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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-0902
EL HADJI A. TOURE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2017-CF1-005232)
(Hon. Juliet J. McKenna, Trial Judge)
(Argued February 20, 2025 Decided May 29, 2025)
Sean Belanger, with whom Steven D. Gordon was on the briefs, for appellant.
After the case was argued, this court granted the motion of Sean Belanger to
withdraw as co-counsel of record.
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M.
Graves, United States Attorney at the time the brief was filed, and Chrisellen R. Kolb
and Jeffrey S. Nestler, Assistant United States Attorneys, were on the brief, for
appellee.
Before HOWARD and SHANKER, Associate Judges, and RUIZ, Senior Judge.
SHANKER, Associate Judge: Following a jury trial, appellant El Hadji A. Toure
was convicted in Superior Court of multiple offenses in connection with the 2017
rape and murder of victim C.M. in Washington, D.C. Mr. Toure appealed and, while
2
the appeal was pending, filed a motion for a new trial in the trial court, alleging that
the government violated its disclosure obligations under Brady v. Maryland, 373
U.S. 83 (1963). The trial court denied the new-trial motion, and Mr. Toure’s
convictions and that denial are now before this court on appeal, with Mr. Toure
asserting two claims (as well as an unopposed merger claim).
First, Mr. Toure contends that the trial court erred in concluding, after
assuming that the government suppressed favorable evidence contrary to Brady, that
a new trial was not warranted because there was no reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have been different.
We find no error in that conclusion.
Second, Mr. Toure argues that he was denied his constitutional confrontation
and due process rights when, during trial, the prosecutor elicited from a testifying
Metropolitan Police Department (MPD) sergeant information that the prosecutor had
provided to the sergeant the night before he testified and the trial court then denied
Mr. Toure’s request to call the prosecutor as a witness. We conclude that the
prosecutor’s elicitation of the testimony violated Mr. Toure’s confrontation and due
process rights and assume without deciding that the trial court’s response was
insufficient to cure the violations, but we hold that any error was harmless beyond a
reasonable doubt.
3
Accordingly, we affirm Mr. Toure’s convictions, affirm the denial of a new
trial, and remand for the limited purpose of merging Mr. Toure’s convictions and
resentencing as necessary.
I. Background
A. Factual Background
The evidence at trial included the following. C.M. was an artist living in
North Carolina who had come to Washington, D.C., in March 2017 to help install
an exhibition at the Corcoran Gallery. While in D.C., C.M. was staying in a
basement apartment at 631 14th Street, NE. At 10:12 a.m. on the morning she
planned to return to North Carolina—Monday, March 20, 2017—video from a
Metro bus captured C.M. packing her blue Prius in the 600 block of 14th Street, NE.
The next day, after C.M. failed to respond to numerous text messages and e-mails,
two of her colleagues went to the apartment where she had been staying. The
colleagues were ultimately able to enter the apartment, where they found C.M.’s
body on the bedroom floor.
C.M.’s body was lying face-down, partially undressed, bound with clothing
and sheets. Her neck had been cut at least thirty-nine times, and it had a “large
gaping wound” on the right side where both her carotid artery and jugular vein had
4
been severed. C.M. had stab wounds on her back and side and defensive wounds on
her hand. It appeared that C.M. had been choked. Her ankles and knees had been
bound with clothing and a sheet, and her arms had been tied behind her back with
additional clothing and a second sheet. The bindings were “very tight.” C.M. had
two abrasions “relatively far up inside of her vagina” that were caused by a “digit,
another body part, [or an] object.” Sperm was inside C.M.’s vagina.
Video from a nearby house showed C.M.’s car being driven away at 12:57
p.m. on March 20. At approximately 2:45 p.m. that afternoon, someone used C.M.’s
credit card at an ATM in College Park, Maryland, to obtain a $200 cash advance.
Early that evening, someone used C.M.’s credit and debit cards at an ATM inside a
7-Eleven in Beltsville, Maryland, to attempt withdrawals. Soon thereafter, someone
used C.M.’s debit card at an ATM in an Exxon station in Beltsville to withdraw $200
from her checking account.
At approximately 3:00 a.m. on March 21, someone withdrew $400 using an
ATM at a deli in Elkridge, Maryland. Early the next morning, someone withdrew
$500 using an ATM at a Gulf gas station in Laurel, Maryland. At 7:55 p.m. on
March 23, someone withdrew $500 using an ATM at Presidential Bank in Rosslyn,
Virginia. And at approximately 1:00 a.m. on March 24, someone withdrew $500
5
using an ATM at Navy Federal Credit Union in Laurel. In conducting these
transactions, the person never entered the wrong PIN.
Images from the ATMs and a tip led to the identification of Mr. Toure and his
arrest on March 27. That day, an MPD detective executed a search warrant at
Mr. Toure’s father’s house in Laurel. The detective showed Mr. Toure’s stepmother
a still shot from a video of the person using C.M.’s debit card on March 24.
Mr. Toure’s stepmother identified the man as Mr. Toure. Mr. Toure was wearing a
black backpack in the photo, which, according to the stepmother, he carried “a lot.”
In January 2017, Mr. Toure was living in his father’s basement but the two
had an argument and Mr. Toure left without his belongings. After he left his father’s
house until March 18, Mr. Toure mostly stayed in a shelter in D.C. run by Catholic
Charities. The nights of March 18 and 19, Mr. Toure stayed in a separate emergency
shelter in D.C. also run by Catholic Charities. Catholic Charities had no record of
Mr. Toure staying in any of its shelters after the night of March 19. On March 21,
Mr. Toure checked into a Motel 6 in Laurel, paying $117.50 in cash for a two-night
stay. On March 24, Mr. Toure paid $1,328 in cash for a used Ford Taurus and
insurance.
