U.S. v. Johnson

• Decision Date: 08 June 1995
• Docket Number: No. 94-2958,94-2958
• Citation: 56 F.3d 947
• Parties: 41 Fed. R. Evid. Serv. 1181 UNITED STATES of America, Plaintiff-Appellee, v. Lavandris JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 947

56 F.3d 947

41 Fed. R. Evid. Serv. 1181

UNITED STATES of America, Plaintiff-Appellee, v. Lavandris JOHNSON, Defendant-Appellant.

No. 94-2958.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 11, 1995.

Decided June 8, 1995.

William S. Margulis, St. Louis, MO, argued, for appellant.

Joseph M. Landolt, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Lavandris Johnson appeals his convictions and sentences on four counts of armed robbery of a motor vehicle (the carjacking counts), in violation of 18 U.S.C.A. Sec. 2119 (West Supp.1993), and four counts of possession of a firearm during a crime of violence (the gun counts), in violation of 18 U.S.C.A. Sec. 924(c)(1). Johnson contends that the district court committed error by admitting into evidence the results of DNA testing, by denying his motions to suppress witness identification testimony and certain statements he made to authorities, and by denying his motion for judgment of acquittal on one carjacking count. Johnson also contends that the district court erred by failing to dismiss the gun counts on double jeopardy grounds and by granting the government's motion for an upward departure at sentencing. We affirm in part and reverse in part.

I. BACKGROUND.

Early in the morning of January 28, 1993, Lavandris Johnson went on a carjacking spree in St. Louis, Missouri. At about 6:55 that morning, Johnson approached the driver's side window of a white Oldsmobile in which Betty Williams was sitting, pointed a gun at her, and told her to get out of the car. After Ms. Williams complied with the demand, Johnson drove away toward downtown St. Louis.

At approximately 7:15 a.m., Johnson, armed with a gun, approached Mary Jo Stobie as she was getting out of her Jeep in the Famous Barr parking garage (approximately 11 minutes away from Ms. Williams's home). Johnson told Ms. Stobie not to look at him and threatened to kill her. Johnson then forced her into the white car he had stolen from Ms. Williams. When Johnson was unable to get the car started again, he ordered Ms. Stobie back into her Jeep and again threatened to kill her. Johnson hit Ms. Stobie on the side of her face with the gun as a blue station wagon was entering the ramp and hit her again on the back of her head as she stumbled to the ground. Ms. Stobie ran from Johnson into the store to get help and was taken to the hospital for treatment.

Robert Crutcher, the driver of the blue station wagon, saw Johnson hit Ms. Stobie and saw Ms. Stobie run from the garage. Johnson then approached Mr. Crutcher brandishing a gun and ordered Mr. Crutcher out of the car. As he complied, Johnson struck him with the gun, leaving him unconscious in the parking garage. When Mr. Crutcher regained consciousness, his car was gone.

At approximately 7:35 a.m., 18-year-old Katie Kientzy, ready for school, got into her car on the street in front of her house in south St. Louis (about 12 to 13 minutes away from the Famous Barr parking garage). Johnson drove up in the blue station wagon and blocked Miss Kientzy in her parking space. Johnson approached her with a gun and forced his way into her car. As he started driving, Johnson told Miss Kientzy that he had been sent to kill her and was on a mission from God. Johnson punched her in the face when she looked at him and threatened to kill her if she looked at him again. Johnson then made her get on the floor and cover her head with her coat. He hit her with his gun and forced her to perform oral sex as he drove. When she protested, he slapped her and threatened to kill her again.

Johnson took Miss Kientzy to an abandoned building near his residence where he bound her hands and feet and covered her eyes with her own clothing. For the next 1 1/2 hours, Johnson repeatedly raped, sodomized, slapped, and hit Miss Kientzy. At one point, Johnson forced his gun into her rectum, cocked the gun, and asked if it would hurt if he shot her. After removing the gun, Johnson kicked Miss Kientzy in the tailbone. Throughout this time, Johnson also told her that now she knew how it felt to be dehumanized and that there were fourteen others waiting outside for their turn with her. Johnson also threatened to harm Miss Kientzy's family. Finally, he left her in the building with instructions to wait five minutes before leaving.

Dr. Anne Marie Rockaman examined Miss Kientzy at the hospital and treated her injuries. She discovered several abrasions on Miss Kientzy's stomach, upper thighs, knees, and back, as well as bruising and severe lacerations around her genitalia and anus. In Dr. Rockaman's opinion, Miss Kientzy's injuries involved a substantial risk of death from bleeding. Dr. Rockaman completed a rape kit, which included samples of the victim's hair and body fluids. The police department laboratory gathered samples of human spermatozoa from Miss Kientzy's clothes.

