United States Court of Appeals, District of Columbia Circuit
Argued
December 4, 2018
Appeal
from the United States District Court for the District of
Columbia (No. 1:16-cr-00055-1)
Mary
E. Davis, appointed by the court, argued the cause and filed
the briefs for appellant.
Christopher M. Davis, appointed by the court, entered an
appearance.
Lauren
R. Bates, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman and Michael T. Ambrosino,
Assistant U.S. Attorneys.
Before: Henderson and Pillard, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
OPINION
PILLARD, CIRCUIT JUDGE
A jury
convicted Robert Kelsey of transporting a minor,
eleven-year-old S.H., with intent to engage in criminal
sexual activity, aggravated sexual abuse of a child, and
first-degree child sexual abuse with aggravating
circumstances. Kelsey challenges his conviction on three
grounds: First, he argues that the district court allowed a
fact witness to give expert testimony on DNA evidence without
having been qualified as an expert, which Kelsey contends
prejudicially prevented him from cross-examining the witness
about a history of testing errors at the District of Columbia
Department of Forensic Sciences. Second, he argues that the
photo array from which S.H. identified him was prejudicially
suggestive. And, third, Kelsey contends that the district
court erred in admitting statements Kelsey made to the
police, which he says were involuntary. For the following
reasons, we conclude that there was no improper expert
testimony, that the photo array was not impermissibly
suggestive, and that Kelsey's statements were voluntary.
I.
Kelsey's
defense at trial, based primarily on cross-examination of the
government's witnesses, was that he was not the person
who committed the sexual offenses against S.H. The facts
below are largely drawn from the unrebutted testimony of
prosecution witnesses. S.H. and Kelsey met via Instagram.
Kelsey told S.H. that his name was "Kevin" and that
he was nineteen years old. (He was actually twenty-six.) S.H.
told him her real name and age, and that she wanted to have
sex and get pregnant. Kelsey replied that he could get her
pregnant. Soon after, they made a plan to meet in person. The
morning after they made their plan, on July 25, 2014, Kelsey
drove to S.H.'s summer camp in Maryland and told a
counselor that he was S.H.'s cousin. When S.H. said she
recognized Kelsey as her cousin, the camp counselor let her
leave the camp with Kelsey, who drove S.H. in a black Jeep to
his father's house in the District of Columbia. At the
house, Kelsey and S.H. went upstairs to a bedroom where
Kelsey had sexual intercourse with S.H. Kelsey then dropped
S.H. back at camp.
S.H.'s
custodial father was at the camp when she returned, and he
told the camp to call the police. S.H. then explained to
Investigator Nicholas Collins of the Prince George's
County Police Department what had happened. She said the
man's name was Kevin, described him, and handed Collins
her cellphone. S.H. was then taken to the Prince George's
hospital, where medical personnel used a sexual assault kit
to collect and preserve physical evidence from S.H.'s
body.
Collins
called "Kevin's" number from S.H.'s phone
and Kelsey answered. At that point, Kelsey made the first of
a series of exculpatory statements suggesting that his cousin
"Kevin," not he, was the person the officer was
looking for. Collins and Kelsey then had a series of brief
phone conversations over the course of the next day, during
which Kelsey said that he would ask Kevin to contact Collins.
Five days later, Kelsey told Collins over the phone that he
had "some information." J.A. 423. Specifically, he
said that he had picked up a girl in Maryland for his cousin
Kevin and driven her to D.C. Kelsey, driving a black Jeep
Cherokee, met Collins in person to discuss the information
Kelsey wanted to report. They met at a 7-Eleven store and
drove around, with Officer Collins following in an unmarked
car behind Kelsey's Jeep, to look for the place where
Kelsey claimed to have dropped off S.H. for Kevin and picked
her up a few hours later. Kelsey eventually identified a
place about five blocks away from his father's house as
the drop-off location. (S.H. later identified from
photographs a specific house as the place where Kelsey had
taken her, and the directory in Kelsey's phone listed
that same address as his father's.) The next week, Kelsey
repeated essentially the same story about "Kevin"
to a friend who knew both Kelsey and S.H. When that
individual testified at Kelsey's trial, she said Kelsey
seemed "[a] little nervous [when he spoke to her], like
he was . . . putting a story together." J.A. 564.
Five
days after the sexual assault, S.H. identified Kelsey from a
photo array. Collins had interviewed S.H., who described the
perpetrator to him. At their first interview, on the day that
she met Kelsey, S.H. described him as black, with light skin
and tattoos all over his body, and estimated he was nineteen
or twenty years old. At the second interview (after Collins
had met Kelsey in person), Collins asked S.H. about the
perpetrator's tattoos, and she told him that the
perpetrator had a tattoo on his ear. Based on those
descriptions, Collins selected six photos to show S.H. of
"individuals of similar race, age, sex, . . . facial
features, facial hair, and skin tone," one of whom was
Kelsey. Appellant's Br. 21-22. A detective with no
knowledge of the case then showed S.H. the photo array to see
whether she recognized anyone as her assailant. S.H.
identified Kelsey, signed and dated the back of his photo,
and wrote "yes this is him." J.A. 251. It took less
than four minutes for the officer to show S.H. the
photographs and for S.H. to identify the photograph of
Kelsey.
Roughly
two weeks after the assault, Kelsey gave a recorded statement
to the Metropolitan Police Department of the District of
Columbia at the police station. Detective Nicholas Oliver had
invited Kelsey there, asking him "if he would be willing
to come talk." J.A. 264-67. Kelsey agreed to go to the
station to talk to Oliver; he arrived at the station on his
own in under an hour. Kelsey was not taken into custody or
put in any kind of restraints, and Detective Oliver
emphasized that the door to the interview room was open.
Kelsey kept all of his belongings, including his phone, with
him during the interview. Detective Oliver told him that he
was "free to leave at any time." J.A. 93. Oliver
...