When Mr. Toure was arrested on March 27, officers searched him and found,
among other things, a Metro SmarTrip card. Using a record of Mr. Toure’s
6
SmarTrip card transactions, the government obtained videos of him using various
Metro buses and stations in the days surrounding C.M.’s murder. As noted, at 10:12
a.m. on March 20, C.M. was packing her car in the 600 block of 14th Street, NE.
Video captured Mr. Toure walking up that block in the direction of C.M.’s apartment
three minutes later. Mr. Toure was carrying a black backpack. Mr. Toure crossed
from the west side of the street to the east side, where C.M.’s apartment and car were
located, and then stopped and stared in her direction for over a minute. Mr. Toure
then continued walking north on 14th Street toward C.M.
Numerous videos obtained by the government also showed that the individual
who used C.M.’s credit and debit cards, apparently with her PIN, seven times soon
after the murder and over the course of several days thereafter was Mr. Toure. At
trial, after watching the video from the deli on March 21, Mr. Toure’s father testified
that “[i]t looks like El Hadji.”
When Mr. Toure was arrested, his Taurus was seized. There was a
switchblade knife in the driver’s side door of Mr. Toure’s car and a pair of gloves in
the center console. Mr. Toure’s black backpack was in the trunk near another pair
of gloves. There was a third pair of gloves inside Mr. Toure’s backpack. After
inspecting the knife found in Mr. Toure’s car, the medical examiner opined that “the
wounds that [she] found on [C.M.]’s body [were] consistent with wounds that would
7
have been caused by th[e] knife.” The medical examiner also opined that the “large
gaping wound” on C.M.’s neck was “comprised of more than one cutting event.”
That wound was on the right side of C.M.’s neck; Mr. Toure wrote with his left hand.
Mr. Toure’s DNA was found in multiple locations at the crime scene. C.M.’s
ankles had been bound with, among other things, a pair of black leggings. There
was a semen stain on a piece of the leggings, and Mr. Toure was the major
contributor to the DNA found in the semen. There was sperm inside C.M.’s vagina;
the mixture of DNA in the sperm sample included Mr. Toure’s. Testing of a swab
from C.M.’s external genitalia likewise resulted in a mixture that included
Mr. Toure’s DNA. Mr. Toure’s DNA was also in the mixtures on the swabs taken
from C.M.’s perianal buttock area and thighs. In addition, a chemical test of
Mr. Toure’s backpack gave a positive reaction inside a pocket for material consistent
with human blood. DNA testing of that area resulted in a mixture that included
C.M.’s DNA.
B. Procedural History
In March 2019, a jury convicted Mr. Toure of the following offenses and
found various aggravating circumstances, including that the murder was especially
heinous, atrocious, or cruel, see D.C. Code § 22-2104.01(b)(4):
8
• First-degree premeditated murder while armed and first-degree
felony murder while armed, D.C. Code §§ 22-2101, -4502;
• First-degree sexual abuse while armed, D.C. Code
§§ 22-3002(a)(1), -4502;
• Kidnapping while armed, D.C. Code §§ 22-2001, -4502;
• First-degree burglary while armed, D.C. Code §§ 22-801(a), -4502;
• Robbery while armed, D.C. Code §§ 22-2801, -4502;
• First-degree theft, D.C. Code §§ 22-3211, -3212(a);
• Unlawful use of a vehicle, D.C. Code § 22-3215;
• Credit card fraud, D.C. Code § 22-3223(b)(1), (d)(2); and
• First-degree identity theft, D.C. Code §§ 22-3227.01,
-3227.02(2)(A), -3227.03(a).
The trial court sentenced Mr. Toure to life in prison without release.
Mr. Toure timely appealed. In March 2020, while his appeal was pending,
Mr. Toure filed a motion for a new trial, which he twice supplemented. The trial
court denied Mr. Toure’s motion in January 2024.
II. Analysis
Mr. Toure contends that (1) the trial court erred in finding no prejudice under
Brady v. Maryland and (2) the trial court erred, in violation of his confrontation and
9
due process rights, in addressing the incident involving the prosecutor’s elicitation
of testimony by the MPD sergeant. We address each claim in turn. 1
A. Suppression of Favorable Evidence
Mr. Toure challenges the trial court’s denial of his motion for a new trial,
which was based on the untimely disclosure by the government of potential
impeachment evidence relating to several government witnesses from the District of
Columbia Department of Forensic Sciences (DFS).
A defendant asserting a violation of Brady v. Maryland “must show that [the]
evidence in question (1) is favorable to the accused; (2) was possessed and
suppressed by the government, either willfully or inadvertently; and (3) is material
to guilt or punishment.” Andrews v. United States, 179 A.3d 279, 286-87 (D.C.
2018), modified (Mar. 15, 2018) (internal quotation marks and footnote omitted).
Like the trial court and the government on appeal, we assume (and there really is
little question) that the government suppressed favorable evidence, but we agree
with the trial court that the evidence was not material to guilt, that is, that there was
1
As noted, Mr. Toure also argues that he cannot, consistent with the Double
Jeopardy Clause, be convicted of and sentenced for one count of premeditated
murder and four counts of felony murder based on a single killing, and thus four of
those convictions and sentences must be vacated; he also contends that if one of the
felony murder convictions is preserved, then the conviction and sentence for the
underlying felony must be vacated. The government agrees, as do we.
10
no reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.
1. Additional Background
DFS employees handled, processed, and tested much of the DNA evidence in
this case. As part of its quality correction policies and procedures, DFS issues
quality corrective action reports (QCARs) when quality corrective action is needed
after an error in forensic practices occurs. Before trial, the defense asked the
government to produce all QCARs from DFS relating to “anybody involved in the
handling or testing of the evidence in this case.” Litigation relating to the defense’s
request ensued, but it suffices for purposes of this appeal to say that ultimately the
trial court ordered DFS to produce QCARs that named any of the “individuals who
[we]re involved in the evidence collection, maintenance, and testing in this case.”
