Burn v. United States

• Court: District of Columbia Court of Appeals
• Decided: August 20, 2020
• Docket: 17-CF-1347
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CF-1347

EUGENE BURNS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (CF1-17629-15)

(Hon. Hiram E. Puig-Lugo, Trial Judge) (Hon. Curtis E. von Kann, Warrant Judge)

(Argued December 10, 2019 Decided August 20, 2020)

Matthew B. Kaplan for appellant.

Eric Hansford, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Kevin Flynn, and Charles Willoughby, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Fleming Terrell, Public Defender Service, with whom Samia Fam, Alice Wang, and Joshua Deahl, Public Defender Service, were on the brief, for Public Defender Service, amicus curiae, in support of appellant.

Before FISHER and EASTERLY, Associate Judges, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia. ∗

∗ Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.). 2

KRAVITZ, Associate Judge: We issued a summary order of judgment on

March 30, 2020 reversing appellant Eugene Burns’s convictions in this case. We

now issue this formal opinion stating the full reasoning underlying our decision.

A Superior Court jury found Mr. Burns guilty of first-degree premeditated

murder while armed and related weapons offenses in the November 14, 2015

shooting death of Onyekachi Osuchukwu. The government’s theory at trial was

that Mr. Burns killed Mr. Osuchukwu, his best friend, because he thought Mr.

Osuchukwu was cheating him out of his fair share of the proceeds of a drug

dealing business the two men operated together. Mr. Burns argued that he acted in

self-defense, testifying that he shot Mr. Osuchukwu at close range only after Mr.

Osuchukwu rushed him and tried to wrestle away his gun in an argument over the

money.

The government prevailed at trial largely on the strength of data obtained

from two cell phones seized from Mr. Burns on the day after the shooting and the

testimony of the Chief Medical Examiner about the results of an autopsy

performed by one of his deputies. Police obtained the cell phone data pursuant to

Superior Court search warrants that authorized a review of the entire contents of

Mr. Burns’s phones; the data included highly incriminating records of internet 3

search inquiries made by Mr. Burns in the days leading up to the homicide (“Are

you capable of killing your best friend?” “How does it feel when you kill someone

for the first time?” “Shot placement for instant kill?”) and enabled the government

to paint a compelling picture of Mr. Burns’s premeditation and deliberation. The

Chief Medical Examiner’s testimony contradicted Mr. Burns’s claims about the

way the shooting unfolded with detailed information about the gunshot wounds

described in the autopsy report, including the absence of soot and stippling the

government argued would have been observed at the site of the wounds had the

shots been fired from within inches of Mr. Osuchukwu’s body.

On appeal, Mr. Burns contends that the trial judge committed reversible

error in denying his pretrial motions to suppress the data obtained from his cell

phones and to exclude the Chief Medical Examiner’s testimony about the results of

the autopsy. Mr. Burns argues that the search warrants were overbroad, lacking in

particularity, and almost entirely unsupported by probable cause and were thus

issued in violation of the Warrant Clause of the Fourth Amendment. He argues

that the testimony of the Chief Medical Examiner conveyed testimonial hearsay

statements of the deputy medical examiner who performed the autopsy and was

thus presented to the jury in violation of the Confrontation Clause of the Sixth

Amendment. 4

Both constitutional claims implicate important and recurring aspects of the

criminal process in the District of Columbia. Virtually everyone in the District

now uses a cell phone — typically a modern smart phone capable of holding an

extraordinary amount of personal information related to the user and/or owner of

the device. Given the trove of information stored on many cell phones and the

Supreme Court’s ruling in Riley v. California, 573 U.S. 373 (2014), that police

generally must obtain a search warrant before they may examine the contents of a

cell phone, search warrant requests seeking access to cell phone data have become

a common feature of law enforcement investigations in the District, with warrant

applications presented to the Superior Court by police in large numbers. At the

same time, turnover and other personnel challenges in the Office of the Chief

Medical Examiner have, with some frequency, led the government in homicide

trials to offer testimony relating to the cause and manner of death from forensic

pathologists who neither conducted nor attended the autopsies on which their

testimony is based.

