No.

14-CF-1225

DISTRICT OF COLUMBIA COURT OF APPEALS

JOSE SANTOS,

Appellant,

v.
UNITED STATES OF AMERICA,

Appellee.

Appeal from the Superior Court of the District of

Columbia - Criminal Division

BRIEF AND APPENDIX FOR APPELLANT

SAMIAFAM

SHIT..PA S. SATOSKAR

*BENJAMIN MIT..LER

PUBLIC DEFENDER SERVICE

633 Indiana A venue, NW
Washington, DC 20004
(202) 628-1200

*Counsel for Oral Argument

 DISCLOSURE STATEMENT

Appellant Jose Santos was represented at trial by Public Defender Service attorneys

James Whitehead and Emily Stirba, and is represented on appeal by PDS attorneys Samia Fam,

Shilpa S. Satoskar, and Benjamin Miller. Appellee, the United States, was represented at trial by

Assistant United States Attorneys Marvin Bourne and Jeff Cook and is represented on appeal by

Elizabeth Trosman, Chief of the Appellate Division of the United States Attorney's Office for

the District of Columbia.

 TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

ISSUES PRESENTED .................................................................................................................... 1

STATEMENT OF THE CASE .......................................................................................................2

STATEMENT OF FACTS .............................................................................................................. 3

I. THE TRIAL COURT COMMmED REVERSIBLE ERROR IN ALLOWING TWO

WITNESSES TO TESTIFY THAT BROWN TOLD THEM AT THE HOSPITAL
THAT SHEW AS AFRAID THAT SANTOS WOULD "KILL" HER, IN THE
ABSENCE OF ANY EVIDENCE THAT SANTOS THREATENED BROWN AND
DESPITE THE FACT THAT THIS INFLAMMATORY TESTIMONY WAS NOT
NECESSARY TO EXPLAIN BROWN'S BEHAVIOR AT THE HOSPITAL. .............. 19

A. This Court has denounced the introduction of testimony regarding a witness's

unsubstantiated fear of specific reprisal from a defendant. ................................... 21

B. Testimony that Brown said at the hospital that she was afraid that Santos
would "kill her" was unecessary to explain Brown's statements or behavior at
the hospital and suggested, without evidentiary support, that Santos had
threatened her life . .................................................................................................22

C. The improper admission of testimony by two witnesses that Brown was afraid
that Santos would " kill" her was not harmless ......................................................30

II. THE TRIAL COURT REVERSffiLY ERRED IN FAILING TO CORRECT THE

PROSECUTOR'S MISLEADING REBUTTAL ARGUMENT SUGGESTING,
CONTRARYTOTHEFACTS IN THE GOVERNMENT'S KNOWLEDGE, THAT
SANTOS WAS LYING ABOUT THE EXISTENCE OF A WARRANT FOR HIS
ARREST IN VIRGINIA .................................................................................................... 34

A. The prosecutor's misleading argument suggesting that there was no warrant

improperly urged the jury to draw a factual inference that the prosecutor knew
to be false, and the trial court erred in failing to correct the false impression ...... .37

B. The failure to correct the misleading statement to the jury cannot be

considered harmless ...............................................................................................46

APPENDIX .................................................................................................................................... 51
 TABLE OF AUTHORITIES

Cases
Andrews v. United States, 922 A.2d 449 (D.C. 2007) ................................................................... 32

Bennett v. United States, 797 A.2d 1251 (D.C. 2002) ............................................................ .41, 49

*Blunt v. United States, 959 A.2d 721 (D.C. 2008) .................................................... 20, 21, 22, 30

Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................................42

Brooks v. United States, 367 A.2d 1297 (D.C. 1976) ....................................................................34

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) ..............................................................................42

*Carpenter v. United States, 635 A.2d 1289 (D.C. 1993) ..................................... 20, 25, 31, 34, 48

Chapman v. United States, 386 U.S. 18 (1967) .............................................................................47

Claybome v. United States, 751 A.2d 956 (D.C. 2004) ................................................................ 26

Darden v. Wainwright, 477 U.S. 168 (1986) ...........................................................................37, 38

Diaz v. United States, 716 A.2d 173 (D.C. 1998 .......................................................................... .48

Dockery v. United States, 146 A.2d 303 (D.C. 2000) ...................................................................34

Dudley v. Duckworth, 854 F.2d 967 (7th Cir. 1988) .....................................................................30

*Ebron v. United States, 838 A.2d 1140 (D.C. 2003) ........................................... 20, 21, 22, 23,25

Felder v. United States, 595 A.2d 974 (D.C. 1991) ...................................................................... 37

*Foreman v. United States, 792 A.2d 1043 (D.C. 2002) ................................ 20, 22, 23, 24, 31, 32

Gatlin v. United State.<i, 925 A.2d 594 (D.C. 2007) ...................................................................... .39

*Gordon v. United States, 783 A.2d 575 (D.C. 2001 )...................20, 21, 23, 25, 26, 28, 29, 30, 31

Harris v. United States, 834 A.2d 106 (D.C. 2003) ......................................................................34

In re Ty. B., 878 A.2d 1255 (D.C. 2005) .................................................................................31, 34

u
*Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) .................................................................38, 46, 49

Kotteakos v. United States, 328 U.S. 750 ( 1946) ......................................................................... .47

*Mercer v. United States, 724 A.2d 1176 (D.C. 1999) ....................... 20, 21, 23, 25, 27, 28, 30, 31

Michelson v. United States, 335 U.S. 469 (1948) ..........................................................................32

Morten v. United States, 856 A.2d 595 (D.C. 2004) ..................................................................... 33

Murray v. United States, 855 A.2d 1126 (D.C. 2004) ....................................................... 20, 21, 29

Najafi v. United States, 886 A.2d 103 (D.C. 2005) ................................................................. 37, 38

Napue v. Illinois, 360 U.S. 264 ( 1959) ....................................................................................37, 39

Outlaw v. United States, 632 A.2d 408 (D.C. 1993) ..................................................................... 29

Parker v. United State.\·, 797 A.2d 1245 (D.C. 2002) .................................................................... 20

Powell v. United States, 880 A.2d 248 (D.C. 2005) ................................................................37, 39

Simpson v. United States, 877 A.2d I 045 (D.C. 2005) ................................................................. 21

*United Statel· v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) ...........................38, 39, 41, 43, 45, 46,49

United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) .......................................................... .42, 48

United States v. Thoma.\·, 86 F.3d 647 (7th Cir. 1996) .................................................................. 23

United States v. Valentine, 820 F.2d 565 (2d Cir. 1987) .........................................................46, 49

Williams v. United States, 877 A.2d 125 (D.C. 2005) ................................................................... 37

Woodall v. United States, 842 A.2d 690 (D.C. 2004) ....................................................... 37, 39, 49

*Woodard v. United States, 56 A.3d 125 (D.C. 2012) ..................37, 39, 40, 42, 43, 45, 46, 48, 49

* Authorities chiefly relied upon are denoted with an asterisk.

 ISSUES PRESENTED

I) Did the trial court commit reversible error in permitting two witnesses to testify that

Amanda Brown told them at the hospital that she was afraid that Jose Santos would

"kill her," on the theory that it went to her state of mind, when there was no evidence

that Santos ever threatened her, let alone threatened to kill her, and her state of mind

was not in issue because her statements at the hospital were consistent with her trial

account of the incident?

2) Was Santos's right to due process violated when the prosecutor urged the jury in

rebuttal argument to draw the false inference that Santos had lied when he testified

that he had been subject to a warrant on the night of his arrest, despite the

government's knowledge that the warrant did in fact exist, and neither the prosecutor

nor the trial court corrected the misimpression?

 STATEMENT OF THE CASE

By indictment filed October 16, 2013, Appellant Jose Santos was charged with one count

of first-degree sexual abuse with aggravating circumstances (D.C. Code §§ 22-3002, 22-3020),

and one count of aggravated assault (D.C. Code §22-404.01). (R.6). On March 12, 2014, a trial

commenced before the Honorable Rhonda Reid-Winston. The jury began deliberations on March

27, 2014 and returned its verdict the same day. The jury acquitted Mr. Santos of aggravated

assault but found him guilty of first-degree sexual abuse with aggravating factors. On September

30, 2014, Judge Reid-Winston sentenced Mr. Santos to 144 months of incarceration to be

followed by five years of supervised probation. (R. 46). Mr. Santos filed a timely appeal with

this Court on October 28, 2014. (R. 47).

2
 STATEMENT OF FACTS

On June 20, 2013, shortly after being released from prison, Amanda Brown met Jose

Santos for the tirst time at the apartment of a mutual friend in Virginia. That night, the two

engaged in consensual sex on the apartment's balcony. The following week, they met again and

on June 26, 2013, Brown chose to spend her birthday with Santos. Brown, Santos, and Santos's

friend, "Dreads," went to a local bar, where they had drinks, and then went to the apartment of

Brown's friend Kiki, whom Brown had met in prison. At Kiki's apartment, Brown and Santos

began to engage in consensual sex on the bakony.

The parties hotly contested what occurred next and whether it was consensual. Santos

testified that Brown asked him, as she had the first time they had sex, to put his hand in her

vagina and that he complied. Brown, on the other hand, testified that she began to feel sick and

asked Santos to stop. According to Brown, Santos briefly stopped but then placed his tist and

forearm inside her vagina, without her consent. The jury had to decide whose account to believe.

The two errors that are the subject of this appeal adversely affected the credibility of

Santos's account, and by extension, improperly bolstered Brown's account. First, the trial court

erred in permitting two witnesses to testify that Brown told them at the hospital that she feared

that Santos would .. kill" her if she told anyone what happened, despite the fact that there was no

evidence that Santos ever threatened Brown and even though her statements at the hospitaJ were

consistent with her trial account. Second, the prosecutor made a misleading argument to the jury

in rebuttal, urging it to draw an inference against Santos that was contrary to a fact known to the

government, and neither the prosecutor nor the trial court took steps to correct the misimpression

that Santos had lied while testifying at trial. By unfairly painting Santos as a dangerous and

fearsome person who would kill to escape detection and who readily lied on the witness stand,

these errors prejudiced Santos's chances of acquittal and require reversal.

3
 The government's account

In early June, 2013. twenty-three year old Amanda Brown was released from a Virginia

prison after serving time for larceny and receiving stolen property. (Tr. 3113/14 at 389). She was

on probation with two years of her sentence hanging over her head. (Tr. 3/19/14 at 54-56). Her

most recent convictions were not her first; she previously had been convicted of theft (including

stealing from her own grandmother). larceny. forgery. and identity theft. (Tr. 3/13114 at 387-390;

Tr. 3/19/14 at 39-55). About a week after her release from prison, Brown went to a friend's

apartment, where someone introduced her to Santos. (Tr. 3/19/14 at 6-7). Brown liked Santos

and thought he was a "nice guy." (/d. at 59). They immediately "hit it off," (Tr. 3/13/14 at 393),

and that night, they engaged in consensual sex on the apartment's balcony. (Tr. 3/19/14 at 57).

During the next week, they spoke on the phone several times and also met in person. (/d. at 59).

Brown testitied that on June 26, 2013, her twenty-fourth birthday, she went out to dinner

with her grandmother and daughter and then decided to meet Santos near U Street, N.W. (Tr.

3/19/14 at 60, 64). She had a few drinks and then poured Four Loko into a water bottle so she

could continue drinking while on the metro. (ld. at 66). 1 Santos was waiting for her at the U

Street Metro stop with his cousin, known as "Dreads." (Tr. 3/13/14 at 392; Tr. 3/19/14 at 64).2

The three were having a good time and decided to go to a nearby bar. (Tr. 3/19114 at 67).

At the bar, Santos could not get a drink because he did not have identification. (Tr.

3/19/14 at 68). He decided to leave, but Brown went after him and brought him back inside. (ld.

at 68). She told him to sit at the table and went to the bar to buy drinks for everyone so they

could continue "hav[ing] a good time." (/d. at 68). After a few drinks, Brown called her friend

1
" Four Loko" is a malt beverage known for its high-alcohol content. (Tr. 3/13/14 at 398).
2
"Dreads," whose name is Walter Parada, was Santos's close friend and not his actual
cousin. (Tr. 3/24/14 at 205; Tr. 3/25/14 at 401-02). At some points in the trial, he was identified
as "Walter Perez." (Tr. 3124/14 at 354).

4
Kiki to ask whether she, Santos, and Dreads could come over. (Id. at 69).3 Despite the fact that it

was after midnight, Kiki agreed and picked up the three friends at the Benning Road Station and

took them to her apartment. (Id. at 69).

At some point after the four arrived at Kiki's one-bedroom apartment, Kiki and Dreads

went to the bedroom. (Id. at 71 ). Santos went out to the balcony to smoke a cigarette, and Brown

followed. (ld. at 73). They talked briefly but quickly began kissing and got undressed. (ld. at 75).

Brown performed oral sex on Santos and they started having vaginal sex, first while she was bent

over the balcony and then on the ground. (ld. at 76-79). Brown testified that this activity was

consensual. (ld. at 75-76).

As Brown and Santos had sex, she began to feel sick, in part because she was drunk. (Tr.

3/13114 at 403). She asked Santos to stop and he did. (Tr. 3/19114 at 79). According to Brown,

Santos then said, "[Y]ou are going to like this," and began putting his fingers and then his hand

and fist inside her vagina as she continued telling him to stop. (Tr. 3113/14 at 405, 408-09). She

testified that she had not asked Santos to put his hand side her and that she slid herself backwards

until she could not go any further, bumping against either the wall or an air conditioning unit.

(Tr. 3119114 at 80, 82). She testified that she looked down and saw Santos's forearm, almost up

to the elbow, inside her. (/d. at 80-81 ). According to Brown, the pain was immediate, and as she

backed up, Santos pushed his arm further inside. (ld. at 82). Though her friend was inside,

Brown did not call out for help. (/d. at 83-84).

Brown testified that as Santos pulled his arm out, she saw blood on his arm and hand, (ld.

at 85-86), but when she spoke with police that night, she had said that she did not remember him

removing his arm because she had passed out and remembered only getting up and seeing blood

3
Brown met Kiki, whose real name is Checcia Durham, during Brown's most recent prison
stay. (Tr. 3/19114 at 68-70).

5
on the ground. (/d. at I 27).4 Brown told the jury that she managed to get up and go to the

bathroom while Santos got paper towels and tried to clean up the blood on the balcony and threw

the paper towels over the side. (ld. at 86). She testified that she never tried to clean up the

balcony. (/d. at 87).