Before trial, DFS provided to the court, the defense, and the prosecutors
fifteen QCARs relating to eight DFS witnesses; none of the QCARs related to the
witnesses’ work in this case. At trial, the government called thirteen witnesses from
DFS. The defense did not question any of the DFS witnesses about the QCARs.
A separate, private laboratory named Signature Science also conducted DNA
testing in this case. C.M.’s body was recovered from the crime scene by a forensic
11
investigator who transported it to the Office of the Chief Medical Examiner. An
assistant medical examiner removed the bindings that had been used to tie C.M.’s
extremities. Two DFS employees packaged, sealed, and tagged the bindings with a
bar code and then sent them to Signature Science on March 22, 2017. When
Signature Science received the bindings, there was no evidence of tampering or
contamination. Nicole Kaye, an expert from Signature Science, performed DNA
testing on the bindings and other evidence. She found semen on a piece of the black
leggings that had been used to tie C.M.’s ankles. Mr. Toure was the major
contributor to the DNA found in the semen. The government had timely disclosed
one QCAR related to one of the two DFS employees who processed and sent the
bindings to Signature Science and had timely represented that the other employee
had no responsive QCARs. The defense did not question the DFS employee about
her QCAR when she testified.
After trial, the government learned that DFS had failed to turn over thirteen
QCARs, three reprimands, and two suspensions related to five DFS witnesses who
had testified. None of the documents directly involved the witnesses’ work in this
case. The government provided the QCARs to the defense and the defense moved
for a new trial.
12
The trial court denied the motion. The court noted that the government did
not dispute that it had suppressed favorable evidence, and it agreed with that
concession, as the court had ordered disclosure of the QCARs and the information
“could have been used by the defense to impeach [the DFS witnesses’] testimony
and argue to the jury that the accuracy of their work in connection with the collection
and analysis of the forensic evidence in this case should be questioned.” The court
stated that it would have permitted the defense to cross-examine the DFS employees
about the QCARs because the QCARs were “indisputably relevant” to the witnesses’
competence and motivation to curry favor with supervisors or prosecutors. The
court also assumed that “the cumulative impact of the multiple disciplinary
infractions may have caused defense counsel to make a different strategic decision
and pursue this line of cross examination with the impacted DFS technicians during
the course of the trial.”
“Even accepting all of this, however,” the trial court was “unable to find that
the defense ha[d] established the third prong” of a Brady claim. First, the court
observed that “none of the undisclosed Q-CARs or other personnel disciplinary
materials directly impacted upon the evidence collection or forensic analysis
conducted in this case or reflect any errors in the collection, processing, testing, and
analysis in this particular case.”
13
Second, with two exceptions, none of the QCARS related to the types of tasks
the DFS employees performed in this case and the QCARS related to employees
who played minor roles in the forensic work in this case. As to the two exceptions,
one employee played a “major” role in the case but her QCARs “related to very
minor incidents”; the other employee had committed serious infractions but had
“minimal involvement” in the investigation of Mr. Toure.
Third, the court noted that the leggings were recovered by the medical
examiner and tested by Signature Science, not DFS; and, while DFS employees
packaged, sealed, and delivered the leggings, QCARs (or the lack thereof) for those
employees had been timely disclosed. “Thus[,] other independent DNA analysis
uncontaminated by DFS personnel actions conclusively links Mr. Toure to [C.M.’s]
rape and murder, supporting the jury’s ultimate verdict in this case.”
Fourth, Mr. Toure could not establish prejudice from the untimely disclosures
given “the other overwhelming evidence” against him. In this regard, the trial court
observed that, “even if DFS’[s] work was to be completely discredited, other
significant and compelling evidence establish[ed] Mr. Toure’s guilt in the rape and
murder.”
Ultimately, the court concluded that “[t]here [was] no reasonable probability
that had the evidence been disclosed, the result of the proceeding would have been
14
different,” and the failure to timely disclose did not “undermine confidence in the
jury’s final verdict of guilt.”
2. Standard of Review
Whether a defendant has “established a violation of Brady is a mixed question
of fact and law.” Turner v. United States, 116 A.3d 894, 914 (D.C. 2015), aff’d, 582
U.S. 313 (2017). “In that circumstance, we review the trial court’s legal conclusions
on a de novo basis and its factual findings under the clearly erroneous standard.” Id.
at 914-15 (quoting Miller v. United States, 14 A.3d 1094, 1120 (D.C. 2011)).
“Materiality—defined as whether the government’s failure to disclose exculpatory
evidence undermines our confidence in the verdict—is, in the end, a legal
conclusion.” Id. at 915. “Therefore, while we defer in this case to the motions
judge’s assessments of credibility, evaluations of the weight of the evidence and the
inferences to be drawn therefrom, and findings of historical fact, so long as they have
record support, we respect, but we do not accord comparable deference to, the
judge’s determination of the ultimate question of Brady materiality. With due
appreciation for the fact-bound nature of that ultimate question, we must review it
de novo on appeal.” Id.
15
3. Discussion
“Violation of due process under Brady occurs (i) ‘when the prosecution fails
to disclose, before or during trial, evidence favorable to the defense,’ and (ii) ‘there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different[.]’” St. John v. United States,
227 A.3d 141, 146 (D.C. 2020) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). “‘[N]on-disclosure of evidence affecting credibility’ falls within the
purview of the Brady rule.” Id. (quoting Giglio v. United States, 405 U.S. 150, 154
(1972)); see Andrews, 179 A.3d at 287 n.7 (“Favorability includes exculpatory and
impeachment evidence.”). The government must disclose exculpatory evidence “in
time for the defense to be able to use it effectively, not only in the presentation of its
case, but also in its trial preparation,” Vaughn v. United States, 93 A.3d 1237, 1257
(D.C. 2014) (quoting Miller, 14 A.3d at 1111); “‘as soon as practicable’ should be
the approach,” id. “Under Brady, evidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Andrews, 179 A.3d at 287 (quoting Miller,
14 A.3d at 1115). The defendant “shoulders the burden of proving the three prongs
of a Brady violation.” Id. at 286.