The police found Ms. Williams's white Oldsmobile in the Famous Barr parking garage, and Johnson's apartment keys were lying on the passenger's seat. The police found Mr. Crutcher's blue station wagon on the block where Miss Kientzy lives, and Ms. Williams's keys and whistle were on the floor.

On June 27, 1993, St. Louis Police arrested Johnson, found hiding in the attic of an apartment. The police informed Johnson of his rights. Johnson refused to sign a waiver of rights form, but after being informed again of his rights by Special Agent Henry Vera of the Federal Bureau of Investigation (FBI), he agreed to talk. Johnson made some statements to Special Agent Vera before terminating the interrogation.

Donna Becherer, DNA Section Supervisor of the St. Louis Police Department Laboratory, performed DNA testing on the stains found on Miss Kientzy's clothes, on Miss Kientzy's blood sample, and on a sample of Johnson's blood. Becherer used a technique called Restriction Fragment Length Polymorphism (RFLP) and the DNA/RFLP protocol developed by the FBI. She concluded that Johnson could have been the source of the stains and that only one person out of 465 in the general population would have a similar DNA profile.

A jury convicted Johnson on all eight counts of a superseding indictment--four carjacking counts and four gun counts of possessing a firearm during a crime of violence. See 18 U.S.C.A. Secs. 2119 (West Supp.1993); 18 U.S.C.A. Sec. 924(c)(1). At sentencing, the district court granted the government's motion for an upward departure pursuant to United States Sentencing Commission, Guidelines Manual, Secs. 5K2.3 and 5K2.8 (Nov.1993). The district court sentenced Johnson to a term of 1,253 months of imprisonment to be followed by a three-year term of supervised release, a fine of $4,000, and a $400 special assessment.

II. DISCUSSION.

Johnson appeals all his convictions and sentences. He claims that the district court erred in admitting the DNA evidence, in denying his motions to suppress statements and out-of-court identifications, in denying his motion for judgment of acquittal on one carjacking count, in denying his motion to dismiss on the basis of Double Jeopardy, and in granting the government's motion for an upward departure at sentencing. We address each issue in turn.

A. DNA Evidence.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 2786, 2795-99, 125 L.Ed.2d 469 (1993), the Supreme Court described the proper standard by which trial courts can determine whether scientific testimony is admissible. The trial court must determine (1) whether the testimony is based upon reliable scientific knowledge, and (2) whether it will assist the trier of fact. Id. ----, 113 S.Ct. at 2796. See Fed.R.Evid. 702.

Since Daubert, we have determined that the general theory and techniques of DNA profiling are reliable under Daubert, and we have held that "in the future, courts can take judicial notice of their reliability." United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994) adopting United States v. Jakobetz, 955 F.2d 786, 799-800 (2d Cir.1992) (holding FBI RFLP analysis reliable). Yet, "there must be a preliminary showing that the expert properly performed a reliable methodology in arriving at his opinion." Id. at 1197-98. Also, if a new DNA technique is used, the district court must hold a hearing to determine its reliability under the standards of Daubert. Id. at 1197.

The district court held a two-day evidentiary hearing to determine the admissibility of the DNA evidence. Johnson challenged the reliability of the St. Louis Police Department protocol, contending that it varies substantially from the generally accepted FBI protocol. The district court concluded that the protocol used by the St. Louis Police Department for RFLP DNA testing was sufficiently reliable and that the conflicting testimony elicited at the hearing went to the weight, not the admissibility, of the DNA evidence.

Johnson contends that the district court erred in admitting the DNA evidence at trial, arguing that the St. Louis Police Department protocol is sufficiently different from the FBI protocol to render the results in this case unreliable and that this "new" protocol has not been validated as a reliable new method through proper empirical studies. We review a trial court's admission of DNA evidence for an abuse of discretion. See Martinez, 3 F.3d at 1198.

Donna Becherer, who performed the DNA testing in this case, testified that the St Louis Police Department protocol is based on the FBI protocol. Dr. Harold Deadman, Supervisory Special Agent of the FBI, who supervises the FBI's DNA Analysis Unit, testified that the St. Louis Police Department protocol is very similar to the FBI protocol and that the differences between the two would produce no meaningful differences in DNA testing results. He testified...