Brown testified that once she was inside the bathroom with the door closed, she did not

have any more contact with Santos. (Tr. 3113/14 at 410-11; Tr. 3/19/14 at 15-16). In an effort to

stop the bleeding, she turned on the water and got into the bathtub. (Tr. 3/19/14 at 88). When that

did not work, she called out for Kiki to assist her. (/d. at 89-90). She testified that she did not

want to call the police because she did not like "dealing with police." (ld. at 90).

With help from Kiki, Brown used toilet paper to try to stop the bleeding, but when that

failed she asked Kiki to call the paramedics. (ld. at 98). When the paramedics arrived, Brown

testified that she "made it real clear. I said it real loud, 'He didn't do anything wrong,' because I

wanted [Santos] to hear me say that." (ld. at 90). She testified she did that because she was

"scared," (ld. at 90), but that while she was in the bathroom she also "whispered" to one of the

paramedics, " I'm going to talk to you in the ambulance." (ld. at 103).5 She told the jury that once

she was in the ambulance, she reported to the paramedics that Santos had put his arm inside her

vagina without her consent. (/d. at 103-04). As a result of her injuries, Brown underwent

4
She tried to explain this inconsistency by saying that "things started coming back clearly"
as time passed and she "sobered up." (Tr. 3/19/14 at 118).
5
Prior to trial, the government indicated that Brown would testify she was scared because
she thought Santos was in a gang. (Tr. 1/14/14 at 4). The defense countered that such testimony
would be "highly inflammatory," and that, other than speculation, there was neither evidence he
was in a gang nor that he ever threatened her. (ld. at 7-8).The prosecutor agreed there was no
actual gang or threat evidence, only her "belief," but argued such testimony would be needed to
explain why Brown made conflicting statements while at the apartment. (ld. at 9, 13-14). The
court ruled that unless the defense opened the door to additional testimony, that Brown could
only testify that she gave conflicting statements "because she was afraid of him, but that's all
that can come out on direct." (ld. at 16).

6
multiple surgeries, remained in the hospital for a week, and had to use a walker for three weeks.

(Tr. 3/13114 at 428-29; Tr. 3119/14 at 33-35).

Brown's friend Kiki contradicted Brown's account on several points. Most notably, Kiki

testified that she told police on the night of the incident that Brown had reported to her that she

asked Santos to put his hand inside her. (Tr. 3/20/14 at 116). Kiki told the jury that on the night

in question, Brown called her to ask if she and her two friends could come over. (ld. at 46). Back

at Kiki's apartment, Brown drank some alcohol that she had brought with her and, according to

Kiki, everyone was having a good time. (Id. at 50, I 00). Kiki remembered Brown and Santos

going out to the balcony. When Kiki went to check on them, she saw Brown, who was wearing

only her tank top, lying on her back and Santos, who was nude, kneeling down with his fingers

in her vagina. (ld. at 51-52). According to Kiki, Brown appeared to be enjoying herself. (/d. at

51. 103). Although she saw Santos moving his hand, she did not see anything that appeared to be

nonconsensual and she never heard any screams or calls for help. (Id. at 108).

Unhappy that people were having sex on her balcony, Kiki told Dreads what she saw and

they both looked out onto the balcony. (ld. at 52, 60). Kiki opened the balcony door and yelled to

Brown and Santos, "You all need to stop doing this on my balcony." (/d. at 52, 71). She and

Dreads then returned to the couch but Dreads said he felt tired and went to Kiki's bedroom to lie

down and Kiki followed. (ld. at 52). But Kiki then went to check on Brown and Santos, and she

testified that she heard Brown saying to Santos, ..stop" and saw Brown trying to push Santos's

hand away. (ld. at 53). She then saw Santos stop so she went to her bedroom, locked the door,

and had sex with Dreads. (Tr. 3120/14 at 53-54, 108).

Kiki told the jury that Santos knocked on the bedroom door and asked if Brown could

take a shower. (ld. at 53). Kiki said yes and told him where Brown could get a towel. (/d. at 53).

7
When she heard the shower running for a long period of time, Kiki knocked on the bathroom

door. (ld. at 54). She saw that Brown was bleeding and asked her if she was menstruating. (/d. at

55). Brown replied "[n]o" and said "[h]e put his fist inside of me." (!d. at 54-55). Kiki testified

that Brown also said that Santos "didn't do anything that I did not want him to do." (/d. at 135).

She told the jury that she then asked Santos, who was sitting on the couch, why he did that and

that Santos answered, "I didn't do anything. I just did what she wanted me to do. I stuck my hand

inside of her." (/d. at 55).

Because Brown was bleeding, Kiki gave her a sanitary pad and underwear. (ld. at 55-56,

154). Kiki testified that although the bleeding continued, Brown initially told her not to call 911,

but after she struggled to walk, told Kiki to call. (ld. at 61-62). As the ambulance took Brown to

the hospital, (/d. at 63-64), Kiki, Santos, and Dreads followed. (Tr. 3/20/14 at 63-64, 153).

Santos was too intoxicated to go inside the hospital; Kiki and Dreads went inside but were told

they could not see Brown. (ld. at 64-65). All three drove back to Kiki's apartment and as Kiki

parked the car on the block, police ran towards the car and told her to stop. (ld. at 66). She,

Santos, and Dreads exited the car and were immediately placed in handcuffs. (ld. at 66).

Kiki told police that Brown had reported that she asked Santos to put his fist inside her.

(ld. at 116). A detective asked her at least two times if she was sure and that both times she

responded, "[y]es." (ld. at 116, 123-25).6 Kiki testified that the police kept them there for a long

time and that at some point Santos was "cursing the police" because "[h]e was upset." (ld. at 66).

She believed that he was frustrated because the police did not tell them what was happening; she

testified that she felt the same way. (ld. at 66-67).

6
At trial, she claimed she had been "confused" at first when speaking with police but as time
passed she was no longer confused. (Tr. 3/20114 at 147).

8
 Ryan Kephart and Jaquante Staton, from the D.C. Fire Department, testified that they

responded to the apartment shortly after 3:00a.m. (Tr. 3113114 at 291; Tr. 3/20/14 at 26). When

they entered the apartment, they saw two men - one wearing a hat and the other with braids -

sitting on the couch. (Tr. 3/13/14 at 283-84; Tr. 3/20/14 at 28). Kephart testified that the two men

were acting "kind of jovial" and that one had blood on his arm. (Tr. 3/13/14 at 284 ). In the

bathroom, Kephart found Brown sitting on the edge of the tub in apparent serious pain with her

pants around her ankles and a large amount of blood on the floor. (ld. at 286). He testified that

when he asked the two men what happened, ..They just said it was the Four Lokos that she drank

that caused her to bleed like that." (ld. at 289). He also testified that he observed the man in the

hat showing the other man his arm and pointing to a spot just below his elbow. (Id. at 289).

Staton testified that he heard the same man say, "I had about this much in," while pointing just

below his elbow. (Tr. 3/20/14 at 29). Santos remained on the couch and did not attempt to leave.

(Tr. 3/13/14 at 294-95; Tr. 3/20114 at 33).

The paramedics took Brown to Prince George's Hospital, where she spoke to several

police officers. Detective Douglas Carlson testified that Brown told him that she and Santos

started out having consensual sex and that she consented to him placing his fingers in her vagina,

but told him it began to hurt when he used his whole hand. (Tr. 3/24/14 at 70, 85). 7 Carlson

testified that Brown reported to him that she had said "stop" multiple times but that Santos did

not stop. She told him that when Santos finally removed his hand, she started bleeding profusely.

(/d. at 70-71, 85). Officer Stella Russ, who also spoke with Brown at the hospital, testified that

Brown told her that a "man put his fist inside of her vagina, and she told him to stop, and it

wasn't consensual." (!d. at37-38).

7
At first, Brown told him that she was worried about getting into trouble with the police but
he assured her that would not happen. (Tr. 3124/14 at 87).

9
 Trauma nurse Lawrence Branch initially examined Brown at the hospital. (Tr. 3/24/14 at

169-71 ). 11 Branch testified that Brown told him that a man had put his "fist and his arm up into

her vagina and was twisting it several times." (/d. at 183-84). Later that morning, Dr. Henry

Adegbulugbe performed surgery on Brown. (Tr. 3/19/14 at 162-64). During surgery, Dr.

Adegbulugbe encountered a laceration on the lateral wall of her vagina that "was about eight

centimeters long" and had "edges [that] were sort of jagged like something that was ripped

apart." (Id. at 164). He closed the laceration with two sutures. (Id. at 164, 176). There were no

other visible injuries. (/d. at 164). Dr. Adegbulugbe explained that if someone had placed an arm

up to the elbow inside the vagina that it would likely have caused "mass destruction," which he

did not observe in Brown. (ld. at 173-76).

Around 4:00 a.m. - after the paramedics had taken Brown to the hospital but before Kiki,

Dreads, and Santos returned to the apartment - Sergeant Jeffrey Wade and Officer Daniel

Dishong of Metro Police arrived outside Kiki's apartment. (Tr. 3113/14 at 302, 336). While there,

they heard a radio lookout for a white Crown Victoria, which they saw driving down the block

shortly thereafter. (/d. at 303, 337). The officers approached the car and saw three people inside:

Santos, Kiki, and Dreads. Both officers testified that Santos was "very cooperative" and "very

calm" and made no attempt to leave. (ld. at 305, 314, 340). When asked his name, Santos said it

was Luis Ramos and gave an inaccurate date of birth. (!d. at 339-40). Wade testified that the

police commenced a "very long" investigation and that after about an hour, Santos' s demeanor

changed. (/d. at 306, 331 ). According to Wade, Santos asked if he was free to leave and after he

was told that he was not, stated, "I have done bigger than this." (ld. at 307). Dishong testified

that he heard a similar statement, claiming that Santos said, "[Y]ou guys have nothing on me, I

11
He testified that it was difficult to examine Brown because she was semiconscious and in
excruciating pain. (Tr. 3/24/14 at 171-73, 179).

10
have done bigger than this." (Id. at 341 ). Neither Wade nor Dishong memorialized such a

statement in any report or notes. (ld. at 317). The officers placed Santos under arrest and took

him to the police station.

Back at the police station, around 9:30 a.m., Eric Coker from the crime scene

investigation division collected evidence from Santos. (Tr. 3/24/14 at 101-03, 137-38). Santos

fully cooperated at first and allowed Coker to take a DNA swab of his left hand. (/d. at 108). As

Coker left, Santos said, "[T]hat's the wrong hand." (ld. at 109-10). Coker testified that when he

came back to swab the other hand, Santos's demeanor changed and that he clenched his fist and

said, "you got what you needed." (/d. at 108-09). Coker told the jury that his partner entered the

room and held Santos's right arm to allow Coker to take a DNA swab. (ld. at 109). On the audio

recording of the interaction, however, Santos could be heard saying, "I'll let you do whatever the

fuck you want. I'll take a pee, I'll do whatever you want, I just want to let my peoples know I'm

here, right?" (/d. at 153).9 Santos had been in police custody over five hours at that point. (Tr.

3/13/14 at 302, 336; Tr. 3/24/14 at 101-03).

Ricardo Little, who lived in a ground-floor apartment directly underneath Kiki's third-

floor apartment, testified that on June 27, 2013, from about midnight to 6:00a.m., he was sitting

in the front room of his apartment with the screen door open. (Tr. 3/13/14 at 382-84 ). At some

time after midnight, he saw a car pull up and saw Amanda Brown and Kiki, both of whom he

knew in "passing," enter the building with two men he did not recognize. (!d. at 377-80). Later,

he heard what he described as "splats" and went to his screen door to look outside, where he saw

9
On the same recording, another police officer could be heard saying, "[T]oo bad there's
cameras in there," (Tr. 3/24/14 at 151), to which Coker responded, "I know," and the other
officer said, "[W]e could have had two more people in there and just broke his fucking arm." (/d.
at 151 ). Coker agreed. (!d. at 151 ). Because the wrong video camera was turned on, only the
audio recording was preserved. (!d. at Ill).

11
blood and a condom on the ground. (/d. at 377-78). He did not see anyone so he tried to clean it

up. sweeping the condom into the sewer. (ld. at 378-79). At no time that night did he hear

anyone say "stop." nor did he hear any screams or yelling. (!d. at 383).

Competing expert witness testimony

The government and the defense each offered expert testimony regarding the injuries that

would likely occur if someone placed a fist and forearm inside the vagina. Defense expert

Suzanne Rotolo, who had been a sexual assault nurse examiner at Inova Fairfax Hospital for

thirty-one years. opined that insertion of a hand and forearm in the vagina likely would result in

"mass destruction to the internal organs." (Tr. 3/25/14 at 247-48, 325). 10 Rotolo testified that

Brown, in contrast. did not suffer any injuries to her cervix or uterus. (!d. at 259-66); her only

injury was a tear to the left vaginal wall. (ld. at 262). Rotolo explained that because the inside of

the vagina has "a rich blood supply," any type of cut. even a cut from a fingernail. will likely

cause tremendous bleeding. (ld. at 266-70). Further, sexual arousal increases the amount of

blood in the area. (!d. at 266). She concluded that there was nothing about Brown's injury that

indicated whether it was the product of either consensual or nonconsensual activity, and opined

that the injury was "just as consistent with consensual activity as it [was] with nonconsensual

activity[.]" (!d. at 270).

Dr. Heather Devore, an attending physician at Medstar Washington Hospital Center,

whose sister is a prosecutor in the domestic violence and sexual assault division of the U.S.

Attorney's Office for the District of Columbia. testified for the government. (Tr. 3/26/14 at 443-

44, 480-81 ). Dr. Devore acknowledged that there was no way to know with certainty how

10
This opinion was similar to the testimony of the treating surgeon. Dr. Adegbulugbe, who
testified that Brown did not exhibit the "mass destruction" he would have expected to find if
someone had placed a forearm inside the vagina. (Tr. 3/19114 at 173 ).

