U.S. v. Davis, Criminal Case No. RWT 07-0199.

• Decision Date: 16 March 2009
• Docket Number: Criminal Case No. RWT 07-0199.
• Citation: 602 F.Supp.2d 658
• Parties: The UNITED STATES of America v. Earl Whittley DAVIS.
• Court: U.S. District Court — District of Maryland

602 F.Supp.2d 658

The UNITED STATES of America v. Earl Whittley DAVIS.

Criminal Case No. RWT 07-0199.

United States District Court, D. Maryland.

March 16, 2009.

Deborah A. Johnston, Office of the U.S. Attorney, Greenbelt, MD, for United States of America.

John Hanjin Chun, Office of the Federal Public Defender, Baltimore, MD, for Earl Whittley Davis.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Defendant Earl Whittley Davis has been indicted for federal crimes relating to the robbery and murder of Jason Schwindler on August 4, 2004, and the Government has given notice of its intent to seek the death penalty. Trial is now set to begin on March 31, 2009.

The Defendant has filed a Motion to Exclude DNA Test Results and Request for Daubert Hearing [Paper No. 42], which seeks to preclude the Government from introducing at trial certain items and opinions relating to DNA evidence. Although Defendant raises a myriad of objections, two issues predominate the pleadings on this issue. The first is whether the DNA evidence in this case should be excluded under a Daubert analysis because low copy number (LCN) testing allegedly was utilized, and this type of testing is a new methodology ("the latest fad") that is not sufficiently reliable. The second is whether the disagreement in the scientific community as to the best method of explaining the statistical significance of a "cold hit" DNA database match should preclude the introduction of the DNA evidence flowing from a cold hit.

PROCEDURAL HISTORY

Defendant was arrested in October 2004 and was initially prosecuted in the Circuit Court for Prince George's County. On the eve of the state trial set for April 2007, the state charges were dismissed by the State's Attorney for Prince George's County and the federal prosecution commenced with the filing of a criminal complaint. On April 30, 2007, a federal grand jury returned a six-count indictment alleging a Hobbs Act robbery, carjacking, and related firearms violations. The death-eligible offense is murder by use of a firearm in furtherance of a Hobbs Act robbery in violation of 18 U.S.C. § 924(j).

On March 7, 2008, counsel for the Government received notice that the Attorney General had authorized the United States Attorney for the District of Maryland to seek a death sentence in this case. The Government informed the Court of this authorization on March 10, 2008.

On March 31, 2008, the grand jury returned a superseding indictment for the same offenses that added the death-qualifying intent elements and statutory aggravating factors. On April 8, the Government filed formal notice of intent to seek the death penalty [Paper No. 40].

On April 4, 2008, the Defendant filed the instant Motion to Exclude DNA Test Results and Request for Daubert Hearing [Paper No. 42] (hereinafter, "Def. Mot."). The Government filed its Consolidated Response to Defendant's Pretrial Motions on July 15, 2008 [Paper No. 92] (hereinafter, "Resp."). The Defendant filed his Reply [Paper No. 124] (hereinafter, "Reply") on August 21, 2008, but at this point the Government had not filed any affidavits in support of its Response.

On August 22, 2008, the Government filed the affidavit of Meredith Kitey, the former DNA Laboratory Manager, Technical Leader and CODIS¹ Administrator for the Prince George's Police Department, in support of its Response [Paper No. 135-2] (hereinafter, "Kitey Aff. I"). The Defendant filed a Supplemental Reply [Paper No. 154] on September 22, which includes three lengthy affidavits from experts refuting the contentions of the Government's expert. The Government then filed a Supplemental Affidavit of Ms. Kitey on October 6 [Paper No. 155-2](hereinafter, "Kitey Aff. II").

The Court held a hearing on the Defendant's other pretrial motions on September 15, 2008, but deferred the hearing of the instant motion until October 10, 2008. As explained below, the motion will be denied.

FACTUAL BACKGROUND

On August 6, 2004, shortly before 1:00 p.m., Jason Schwindler, an armored car employee, picked up a bank deposit from a local business and took it to a nearby BB & T bank in Hyattsville, Maryland. Schwindler got out of the armored car, and as he walked up to the bank entrance, two gunman exited a Jeep Cherokee and began shooting at Schwindler, killing him. When their escape in the Jeep was thwarted by the armored truck driver, the assailants carjacked a bank customer and fled in her vehicle. The carjacked vehicle was later recovered.

