United States v. Kelsey

          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 ...