12
Brown's injury occurred. (/d. at 506). Based on the amount of blood loss (over three pints), the

size of the laceration, and the necessity of emergency treatment, she characterized the injury as

significant. (ld. at 446-78). In her career, she had seen a similar injury only a few times and it

usually involved some type of instrument. (/d. at 475). She did not think a fingernail could have

caused the injury and believed it could have been caused by a forearm stretching the vagina

beyond its normal capacity. (ld. at 477-79). She acknowledged that Brown did not have massive

internal organ damage, but disagreed with Dr. Adegbulugbe's and Rotolo's opinions that placing

a forearm inside the vagina would always cause such injuries. (ld. at 465-66, 478).

Jose Santos's account

Santos testified that his sexual encounter with Brown was entirely consensual and that

Brown had asked him to place his hand inside her vagina both times they had sex. (Tr. 3/25/14 at

365-70, 391, 408-09, 424). Santos remembered meeting Brown at a party and introducing

himself as "Bert," since his full name is Umberto Jose Santos. (/d. at 343-45). He testified that

while he was on the balcony smoking a cigarette, Brown came up behind him. (ld. at 345). He

complimented her and she responded by asking, "[Y]ou want to feel it?," referencing her

buttocks. (ld. at 346). Santos said yes and they had sex on the balcony. (ld. at 347). Santos

explained that Brown then told him to "stick [his] hand in [her] pussy." (ld. at 348). He had

never done anything like that before and started slowly. (ld. at 348-49). He inserted his hand up

to the top knuckle of his thumb but did not use a fist. (Id. at 348-49, 423).

Later in the week, Santos called Brown and they hung out. (Id. at 351 ). On June 26, he

and his friend Dreads met her near the U Street Metro stop. (ld. at 354). She arrived with a few

cans of Four Loko and offered them to Santos and Dreads, who turned her down . (/d. at 354-55).

Instead, Santos and Dreads each bought two twenty-four ounce cans of Bud Light Margarita and

13
Brown bought another can of Four Loko. (Tr. 3/25/14 at 355). They stopped at a bar and when

Santos started to leave, Brown brought him back, told him to sit at the table, and bought

everyone a shot of tequila. (/d. at 358-59). Dreads asked Brown if she had any friends, and

Brown called her friend Kiki. (/d. at 357).

At Kiki' s apartment, Dreads and Kiki went to the bedroom, and Santos went to the

balcony to smoke a cigarette. (ld. at 362). Brown followed and they quickly began taking off

their clothes. (/d. at 363). Santos testified that he was having difficulty getting an erection so he

asked Brown to perform oral sex. (/d. at 363). 11 She did, but he still did not get an erection. (ld.

at 363). They next tried vaginal intercourse but that did not work either. (ld. at 364). 12 When he

still had difficulty getting an erection, Brown said to him, just as she had the first time they had

sex, "stick your hand in my pussy." (/d. at 365). As he did the first time, Santos started slowly,

using his fingers and then his thumb. (ld. at 365-66). This time he went a little farther than the

first time, going to the base of the thumb. (/d. at 367). Santos testified that Brown never asked

him to stop and that she never said it hurt: to the contrary, she appeared to be enjoying herself.

(Tr. 3/25114 at 366-67, 370). Santos testified that he never placed his wrist or forearm inside her

and that his hand was open. (/d. at 368). He explained that he "would never [have tried] to hurt

her." (ld. at 368).

Santos told the jury that when he removed his hand he saw that Brown was bleeding from

her vagina. (/d. at 371 ). At first, he thought it was menstruation blood, but she said it was not and

told him to get paper towels. (/d. at 371 ). Santos ran inside to grab the paper towel roll and

handed it to Brown, who tried to wipe up the blood and then threw the paper towels over the side

11
Brown denied that Santos had any trouble maintaining an erection. (Tr. 3/19/14 at 79).
12
Around this point, Santos saw Kiki, who called out to them asking what they were doing.
(Tr. 3/25/14 at 364).

14
of the balcony. (ld. at 372). Santos testified that he did not know what to do because he was "in

shock." (!d. at 372). At Brown's request, Santos asked Kiki if Brown could use the shower and

he followed Brown to the bathroom and closed the door once she got into the tub. (ld. at 373,

376-77). A few minutes later, he knocked on the bathroom door and Brown told him to have

Kiki call an ambulance, which he did. (ld. at 376-77). He explained to the jury that he felt torn

between helping her and giving her privacy. (ld. at 391 ).

Soon thereafter, when paramedics arrived, Santos was on the couch demonstrating to

Dreads what had happened. (ld. at 381-83). When he saw the paramedics he began to relax

because he thought they would take care of Brown right there at the apartment. (Tr. 3/25/14 at

382). He realized the seriousness of her injury only when he saw the paramedics take her out of

the apartment and into the ambulance. (/d. at 383). He explained that he "felt bad" about the

bleeding and was "concerned." (/d. at 374). At no time did Santos think about leaving because he

"ain't do nothing wrong." (/d. at 374).

Santos, Kiki, and Dreads followed the ambulance to the hospital, but when they got there

the other two told him to remain in the car because he was too drunk. (ld. at 384-85). Santos

passed out in the car and woke up just as they returned to Kiki's apartment, where the police

placed him in handcuffs. (/d. at 385-86). Santos testified that he gave the police a false name

because he was subject to a warrant in Virginia for a probation violation. (ld. at 386). He

admitted that he became frustrated because the police kept him for so long outside the apartment

despite the fact that he had not done anything wrong. (ld. at 386-87). Similarly, he acknowledged

being a "jerk" when the police were trying to take swabs of his hands because he was upset and

frustrated, had not had anything to eat or drink, and had not been permitted to call his family. (ld.

at 389-90).

15
 Improper testimony regarding Brown's fear that Santos would kill her

Although Brown reported her account when she was at the hospital and did not make any

statements there were inconsistent with her trial testimony, the trial court permitted two

witnesses to testify, over defense objection, that Brown told them at the hospital that she feared

that Santos would "kill" her if she said anything. (Tr. 3/20/14 at 38-39; Tr. 3/24/14 at 184-85).

First, Officer Russ testified that Brown appeared to be "scared" and "was crying" when she first

encountered her. (Tr. 3/20/14 at 37-38). The prosecutor asked if Brown "actually told [Russ] that

she was afraid," and after the court overruled the defense' s objection, Russ answered that Brown

said she "was afraid [Santos] would kill her if she said anything." (/d. at 38). The defense

objected again and the court overruled the objection, but when the prosecutor followed up by

asking Russ if Brown said "anything else about why she was afraid, other than that he would kill

her," the defense asked if the parties could approach the bench. (/d.). At the bench. the

prosecutor denied that this line of questioning had anything to do with gangs, and the court

allowed the direct examination to continue. (/d. at 38-39). In response to the prosecutor's

question asking if Brown had any "concerns about [Santos] finding out if she had told anyone,"

Russ testified: "She said that she was afraid to say what happened because he may kill her. She-

she felt that he would kill her." (ld. at 39).

Second, trauma nurse Branch also was permitted to testify that Brown feared that Santos

would kill her. Branch testified that at the hospital, Brown initially "express[ed] ... reservations"

about sharing what had happened. (Tr. 3/24114 at 184). Before Branch could continue, the

defense objected and the court responded, "Overruled. I'm going to allow him to answer whether

she expressed any reluctance." (ld. at 184). After Branch testified that Brown "stated that she

was afraid," the court asked the parties to approach the bench and the following colloquy ensued:

16
 THE COURT: All right. What is your proffer about what he's going to say, counsel?

[THE PROSECUTOR]: He's going to say that she was afraid and that she thought they
were going to kill her. I think that's where he's going, that's what's in his notes.

THE COURT: All right. I was wondering whether you were, I just asked you to approach
because I didn't know that he was going to say anything about the gang.

[THE PROSECUTOR]: I told him not to. I could see his hesitation and he changed.

[DEFENSE COUNSEL]: And just for the record, you know, I objected and this came out
with Officer Russ, but I had the same objection as far as the afraid that somebody is
going to kill her. I think that still there's nothing specific to say that Mr. Santos ever
threatened her.

THE COURT: Well, it might be that he didn't threaten her, but ... he can testify that she
said that's why she was afraid. [t may not be for the truth that it's given. He's asked about
her state of mind, whether she was reluctant to give the statement. So the objection is
noted for the record, but I'll overrule it.

(ld. at 184-85). After the bench conference, the prosecutor asked Branch, ..You said she was

afraid. Did she elaborate as to why she was afraid?" Branch answered, ..She did elaborate as to

why she was afraid. She told me specifically that she was afraid that if she said anything or if she

told anybody that this guy would kill her, would do harm to her, would kill her." (/d. at 185).

Improper Prosecutorial Argument

Prior to trial, the defense challenged the admissibility of testimony that Santos gave

police an incorrect name, arguing that it would require the defense to respond by telling the jury

that Santos did so because he knew he was subject to a warrant for his arrest in Virginia for a

probation violation. (Tr. 1/14/14 at 34). The prosecutor never denied that the warrant existed.

The court allowed the government to elicit testimony about the false name, (Tr. 1/14/14/ at 35),

so Santos testified that he had given the false name because of the outstanding warrant. (Tr.

3/25/14 at 386). In closing argument, the prosecutor argued that Santos told police an incorrect

name ..because he knew that what he had done to Amanda Brown was wrong and he did not

17
want to be caught for it." (Tr. 3/26/14 at 552). In its closing, the defense mentioned the warrant

only briefly, saying that Santos provided a false name to police because "he didn't want to be

caught ... for his misdemeanor warrant out in Virginia, but that's not consciousness of guilt for

this case .... He just didn't want to go back to Virginia for that case." (Tr. 3/26/14 at 583). But,

in rebuttal argument, the prosecutor, who had been present at the pretrial hearing when the

discussion about the warrant occurred, argued:

[Santos told police] [m]y name is Luiz Ramos, date of birth 12-6-88. Not true. Not true.
Why? If he was so convinced that this was a consent situation, if he was so convinced
that she never said no, if he was so convinced that she wanted it every step of the way
and that every single thing he did to her was totally consensual, not only totally
consensual, he actually testified to you that she enjoyed it. ... Ladies and gentlemen, he
doesn't have to testify but if he does testify, you have every right to hold him accountable
for the words that come out of his mouth. And that's what he sat up there, took an oath,
and told you. That she enjoyed every second of it. ... Did you hear any evidence or see
any evidence that he actually has this warram in some other .'itate? Did you hear or .'iee-

[DEFENSE COUNSEL]: Objection.

[THE PROSECUTOR]:-- any evidence that he aclllally knew 011 June 26th or June 27th,
2013, that he had this alleged warrant?

[DEFENSE COUNSEL]: Objection, Your Honor.

[THE COURT]: Sustained. Move along, counsel. Counsel, you have just a few more
minutes.

(Tr. 3/27114 at 30-31) (emphasis added). When the defense objected to the prosecutor's next

statement, which referred to Santos's statements at the police station, (!d. at 31 ), the parties again

approached the bench and the court discussed how to craft an appropriate curative instruction.

During this discussion, defense counsel again noted that the prosecutor had improperly urged the

jury to question the existence of the warrant despite knowing that the warrant did in fact exist.

The court refused to take any further steps to address the argument about the warrant, however,

because it believed that the prosecutor's argument was not misleading:

18
 [DEFENSE COUNSEL]: .... I do want to make a record with respect to the defense
bringing evidence of [the warrant] - to the jury that that also was - I know the Court
sustained an objection.

THE COURT: I mean I didn't sustain the first one. Why was the second- I sustained the
second time the objection was made. But why was - he volunteered that he gave her a
false name because he had a warrant out in Virginia. So what- he didn't make a missing
evidence objection. I didn't hear that. I mean because I was listening. So what is the
problem with that he said he didn't hear anything about it. He didn't argue an inference.

[DEFENSE COUNSEL]: Right. And I think that- I think the Court is saying he didn't
go over the line. We believe he did. And the fact that the government actually knows that
he's on- he's on probation for a case in Virginia and so maybe that argument.

THE COURT: I don't think it went over the line. That's why I sustained it the second
time so counsel would not go over the line. And I just don't think he did. I mean he said
did you hear any evidence about- so I don't think he- you know, I think he came close
but he didn't. So my ruling on that stands.

(ld. at 33-34) (emphasis added). 13

ARGUMENT

I. THE TRIAL COURT COMMITTED REVERSffiLE ERROR IN ALLOWING TWO

WITNESSES TO TESTIFY THAT BROWN TOLD THEM AT THE HOSPITAL THAT
SHE WAS AFRAID THAT SANTOS WOULD "KILL" HER, IN THE ABSENCE OF
ANY EVIDENCE THAT SANTOS THREATENED BROWN AND DESPITE THE
FACT THAT THIS INFLAMMATORY TESTIMONY WAS NOT NECESSARY TO
EXPLAIN BROWN'S BEHAVIOR AT THE HOSPITAL.

Perhaps no argument is more fatal to the presumption of innocence than the suggestion

that a witness for the prosecution is afraid of the defendant. Accordingly, evidence of witness

fear is subject to strict limitations. Evidence of a witness's generalized fear is admissible only to

explain "the specific behavior of a witness that, if unexplained, could damage a party's case."

Foreman v. United States, 792 A.2d 1043, 1049 (D.C. 2002). See also Murray v. United States,

D Although the court declined to address the prosecutor's argument about the warrant, it did
address the argument regarding Santos' s behavior at the police station, instructing the jury that
"you are to disregard any argument about whether Mr. Santos had the opportunity to make any
statement to the police. It was an improper argument. Everybody has a constitutional right not to
make any statement to the police." (Tr. 3/27/14 at 35).

19
855 A.2d 1126, 1133-34 (D.C. 2004); Mercer v. United States, 724 A.2d 1176, 1184 (D.C.