16
The QCARs, which could have been used for impeachment and were therefore
exculpatory, were not disclosed until after trial. By suppressing this information,
the government failed in its obligation to disclose exculpatory information in a
timely manner. See Vaughn, 93 A.3d at 1257. We therefore assume, as the trial
court did and the government does on appeal, that the government suppressed
evidence favorable to the defense in the form of QCARs, reprimands, and
suspensions relating to five DFS witnesses. We also assume (1) that Mr. Toure
would have sought to use those QCARs to impeach the witnesses at issue, see id.
(“Whether a trial attorney would have actually used suppressed Brady evidence or
whether the defendant could demonstrate actual use is irrelevant once evidence is
found to be favorable and suppressed.”); (2) that the trial court would have permitted
impeachment of the witnesses with the QCARs, as the court said it would have; and
(3) that, armed with additional QCARs, Mr. Toure would have pursued a strategy of
using the QCARs not only to impeach individual DFS witnesses but also to present
a more general argument that DFS’s forensic work could not be trusted.
We nonetheless agree with the trial court that there is no reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. “A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Andrews, 179 A.3d at 287
(quoting Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011)). “It is a fairness
17
inquiry of the ultimate verdict that courts must address.” Id. “The Supreme Court
has clarified that materiality is not a ‘sufficiency of [the] evidence test.’” Id.
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). “Rather, a defendant
demonstrates a Brady violation ‘by showing that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.’” Id. (quoting Kyles, 514 U.S. at 435); see Vaughn, 93
A.3d at 1262. “Materiality is assessed by the cumulative effect of all suppressed
evidence favorable to the defense, not item-by-item.” Andrews, 179 A.3d at 287.
“Suppressed evidence may be evaluated for its tendency and force item-by-item, but
only the cumulative effect is evaluated for the purposes of materiality.” Id. “It is
the inculpatory evidence admitted at trial against which a court must consider the
suppressed evidence” in the prejudice analysis. Id. at 289.
We think that the broadest possibility here is that the jury would have
developed a wholesale skepticism about DFS’s work, and we adopt the trial court’s
assumption that “the jury would have disregarded or discounted the DNA testing
that was conducted by DFS entirely in this case.” Our confidence in the outcome of
the trial still is not undermined. For one thing, Mr. Toure’s DNA was found in a
semen stain on the leggings used to bind C.M.’s ankles. Those leggings were
removed by an assistant medical examiner, and the independent laboratory Signature
Science, not DFS, conducted the serology and DNA testing of the leggings. It is true
18
that DFS employees were involved with the leggings, but that involvement was
limited to packaging, sealing, tagging, and sending the leggings, as opposed to any
testing or analysis. We also find it significant that the leggings were packaged and
sent to Signature Science several days before Mr. Toure was identified and arrested,
making it highly unlikely (if not impossible) that any errors or even malfeasance in
the handling of the leggings could have resulted in the placement of Mr. Toure’s
biological material on them. It would not, therefore, be reasonable to conclude that
the QCAR evidence would have caused the jury to disregard the DNA evidence from
the leggings, and that evidence was powerfully incriminating even standing alone.
But there was much more than the leggings. Video evidence captured
Mr. Toure approaching C.M.’s apartment just before she was raped and murdered
and then driving C.M.’s car and using her credit and debit cards soon after the rape
and murder. Mr. Toure, moreover, apparently knew C.M.’s PIN, with the most
reasonable inference being that he forced C.M. to reveal it before or while he
attacked her. Suddenly after the rape and murder, Mr. Toure was in a substantially
improved financial situation than he had been in before, with the evidence showing
that he stayed in a hotel rather than shelters and bought a car with cash. C.M.’s
wounds were consistent with wounds that could be caused by the knife found in
Mr. Toure’s car. And the most substantial wound C.M. suffered was on the right
side of her neck; the evidence suggested that Mr. Toure was left-handed.
19
Mr. Toure argues that the QCARs were compelling and would have served to
substantially undermine the testimony of the DFS witnesses. We are, however,
assuming as much and are therefore assessing prejudice on the premise that the jury
would have entirely discredited the DNA testing conducted by DFS. Mr. Toure also
maintains that the DNA testing of the leggings by Signature Science would have
been undermined by the QCARs because DFS employees handled the leggings, but
he does not explain why a reasonable jury would have disregarded DNA testing
conducted by a separate entity simply because DFS employees packaged and
transmitted the object that was tested, and did so days before Mr. Toure had even
been identified and located. Finally, Mr. Toure contends that the remaining
evidence against him was merely circumstantial, but it is well established that
“[c]ircumstantial evidence is not intrinsically inferior to direct evidence,”
(Christopher) Smith v. United States, 809 A.2d 1216, 1222 (D.C. 2002) (internal
quotation marks omitted; alteration in original), and where circumstantial evidence
is “powerful”—as it is here—it can undercut a claim of prejudice, Williams v. United
States, 210 A.3d 734, 744 (D.C. 2019).
In sum, Mr. Toure failed to meet his burden of showing a reasonable
probability that the outcome of the trial would have been different if the government
had disclosed the QCARs at issue. We therefore affirm the trial court’s denial of
Mr. Toure’s motion for a new trial.