Yet despite the ubiquity of cell phones and cell phone search warrants, this

is the first case in which this court has been called on to analyze the validity of a

cell phone search warrant under the Warrant Clause. And although several of our 5

previous decisions have addressed Confrontation Clause challenges to surrogate

medical examiner testimony under the plain error standard, see, e.g., Sheffield v.

United States, 111 A.3d 611, 623 (D.C. 2015); Euceda v. United States, 66 A.3d

994, 1012 (D.C. 2013), this is the first case in which we have been required to

consider the constitutionality of such testimony on the merits and, in particular, to

determine whether autopsy records created and maintained within the Office of the

Chief Medical Examiner contain “testimonial” hearsay statements subject to the

Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004), and its

progeny. See Sheffield, 111 A.3d at 623 (“[N]either this court nor the Supreme

Court has decided whether autopsy reports are testimonial[.]”).

We conclude that Mr. Burns has established violations of his rights under

both the Fourth and the Sixth Amendments. Police sought search warrants that

authorized an unlimited review of the contents of his cell phones for “any

evidence” of murder even though the warrants were supported by affidavits that

established probable cause for only three narrow and discrete items of data. The

warrants were thus overbroad and lacking in probable cause and particularity, and

the warrant judge should not have issued them. The warrants’ deficiencies,

moreover, were so extreme and apparent that a reasonably well-trained police

officer, with reasonable knowledge of what the law prohibits, would have known 6

the warrants were invalid notwithstanding their approval by a judge. The good

faith exception to the exclusionary rule therefore does not apply, and the trial judge

should have granted Mr. Burns’s motion to suppress all of the data collected from

both phones. Separately, the Chief Medical Examiner’s testimony plainly

transmitted to the jury the findings of the deputy medical examiner who conducted

the autopsy on Mr. Osuchukwu’s remains. Because those findings, set forth in the

autopsy report and other materials maintained in the autopsy file, were made in the

context of an ongoing police investigation of a homicide, the findings were

“testimonial” and their communication to the jury through the Chief Medical

Examiner’s testimony violated the Confrontation Clause. Both constitutional

errors prejudiced Mr. Burns at trial, and in combination they cannot be deemed

harmless beyond a reasonable doubt. 1

1 Because we resolve this appeal on Fourth and Sixth Amendment grounds, we need not address Mr. Burns’s Fifth Amendment claim that his cell phones (and their data) should have been suppressed as fruits of an involuntary statement he made to police or his challenge to a post-trial ruling denying his claim of ineffective assistance of counsel. 7

I. The Cell Phone Search Warrants

A. The Warrants and Their Supporting Affidavits

Metropolitan Police Department Detective Lee Littlejohn applied to the

Superior Court on November 25, 2015 for search warrants for two cell phones

seized from Mr. Burns on the day after the shooting. One of the cell phones was

an LG, the other an Alcatel One Touch. The search warrants and their supporting

affidavits were identical in scope and substance, differing only in the identification

of the phone to be searched pursuant to each. The warrant for the LG, along with

its supporting affidavit, is reproduced in full in the appendix to this opinion.

Under the heading “PROBABLE CAUSE,” Detective Littlejohn stated in

the warrant affidavits that police went to 2958 Second Street, S.E., Apt. 23 on

Sunday, November 15, 2015 in response to a report of an unconscious person. On

arrival, police found Mr. Osuchukwu dead on the living room floor, the apparent

victim of a shooting. Also present in the apartment were Mr. Burns’s mother, Mr.

Burns, and a cousin — identified in the affidavits, respectively, as W-1, W-2, and

W-3. 8

As relayed in the affidavits, Mr. Burns’s mother (W-1) told police that she

lived in Apt. 23 but had left home on Friday, November 13, 2015 to spend the

weekend with family. She stated that Mr. Burns and Mr. Osuchukwu were best

friends and that Mr. Osuchukwu had arrived in the District of Columbia from

California at some point on Saturday, November 14, 2015. She said she returned

to her apartment on November 15, 2015 with Mr. Burns and his cousin and found

Mr. Osuchukwu on the floor, unconscious and unresponsive, as soon as they

opened the door. She called 911.