After the murder, officers from the Prince George's County Police Department responded to the crime scene and collected evidence. Numerous items were recovered, including a baseball cap worn by one of the shooters, two firearms, and steering wheel covers from the Jeep Cherokee and a Pontiac Grand Am that were used by the suspects in the commission of the offense. These items were swabbed and analyzed for DNA. The DNA profiles of the major contributor to the DNA found in the ball cap and on the trigger and grip of the recovered firearms were entered into the local CODIS database. As a result of a search of the local database, on or about August 14, 2004, there was a "hit" between the DNA recovered from the ball cap recovered at scene and the DNA of the Defendant. Law enforcement officers were notified of the match and advised to obtain a known sample from the Defendant. Pursuant to a search warrant, a DNA sample was taken from him and compared to the items recovered from the crime scene.

The DNA analysis was performed by the Prince George's County Serology/DNA Laboratory. The lab utilized a method of testing known as PCR/STR² typing to analyze the DNA in this case. Each laboratory report notes: "DNA isolated from the indicated items was amplified using the PCR and typed for the STR loci D3S1358, vWA, FGA, D8S1179, D21S11, D18S51, D5S818, D13S317, D7S820, D16S539, TH01, TPOX, CSF1PO, and for gender (X, Y) using the AmpFister Profiler Plus™ and COFilerTM PCR Amplification kits." (Def. Mot. Ex. 1, Results of Forensic Examination (March 5, 2007)). The results included the following:

Ballcap (N6)

As previously reported, DNA from more than one individual was obtained from the ballcap (N6). The major component of the profile matches the known profile of Earl Davis (DS 1). To a reasonable degree of scientific certainty, in the absence of an identical twin, Earl Davis is the source of this DNA. The minor types remain unassigned. Opio Moore (A), Kwang Yeung Yan (MS1), Kathryn Hollins (KH), and Robert Sineway (RS) are excluded as potential contributors.

Trigger & grip of Glock model 22 handgun (N1b)

As previously reported, DNA from more than one person was obtained from the swabbing of this item. This is a partial profile, which may be due to degraded and/or an insufficient quantity of DNA. Several of the types in this profile are consistent with the known profile of Earl Davis (DS1). Several of the types in this profile are also consistent with the known profile of Opio Moore (A). However, due to the limited nature of this profile, no statistical calculations can be performed. Kwang Yeung Yan (MS 1), Kathryn Hollins (KH), and Robert Sineway (RS) are excluded as potential contributors. No further conclusions can be made regarding this profile.

Trigger & grip of Taurus model PT-92AF handgun (N2d)

As previously reported, DNA from more than one person was obtained from the swabbing of this item. This partial profile, which may be due to degraded and/or an insufficient quantity of DNA. Several of the types in this profile are consistent with the known profile of Opio Moore (A). However, there are additional types present that are unassigned at this time. Due to the limited nature of this profile, no statistical calculations can be performed. Earl Davis (DS 1), Kwang Yeung Yan (MS 1), Kathryn Hollins (KH), and Robert Sineway (RS) are excluded as potential contributors. No further conclusions can be made regarding this profile.

Jeep Cherokee steering wheel (BG1)

As previously reported, DNA from more than one individual was obtained from the steering wheel of the Jeep Cherokee (BG1). This profile is consistent with the combined profiles of Kwang Yeung Yan (MS1) and Earl Davis (DS1). The DNA profile obtained from this item is approximately:

• 3.5 quadrillion times more likely to be a mixture of DNA from Kwang Yeung Yan and Earl Davis than a mixture of Kwang Yeung Yan and an unknown individual in the Caucasian population.

• 510 billion times more likely to be a mixture of Kwang Yeung Yan and Earl Davis than a mixture of Kwang Yeung Yan and an unknown individual in the African-American population.

• 4.3 quadrillion times more likely to be a mixture of DNA from Kwang Yeung Yan and Earl Davis than a mixture of Kwang Yeung Yan and an unknown individual in the southeast Hispanic population.

Opio Moore (A), Kathryn Hollins (KH), and Robert Sineway (RS) are excluded as possible contributors.

Pontiac Grand Am steering wheel (K3)

As previously reported, DNA from more than one individual was obtained from the steering wheel of the Pontiac Grand Am (K3). The major component of the profile matches the known profile of Earl Davis (DS1). To a reasonable degree of scientific certainty, in the absence of an identical twin, Earl Davis is the source of this DNA. The minor types are consistent with the known profile of Kathryn Hollis (KH). Opio Moore (A), Kwang Yeung Yan (MS 1), and Robert Sineway (RS) are excluded as possible contributors.

DNA from more than one individual was obtained from the Grand Am shifter (K1C). Earl Davis and Kathryn Hollins cannot be excluded as possible contributors to this mixture. Kwang Yeung Yan, Opio Moore, and Robert Sineway are excluded as potential contributors.

The items listed above were not fully consumed during the course of analysis. Additional portions are available for independent testing.

(Def. Mot. Ex. 1, Results of Forensic Examination (Dec. 6, 2004)) (internal...