20
B. Testimony by the MPD Sergeant
Mr. Toure’s second argument relates to conduct by the prosecutor in
preparing and then examining a witness. We recognize that the prosecutor’s conduct
violated Mr. Toure’s Sixth Amendment and due process rights and assume without
deciding that the trial court erred in denying Mr. Toure’s requested remedy. We
conclude, however, that any error was harmless beyond a reasonable doubt.
1. Additional Background
During the investigation of C.M.’s rape and murder, law enforcement
discovered that C.M. had a website, and that on that website was an art project titled
“All of the Clothes” in which C.M. was photographed lying face down, naked, next
to a pile of clothing. Although the photograph did not show C.M. bound or with any
stabbing wounds, it was “striking” to officers, presumably due to its similarity to the
crime scene. 2
At trial, during the direct examination of MPD Sergeant Keith Batton, who
had supervised the squad investigating the crime, the government asked whether
“detectives” took “any efforts to contact the domain, the web hosting service that
2
The art project is not a part of the record on appeal, but the parties appear to
agree on its general description, and undisputed trial testimony indicates that law
enforcement thought the photograph bore a “striking” similarity to the crime scene.
21
hosted this web site,” and Sergeant Batton answered, “They did.” Sergeant Batton
stated that the domain, Format.com, provided a number of mobile IP addresses that
had viewed C.M.’s website. The government then asked Sergeant Batton whether
“those mobile IP addresses [were] able to lead to any useful leads in terms of figuring
out actual people who viewed the web site,” and Sergeant Batton answered, “They
were not.”
After Sergeant Batton’s direct testimony, the defense objected that the
government had not disclosed that detectives had tried to figure out who had viewed
C.M.’s website. Although the defense had received mobile IP addresses from
Format.com in discovery, because the government had not disclosed more, the
defense did not know what the addresses related to. The government responded that
the grand jury had subpoenaed Format.com for IP addresses that accessed C.M.’s
website and that the investigation into those addresses “didn’t go anywhere.”
The trial court allowed the defense to speak to Sergeant Batton and then to
voir dire him outside of the trial prosecutors’ presence (but with another government
attorney present). Ultimately, it was revealed that, after seeing C.M.’s art project,
and despite finding it “striking,” Sergeant Batton did not “take any steps to obtain
information related to” C.M.’s website, nor was Sergeant Batton aware of any other
member of law enforcement having taken such steps. Rather, the night before
22
Sergeant Batton’s testimony when the prosecutor was preparing him, the prosecutor
told the sergeant that the grand jury (through the prosecutor, who runs the grand jury
process) had issued a subpoena to Format.com for the IP addresses; prior to the prep
session, the sergeant had no knowledge of any grand jury investigation into the
website. The prosecutor also told Sergeant Batton that the IP addresses provided by
Format.com in response to the subpoena were mobile IP addresses; Sergeant Batton
would not have been able to determine that information himself. Sergeant Batton
stated that his trial testimony that the IP addresses did not produce useful leads in
terms of who had viewed C.M.’s website was based on what the prosecutor had told
him; neither he nor, to his knowledge, any other detective took any steps to verify
the information provided by the prosecutor.
Following Sergeant Batton’s voir dire, the trial court observed that it was
“clear” that when the sergeant testified, “he had no firsthand knowledge about these
IP addresses [or] any steps that MPD took to try to follow[ ] up on the IP addresses
to determine whether or not they resulted in any leads.” Rather, “all of that
information was furnished to him” by the prosecutor “during their meeting the
evening before he took the witness stand.” It was thus “clear” that “everything he
testified to . . . was based upon hearsay.” The jury, the court observed, “was left
with the impression[ ] that members of the Metropolitan Police Department actively
23
sought out these IP addresses” and “followed up on those IP addresses and they led
nowhere.”
The court noted that whether the prosecutor had behaved “inappropriately”
was a separate issue from providing a fair trial to Mr. Toure. To that end, the court
posed to the defense the option of striking the relevant portion of Sergeant Batton’s
testimony and instructing the jury that “MPD did not request these IP addresses and
did not track down any leads.” The defense countered with a request for a mistrial
and dismissal with prejudice, or in the alternative an instruction telling the jury that
Sergeant Batton lacked personal knowledge; his information came from the
prosecutor; the prosecutor elicited the testimony as if the sergeant knew the
information personally; this was misconduct; the government’s purposeful
elicitation of inadmissible testimony was relevant to the guilt determination; the
government’s intentional misconduct showed that the government felt its case was
weak; and there was no evidence of any investigation into the IP addresses. The
government opposed such an instruction and asserted that a curative instruction or
striking the testimony would rectify the issue.
The trial court reiterated that the line of questioning “left the jury with the
impression that not only did MPD access the web site to see the photo but that MPD
actively took steps to follow[ ] up on IP addresses with individuals who had visited
24
that web site,” and that this “really cut directly at what the defense’s theory in this
case” was—namely, that “the police conducted a shoddy investigation.” “The
impression that was certainly left with the jury,” the court added, “was that it wasn’t
just a grand jury subpoena for records but that detectives were actively investigating
these leads.”
The defense asserted that testimony by the prosecutor was necessary to
explore the purpose of the investigation of the IP addresses and specifically whether
it was in fact to determine whether there was a link between Mr. Toure and a
separate, similar sexual assault that occurred on March 3, 2017, rather than to
determine whether C.M.’s assailant could have been someone other than Mr. Toure.
The trial court responded that precluding the government from presenting any
evidence about any investigation into the IP addresses would “squarely address[ ]
any prejudice that the defense may have suffered.”