The affidavits next summarized a police interview of Mr. Burns (W-2):

Homicide Detectives on the scene spoke briefly to Witness #2, hereafter referred to as W-2. W-2 stated that family members collectively gathered money and purchased the decedent an airline ticket to Washington, D.C. W-2 stated IT exchanged text messages with the decedent throughout the day. W-2 stayed at the apartment waiting for the decedent’s arrival. According to W-2, the last communications via text with decedent was around 7:30 p.m. W-2 decided to leave the apartment to meet with friends and left the apartment door unlocked so that the decedent could gain access to the apartment. W-2 didn’t return to the apartment until the following day. Detectives attempted to ask W-2 additional questions, but W-2 refused to provide any additional information. W-2 was found to be in possession of two cellular telephones at the time, which were seized pending the issuance of a D.C. Superior Court search warrant to have them processed. 9

The affidavits also recounted an interview of Mr. Burns’s cousin (W-3), who

told police he spoke with Mr. Burns by phone on the night of November 14, 2015.

The cousin stated that Mr. Burns told him he had been expecting Mr. Osuchukwu

to arrive at the apartment but had gone out and left the door unlocked when Mr.

Osuchukwu did not show up. The cousin stated further that he and Mr. Burns met

up later on the night of November 14, 2015 at a woman’s house in Southeast D.C.

When asked to check his cell phone for the specific time of his call with Mr. Burns

on the night of November 14, 2015, the cousin appeared to have difficulty

providing the information.

Further investigation, summarized in the affidavits, showed that an occupant

of another apartment in the building called 911 at 8:53 on the night of November

14, 2015 to report the sound of gunshots. In the call, the neighbor said she heard

six gunshots followed by a woman’s voice and a person running out of the

building. The neighbor said she ran to her window and looked outside but saw no

one.

The affidavits also stated that police obtained and executed an emergency

search warrant for Apt. 23 on the night of November 15, 2015. The search of the

apartment led to the discovery of a plastic bag containing mail matter with Mr. 10

Osuchukwu’s name on it and the cord of a cell phone charger. Mr. Osuchukwu’s

wallet and cell phone were not found, however, even though another witness,

referred to in the affidavits as W-4, told police that Mr. Osuchukwu always had his

cell phone and wallet with him when he traveled.

Finally, the affidavits reported that an autopsy performed on November 16,

2015 found the cause of death to be multiple gunshot wounds to the torso and the

manner of death to be a homicide.

Based exclusively on the foregoing information set forth in the affidavits,

Detective Littlejohn asserted that there was probable cause to believe the phones

seized from Mr. Burns contained evidence related to Mr. Osuchukwu’s murder:

It is your Affiant’s belief that there is probable cause that evidence related to this homicide may be contained in the [“LG”] [“Alcatel One Touch”] cellular telephone device. It is also your Affiant’s belief that obtaining the phone information requested is the least intrusive means of establishing namely, but not limited to, who possessed or used the device, the subscriber and owner information, the cell phone device phone number, incoming and outgoing calls, contact list, all existing voice mail and text messages, and videos, photographs and tweets contained within the described cellular telephone. Furthermore, it[] is your Affiant’s belief that this information could establish the whereabouts of W-2 [Mr. Burns] and W-3 [Mr. Burns’s cousin] cellular telephones on the night and time of the murder and help identify 11

potential witnesses, suspects and confederates yet unknown.

Each of the requested search warrants had two attachments. Attachment A

specified the cell phone to be searched and stated that the warrant “authorize[d] the

forensic examination of the Device for the purpose of identifying the electronically

stored information described in Attachment B.” Attachment B listed the categories

of data to be seized from each of the phones:

1. All records on the Device described in Attachment A that relate to violations of D.C. Code, Section 22- 2201 [the first-degree murder statute], including:

a. any evidence related to the aforementioned homicide that occurred on or about November 15, 2015;

b. any identifying information of the owner/possessor, and or owner/possessor’s friends[,] acquaintances, and/or relatives;

c. any information recording the owner/possessor’s schedule or travel or location from October 1 to November 16, 2015;

2. Evidence of user attribution showing who used or owned the Device at the time the things described in this warrant were created, edited, or deleted, such as logs, texts, tweets, phonebooks, saved usernames and passwords, documents, and browsing history;

3. Records of Internet activity, including firewall logs, caches, browser history and cookies, “bookmarked” or “favorite” web pages, search terms that the user 12

entered into any Internet search engine, and records of user-typed web addresses.