1999); Carpelller v. United States, 635 A.2d 1289, 1294 (D.C. 1993). Further, evidence

regarding specific fear of the defendant may not be admitted "unless there is evidence connecting

the accused to the danger." Ebron v. United States, 838 A.2d 1140, 1149 (D.C. 2003). See also

Blum v. United States, 959 A.2d 721, 725 (D.C. 2008); Parker v. United States, 797 A.2d 1245,

1249 (D.C. 2002); Gordon v. United States, 783 A.2d 575, 586 (D.C. 2001). Yet the trial court in

this case permitted two witnesses to testify that Amanda Brown told them at the hospital that she

was scared that Jose Santos "would kill her" if she said anything about what had happened, on

the theory that it shed light on Brown's "state of mind." (Tr. 3/20/14 at 38; Tr. 3/24114 at 184-

86). This highly inflammatory testimony was inadmissible because it was unnecessary to explain

Brown's statements at the hospital, which were consistent with her trial account of the incident,

and because it implied, without any factual basis, that Santos had threatened to kill Brown. The

trial court' s allowance of the testimony violated this Court's longstanding prohibition on

testimony regarding a witness' s specific, but unsubstantiated, fear of the accused. See Blum, 959

A.2d at 725; Mercer, 724 A.2d at 1184-85.

The introduction of this unsubstantiated fear evidence implying that Santos had

threatened Brown's life was highly prejudicial in this case where the jury had to evaluate the

relative credibility of Santos's and Brown' s accounts of the incident. The repeated inference that

Santos threatened to kill Brown served to transform Santos in the eyes of the jury from a

presumptively innocent person into a dangerous criminal who would commit additional crimes -

even murder- if allowed to return to the community. A juror might have felt an obligation, even

subconsciously, to convict Santos in order to protect Brown from future intimidation and danger.

20
The repeated injection of this inflammatory, unsubstantiated, and prejudicial testimony into

Santos's trial requires reversal.

A. THIS COURT HAS DENOUNCED THE INTRODUCTION OF

TESTIMONY REGARDING A WITNESS'S UNSUBSTANTIATED
FEAR OF SPECIFIC REPRISAL FROM A DEFENDANT.

Evidence of a witness's fear is disfavored because it tends to appeal "to the passions of

the jury and may cause the jury to base its decision on something other than the rule of law."

Gordon, 783 A.2d at 586 (citing Mercer, 724 A.2d at 1184). References to fear, especially of the

defendant on trial, turn the criminal process on its head by "substituting concern- in the jurors'

minds - with the ongoing dangerousness of the defendant[] for the issue of whether [he]

committed the crimes charged." Murray, 855 A.2d at 1133. Due to the "high potential for

prejudice," Blum, 959 A.2d at 724, this Court has held that questioning about "witness fear -

especially fear of the defendants on trial - must be the limited exception rather than the rule."

Murray, 855 A.2d at 1133.

This Court has cautioned that fear evidence is inadmissible except "to explain specific

behavior of the witness, such as inconsistent statements, delay in testifying, or unusual

courtroom demeanor" and may not be admitted "solely for the purpose of reflecting on the

general credibility and bias of the witness." Ebron, 838 A.2d at 1148. Further, this Court has

"denounced the introduction of [evidence regarding] unsubstantiated fear of specific reprisal

from defendants." Gordon, 783 A.2d at 588. See Simpson v. United States, 877 A.2d 1045, 1048

(D.C. 2005) ("Absent a factual basis for [fear evidence,] our case law has been strict in stating

that suggestions of fear are forbidden.'' ). Thus, testimony that goes beyond invoking a "general,

abstract" fear to suggesting a "very real and immediate threat" from a specific defendant,

Mercer, 724 A.2d at 1188, must be supported by "evidence connecting the accused to the

danger." Ebron, 838 A.2d at 1149. See Foreman, 792 A.2d at 1050 (fear evidence must be

21
closely tied and probative as to a particular defendant"); Blunt, 959 A.2d at 725 (fear evidence

requires "[a] sensitive balancing ... to assess the danger that the jury [may imply] a cause linked

(without evidence) to intimidation by the defendant"). Finally, even if admissible, fear evidence

is only admissible to the "extent necessary" and must be narrowly tailored to explaining the

witness's specific, relevant behavior. Gordon, 783 A.2d at 587; Ebron, 838 A.2d at 1148.

B. TESTIMONY THAT BROWN SAID AT THE HOSPITAL THAT SHE

WAS AFRAID THAT SANTOS WOULD "KILL HER" WAS
UNECESSARY TO EXPLAIN BROWN'S STATEMENTS OR
BEHAVIOR AT THE HOSPITAL AND SUGGESTED, WITHOUT
EVIDENTIARY SUPPORT, THAT SANTOS HAD THREATENED
HER LIFE.

In this case, the trial court erred in permitting two witnesses to testify that Brown said to

them at the hospital, in the course of explaining the incident at the apartment, that she was afraid

that Santos would "kill her" if she told them what had happened. First, Officer Russ testified that

Brown was initially reluctant to explain the incident- although she then did so- because "she

was afraid" that "[Santos] may kill her. She ... felt that he would kill her." (Tr. 3/20114 at 39).

Second, Nurse Branch testified that Brown "told [him] specifically that she was afraid that if she

said anything or if she told anybody[,] that [Santos] would kill her, would do harm to her, would

kill her." (Tr. 3/24/14 at 185). Despite its acknowledgment that "it might be that [Santos] didn't

threaten [Brown]," the trial court allowed the testimony, over defense objection, to explain

Brown's "state of mind, whether she was reluctant to give the statement." (Tr. 3/24/14 at 185).

These statements from Russ and Branch were inadmissible for three reasons. First, there

was no reason to admit any testimony about Brown's fear while at the hospital because there was

no need to explain her behavior or statements at the hospital, where her report was consistent

with her trial testimony. Second, Officer Russ's and Nurse Branch's repeated testimony

regarding Brown's fear that Santos would "kill" her improperly implied, without factual support,

22
that Santos had actually threatened to kill her. And third, even if Brown's state of mind at the

hospital had been relevant, testimony that she feared specific reprisal from Santos was not

narrowly tailored to explain any reluctance she exhibited before she gave her account and

improperly implied that Santos (or his associates) had actually threatened to kill her. The trial

court's allowance of repeated testimony that Brown feared that Santos would "kill" her

"introduced exactly the type of prejudice condemned" by this Court by invoking

"unsubstantiated fear of specitic reprisal from [a] defendant[.]" Gordon, 783 A.2d at 588 (citing

Mercer, 724 A.2d at 1186).

First, testimony that Brown said at the hospital that she was afraid of Santos was

unnecessary to explain Brown's statements or behavior at the hospital. The trial court allowed

the testimony solely as to Brown's "state of mind" at the hospital, (Tr. 3/24114 at 185), but her

statements at the hospital were consistent with her trial testimony, so there was no need to

explain her state of mind when she made them or to rehabilitate her credibility due to any

behavior at the hospital, let alone to do so through the admission of highly prejudicial fear

evidence. See Foreman, 792 A.2d at l050 (it is an "abuse of discretion" to admit testimony about

a witness's fear "solely" for the purpose of addressing the witness's "general credibility");

Ebron, 838 A.2d at 1148 (explaining that evidence of threats should be admitted only to explain

behavior such as inconsistent statements or unusual courtroom behavior, but not just to reflect on

general credibility). Cf Mercer, 724 A.2d at 1184 (stating that threat and intimidation evidence

should not be admitted "solely to go to the general credibility .. . of the witness") (citing United

States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996)).

This Court held the admission of fear evidence erroneous for similar reasons in Foreman.

There, a witness did not tell the police what she knew about a murder until three months

23
afterwards and the trial court permitted the witness to testify, based on the government's desire

"to explain the delayed reporting," that the witness eventually went to the police only after she

had been approached by the defendant's sister, which led to a conversation that "scared" her. 792

A.2d at 1048-49. Though the details of the conversation were not relayed to the jury, the

testimony implied that the defendant's sister, on behalf of the defendant, threatened the witness,

even though there was no evidence of threats. /d. This Court held that the testimony was

erroneously admitted not only because of the lack of evidence of threats, but also because the

conversation (and the witness's professed fear) three months after the murder "did not explain

the delay" in reporting, but "simply explained why the witness did come forward, a point with

minimal relevance." !d. at 1049-50. Nor was the unsubstantiated threat evidence justified by the

defendant's "open[ing] the door to such evidence," because it was elicited on direct examination

and defense counsel had not questioned the witness's delay in reporting. /d. at 1048-49. This

Court held that the trial court erred because the witness's testimony that the conversation with

the defendant's sister scared her was not "relevant to explain [the] witness' inconsistent

statements, delay in testifying, or ... courtroom demeanor indicating intimidation," id. at 1049,

and because it improperly implied threatening behavior connected to the defendant without any

factual support. /d. at I 050.

Here, like the improper testimony in Foreman, Russ's and Branch's testimony that

Brown was scared at the hospital that Santos would kill her "did not explain" her reports at the

hospital. Foreman, 792 A.2d at 1049. The testimony was decidedly not "relevant to explain

[Brown's] inconsistent statements" at the hospital, id. at 1049, because her statements there were

c.:onsistellt with her trial account. And like the fear evidence in Foreman, it was elicited on direct

examination and was not "necessary to account for the specific behavior of a witness that, if

24
unexplained, could damage a party's case." /d. Although Russ testified that Brown was initially

reluctant to discuss the incident, this point had "minimal relevance" and did not need explanation

because Brown's report to Russ was not inconsistent with her trial account and the defense did

not attempt to use her initial reluctance at the hospital to support its theory. See Foreman, 792

A.2d at 1049. See also Mercer, 724 A.2d at 1188-89 (trial court erroneously admitted testimony

that a witness, Linda Washington, was afraid to appear in court and appeared only under

subpoena, where she had not given any inconsistent testimony and accordingly there was no

need to elicit testimony about her fear of testifying, which went only to her "credibility" in

"general").

Second, the testimony that Brown feared Santos would "kill" her improperly implied,

without any factual support, that Santos had made a "very real" threat to murder her. See Men·er,

724 A.2d at 1187 (reversing where prosecutor elicited testimony that implied, without factual

basis, a "very real" threat from spectators in the courtroom towards a witness on behalf of

defendants). See also Ebron, 838 A.2d at 1148-49 (error to permit a witness to testify that

someone in courtroom made "throat-slashing gestures" towards him during his testimony when

there was no evidence to connect the gesture with the defendant); Gordon, 783 A.2d at 586-87

(error to permit a witness to explain her reluctance to testify in a manner that implied, without

basis, that witness had received a direct threat from the defendant); Carpenter, 635 A.2d at 1292-

94 (trial court erred in allowing witness to testify that she was assaulted by unknown people after

identifying defendant in a lineup, because it "very likely led the jury to associate [defendants]

with the assault on [the witness] even though there was no evidence whatsoever linking

[defendants] to that assault''). There was absolutely no evidence that Santos had threatened

Brown - let alone threatened to "kill" her. Brown never claimed that Santos had threatened her,

25
there was no other evidence presented about threats, and the government never proffered that
14
Santos or anyone else had threatened Brown. Even the trial court acknowledged the lack of

threat evidence, noting that "it might be that he didn't threaten her." (Tr. 3/24/14 at 185). Even if

Brown had been generally scared while at the hospital, there was no justification for allowing

other witnesses to testify that she expressed a specific and unsubstantiated fear that Santos would

"kill" her. See Blum, 959 A.2d at 726 n.4 ("[A] witness may mention a general fear of

'retaliation for snitching' so long as it is not linked in any way to the defendant.") (citing

Claybome v. United States, 751 A.2d 956, 964 (D.C. 2004)).

This Court's decisions in Gordon and Mercer are on point. In Gordon, a witness,

Gravette, testified that she did not see the defendants with drugs inside an apartment that was

used in a drug operation, which was inconsistent with her grand jury testimony that she had seen

the defendants with crack cocaine inside the apartment. 783 A.2d at 583. In order to explain her

inconsistent trial testimony, the prosecutor elicited that Gravette d id not want to testify because

she was afraid. /d. at 585. He then asked questions about why Gravette did not want to say what

she saw "in front of these people," referring to the defendants, which Jed to her answer: " You

know why. I live right down the street from these people. I am scared for my life." /d. This Court

determined that the questioning regarding the witness's general fear was permissible because it

explained her inconsistent statement but did not imply that she had actually been threatened by

the defendants. /d. at 587. But the Court held that the prosecutor went too far in eliciting

testimony about her fear of testifying in front of "these people" and her fear "for [her] life"

because this testimony implied, without any factual support, that she had actually been

threatened by the defendants. !d.

14
To the contrary, Brown testified that when she saw blood, she went to the bathroom and
essentially had no more contact with Santos. (Tr. 3/13/14 at 410-ll, 420; Tr. 3/19/14 at 86, 88).

26
 This Court similarly held in Mercer that the admission of unsubstantiated fear evidence

was error. There, on appeal of their murder convictions, the defendants challenged the admission

of witness testimony that they argued "created an improper inference that [the defendants] were

involved in a scheme to intimidate witnesses." 724 A.2d at 1184. One witness, Catrice

Cunningham, testified on direct examination that one of the defendants was involved in the

murder, but on cross-examination, she was impeached with her previous statement to a defense

investigator that she did not see that defendant at the scene. /d. at I I 86. On redirect examination,

the prosecutor elicited testimony that Cunningham had been "scared" when speaking with the

investigator because the defendant' s sister was present. /d. The prosecutor then asked, .. Are you

happy about testifying in this case?" and Cunningham answered, "No. Because I could leave

here today and y'all might never see me again." /d. This Court ruled that Cunningham's

statement that she "might never be seen again" was "not appropriate" both because she had

already .. provided an adequate explanation" for her inconsistent statement to the investigator (she

was scared because the defendant's sister was present) and because this further testimony

" implied that [she] had received some type of threat" even though the prosecution "did not

appear to have any evidence" of an actual threat. /d.

The Mercer court held that the trial court erroneously admitted unsubstantiated fear

evidence through two other witnesses. The government elicited testimony that witness Gibson

was testifying under subpoena, and then went on to question him about a group of spectators in

the courtroom, suggesting that they were the defendants' friends and creating the impression that

they were there to influence the witnesses' testimony. /d. The Mercer court explained that the

references to the spectators were improper and highly prejudicial because they implicated the

defendants in a scheme of intimidation:

27
 The reference to the people from Lincoln Heights in the back of the courtroom ... was
not a reference to a general, abstract threat. By highlighting their presence, the
prosecution created the impression of a very real and immediate threat. Additionally, it
gave the jury a face with which to associate that threat. Further, by attempting to link the
spectators from Lincoln Heights to [the defendants], the prosecution implied that there
was a threat coming from the defendants. Thus ... the line of questioning in this case did
have the potential to create direct, unfair prejudice against [the defendants].