The defense then cross-examined Sergeant Batton, eliciting from him that he
saw C.M.’s art photograph on the day her body was discovered but did not personally
conduct any investigation regarding her website; he was not aware of any other
detective having conducted any investigation regarding the website; he first learned
about the IP addresses the night before his direct testimony from the prosecutor; and
25
he had testified about the absence of any leads from the IP addresses based solely on
what the prosecutor had told him. The trial court then instructed the jury as follows:
Ladies and gentlemen, yesterday the Government
elicited testimony from Sergeant Batton about
investigating IP addresses related to [C.M.’s] web site.
You have just heard evidence that, in fact, Sergeant
Batton did not have personal knowledge of any
investigation into IP addresses for [C.M.’s] web site.
Instead the Government told this information to
Sergeant Batton during a meeting the night before
Sergeant Batton testified. The Government then elicited
this information during Sergeant Batton’s direct
examination as if Sergeant Batton knew the information
about the IP addresses personally.
A witness may only testify to information that is
within his or her personal knowledge. A lawyer cannot
tell information to a witness and then elicit that
information from the witness as if it came from the
witness’[s] own personal knowledge.
You may consider this evidence, along with all of
the other evidence in the case, and give it as much weight
as in your judgment it deserves in determining whether the
Government has proven the charges in this case beyond a
reasonable doubt.
The trial court then denied the government’s request to ask Sergeant Batton on
redirect about how the grand jury works, and it precluded the government from
eliciting that any investigation into the IP addresses occurred. The court, however,
allowed the government to “establish that the IP records were subpoenaed by
26
admitting the grand jury subpoena into evidence.” After the government introduced
the grand jury subpoena, the court instructed the jury that “after reviewing the data
received from Format, which was the subject of the subpoena, the Government took
no further steps to identify the accountholders of the IP addresses.” The defense
then put on its case and then rested that same day.
The next day, the defense moved to reopen its case to call the prosecutor as a
witness. The defense argued that, even after the court’s instruction, the jury was left
with the impression that “the failure to investigate was not because of shoddy work
or laziness, but because the evidence didn’t lend itself to feasible additional
investigative activity,” and this was “unconfronted evidence” because the
prosecutor, who possessed the knowledge about the investigation, did not testify.
Specifically, the defense asserted that it needed to be able to elicit “what steps, if
any, [the prosecutor] took to further address these IP addresses and, importantly,
why the [government] decided not to pursue this further,” as well as whether the IP
investigation was in fact to determine whether Mr. Toure was linked to the March 3
crime. The inability to conduct such an examination, the defense contended,
violated Mr. Toure’s Sixth Amendment right to confrontation.
The trial court denied the motion to reopen and call the prosecutor. The court
stated that the defense’s cross-examination of Sergeant Batton along with both of
27
the court’s instructions (during the cross-examination and after the admission of the
subpoena) served to “mitigate any prejudice that Mr. Toure otherwise would have
suffered.” It did not see what “additional relevant evidence [would] be gleaned by
placing [the prosecutor] under oath in order to inquire further on the matter.” The
jury, the court observed, was informed that Sergeant Batton had no personal
knowledge of any IP address investigation, that the prosecutor had furnished him
with the information, and that that was “not permissible behavior by an attorney.”
In closing argument, the defense stated that “the Government knew that th[e]
photograph [from C.M.’s art project] [wa]s a reason to doubt, and so they tried
to . . . manipulate the evidence so that you would pay it no mind, you wouldn’t worry
about the investigation into this photograph.” The defense added that Sergeant
Batton had testified falsely that detectives investigated the photograph, when in fact
he had gotten the information from the prosecutor the night before his testimony.
The defense argued that “[t]his photograph, this manipulation of the evidence, this
lack of investigation into the photograph is reasonable doubt.” In rebuttal, the
government stated that, while the defense had argued that “detectives didn’t do any
follow up,” the evidence showed that the grand jury had subpoenaed Format.com
for all IP addresses that had accessed C.M.’s website.
28
2. Standard of Review
“This court reviews de novo whether the admission of certain evidence
violates a defendant’s constitutional rights under the Confrontation Clause.” Austin
v. United States, 315 A.3d 580, 592 (D.C. 2024) (quoting Carrington v. District of
Columbia, 77 A.3d 999, 1003 (D.C. 2013)). “We review the trial court’s factual
findings for clear error.” Id. (citing Freeman v. United States, 273 A.3d 879, 883
(D.C. 2022)). Whether constitutional error is harmless is a question of law. Davis
v. United States, 564 A.2d 31, 39-42 (D.C. 1989); see Dowtin v. United States, 999
A.2d 903, 908 n.3 (D.C. 2010) (“We review de novo the issue of harmlessness.”).
3. Discussion
Having observed that it was “clear” that “everything [Sergeant Batton]
testified to . . . was based upon hearsay,” that the impression left with the jury “was
that it wasn’t just a grand jury subpoena for records but that detectives were actively
investigating these leads,” and that “[a] lawyer cannot tell information to a witness
and then elicit that information from the witness as if it came from the witness’[s]
own personal knowledge,” the trial court appears to have proceeded on the premise
that the elicitation of the testimony violated Mr. Toure’s confrontation and due
process rights. See Austin, 315 A.3d at 593 (the Confrontation Clause bars the
admission of testimonial out-of-court statements; a statement is testimonial if “the
29
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution” (quoting Davis v. Washington, 547 U.S. 813,
822 (2006))); Askew v. United States, 229 A.3d 1230, 1240 (D.C. 2020) (“It is a
bedrock principle of due process in a criminal trial . . . that the government may
neither adduce or use false testimony nor allow testimony known to be false to stand
uncorrected.” (internal quotation marks omitted; ellipses in original)). We make
explicit what the trial court assumed: The government’s elicitation of what was
essentially the prosecutor’s own testimonial out-of-court statement in preparing
Sergeant Batton for trial was a violation of Mr. Toure’s Sixth Amendment right to
confront the real witness against him—the prosecutor. As the Supreme Court has
made clear, “the Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In addition, the prosecutor’s
questioning of Sergeant Batton amounted to the presentation of coached testimony
that the prosecutor sponsored to the jury knowing Sergeant Batton would testify
falsely as to what he knew about the investigation into the IP addresses. This was a
clear violation of due process. See Napue v. Illinois, 360 U.S. 264, 269 (1959).