Attachment B also specified that the terms “records” and “information” were

to be broadly construed:

As used above, the terms “records” and “information” include all of the foregoing items of evidence in whatever form and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as flash memory or other media that can store data) and any photographic form.

A Superior Court judge (the warrant judge) approved the requested warrants,

without modification, on November 25, 2015.

B. The Execution of the Warrants

An investigator with the United States Attorney’s Office executed the search

warrants a few days later using a software program called Cellebrite to extract all

of the data on both phones, including data the user of the phones likely believed

had been deleted. For each phone, the extraction process created a “.bin file”

containing an image in computer code of the phone’s entire contents. A Cellebrite

physical analyzer then decoded and parsed the image into categories of data —

e.g., call logs, emails, photographs, videos, movies, SMS and MMS messages, 13

thumbnails, app usage, internet search inquiries, etc. — and generated an

extraction report that detailed, in readable and reviewable form, every item of data

on the phone. The extraction report for the LG phone was 1,174 pages long; for

the Alcatel One Touch, the report spanned 1,805 pages.

The extraction report for the LG phone contained a series of text messages

between Mr. Burns and Mr. Osuchukwu on the evening of November 14, 2015.

The texts culminated in a message sent at 9:02 p.m. in which Mr. Burns told Mr.

Osuchukwu, “I left the door open for you all, so it’s yours tonight.”

The warrants, however, did not limit police to a search for the texts between

Mr. Burns and Mr. Osuchukwu on the day of the shooting, and investigators

scrutinized all of the nearly 3,000 pages of the extraction reports for any materials

and information related to the investigation of Mr. Osuchukwu’s death. Among

other things, that review yielded a highly incriminating set of internet search

inquiries made by Mr. Burns in the days leading up to the homicide:

• “Are you capable of killing your best friend?” (November 5, 2015)

• “What does it feel like to kill someone?” (November 7, 2015)

• “What does it feel like to murder someone?” (November 7, 2015) 14

• “How does it feel when you kill someone for the first time?” (November 7,

2015)

• “How much crack would an ounce of cocaine make?” (November 9, 2015)

• “How to sell weed and make money” (November 10, 2015)

• “Will God forgive murderers?” (November 10, 2015)

• “Semi-automatic pistol in Wikipedia” (November 10, 2015)

• “Shot placement for instant kill” (November 14, 2015)

The extraction reports also contained a photograph of Mr. Burns holding a 9-

millimeter semi-automatic handgun, the same type used in the murder; text

messages from Mr. Burns to another cousin (named JaJa) on November 13, 2015

in which Mr. Burns said, “I’m clapping him today” and “Everything already in

motion . . . waiting on this Cali boy”; a log reflecting a phone call from Mr. Burns

to JaJa at 9:50 p.m. on November 14, 2015; and a video and other postings on Mr.

Burns’s Instagram account suggesting that Mr. Burns went to New York City after

the homicide to sell Mr. Osuchukwu’s drugs and used the proceeds to buy a new

car.

C. Mr. Burns’s Motion to Suppress the Fruits of the Warrants 15

Mr. Burns moved before trial to suppress all of the data recovered from his

phones. Citing Riley v. California, 573 U.S. 373 (2014), he asserted that modern

smart phones merit the most stringent privacy protections under the Fourth

Amendment and argued that the search warrants for his phones were overbroad,

unsupported by probable cause, and lacking in particularity.

Detective Littlejohn testified at a pretrial evidentiary hearing on the motion.

He stated that Mr. Burns was not a suspect at the time his phones were seized and

that police had no information suggesting that any photographs or evidence of

internet activity on the phones had any connection to the investigation of Mr.

Osuchukwu’s death. Detective Littlejohn stated further that he has applied for

search warrants for “probably over 25 or so” cell phones in other cases and that the

language he used in the search warrants for Mr. Burns’s phones was “basically”

the same “standard language” he has used in all of the cell phone search warrants

for which he has applied.