/d. at 1187. Further, the Court noted that the prosecutor could have explained the witness's

recantation of his grand jury testimony without the prejudicial implication regarding the

defendants, by eliciting simply that he did not want to be in the courtroom and was testifying

under subpoena, rather than "play[ing] on the passions and fears of the jury by suggesting that a

threat exist[ed] against the witness." /d. at 1187-88.

Similarly, another witness, Tamika Jones, recanted her grand jury testimony at trial and,

in response, the prosecutor elicited testimony from her that she had received an "alleged threat

on her life." /d. at 1191. This Court ruled that such testimony was improper because there was no

evidence of an actual threat and, as such, the testimony had "the danger of appealing to the

emotions of the jury by implying - without evidence - that a defendant made the threat, thereby

creating the danger of unfair prejudice." /d. 15

Gordon and Mercer require a finding of error here. Like the unfounded fear testimony in

those cases, Branch's and Russ's testimony that Brown was afraid that Santos would "kill" her

was improper because it implied - without evidence - that Santos had threatened to kill Brown.

Like Gravette's testimony that she was "scared for [her] life" to testify ..in front of these people,"

Gordon, 783 A.2d at 587-88, Cunningham's testimony that she did not want to testify because

15
In contrast, the Court held that Natasha Stringfellow's testimony that she was "scared" and
that she came to testify only because she feared that her children would be taken away if she did
not testify was permissible because it was "relevant to explain [her] inability to remember" on
direct examination and it "explain[ed] specific behavior" of the witness without implying any
threatening conduct by the defendants. /d. at 1190.

28
she " might never [be seen] again," Mercer, 724 A.2d at 1185-86, and Jones' s testimony that she

had received a threat on her life, id. at 1191-92, Russ's and Branch's testimony that Brown said

that she feared Santos would "kill her" lacked evidentiary support and "play[ed] on the passions

and fears of the jury" by "creating the impression of a very real and immediate threat" by Santos

against Brown where there was no evidence of any threat. Mercer, 724 A.2d at 1187-88.

Indeed, here the testimony was even more inflammatory and unfounded than in this

Court' s previous cases because the link to Santos was explicit, not implied. Both Branch and

Russ testified that Brown feared specifically that Santos would "kill" her. But, other than the

alleged crime itself, Brown described nothing but positive interactions with Santos and she

certainly never testified about any threatening or intimidating behavior on his part or on the part

of someone acting on his behalf. 16 Because there was no evidence of threats, the trial court

should not have permitted Russ and Branch to testify to Brown's fear that Santos would kill her.

And third, even if Brown's initial reluctance to discuss the incident while at the hospital

had been relevant (and it was not), the inflammatory testimony elicited was not "narrowly

tailored" to explaining any such reluctance. See Gordon, 783 A.2d at 587 (holding that

prosecutor "should have ended" examination after witness said she was afraid to testify, rather

than eliciting inflammatory testimony that she was afraid to testify in front of defendants,

because the former testimony sufficed to explain her reason for not testifying consistently with

her grand jury statement). Even if it had been necessary to explain Brown's initial reluctance at

the hospital , it could have been done via "an alternative method, less prejudicial to [Santos]"-

16
The alJeged crime itself cannot supply the necessary factual support because such
justification "could be urged in a good many cases involving witness-complainants who have
been the victim of violent crime." Murray, 855 A.2d at 1133. See also Owlaw v. United States,
632 A.2d 408, 409 n.l (D.C. 1993) (explaining that testimony that a witness to a crime did not
wish to be interviewed out of "fear" was "irrelevant" and "hardly surprising'' because such a
feeling "is well-nigh universal").

29
for example, that Brown said she was scared - without repeated reference to her unsubstantiated

belief that Santos would kill her. Mercer, 724 A.2d at 1187-88 (rather than asking whether a

witness was intimidated by people in the courtroom that the prosecutor suggested were

connected to the defendant, to explain why a witness contradicted her grand jury testimony, the

prosecution could have pursued ..an alternative method" such as eliciting that a witness was there

due to a subpoena and did not want to be there). See also Blunt, 959 A.2d at 723-26 (error for

court to permit a witness to testify that she had been stabbed and threatened prior to trial, instead

of simply that she was "scared," because her testimony "carried a serious risk of implying an

unfounded link to [the defendant]). As this Court explained in Blunt, the fact that a witness is

afraid does not permit her to say "whatever she thinks is causing" the fear. 959 A.2d at 725.

Without any evidence that Santos ever threatened Brown, let alone threatened to kill her,

and where the government had no need to explain away Brown's statements or behavior at the

hospital, the testimony from two witnesses that Brown said at the hospital that she feared Santos

would kill her was an "evidentiary harpoon," see Dudley v. Duckworth, 854 F.2d 967, 970 (7th

Cir. 1988) ("[A] witness's testimony concerning threats the witness has received[,] when no

connection is shown between the defendant and the threats, can amount to an •evidentiary

harpoon.'"), that unfairly painted Santos as a dangerous person willing to kill to avoid

prosecution and "introduced exactly the type of prejudice condemned by this court." Gordon,

783 A.2d at 588.

C. THE lMPROPER ADMISSION OF TESTIMONY BY TWO

WITNESSES THAT BROWN WAS AFRAID THAT SANTOS WOULD
"KILL" HER WAS NOT HARMLESS.

In this close case that required the jury to judge the relative credibility of Santos and

Brown, the trial court's error in permitting two witnesses to testify that Brown said she feared

Santos would "kill" her, in the absence of any evidence whatsoever of threats, cannot be

30
considered harmless. See Foreman, 792 A.2d at 1051 (reversing due to improperly admitted fear

evidence that "could very well have aroused the passions of the jury and suggested a conviction

based on their aversion to [the defendant] , rather than on the evidence"); Gordon, 783 A.2d at

588 (same); Mercer 724 A.2d at 1186 (same); Carpenter, 635 A.2d at 1296 (same). This

unsubstantiated and inflammatory fear evidence was repeated by two witnesses and was

subsequently emphasized by the prosecutor during closing argument. In light of the extreme

prejudice that results when the jury hears unfounded and incendiary fear evidence, this Court

cannot conclude, "with fair assurance, after pondering all that happened without stripping the

erroneous actions from the whole, that the judgment was not substantially swayed by the error."

Gordon, 783 A.2d at 588 (internal citation omitted). Nor can the error be deemed "so

inconsequential as to provide a reasonable assurance that it made no appreciable difference to the

outcome." In re Ty. B., 878 A.2d 1255, 1267 (D.C. 2005).

First, the error permeated every issue in this case. The jury's role here was to assess the

relative credibility of Santos and Brown and decide whether the encounter on June 27, 2013 was

consensual, as Santos maintained, or nonconsensual, as Brown claimed. Evidence that Brown

feared that Santos would kill her if she said anything accusatory- evidence that was presented to

the jury by two different witnesses- distorted the lens through which the jury viewed the entirety

of the case because it cast Santos as a violent person who would have no qualms about kiJiing

someone in order to obstruct justice. 17 Once the jurors heard that Brown apparently had reason to

believe that Santos would kill her, they were invited to conclude that he was the type of person

17
Each witness testified multiple times about Brown's fear: Officer Russ first testified that
Brown was "afraid that he would kill her if she said anything." The prosecutor then asked if she
said anything else "other than that he would kill her," and following a brief bench conference,
Russ repeated, "[S]he felt that he would kill her." (Tr. 3/20/14 at 38-39). Branch, after testifying
that Brown had expressed "reservations" about saying what happened, said that Brown told him
that "this guy would kill her, would do harm to her, would kill her." (Tr. 3/24/14 at 184-85).

31
who would kill witnesses testifying against him. This testimony, which cast Santos in a highly

negative and chilling light, virtually ensured a guilty verdict by encouraging the jury to base its

decision on "aversion to [the defendant]" rather than the evidence. Mercer, 724 A.2d at 1184.

Under those circumstances, even a conscientious juror would be tempted to convict

Santos based on an assessment of his dangerousness (or based on a desire to protect Brown from

murder) rather than on the question whether the government had proven beyond a reasonable

doubt his guilt as to the charged crimes. See Michelson v. United State.\', 335 U.S. 469, 475-76

(1948) ("[E]vidence of a defendant' s evil character ... is said to weigh too much with the jury

and to so overpersuade them as to ... deny him a fair opportunity to defend against a particular

charge."). Further, the unfounded fear evidence "implied guilty knowledge by" Santos, "without

any evidentiary basis," because a juror could reasonably infer that he would not have threatened

Brown unless he had actually committed a crime. See Foreman, 792 A.2d at 1050-51 (finding

improper admission of fear testimony not harmless, in part, because its admission "implied guilty

knowledge by Mr. Foreman without any evidentiary basis").

The centrality and importance of the improperly admitted fear evidence is highlighted by

the government's rebuttal argument to the jury, in which the prosecutor repeatedly reminded

jurors that Santos was someone to be feared. See Andrews v. United States, 922 A.2d 449, 460

(D.C. 2007) ("A prosecutor's repeated highlighting, during the course of the trial, of an

erroneously admitted statement is persuasive evidence of its centrality and prejudicial

character."); Morten v. United States, 856 A.2d 595, 602 (D.C. 2004) ("A prosecutor's stress[]

[upon] the centrality of particular evidence in closing argument tells a good deal about whether

the admission of the evidence was meant to be, and was prejudicial." ). The prosecutor told the

jury that Brown "was in paralyzing fear for her life," emphasizing the improperly-admitted fear

32
evidence. (Tr. 3/27114 at ll-12). The prosecutor also repeated the inflammatory testimony that

was erroneously admitted: "She told [Russ and Branch] explicitly I'm scared. She told them you

don't understand. And if I tell on him, he will kill me." (Tr. 3/27/14 at 12). The prosecutor's

repeated reliance on the evidence exacerbated the prejudice caused by its admission and

encouraged the jury to focus on the ongoing danger that Santos purportedly posed to Brown.

Second, this was a close case; the government's evidence was by no means

overwhelming. There was considerable evidence that cast doubt on Brown's version of events.

Most importantly, Brown's statements at the apartment were consistent with the defense theory.

Her first statement that night was that Santos had done nothing wrong, (Tr. 3/19/14 at 90), and

her friend Kiki, when first speaking with police, insisted that Brown told her that she had asked

Santos to place his hand inside her. (Tr. 3/20/14 at 116, 123-25). Kiki also corroborated other

aspects of Santos's account. She testified that when she saw Brown and Santos engaged in sexual

activity on the balcony, Brown appeared to be enjoying herself. (Tr. 3/20/14 at 102-03). She also

testified that she heard Brown tell Santos to stop and that Santos did stop. (Tr. 3/20114 at 53,

I 08). Kiki explained that when she asked Santos what had happened, he said to her that he "did

what [Brown] wanted him to do." (Tr. 3/20/14 at 55).

Further, Santos generally did not act like someone who had just committed a crime.

Rather than fleeing the scene, as one would expect of someone who had just sexually assaulted a

person, Santos remained in the apartment. He did not leave when Brown could not get the

bleeding to stop; he did not leave when the paramedics were called; and he did not leave when

they arrived and took her to the hospital. (Tr. 3/25114 at 374, 383). To the contrary, he chose to

33
go along to the hospital and initially cooperated when police arrived. (Tr. 3/25/14 at 384-85).

None of those actions fit the government's story that he had just sexually assaulted Brown. 18

The government cannot show that the introduction of unsubstantiated fear evidence in the

form of repeated testimony that Brown feared Santos would "kill" her. which the prosecutor later

emphasized in rebuttal closing argument, was "so inconsequential as to provide a reasonable

assurance that it made no appreciable difference to the outcome," In re Ty B.• 878 A.2d at 1267,

or that it is "highly probable" that the error had no impact on the verdict. Dockery v. United

States, 746 A.2d 303. 308 (D.C. 2000). Rather, in light of the fact that this case boiled down to

the jury's impression of the credibility of Brown and Santos, this evidence likely had a

"devastating prejudicial impact" on Santos's chances of acquittal. Carpenter, 635 A.2d at 1296

(concluding that closing argument which implied defendant took steps to intimidate a witness,

when "there was no record evidence whatsoever" of intimidation, appealed "to the jury's

passions" and had a "devastating prejudicial impact"). Reversal is required.

II. THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO CORRECT THE

PROSECUTOR'S MISLEADING REBUTTAL ARGUMENT SUGGESTING,
CONTRARY TO THE FACTS IN THE GOVERNMENT'S KNOWLEDGE, THAT
SANTOS WAS LYING ABOUT THE EXISTENCE OF A WARRANT FOR HIS
ARREST IN VIRGINIA.

Jose Santos testified that he initially gave police the name "Luis Ramos" because he was

subject to an arrest warrant in Virginia for a probation violation. (Tr. 3/25/14 at 386). During the

pretrial hearing where there was discussion about the warrant, the prosecutor never disputed the

warrant's existence. (Tr. 1114/14 at 34). Indeed, the warrant's existence was noted by the trial

18
Also, the jury's struggle to determine exactly what happened is illustrated by its split
verdict: the jury acquitted Santos of aggravated assault. indicating that it did not entirely believe
the government's theory. See Harris v. United States, 834 A.2d 106, 127-28 (D.C. 2003)
(looking at jury's split verdict in deciding that improper exclusion of evidence was not harmless
error); Brook.\' v. United States, 367 A.2d 1297, 13 10 (D.C. 1976) (rejecting harmless error
argument in light of several factors, including the possibility of a compromised verdict).

34
court in its "Findings of Fact, Conclusions of Law and Order of Detention Pending Trial," filed

on August 23, 2013, where in discussing Santos's prior history, the court wrote: "A bench

warrant was issued for the defendant for probation violation in Fairfax County on January 17,

2013." (R. at 10). Nor did the prosecutor question Santos on cross-examination about the

existence of the warrant. (Tr. 3/25/14 at 419).