The next question, then, is whether the trial court’s remedy for those violations
was appropriate. The trial court offered to strike the relevant portion of Sergeant
30
Batton’s testimony and instruct the jury that “MPD did not request these IP addresses
and did not track down any leads.” When Mr. Toure declined that offer, the trial
court instructed the jury in a manner that closely tracked Mr. Toure’s requested
instruction, including telling the jury that “[a] lawyer cannot” do what the prosecutor
did. Mr. Toure, however, sought to call the prosecutor as a witness, which the court
denied. Mr. Toure’s sole argument on appeal appears to be that this denial was
reversible error because it failed to cure the constitutional errors; he does not
challenge the trial court’s denial of his request for a mistrial and dismissal of the
indictment with prejudice.
Although allowing the defense to call and cross-examine the out-of-court
declarant might be the most straightforward and preferred way to redress a
Confrontation Clause violation, Mr. Toure points to no authority suggesting that it
is the only, or a necessary, cure. We find it unnecessary, however, to decide whether
the trial court erred in denying Mr. Toure’s request to reopen his case and examine
the prosecutor. That is because, even assuming error, it was harmless under the
standard for constitutional error first set forth in Chapman v. California, 386 U.S.
18 (1967). “A constitutional error is considered harmless if the government can
show beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.” G.W. v. United States, 323 A.3d 425, 438 (D.C. 2024)
(internal quotation marks omitted). “We have found constitutional error harmless
31
where the government presented overwhelming evidence of guilt or it is clear
beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error.” Gardner v. United States, 999 A.2d 55, 58 (D.C. 2010) (internal
quotation marks omitted). 3
First, the cross-examination of Sergeant Batton plus the instructions provided
by the trial court substantially mitigated any prejudice. The cross-examination and
instructions conveyed that (1) Sergeant Batton did not have personal knowledge of
any investigation into the IP addresses; (2) the government told this information to
Sergeant Batton the night before Sergeant Batton testified; (3) the government then
elicited this information during the sergeant’s direct examination as if the sergeant
knew the information personally; (4) a witness may only testify to information that
is within his or her personal knowledge; (5) a lawyer cannot tell information to a
3
A Confrontation Clause violation is subject to review for harmlessness
beyond a reasonable doubt. See Austin, 315 A.3d at 602. In United States v. Nelson,
217 A.3d 717, 722 (D.C. 2019), we stated that a violation of Napue, 360 U.S. 264,
which bars the government from knowingly producing or allowing to go uncorrected
false or misleading evidence, requires the defendant to show both the violation and
“a ‘reasonable likelihood’ that the false or misleading testimony could have affected
the jury’s verdict.” Nelson, 217 A.3d at 722 (quoting Hawthorne v. United States,
504 A.2d 580, 589-90 (D.C. 1986)). We then observed that “there is little difference
between requiring a defendant to show ‘a reasonable possibility that the evidence
complained of might have contributed to the conviction,’ and requiring the
government to show harmlessness beyond a reasonable doubt.” Id. at 723.
Mr. Toure agrees that his convictions can be affirmed if the error was harmless
beyond a reasonable doubt.
32
witness and then elicit that information from the witness as if it came from the
witness’s own personal knowledge; (6) the jury could consider this evidence in
determining whether the government had proven the charges in this case beyond a
reasonable doubt; and (7) after reviewing the IP address information in response to
the subpoena, the government took no further steps to identify the accountholders of
the IP addresses. We find it highly unlikely that, after hearing all of this, the jury
would have maintained the impression that detectives—or anyone on the prosecution
team, for that matter—conducted any meaningful investigation into the IP addresses.
The jury would, moreover, have understood that the prosecutor behaved improperly
and that it could consider that fact in its deliberations.
Second, if Mr. Toure had been able to question the prosecutor, we fail to see
much benefit to his defense case even if the prosecutor had answered all questions
in the manner that Mr. Toure would have wanted. The trial court had already
conveyed to the jury, among other things, that “the Government took no further steps
to identify the accountholders of the IP addresses” and that the prosecutor’s conduct
in eliciting testimony that was not only provided to the witness but also incorrect
was inappropriate. The prosecutor at best (for Mr. Toure) would merely have
confirmed these points, and, to Mr. Toure’s detriment, could possibly have
undermined them by describing any steps the grand jury or the prosecution team
took to investigate the IP addresses. Mr. Toure also wanted to elicit whether the IP
33
investigation was in fact to determine whether Mr. Toure was linked to the March 3
crime, but, even if the prosecutor answered that question in the affirmative, we do
not see how the impetus behind the investigation would have added anything to the
jury’s analysis, when Mr. Toure’s ultimate point was that the government failed to
conduct any meaningful investigation into the IP addresses in connection with the
murder of C.M.
At oral argument, counsel for Mr. Toure suggested that in assessing harm in
these circumstances, we must assume that the witness would have provided the most
favorable (for the defendant) testimony imaginable. Counsel posited that here, the
prosecutor might have revealed that he thought the evidence against Mr. Toure was
so weak that he had to engage in misconduct; and counsel answered in the
affirmative when asked at argument if we must go so far as to assume that the
prosecutor would have admitted on the stand that the IP address investigation
pointed to another suspect and the government ignored that evidence because it
wanted to pin guilt on Mr. Toure. But harmlessness is based on reasonable
probabilities, and we doubt that we are required to assume farfetched “Matlock
moments” in determining whether a confrontation violation was harmless. In the
context of this case, we think it highly unlikely that the prosecutor would have
provided bombshell testimony that would have led the jury to find reasonable doubt
about Mr. Toure’s guilt.