The trial judge denied the motion to suppress, stating:

I don’t see a problem with the scope of this search warrant. There was a search warrant that was issued by another associate judge. Even if I saw . . . a problem with it, I don’t know what I could do. I don’t have authority to revoke a decision that one of my colleagues has made, but even if I did, I don’t see a problem with it. 16

D. Analysis under the Warrant Clause

The Warrant Clause of the Fourth Amendment commands that “no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV. “These words are precise and clear.” Stanford v.

Texas, 379 U.S. 476, 481 (1965). “They reflect the determination of those who

wrote the Bill of Rights that the people of this new Nation should forever ‘be

secure in their persons, houses, papers, and effects’ from intrusion and seizure by

officers acting under the unbridled authority of a general warrant.” Id. (quoting

U.S. Const. amend. IV). And through their creation of the dual constitutional

mandates of probable cause and particularity, the words of the Warrant Clause are

meant to deny police the ability “to rummage at will” through a person’s private

matters. See Arizona v. Gant, 556 U.S. 332, 345 (2009); see also Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971). 17

The probable cause standard is well defined. A judge considering an

application for a search warrant must determine whether, in light of all of the

circumstances described in the supporting affidavit, “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238 (1983). The affidavit thus “must demonstrate cause to

believe” not only that an item of evidence “is likely to be found at the place to be

searched,” but also that there is “a nexus between the item to be seized and [the]

criminal behavior” under investigation. United States v. Griffith, 867 F.3d 1265,

1271 (D.C. Cir. 2017) (quoting Groh v. Ramirez, 540 U.S. 551, 568 (2004);

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967)).

A judge’s decision to issue a search warrant, moreover, may not be “a mere

ratification of the bare conclusions of others.” Gates, 462 U.S. at 239. Rather, an

affidavit submitted in support of a warrant application must provide the judge “a

substantial basis for determining the existence of probable cause” — i.e., it must

supply “[s]ufficient information” to enable the judge to make independent findings

on the necessary elements of the probable cause standard. Id. Only in that way

can the judge “perform his ‘neutral and detached’ function and not serve merely as

a rubber stamp for the police.” Aguilar v. Texas, 378 U.S. 108, 111 (1964)

(quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). 18

A search warrant affidavit therefore “must contain adequate supporting facts

about the underlying circumstances to show that probable cause exists for the

issuance of the warrant.” United States v. McPhearson, 469 F.3d 518, 524 (6th

Cir. 2006) (internal quotation marks omitted). The “particularized facts” and

circumstances that must be set forth in the affidavit are essential to the judge’s

finding of “a fair probability that evidence of a crime will be located on the

premises of the proposed search,” id. (internal quotation marks omitted), and “form

the central basis of the [judge’s independent] probable cause determination,”

United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013), thereby

ensuring that any search authorized by a warrant “will be carefully tailored to its

justifications, and will not take on the character of the wide-ranging exploratory

searches the Framers intended to prohibit,” Maryland v. Garrison, 480 U.S. 79, 84

(1987).

By contrast, an affidavit that states only “suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances regarding veracity,

reliability, and basis of knowledge, is a ‘bare bones’ affidavit, and fails to establish

probable cause.” United States v. West, 520 F.3d 604, 610 (6th Cir. 2008) (internal

quotation marks omitted). As examples, some “bare bones” affidavits state that the 19

affiant “has cause to suspect and does believe” there is contraband or other

evidence of a crime located on the premises to be searched, or that the affiant has

“received reliable information from a credible person” to the same effect. Gates,

462 U.S. at 239 (first quoting Nathanson v. United States, 290 U.S. 41, 44 (1933);

then quoting Aguilar, 378 U.S. at 109); see also United States v. Pope, 467 F.3d

912, 920 (5th Cir. 2006). Just as an unadorned, bare bones claim of probable cause

based on an affiant’s “training and experience” fails to provide the judge

considering a warrant application a sufficient factual basis to assess compliance

with the Fourth Amendment, Underwood, 725 F.3d at 1081, these “wholly

conclusory statement[s]” give the judge “virtually no basis at all for making a

judgment regarding probable cause,” Gates, 462 U.S. at 239.

