering to himself. The officer called out and asked if everything was all right. The man, whom Officer Abbey could not see, answered in a calm voice that "everything's fine." Officer Abbey did not believe it and ran back to get his flashlight. When he returned, he saw flames coming from the basement of appellant's house and appellant pacing and muttering in the backyard. Officer Abbey recognized appellant's voice as that of the man in the alley who told him everything was fine.

Video footage from a surveillance camera located in the alley behind appellant's house was introduced at trial. In addition to corroborating Officer Abbey's account of his arrival at around 3:15 a.m., the footage showed earlier activity by someone, presumably appellant, opening and closing the basement door and moving around outside the house at various times between 1:17 a.m. and 2:34 a.m., followed by smoke and fire coming from the basement door at 3:12 to 3:13 a.m.

Officer Abbey called the fire department and went to the front of the house, as did appellant. Other MPD officers arrived on the scene. One of them, Officer Mario Barr, testified that he saw appellant standing in front of the house, mumbling to himself, while Sarah hysterically yelled that her child was inside. The officers kicked in the front door, but there was so much smoke that they could not enter.

Shirley screamed at appellant, "[Y]ou burned our house down," and he responded, "I'm going to kill you, bitch." Upon hearing that S.M.J. was still in the house, appellant climbed on the roof and attempted to enter by a window, but the smoke prevented him. After another confrontation with Shirley, in which he again threatened to kill her and attempted to kick and elbow her, the police arrested and searched appellant. In his front pocket, they found a half-used book of matches. During a later search of the basement, police recovered a pack of Kool cigarettes and a receipt from a nearby gas station for two packs of Kool cigarettes purchased with appellant's credit card at 1:48 a.m. on the morning of the fire.

Firefighters eventually found S.M.J. lying unconscious in an upstairs bedroom. The child was hospitalized and treated for second-degree burns

and smoke inhalation. She succumbed to her injuries two days later.

While appellant was detained at the D.C. Jail following his arrest, he spoke with friends about the fire during visits and phone calls. His conversations were recorded. In them, appellant claimed there had been two separate, unrelated fires — one on his mattress in the basement and the other upstairs in the first-floor kitchen — and he denied being responsible for the latter. In one conversation, appellant suggested that the fire on the mattress was the result of an...