34
Third, while we fail to see how, on the facts of this case, testimony by the
prosecutor would have moved the needle even on its own terms, it becomes evident
that any error in precluding examination of the prosecutor was harmless beyond a
reasonable doubt when that potential testimony is considered in light of the
overwhelming evidence against Mr. Toure. See Austin, 315 A.3d at 603
(overwhelming evidence supports a conclusion beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained); Nelson, 217 A.3d at
723 (for a Napue violation, “[w]e have held that a factor that may also weigh in favor
of finding harmless error is when the evidence against the defendant is so
overwhelming, and consists of strong independent, circumstantial evidence, and
other evidence to sufficiently mitigate any negative effect of the tainted evidence”
(internal quotation marks omitted)); Tann v. United States, 127 A.3d 400, 460 n.51
(D.C. 2015) (per curiam) (“[W]e have found error harmless beyond a reasonable
doubt where the government’s evidence was otherwise ‘overwhelming[.]’”).
For the reasons set forth above in connection with Mr. Toure’s Brady claim,
in this harmlessness analysis we again disregard the DNA evidence arising out of
testing by DFS, but we still have little difficulty concluding that the jury would have
found Mr. Toure guilty beyond a reasonable doubt even if the prosecutor had
testified. As discussed above, the leggings used to bind C.M. were tested by
Signature Science, not DFS, and Mr. Toure was the major contributor to DNA found
35
in semen on the leggings. In addition, among other things, video evidence showed
Mr. Toure approaching C.M. shortly before she was raped and murdered and
thereafter repeatedly using her credit and debit cards, with apparent knowledge of
her PIN; suddenly after the rape and murder, Mr. Toure had cash, allowing him to
stay in a hotel rather than shelters and buy a car; and C.M.’s wounds were consistent
with wounds that could be caused by the knife found in Mr. Toure’s car. Between
the leggings DNA evidence, the video of Mr. Toure approaching C.M. just before
the crimes, and the videos of Mr. Toure using C.M.’s credit and debit cards with
correct PINs, the case against Mr. Toure was, in a word, powerful.
Mr. Toure suggests that reversal is called for based on the government’s
misconduct in and of itself. “We do not,” however, “reverse convictions in order to
punish prosecutors, but to remedy prejudice resulting from the trial court’s error.”
Shelton v. United States, 26 A.3d 216, 222 (D.C. 2011) (per curiam) (internal citation
omitted). 4 He also argues that in our harmlessness analysis we must consider the
4
Prosecutorial misconduct, even if it does not result in reversal of a
conviction, is properly addressed through investigation and sanction for violations
of rules of professional conduct, as appropriate. The prosecutor’s actions in
coaching Sargeant Batton in preparation for trial and then eliciting a false statement
under oath are deeply troubling to the court and bear further inquiry. This
misconduct must be viewed in the larger context of previous failures to turn over
exculpatory information, including the nondisclosure of a potential alibi in
connection with the separate March 3 rape for which the government had
investigated Mr. Toure, resulting in a sanction by the trial court. See D.C. R. Pro.
Conduct 3.8(d) (Special Responsibilities of a Prosecutor).
36
fact that the government apparently (based on the prosecutor’s misconduct) doubted
the strength of its case. He cites Gardner, but when we said there that “[a
prosecutor’s] own estimate of his case, and of its reception by the jury at the time,
is . . . a highly relevant measure . . . of the likelihood of prejudice,” 999 A.2d at
62-63 (internal quotation marks omitted; alterations in original), we were
recognizing that the government’s heavy reliance on certain evidence at trial
supports a conclusion that error in admitting that evidence was not harmless, see id.
at 63. 5 In any event, even to the extent a prosecutor’s subjective view of the strength
of a case is pertinent to the harmlessness inquiry, 6 we do not see the prosecutor’s
improper efforts to elicit testimony about the IP addresses here as so indicative of a
5
Mr. Toure also cites the concurring opinion in Shelton, 26 A.3d at 224-29
(Ruiz, J., concurring in the disposition), but the issue in Shelton was whether
prosecutorial misconduct, and any inference therefrom about the government’s view
of the strength of its case, is relevant evidence for a jury to consider in assessing
guilt or innocence. See id. at 222; see also id. at 224-29 (Ruiz, J., concurring in the
disposition). Here, the court told the jury that a lawyer “cannot” do what the
prosecutor did and that the jury could “consider this evidence” “in determining
whether the Government has proven the charges in this case beyond a reasonable
doubt.” Mr. Toure then argued in closing that the government “tried
to . . . manipulate the evidence” because it knew there was “a reason to doubt.”
6
See United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995) (“The gravity
of the prosecutors’ misconduct is relevant only insofar as it may shed light on the
materiality of the infringement of the defendants’ rights; it may support, but it can
never compel, an inference that the prosecutors resorted to improper tactics because
they were justifiably fearful that without such tactics the defendants might be
acquitted. If the prosecutors did not think their case airtight (and so they tried to
bolster it improperly), this is some indication that it was indeed not airtight.”
(citations omitted)).
37
weakness in the case against Mr. Toure as to overcome the overwhelming evidence
against him.
III. Conclusion
For the foregoing reasons, we affirm Mr. Toure’s convictions, affirm the trial
court’s denial of Mr. Toure’s motion for a new trial, and remand for the limited
purpose of merging convictions and resentencing as necessary.
So ordered.
Case Information
- Court
- D.C.
- Decision Date
- May 29, 2025
- Status
- Precedential