The particularity requirement — that a warrant “set out with particularity”

the “scope of the authorized search,” Kentucky v. King, 563 U.S. 452, 459 (2011)

— “is closely tied to the requirement of probable cause,” Griffith, 867 F.3d at 1275

(quoting 2 Wayne R. LaFave, Search & Seizure § 3.7(a) (5th ed. 2016)). It

constrains law enforcement by “prevent[ing] the seizure of one thing under a

warrant describing another,” Marron v. United States, 275 U.S. 192, 196 (1927),

and avoids the issuance of search warrants “on loose, vague[,] or doubtful bases of

fact,” Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931). With a 20

properly particularized warrant, it is the issuing judge who decides “what is to be

taken,” and “nothing is left to the discretion of the officer executing [it],” making

“general searches . . . impossible.” Marron, 275 U.S. at 196.

The privacy interests underlying these fundamental Fourth Amendment

principles may be at their most compelling when police wish to search the contents

of a modern smart phone. The Supreme Court held in Riley that police generally

must obtain a search warrant before they may review the digital contents of a cell

phone seized incident to arrest. 573 U.S. at 401. Writing for a unanimous Court,

Chief Justice Roberts noted that modern cell phones contain “vast quantities of

personal information,” id. at 386, and are essentially “digital record[s] of nearly

every aspect of their [owners’] lives — from the mundane to the intimate,” id. at

395. The Chief Justice added that modern smart phones have “immense storage

capacity” and typically hold “many distinct types of information” — emails, text

messages, notes, photographs, videos, internet browsing histories, calendars,

personal contacts, phone logs, etc. — all “dat[ing] back to the purchase of the

phone, or even earlier.” Id. at 393-94.

The Chief Justice emphasized that the collection of so much varied and

sensitive information on a single device, carried almost everywhere by its owner, 21

facilitates in an unprecedented way the “reconstruct[ion]” of “[t]he sum of an

individual’s private life” and “convey[s] far more” about a person than could

previously be found in the search of a physical space. Id. at 394. “An Internet

search and browsing history, for example, . . . could reveal an individual’s private

interests or concerns — perhaps a search for certain symptoms of disease, coupled

with frequent visits to WebMD.” Id. at 395-96. GPS and other historical location

information can pinpoint a person’s physical location at all times of the day and

night, going back weeks, months, and even years. Id. at 396. And the ever-present

mobile applications, known as “apps,” “offer a range of tools for managing

detailed information about all aspects of a person’s life,” including political and

religious affiliations, banking and other financial matters, addiction treatments,

dating and romantic interests, pregnancy milestones, hobbies, and “buying or

selling just about anything.” Id. As a result, “a cell phone search would typically

expose to the government far more than the most exhaustive search of a house: A

phone not only contains in digital form many sensitive records previously found in

the home; it also contains a broad array of private information never found in a

home in any form.” Id. at 396-97 (emphasis in original); cf. Payton v. New York,

445 U.S. 573, 589 (1980) (articulating the venerable, pre-Riley understanding that

Fourth Amendment protections are never “more clearly defined than when

bounded by the unambiguous physical dimensions of an individual’s home”). 22

A search warrant for data on a modern smart phone therefore must fully

comply with the requirements of the Warrant Clause. It is not enough for police to

show there is probable cause to arrest the owner or user of the cell phone, or even

to establish probable cause to believe the phone contains some evidence of a crime.

To be compliant with the Fourth Amendment, the warrant must specify the

particular items of evidence to be searched for and seized from the phone and be

strictly limited to the time period and information or other data for which probable

cause has been properly established through the facts and circumstances set forth

under oath in the warrant’s supporting affidavit. Vigilance in enforcing the

probable cause and particularity requirements is thus essential to the protection of

the vital privacy interests inherent in virtually every modern cell phone and to the

achievement of the “meaningful constraints” contemplated in Riley, 573 U.S. at

399. As the Supreme Court recently reiterated, judges are “obligated — as ‘subtler

and more far-reaching means of invading privacy have become available to the

Government’ — to ensure that the ‘progress of science’ does not erode Fourth

Amendment protections.” Carpenter v. United States, 138 S.Ct. 2206, 2223 (2018)

(quoting Olmstead v. United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J.,

dissenting) (requiring that search warrants be obtained for cell-site location data

generated from the use of smart phones and held by third-party providers)). 23

We conclude as a matter of law that the search warrants for Mr. Burns’s cell

phones did not satisfy the requirements of the Warrant Clause. The facts set forth

in the warrants’ supporting affidavits established probable cause to believe the

phones contained text messages between Mr. Burns and Mr. Osuchukwu on

November 14, 2015 and a log showing the precise time of the telephone call Mr.