During closing argument, the prosecutor urged the jury to consider Santos's failure to tell

the police his real name as evidence of his consciousness of guilt as to the alleged crime against

Brown: "Ladies and gentlemen, he gave them a fake name and a fake date of birth because he

knew that what he had done to Amanda Brown was wrong and he did not want to be caught for

it." (Tr. 3/26114 at 552). In rebuttal, the prosecutor went further, suggesting to the jury that the

warrant did not exist and that Santos had lied to the jury about it:

[PROSECUTOR]: My name is Luis Ramos, date of birth 12-6-88. Not true. Not true.
Why? ... Ladies and gentlemen, he doesn't have to testify but if he does testify, you
have every right to hold him accountable for the words that come out of his mouth ....
Did you hear any evidence or see any evidence that he actually has this warrant in some
other state? Did you hear or see-

[DEFENSE]: Objection.

[PROSECUTOR] -any evidence that he actually knew on June 26th or June 27th, 2013,
that he had this alleged warrant?

[DEFENSE]: Objection, Your Honor.

THE COURT: Sustained. Move along, counsel. Counsel, you have just a few more
minutes.

(Tr. 3/27/14 at 30-31).

The prosecutor's argument suggested, contrary to facts known to the parties (but not the

jury), that Santos had made up the warrant and that he was similarly lying about other aspects of

that night. At no time did the prosecutor correct the record, despite knowing that the warrant

35
existed. The trial court, in turn, sustained the second defense objection and told the prosecutor to

"[m)ove along," (Tr. 3/27/14 at 31 ), but declined to take further action because it failed to

recognize that the prosecutor's argument was misleading and therefore improper. In the course of

a discussion about crafting a curative instruction for another comment by the prosecutor, the

court held that the argument about the warrant was not misleading because the prosecutor merely

asked whether there was evidence of a warrant, rather than "argu[ing] an inference" that there

was no warrant:

So what is the problem with that [the prosecutor] said he didn't hear anything about [the
warrant]. He didn't argue an inference.... I don't think it went over the line. That's why
I sustained it the second time so counsel would not go over the line. And I just don't
think he did. I mean he said did you hear any evidence about- so I don't think he- you
know, I think he came close but he didn't. So my ruling on that stands.

(Tr. 3/27/14 at 33-34).

Contrary to the trial court's ruling, however, the prosecutor's argument did "go over the

line," and violated the prosecutor's obligations under the Due Process Clause, because it implied,

contrary to the information in the government's knowledge, that there was no warrant and that

Santos had lied to the jury. Even after defense counsel objected and argued that the inference

was false, neither the prosecutor nor the court made any effort to correct the record. Reversal is

required because the government cannot show that there is "no reasonable possibility that the

falsehood affected the jury's verdict." Woodall v. United States, 842 A.2d 690, 696 (D.C. 2004).

See Felder v. United States, 595 A.2d 974, 977 (D.C. 1991) (a defendant is "entitled to a new

trial" if there is any "reasonable likelihood" that false information that was not corrected "may

have affected the judgment of the jury"); Woodard v. United States, 56 A.3d 125, 128-29 (D.C.

20 12) (having "no confidence" that a prosecutor's misleading statements in closing argument did

not "substantially affect the jury's verdict").

36
 A. THE PROSECUTOR'S MISLEADING ARGUMENT SUGGESTING
THAT THERE WAS NO WARRANT IMPROPERLY URGED THE
JURY TO DRAW A FACTUAL INFERENCE THAT THE
PROSECUTOR KNEW TO BE FALSE, AND THE TRIAL COURT
ERRED IN FAILING TO CORRECT THE FALSE IMPRESSION.

The correction of false or misleading inferences that reach the jury through witness

testimony or government argument is essential to a defendant's due process right to a fair trial. A

prosecutor may not present false evidence or permit false evidence to go uncorrected. Felder,

595 A.2d at 977. See also Napue v. Illinois, 360 U.S. 264, 269 (1959) (a conviction obtained

through the use of false information that goes uncorrected is a denial of due process). Similarly, a

prosecutor's misleading statements during closing argument, especially rebuttal argument, may

so 'infect[] [a] trial with unfairness as to make the resulting conviction a denial of due process."'

Woodard, 56 A.3d at 128 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). In arguing

to the jury, the government is obligated to present the facts accurately. "It is improper for counsel

to misstate the evidence," Najafi v. United States, 886 A.2d 103, 104 (D.C. 2005), and this

obligation "extends to facts not in the record but known to the government." Woodard, 56 A.3d

at 128. See also Williams v. United States, 877 A.2d 125, 129 (D.C. 2005).

Thus, a prosecutor may not "invit[e] inferences of fact arguably contrary to evidence of

which [he or she is] aware but which is not of record in a case." Powell v. United States, 880

A.2d 248, 258 n.23 (D.C. 2005). See Woodard, 56 A.3d at 127-29 (reversing conviction where

prosecutor' s closing argument fostered misleading impression about key witness's testimony at

previous trial); Jenkins v. Artuz, 294 F.3d 284, 293-94 (2d Cir. 2002) (holding that defendant's

right to a fair trial was denied when, despite knowing that a witness had entered into a plea

agreement, prosecutor reinforced witness' s false testimony about lack of deal between witness

and government by implying in closing that no such agreement existed); United States v.

Kojaycm, 8 F.3d 1315, 1324 (9th Cir. 1993) (prosecutor's misleading argument as to why a

37
witness did not testify, which contradicted facts known by the prosecutor, violated due process).

See also Darden, 477 U.S. at 182 (prosecutorial argument that "manipulate[s] or misstate[s] the

evidence" results in a "denial of due process").

As both the Supreme Court and this Court have observed, a prosecutor's false or

misleading "insinuations" not only violate the government's duty to see that "justice shall be

done," but also carry special weight with the jury:

[The United States Attorney] may prosecute with earnestness and vigor - indeed, he
should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these
obligations, which so plainly rest upon the prosecuting attorney, will be faithfully
observed. Consequently, improper suggestions, insinuations, and especially assertions of
personal knowledge are apt to carry much weight against the accused when they should
properly carry none.

Najafi, 886 A.2d at 109 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). "[S]tatements

from the prosecutor matter a great deal," Kojayan, 8 F.3d at 1323, and when the misleading or

false statements concern evidence not before the jury, the impact is especially significant:

When a lawyer asserts that something not in the record is true, he is in effect, testifying.
He is telling the jury: "Look, I know a lot more about this case than you, so believe me
when I tell you X is a fact." This is definitely improper.

/d. at 1321.

When false evidence is presented or a jury is invited to make an inference contrary to

what the prosecutor knows to be the truth, the government and the court have an obligation to

correct the record. Powell, 880 A.2d at 258. See also Napue, 360 U.S. at 269 (a prosecutor

cannot allow false evidence "to go uncorrected when it appears"). This Court has consistently

required some corrective measure to be taken when evidence known to be false is presented to

the jury. See Gatlin v. United States, 925 A.2d 594, 603-04 (D.C. 2007) (false testimony

38
sufficiently corrected where defense counsel was permitted additional cross-examination and to

address it during closing); Woodall, 842 A.2d at 697-99 (false testimony sufficiently corrected

through cross-examination of another witness).

Because the correction of false inferences that reach the jury through government

argument, rather than witness testimony, is equally important to a defendant's right to a fair trial,

such false inferences must be effectively remedied during the trial, by a party or by the court, to

overcome the significant impact they have on the jury and the "unfair advantage" they bestow on

the prosecution. Woodard, 56 A.3d at 129. See id. (reversing conviction where prosecutor misled

jury in rebuttal closing argument and "trial judge declined to adopt a corrective measure

reasonably proposed by the defense"). See also Kojayan, 8 F.3d at 1317-19, 1324-25 (vacating

conviction where prosecutor took no steps to correct the record after he stated in rebuttal

argument that witness did not testify because he had invoked privilege against self-incrimination,

even though prosecutor knew witness had made a deal with the government and could have been

called to testify).

Here, the prosecutor's argument violated Santos's due process rights because, first, the

argument was misleading and invited the jury to draw a false inference and, second, neither the

prosecutor nor the court took any steps to correct the misimpression for the jury. First, the

prosecutor's rebuttal argument asking the jury if it had "hear[d]" or "see[n] any evidence" that

Santos "actually" had a warrant, (Tr. 3127/14 at 30-31), was improper because it invited the jury

to infer that the warrant did not exist and, by extension, that Santos had lied about it. See

Woodard, 56 A.3d at 128. Despite the prosecutor's awareness that Santos was subject to a

Virginia arrest warrant for a probation violation, (Tr. 1/14/14 at 34; Tr. 3127/14 at 34; R. at 10),

39
his rebuttal argument - made when the defense no longer had any chance to respond - strongly

suggested to the jury that no such warrant existed.

The trial court incorrectly ruled that the argument was proper, rather than misleading,

because the prosecutor stopped short of explicitly arguing that the warrant did not exist. (Tr.

3/27/14 at 33-34). But this Court has recognized that even a statement that "may be 'technically

accurate' or 'factually correct'" can still be "misleading 'based on the natural and reasonable

inferences it invites."' Woodard, 56 A.3d at 128. See, e.g., Jenkins, 294 F.3d at 294 (where

government had cooperation agreement with witness, prosecutor's statement that witness "never

made a deal with [prosecutor herself' was improper because even though prosecutor did not

explicitly state that there was no deal with the government generally, her statement nevertheless

left the jury with that false impression); Kojayan, 8 F.3d at 1318 (where government could have

called witness Nourian, prosecutor's statement "don't be misled that the government could have

called Nourian" was "simply false" even though prosecutor did not say explicitly that the

government could not call Nourian). Here, although the prosecutor did not explicitly state "there

was no warrant," his questions to the jury - "Did you hear [or see] any evidence ... that he

actually has this warrant in some other state? Did you hear or see ... any evidence that he

actually knew ... that he had this alleged warrant?" (Tr. 3/27/14 at 30-31)- accomplished the

same purpose by strongly suggesting that he knew, and the jury should believe, that there was no

warrant. Essentially, the prosecutor told the jury, "I know a lot more about this case than you,"

Kojaycm, 8 F.3d at 1321, and if a warrant existed, I would know about it. And because jurors

would reasonably expect the government to possess information about a suspect's or defendant's

outstanding warrants, they would be especially likely to believe that the prosecutor would not be

asking them to question the existence of a warrant unless he knew it did not exist. The

40
prosecutor's suggestion that Santos had lied about the warrant in turn encouraged two other

highly prejudicial inferences: one, if no warrant existed, the only reason Santos had to give the

police a different name and date of birth was his consciousness of guilt with respect to Brown;

and, two, if Santos had lied to jurors about the warrant he was more likely to be lying to them

about everything else. Cj. Bennett v. United States, 797 A.2d 1251, 1255 (D.C. 2002) (explaining

that if a "witness is willing to lie" to the jury about one crime, "a jury may well conclude that the

[the witness] is likely to be willing to lie about anything").

Second, neither the prosecutor nor the court took any steps to correct the false impression

left by the prosecutor's argument. See Kojayan, 8 F.3d at 1318-19, 1321-24 (holding that

prosecutor violated due process by declining to correct false statement made in rebuttal argument

even after defense counsel objected). After the trial court instructed the prosecutor to "move

along" from the argument about the warrant, the very next sentence from the prosecutor- about

Santos's decision whether to speak with police at the police station - drew another defense

objection and the parties approached the bench. (Tr. 3/27/14 at 31 ). The court believed that the

prosecutor had improperly commented on Santos's exercise of his right to remain silent when

speaking with police at the police station and asked each side for a suggested curative

instruction: "I will hear you all about any instruction I will give this jury now." (Tr. 3/37/14 at

32). After offering its suggestion for curing the argument about Santos's silence, defense counsel

returned to the prosecutor's argument about the warrant and suggested that it, too, should be

addressed in the instruction because the comments did "go over the line" because "the

government actually kn[ew]" that the Virginia warrant existed. (Tr. 3/27/14 at 33).

Even after defense counsel explained that the government knew the warrant was real, the

prosecutor remained silent and failed to fulfill his "constitutional duty to correct the false

41
impression of the facts." United States v. Lt1Page, 231 F.3d 488, 491-92 (9th Cir. 2000)

(prosecutor is constitutionally required to correct false impression and may not "sit idly by while

opposing counsel struggles to contain th[e] pollution of the trial"). See also Brown v. Borg, 951

F.2d lOll, 1015 (9th Cir. 1991) ("The proper role of the criminal prosecutor is not simply to

obtain a conviction, but to obtain a fair conviction.") (emphasis original) (citing Brady v.

Maryland, 373 U.S. 83,87 (1963)). Nor did the trial court take any steps to correct the record, or

require the prosecutor to correct the record, due to its mistaken understanding that the comments

were not misleading. (Tr. 3/27/14 at 33-34). Instead, the court held that the prosecutor's

argument had not gone "over the line" and that nothing further was required. (ld. at 34).

This Court's decision in Woodard and the Ninth Circuit's decision in Kojayan both

demonstrate why the trial court erred in this case as both of those cases resulted in reversal due to

similarly uncorrected misleading arguments. In Woodard, after a retrial, Woodard was convicted

of conspiracy. At the first trial, complainant Cary had identified Woodard's co-defendant,

McCoy, as the shooter and had testified that he did not see Woodard with a gun. On retrial of

Woodard alone, Cary changed his story and identified Woodard as the shooter, but was

impeached with his prior testimony. 56 A.3d at 126-27. In rebuttal closing argument, the

prosecutor tried to explain away Cary's previous failure to identify Woodard by suggesting that

Cary had been afraid to identify Woodard at the first trial because he did not want to identify the

shooter face-to-face in the courtroom:

At [the first trial] ... [he] held back information. And why did [he] do so? Well, they
both gave you their explanations, and l' 11 leave it to that. But think about it. A court
proceeding where they have to face the person that they're identifying as the shooter, the
fact that [he] would hold back at that time. Use your common sense. You can understand
what's going on here. You know what's going on.

42
/d. at 127. Defense counsel objected, arguing that the implication that Cary was afraid to identify

the shooter face-to-face at the first trial was false because Cary had identified McCoy, who was

present in the courtroom at the first trial, as the shooter. /d. The trial court disagreed that the

statement required correction and rejected the defense request for a curative instruction or a

reopening of its case. /d.