Burns reportedly made to his cousin (W-3) that night. The facts alleged in the

affidavits also supplied probable cause to support a search of the GPS tracking

features on the phones to determine Mr. Burns’s whereabouts at pertinent times on

November 14 and 15, 2015. But beyond those discrete items, the affidavits stated

no facts that even arguably provided a reason to believe that any other information

or data on the phones had any nexus to the investigation of Mr. Osuchukwu’s

death.

In lieu of facts, Detective Littlejohn simply stated it was his “belief” there

was probable cause that evidence related to the homicide would be found on the

phones — specifically, in the phones’ subscriber and owner information, call logs,

contact lists, voice mail and text messages, videos, photographs, and tweets. The

detective added it was his “belief” this information could establish the whereabouts 24

of Mr. Burns’s and W-3’s phones at the time of the murder and “help identify

potential witnesses, suspects and confederates yet unknown.”

The affidavits were thus classic “bare bones” statements as to everything on

Mr. Burns’s phones for which Detective Littlejohn made a claim of probable cause

beyond the three narrow categories of data for which the affidavits made proper

factual showings. In approving a more expansive request, the warrant judge failed

to fulfill his obligation to make an independent determination of probable cause,

Gates, 462 U.S. at 239, and risked becoming “a rubber stamp for the police,”

Aguilar, 378 U.S. at 111.

The actual search warrants, moreover, went even further than Detective

Littlejohn’s unsupported assertions of probable cause in the affidavits and

authorized the review of literally all of the data on both phones. The warrants

allowed police to search for “[a]ll records” and “any evidence” on the phones

related to violations of the District’s first-degree murder statute and expressly

sanctioned the search of several expansive categories of data Detective Littlejohn

never even mentioned in the affidavits. Those categories included schedule and

travel information; saved usernames and passwords; documents; and “[r]ecords of

Internet activity, including firewall logs, caches, browser history and cookies, 25

‘bookmarked’ or ‘favorite’ web pages, search terms that the user entered into any

Internet search engine, and records of user-typed web addresses.” As to these

broad categories of data, the search warrants were issued based on nothing — not

even a bare bones assertion of probable cause.

The warrants also lacked particularity, describing the objects of the search in

the most general terms imaginable. Rather than specifying the three narrow items

of evidence for which the affidavits established probable cause, the warrants

broadly authorized the seizure of “any evidence” on the phones and listed, by way

of examples, generic categories covering virtually all of the different types of data

found on modern cell phones. The warrants imposed no meaningful limitations as

to how far back in time police could go or what applications they could review

and, instead, endorsed the broadest possible search without regard to the facts of

the case or the limited showings of probable cause set forth in the affidavits.

In any context, a search warrant’s “general description” of items to be

seized, such as “records, mail, correspondence, and communications[,] is

immediately suspect as being based upon nothing more than conjecture that such

items related to the crime under investigation actually exist.” 2 Wayne R. LaFave,

Search & Seizure § 4.6(a) (5th ed. 2012 & 2019 update) (internal quotation marks 26

omitted). Particularly given the heightened privacy interests attendant to modern

smart phones under Riley, it is thus constitutionally intolerable for search warrants

simply to list generic categories of data typically found on such devices as items

subject to seizure.

The absence of particularity in the warrants for Mr. Burns’s phones is no

doubt attributable to the use of a template. As Detective Littlejohn acknowledged

at the pretrial suppression hearing, he used basically the same language he has used

in at least twenty-five other cell phone warrants in listing the categories of

evidence to be seized from the phones and the types of data for which he claimed

the existence of probable cause.

“Templates are, of course, fine to use as a starting point.” United States v.

Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015). “But they must be tailored to the

facts of each case.” Id.; see United States v. Oglesby, No. 4:18 CR 0626, 2019

U.S. Dist. LEXIS 71238, at *21-22 (S.D. Tex. April 26, 2019) (following Winn).