This Court reversed, agreeing with Woodard that "the prosecutor's argument in

summation" was misleading because it "improperly urged the jury to draw the inference that [the

witness] had been afraid to identify a shooter face-to-face at the first trial .. . when .. . in fact

[he] had identified [Woodard's co-defendant] [face-to-face] as one of the shooters in that

proceeding." /d. at 127-28. Noting that "the law's aim is to ensure [that the] jury is not misled by

falsehoods," id. (internal citations omitted), the Court held that the argument was improper

because it led to the "natural and reasonable inference" that the witness had not made any

identification at the first trial, contrary to the facts known to the prosecutor, but not the jury. /d.

at 128-29. This Court explained that the trial court had an obligation to "[n]eutralize[] the

misleading impression the prosecutor thereby fostered," and that its failure to do so was

reversible error. /d. at 129.

Similarly, in Kojayan, the Ninth Circuit reversed a conviction due to the prosecutor' s

misleading argument to the jury that went uncorrected. 8 F.3d at 1318-19. There, after the

defense in closing questioned why a cooperating witness, Krikor Nourian, did not testify, the

government suggested in rebuttal that it could not have called Nourian because after being

arrested, Nourian had exercised his right not to testify:

The government can ' t force someone to talk. They have to agree to talk after they' ve
been arrested. Well, you can figure out defendant Nourian was arrested. He has Fifth
Amendment rights. He has the right to remain silent. The government can' t force anyone

43
 to talk. It is against their Fifth Amendment rights. Don't be misled that the government
could have called Nourian.

/d. at 1317. The implication that Nourian had exercised his right not to testify was misleading

and the suggestion that the government could not have called the witness to testify was false

because, as the prosecutor was aware, the witness in fact had entered into a plea agreement and

had promised to testify truthfully. /d. The Kojayan court held that the prosecutor's conduct in

making the false and misleading statements, and in failing to correct them, violated the

defendant's due process rights. 8 F.3d at 1324-25. The court emphasized the government's

failure to correct the false impression left by its own words:

Although defense counsel objected to the government's statement, the prosecutor did not
retract or modify it during the rest of his summation. Nor did the AUSA set the record
straight a few minutes later, when . . . [defense counsel] argued that the AUSA's
statement was improper[.] While defense counsel struggled to articulate the issue to the
district court, the prosecutor did nothing to let the court know that the factual premise
underlying defense counsel's objection was true.

/d. at 1318-19.

Here, as in Woodard and Kojayan, the jury was "misled by falsehoods" in the

government's closing argument that went uncorrected. See Woodard, 56 A.3d at 127. Like the

Woodard prosecutor's comment urging the jury to "use" its "common sense" about why the

witness "h[e]ld back" when "fac[ing]" the shooter at the first trial, id. at 127, and the Kojayan

prosecutor's comment urging the jury "Don't be misled that the government could have called

Nourian," 8 F.3d at 1317, here the prosecutor's comments urging the jury to question the

existence of the warrant did not explicitly state a false fact, but nonetheless were misleading

because they "improperly urged the jury to draw [an] inference" that was false- that the warrant

did not exist. Woodard, 56 A.3d at 127. As in these cases, the argument was "highly

misleading," Kojayan, 8 F.3d at 1318, and therefore improper, because "a natural and reasonable

44
inference the jury could have drawn from the prosecutor's argument" was that Santos had made

up the warrant. Woodard, 56 A.3d at 128. Moreover, as in Woodard, where the comment

concerned a witness's testimony at a previous trial, and Kojayan, where the comment concerned

a cooperating witness's invocation of Fifth Amendment rights, the misleading argument here

went to a subject the jury reasonably would have believed was within the specialized knowledge

of the government - the existence of an arrest warrant. 19 Thus, as in those cases, here the jury

would likely have concluded that the prosecutor would not have urged them to question the

existence of an arrest warrant for a probation violation unless there was a valid and reliable basis

for doing so. The comments here were therefore improper for the same reasons as in Woodard

and Kojaycm and the trial court erred in holding otherwise.

Further, both the prosecutor, like the prosecutor in Kojayan, and the trial court, like the

trial court in Woodard, failed to correct the misleading impression left by the prosecutor's

argument. "Although defense counsel objected to the government's statement, the prosecutor did

not retract or modify it during the rest of his summation[,] [n]or did the AUSA set the record

straight a few minutes later, when [defense counsel] argued that the AUSA's statement was

improper." Koja_vcm, 8 F.3d at 1318-19. And when the trial court rebuffed defense counsel's

suggestion, during the discussion of a curative instruction, that the instruction should address the

misimpression left by the prosecutor's comments about the warrant, "the prosecutor did nothing

to let the court know that the factual premise underlying defense counsel's [position] was true."

/d. As in Kojaycm, this failure to correct the record violated Santos's right to a fair triaL

19
lndeed, just as the prosecutor was aware of the cooperation agreement in Kojayan , here the
government was aware of the underlying fact of the outstanding warrant. (Tr. 1/14114 at 34; R. at
10).

45
 And as in Woodard, the trial court's failure to address the misimpression left by the

prosecutor's statements in rebuttal was also error. Because the trial court failed to recognize that

the prosecutor's argument about the warrant was improper, it did not understand that there was a

misimpression that needed correction. (Tr. 3/27/14 at 33-34). As in Woodard, the trial court was

obligated to "neutraliz[e] the misleading impression the prosecutor . . . fostered" by taking

correction action. 56 A.3d at 129. Providing a curative instruction here would not have been "an

unfair price to exact for the misimpression" and the trial court's failure to do so was error for the

same reasons as in Woodard. See Woodard, 56 A.3d at 129 (holding that trial court erred in

refusing to give a curative instruction or allow defense to reopen its case to correct the

prosecutor's misleading remarks in rebuttal argument and noting that such corrective measures

"would have avoided the difficulty this court now has of weighing the magnitude of prejudice to

[defendant] against the systemic costs of a new trial").

B. THE FAILURE TO CORRECT THE MISLEADING STATEMENT TO

THE JURY CANNOT BE CONSIDERED HARMLESS.

The error here - the prosecutor's misleading argument urging the jury to draw a false

inference that adversely affected Santos's credibility, and the trial court's failure to correct the

misimpression - denied Santos his right to due process and thus was an error of constitutional

magnitude. See Jenkins, 294 F.3d at 294 (misleading testimony and comments in summation

violated due process); Kojaywz, 8 F.3d at 138-24 (prosecutor's misleading and false statements

in closing argument violated due process); United States v. Valellline, 820 F.2d 565, 569-70 (2d

Cir. 1987) (prosecutor's "implications" in summation that "implicitly [] mischaracterize[d]" the

testimony violated due process). The error in permitting the false impression about the warrant's

existence to go uncorrected cannot be deemed harmless beyond a reasonable doubt. Chapman v.

Uuired States, 386 U.S. 18, 24 ( 1967). Even under the non-constitutional Kotteako!i standard, see

46
Kotteakos v. United States, 328 U.S. 750, 765 ( 1946}, the error requires reversal because it

cannot be concluded with fair assurance it did not substantially sway the judgment. See

Woodard, 56 A.3d at 129 (reversing where court could not exclude "reasonable and realistic

likelihood" that misleading argument affected verdict).

The error affected the central issue in this case - the relative credibility of Santos and

Brown. The prosecutor improperly encouraged the jury to conclude, contrary to extra-record

facts, that Santos had lied under oath about being subject to a warrant at the time he gave a

different name to police. Without any correction by the prosecutor or the court, the jury thereby

was left with a misimpression that Santos had lied under oath, which further suggested that he

was lying to them about other aspects of his account. This unfair - and counterfactual -attack on

Santos's credibility went to the heart of the case and not only diminished Santos's credibility,

and in tum his entire defense, but also bolstered Brown's credibility and her account of the

incident. Additionally, this misleading information was not just testimony by a witness but

argument from the prosecutor during rebuttal closing argument on an issue a jury would likely

believe the prosecutor would have knowledge about. See Kojayan, 8 F.3d at 1323 ("[C]losing

argument matters; statements from the prosecutor matter a great deal.").

The court's refusal to intervene was especially harmful because the improper comments

were made in rebuttal. "[l]mproper prosecutorial comments are looked upon with special

disfavor when they appear in the rebuttal because ... defense counsel has no opportunity to

contest or clarify what the prosecutor has said." Diaz v. United States, 716 A.2d 173, 180-81

(D.C. 1998) (internal quotation marks omitted). See Woodard, 56 A.3d at 129 (reversing where

prosecutor's misleading argument in rebuttal went to credibility of key witness); Carpenter v.

United State.\·, 635 A.2d 1289, 1296-97 (D.C. 1993) (reversing where prosecutor made improper

47
comments about witness fear in rebuttal and "defense counsel did not have any opportunity to

respond to those remarks"); LaPage, 231 F.3d at 492 (reversing even where prosecutor conceded

falsity of testimony in rebuttal argument, because it was too late for defense to respond). The

timing of the prosecutor's remarks here, and the trial court's refusal to take any mitigating steps,

ensured that on the crucial question of Santos's credibility, the government's unsupported and

false statements went to the jury room unchallenged.

The prejudice stemming from the court's failure to correct the prosecutor's misleading

rebuttal argument here cannot be deemed harmless for the same reasons this Court held that a

similar error was not harmless in Woodard. In Woodard, the prosecutor's misleading argument

in rebuttal, suggesting the false inference that a key eyewitness had not identified the shooter at

the previous trial (though he had actually identified Woodard's co-defendant), went to a "key

issue in the trial"- the "credibility" of the eyewitness. 56 A.3d at 129. Accordingly, this Court

held that it could not "exclude the reasonable and realistic likelihood that the misleading

argument as to (the witness's] credibility affected the jury's decision to convict." /d.

The same is true here. The prosecutor's misleading argument in rebuttal went to the "key

issue in the trial"- the "credibility" of Santos's and Brown's competing accounts of the incident.

Woodard, 56 A.3d at 129. Failure to correct the misimpression allowed the prosecutor to unfairly

discredit not just a key witness, but Santos himself, and to unfairly bolster Brown's credibility by

comparison. If the jury drew the inferences suggested by the prosecutor and believed that he had

lied about the warrant, they reasonably could have concluded that he had lied about everything

else. See Bennell, 797 A.2d at 1255. The misleading argument told the jury to discredit Santos's

otherwise reasonable explanation for giving an incorrect name, to consider Santos's giving of an

incorrect name as evidence of his consciousness of guilt of this crime, and to question Santos's

48
overall credibility and character. Given that the entire case hinged on the jury's determination

regarding the relative credibility of Santos and Brown, the uncorrected misimpression easily

could have led the jury to favor Brown's account and convict Santos. Under these circumstances,

this Court, like the Woodard Court, can have "no confidence" that the prosecutor's misleading

argument implying that Santos had lied about the existence of the warrant "did not substantially

affect the jury's verdict." 56 A.3d at 129. Nor can it find the uncorrected misleading argument

harmless beyond a reasonable doubt, as the government cannot show that "there is no reasonable

possibility that the falsehood [urged by the prosecutor in rebuttal] affected the jury' s verdict."

Woodall, 842 A.2d at 696 & n.6. See Jenkins, 294 F.3d at 292; Kojayan , 8 F.3d at 1321;

Valemine, 820 F.2d at 569-70. Reversal is required.

CONCLUSION

For the foregoing reasons, Santos's conviction should be reversed.

Respectfully submitted,

~~fr
Bar No. 394 445

Bar No. 457 263

~ 1/*~nMiller
Bar No. 503 001

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200

49
 *Counsel for Oral Argument

50
 APPENDIX

TABLE OF CONTENTS

Testimony of Officer Stella Russ ....................................................................................... App. 1-3

Testimony of Nurse Lawrence Joseph Branch ................................................................... App. 4-6

Rebuttal Closing Argument .............................................................................................. App. 7-15

51
1 Q And when you got to the hospital, did you find
2 someone who you thought to be a victim or you learned was a
3 victim?
4 A Yes.
5 Q Who was that?
6 A Amanda Brown.
7 Q And did you speak to Amanda Brown?
8 A Yes.
9 Q Do you remember where at the hospital you spoke to
10 Amanda Brown?
11 A PG county Hospital trauma room.
12 Q And when you first encountered Miss Brown, how did
13 she look? can you described how she looked?
14 A she appeared scared. she was crying.
15 Q Did you ask her anything?
16 A I asked her what had happened.
17 Q And what did she say happened?
18 MR. WHITEHEAD: Objection.
19 THE COURT: Overruled.
20 THE WITNESS: I asked her what had happened, and
21 she relayed that she was sexually assaulted.
22 BY MR. BOURNE:
23 Q And did she say anything specifically about how
24 she was sexually assaulted?
25 A she said that the man put his fist inside of her

37

App.1
1 vagina, and she told him to stop, and it wasn't consensual.
2 Q Now, you said that she appeared to be afraid. Did
3 she actually tell you she was afraid?
4 A she didn't.
5 MR. WHITEHEAD: Objection.
6 THE COURT: overruled.
7 BY MR. BOURNE:
8 Q what did she tell you?
9 A she was afraid that he would kill her if she said
10 anything.
11 MR. WHITEHEAD: Objection, Your Honor.
12 THE COURT: overruled.
13 BY MR. BOURNE:
14 Q Did she say anything else about why she was
15 afraid, other than that he would kill her?
16 A Yes.
17 MR. WHITEHEAD: May we approach, Your Honor?
18 THE COURT: Yes.
19 (Whereupon, the following sidebar conference took
20 place:)
21 MR. WHITEHEAD: I just want a proffer as to where
22 this is going: whether it's going to elicit any gangs?
23 THE COURT: Is there anything about gang?
24 MR. BOURNE: No. she's been specifically
25 instructed not to mention that at all.

38

App.2
1 THE COURT: so that we have to do this again, can
2 I take it you have instructed all of your witnesses?
3 MR. BOURNE: Yes, yes.
4 (Whereupon, the sidebar conference concluded.)
5 BY MR. BOURNE:
6 Q Did Miss Brown have concerns about him finding out
7 if she told anyone?
8 A she did.
9 Q what did she say?
10 A she said that she was afraid to say what happened,
11 because he may kill her. she -- she felt that he would kill
12 her.
13 Q As a result of receiving the information that you
14 received from Miss Brown, what did you do?
15 A I asked an officer to go back to the scene where
16 she was picked up and to find the crime scene, if there was
17 one.
18 Q And why did you do that?
19 A Because that -- sorry -- that is where the assault
20 happened. And there would be evidence there if -- you know,
21 if there was a crime scene, there would still be evidence
22 there, since it was searched.
23 MR. BOURNE: Thank you. No further questions.
24 THE COURT: cross-examination?
25

39

App.3
 1 fist and his arm up into her vagina and was twisting it
2 several times.
3 Q How did she appear to you when she was telling
4 you those things?
5 A She was extremely, she was crying.
6 Q And you were about to say another word too?
7 A Extremely tearful, she was crying.
8 Q Did she express any reservations about sharing
9 this story?
10 A Very much so. She told me that she was --
11 MR. WHITEHEAD: Objection.
12 THE COURT: Overruled. I 'm going to allow him
13 to answer whether she expressed any reluctance.
14 THE WITNESS: Very much so, she stated that she
15 was afraid.
16 THE COURT: Approach the bench.
17 (Open bench conference}.
18 THE COURT: All right. What is your proffer
19 about what he's going to say, counsel?
20 MR. COOK: He's going to say that she was
21 afraid and that she thought they were going to kill her.
22 I think that's what he's going, that's what 's in his
23 notes.
24 THE COURT: All right. I was wondering whether
25 you were, I just asked you to approach, because I didn't

184

App.4
 1 know that he was going to say anything about the gang.
2 MR. COOK: I told him not to. I could see his
3 hesitation and he changed.
4 MR. WHITEHEAD: And just for the record, you
5 know, I objected and this came out with Officer Russ, but
6 I had the same objection as far as the afraid that
7 somebody is going to kill her. I think that still
8 there's nothing specific to say that Mr. Santos ever
9 threatened her.
10 THE COURT: Well, it might be that he didn't
11 threaten her, but if she, I mean she can testify, he can
12 testify that she said that's why she was afraid. It may
13 not be for the truth that it's given. He's asked about
14 her state of mind, whether she was reluctant to give the
15 statement. So the objection is noted for the record, but
16 I'll overrule it.
17 (Close bench conference).
18 BY MR. COOK:
19 Q You said she was afraid. Did she elaborate as
20 to why she was afraid?
21 A She did elaborate why she was afraid. She told
22 me specifically that she was afraid that if she said
23 anything or if she told anybody that this guy would kill
24 her, would do har.m to her, would kill her.
25 Q What was her demeanor like when she told you

185

App.S
1 that?
2 A She was crying and she was very tearful. She
3 was trembling, she was shaking.
4 Q And how did you respond?
5 A I told her that she needed to tell the police.
6 I said she specifically needed to tell the police exactly
7 what she just told me.
8 MR. COOK: No further questions.
9 THE COURT: Cross examination.
10 CROSS EXAMINATION
11 BY MR. WHITEHEAD:
12 Q Good afternoon, sir.
13 A Good afternoon.
14 Q So that morning at about 4:00, just before
15 4:00 o'clock you said that Ms. Brown came into the trauma
16 room; is that correct?
17 A That is correct.
18 Q And you said that there was, there was some
19 activity inside of that room; is that right?
20 A A lot of activity, right.
21 Q Some of the activity was coming from the
22 paramedics that brought her; is that correct?
23 A That's correct.
24 Q And the paramedics were very vocal about what
25 they had just observed; is that correct?

186

App.6
1 like that to the police when you haven't committed a crime?
2 You all ain't got nothing on me. Do people that have not
1 committed a crime say things like that to the police. of
4 course, they don't.
s My name is Luiz Ramos, date of birth 12-6-88.
6 Not true. Not true. Why? If he was so convinced that
7 this was a consent situation, if he was so convinced that
a she never said no, if he was so convinced that she wanted
9 it every step of the way and that every single thing he did
10 to her was totally consensual, not only totally consensual,
11 he actually testified to you that she enjoyed it.
12 He saw her face. she was making moans and oohs
11 and ahs of pleasure. That was his testimony. Ladies and
14 gentlemen, he doesn't have to testify but if he does
1s testify, you have every right to hold him accountable for
16 the words that come out of his mouth. And that's what he
17 sat up there, took an oath, and told you. That she enjoyed
1s every second of it. was moaning in pleasure. Never said
19 stop. Never said ouch. Never sat up. Never gave him any
20 indication at all that she didn't want what was going on.
21 Did you hear any evidence or see any evidence
22 that he actually has this warrant in some other state? Did
21 you hear or see --
24 MR. WHITEHEAD: Objection.
2s MR. BOURNE: any evidence that he actually

30

Kathleen Peterson Hart Official Court Reporter (202)879-1079

App.7
 1 knew on June 26th or June 27th, 2013, that he had this
2 alleged warrant?
J MR. WHITEHEAD: Objection, Your Honor.
4 THE COURT: sustained. Move along, counsel.
5 counsel, you have just a few more minutes.
6 MR. BOURNE: His words to the police at the
7 police station. Are these the words that somebody would
8 say if it was a consent situation? when he had the
9 opportunity to speak to the police and he voluntarily
10 MR. WHITEHEAD: Objection.
11 MR. BOURNE: blurted things out to the police.
12 THE COURT: sustained, counsel. come to the
11 bench.
14 AT THE BENCH
15 THE COURT: You are absolutely not to discuss
16 whether the defendant had the opportunity to speak to the
17 defense and did not. You are absolutely not to do it. I'm
18 sure you know that, counsel. I'm going to give an
19 instruction to the --
20 MR. BOURNE: Did you mean to the police, Your
21 Honor? You said to the --
22 THE COURT: He doesn't have to give anything to
21 the police.
24 MR. BOURNE: I know that. But what -- I am
25 allowed to tell the jury that he made those statements

31

Kathleen Peterson Hart official court Reporter (202)879-1079

App.8
 1 voluntarily and that•s all I was telling --
2 THE COURT: That is not what you said. That is
3 not what you said.
4 MR. WHITEHEAD: He had opportunity
5 THE COURT: Give me a moment.
6 when he had his words to the police at the police
7 station -- are these his words to the police at the police
s station. Are these the words that somebody would say if it
g was a consent situation. When he had the opportunity to
10 speak to the police and he -- that completely implicates
11 whether or not he could exercise his right to remain
12 silent. And it was absolutely wrong.
11 Now, I will hear you all about any instruction
14 I will give this jury now.
15 MR. WHITEHEAD: Your Honor, I believe the court
16 should give a strong instruction saying that that
17 particular argument is improper, should not be any
18 consideration with the jury whatsoever.
19 To the extent that they -- Mr. Santos wanted to
20 draw any further attention to it but I think we have to --
21 an absolute right -- maybe it•s just to say that any
22 argument about opportunity to speak to the police is
21 improper in the strongest of terms.
24 THE COURT: well, I can tell the jurors that--
25 that it•s required to speak to the -- I'll hear you on all

32

Kathleen Peterson Hart official court Reporter (202)879-1079

App.9
 1 of that.
2 MR. WHITEHEAD: And has a constitutional right
1 not to speak to the police. And, again, to say that what
4 counsel said was improper.
s I do want to make a record with respect to the
6 defense bringing evidence of wanting -- to the jury that
1 that also was -- I know the Court sustained an objection.
8 THE COURT: I mean I didn't sustain the first
9 one. Why was the second -- I sustained it the second time
10 the objection was made. But why was -- he volunteered that
11 he gave her a false name because he had a warrant out in
12 virginia. so what -- he didn't make a missing evidence
11 objection. I didn't hear that. I mean because I was
14 listening. so what is the problem with that he said he
15 didn't hear anything about it. He didn't argue an
16 i nfe renee.
11 MR. WHITEHEAD: Right. And I think that --
18 I think the court is saying he didn't go over the line. we
19 believe he did. And the fact that the government actually
20 knows that he's on -- he's on probation for a case in
21 virginia and so maybe that argument.
22 THE COURT: I don't think it went over the line.
21 That's why I sustained it the second time so counsel would
24 not go over the line. And I just don't think he did.
25 I mean he said did you hear any evidence about -- so

33

Kathleen Peterson Hart official court Reporter (202)879-1079

App.10
 1 I don't think he -- you know, I think he came close but he
2 didn't. So my ruling on that stands. But I'm going to
1 instruct the jury that they are to disregard any argument
4 about any opportunity that Mr. Santos may have had to speak
s to the police. It was -- it was improper because every
6 person has a constitutional right not to speak to the
7 police.
8 MR. WHITEHEAD: And I think I have to make a
9 motion for a mistrial just based on the sheer power of that
10 type of argument. considering this is rebuttal argument.
11 considering that Mr. Santos did testify how important his
12 version, I guess, would be in a case like this. so I will
11 make that motion.
14 THE COURT: I'm going to deny it. I think an
1s instruction, a very strong instruction, can be made. You
16 wish to have -- do you have anything to say?
17 MR. BOURNE: Yes, Your Honor. My -- what I was
18 referring to was to the officers who took the swab from
19 him. Not any officers who intended to interview him. And
20 I know I couldn't -- I didn't get that far because of the
21 words that I said before that. But that's the specific
22 moment I was referring to. was the officers -- the crime
21 scene officers.
24 THE COURT: His words to the police at the police
2s station are these the words of somebody that is saying it

34

Kathleen Peterson Hart official court Reporter (202)879-1079

App.11
 1 was a consent situation when he had the opportunity to
z speak to the police and to I think that crossed line.
1 MR. BOURNE: I'm not arguing with, Your Honor,
4 I'm just letting you know for the sake of us standing
s before you, that that's where I was going. And that was
6 what my next sentence was going to be.
7 THE COURT: All right.
8 IN OPEN COURT
9 THE COURT: Ladies and gentlemen, you are to
10 disregard any argument about whether Mr. Santos had the
11 opportunity to make any statement to the police. It was an
12 improper argument. Everybody has a constitutional right
11 not to make any statement to the police.
14 MR. BOURNE: Let's go back to the reality of this
1s case. This was a violently, horrific scene. It was
16 described by people who are at the scene as brutal, as
17 absolutely shocking. And as you heard, she lost 30 percent
1a of the blood from her body.
19 Ladies and gentlemen, this was not an accident
20 that happened during sex, as it has been characterized and
21 provided by the defense. Ladies and gentlemen, this was a
22 crime scene. This case hinges on the conclusion that when
21 he started tearing her vagina down to at least the second
24 level --
2S MR. WHITEHEAD: Objection.

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 1 THE COURT: overruled. The jury's recollection
z will recall.
J MR. BOURNE: There was --
4 THE COURT: will control, rather.
s MR. BOURNE: what or. Deboer characterized would
6 have been massive arterial bleeding. You have to believe
1 that at no point during any of this did she say stop, at no
8 point during any of this did she complain. That's what you
9 would have to believe, ladies and gentlemen. This case
10 hinges on you believing that as he forced his fist and arm
11 into her vagina and it tore, that she did not say stop, she
12 did not protest, she did not push him away. But, actually,
11 as he said, she enjoyed it.
14 That what's you would have to believe, ladies and
1s gentlemen, in order to align yourself with his version of
16 the facts.
11 court's indulgence.
18 Ladies and gentlemen, this was not an accident
19 during sex. This was a crime scene. Please be reminded
20 this was a crime scene. Government's Exhibit 30. That is
21 blood, ladies and gentlemen. That is not an accident that
22 happens during sex. An accident that happens during sex is
21 a condom breaking. This is not an accident during sex.
14 Ladies and gentlemen, this is a crime scene.
2s Government's Exhibit 38. Government's Exhibit 32. That's

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 1 blood, ladies and gentlemen. There was enough blood on
z that balcony to spill over the ledge of the balcony, ladies
J and gentlemen. That was a crime scene. That was not
4 merely an accident during sex.
5 And if you see where the blood is, looking at
6 Government's Exhibit 29, you'll see large pools of blood
7 very close to the stool that is up against the back rail of
8 the balcony. consistent with Amanda Brown's testimony that
9 she backed into something until she couldn't back up
10 anymore. And that's when he plunged the rest of his arm
11 into her.
11 Ladies and gentlemen, this was not an accident
11 during sex. This was a crime scene. And it was a crime
14 scene because the defendant committed a crime. The crime
15 he committed was going too far without the consent of
16 Amanda Brown.
11 The government is not asking you to drink
18 Kool-Aid, as the defense would have you believe. The
19 government is asking you for nothing more than to assess
zo the facts and the evidence that we brought before you in
z1 this case and to hold this man accountable for what he did
z2 to Amanda Brown. Hold him accountable for his own actions
ZJ and for breaking the law. And find him guilty .
24 Thank you.
25 THE COURT: Ladies and gentlemen, we've been

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 1 going for just under SO minutes, the next part in the trial
2 is for the Court to instruct you as to what the law is in
1 the case . And it's a very important part of the
4 instructions . so I'm going to excuse you for just a few
s minutes.
6 so let's take ten minutes.
7 (The jury leaves the courtroom.)
8 THE COURT: Counsel, ten minutes.
9 (The proceedings were recessed at 11:08 a.m. and
10 reconvened at 11:16 a.m.)
11 MR. WHITEHEAD: I think the government has an
12 issue about the evidence if you want to address it now.
11 THE COURT: The evidence that is going back?
14 MR. WHITEHEAD: Right.
15 THE COURT: we have - - you know, we will discuss
16 it but we have time. Because what will happen is after
17 I instruct them, then I will - - you all have to -- have to
18 reconcile it all with Ms. Belt anyway before any of it goes
19 back. So we have time.
20 THE DEPUTY CLERK: Recalling the trial matter of
21 united States vs. Jose Santos, 2013 CF1 11018.
22 (The jury enters the courtroom at 11:20 a.m.)
23 JURY INSTRUCTIONS
24 THE COURT: Ladies and gentlemen, now that you
2s have heard all of the evidence in the case and the

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App.15
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing brief for Appellant Jose Santos has been

delivered by hand to Assistant United States Attorney Elizabeth Trosman, Esq., Chief of the

AppelJate Division at the Office of the United States Attorney, 555 Fourth Street, N.W.,

Washington, D.C., 20530, this 19th day of November, ~~

Benjamin Miller
Public Defender Service
633 Indiana Avenue, NW
Washington, DC 20004
(202) 824-2374