Detective Littlejohn failed to do any tailoring of his template for cell phone search

warrants, and as a result the warrants for Mr. Burns’s phones did not state with

particularity “the place to be searched, and the persons or things to be seized,” as

required by the Warrant Clause. Instead, the warrants “swe[pt] too broadly in 27

describing the items subject to seizure,” Griffith, 867 F.3d at 1279, and allowed a

“wide-ranging exploratory search[]” not “carefully tailored to its justifications” —

precisely the type of unbridled rummaging “the Framers intended to prohibit,”

Garrison, 480 U.S. at 84. 2

Other courts addressing the validity of cell phone search warrants in similar

circumstances have come to the same conclusion we have reached here. See, e.g.,

Winn, 79 F. Supp. 3d at 919-21; United States v. Morales, 77 M.J. 567, 574-76 (A.

Ct. Crim. App. 2017); Buckham v. State, 185 A.3d 1, 15, 18-19 (Del. 2018);

Commonwealth v. Broom, 52 N.E.3d 81, 88-90 (Mass. 2016); State v. Henderson,

854 N.W.2d 616, 631-34 (Neb. 2014); People v. Thompson, 116 N.Y.S. 3d 2, 3-4

(N.Y. App. Div. 2019).

In Morales, the case with the most closely analogous facts, police

investigating an alleged sexual assault applied for a search warrant for a cell phone

2 In the course of their extensive briefing before this court, the parties and amicus curiae have suggested various models regarding the specificity with which cell phone search warrants might be required to identify the data to be seized and/or the methods by which the searches are to be conducted. We decline to adopt any such model, as a declaration of definitive rules for the drafting and execution of all cell phone warrants is not necessary to our disposition. The complexities of delineating the proper scope and methods of execution of cell phone search warrants will be best addressed through case-by-case adjudications focused on fundamental Fourth Amendment principles and the facts of each case. 28

they had seized from the chief suspect in the case. 77 M.J. at 571. The affidavit

submitted in support of the warrant request described an inculpatory text message

the suspect was reported to have sent to the complainant, but it presented no other

facts to establish a nexus between the alleged assault and any other data that might

be found on the phone. Id. The warrant issued by a magistrate nonetheless

authorized a forensic examination of all of the phone’s digital data, and in the

course of the ensuing search, police reviewed a photo-editing application on the

phone and came across three photographs of the actual assault as it was being

committed. Id. at 571-72. The trial court denied a motion to suppress the

photographs, and the suspect (by then the defendant) was convicted of the sexual

assault. Id. at 572-73. The appellate court reversed, holding that although the

warrant affidavit made out probable cause to search the defendant’s text messages,

the affidavit “provided no factual predicate” to search for photographs “and no

factual basis to conduct an open-ended search of the phone’s entire contents.” Id.

at 577. As here, the warrant thus violated the probable cause and particularity

requirements of the Warrant Clause. Id. at 575.

The government cites decisions of a few of the federal circuit courts for the

proposition that a cell phone search warrant satisfies the Warrant Clause as long as

the warrant limits the authority to search to evidence of a particular crime and is 29

supported by an affidavit establishing probable cause that at least some evidence of

the crime specified in the warrant will be found in the phone’s data. See, e.g.,

United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018); United States v. Castro,

881 F.3d 961, 965 (6th Cir. 2018); United States v. Bass, 785 F.3d 1043, 1049 (6th

Cir. 2015). These decisions do not persuade us to alter our conclusion.

First, the decisions cited by the government mostly arose in circumstances in

which the affidavits submitted in support of the warrants made robust showings of

probable cause for a range of relevant evidence likely to be contained within the

phones’ data, without a way of knowing in advance precisely where within that

data the evidence would be found. See, e.g., Bass, 785 F.3d at 1050 (“At the time

of the seizure, however, the officers could not have known where this information

was located in the cell phone or in what format.”); see also Bishop, 910 F.3d at 337

(“[A]s with filing cabinets [in an office], the incriminating evidence may be in any

file or folder [on the phone].”).

The same cannot be said here. Although Mr. Burns’s text messages with

Mr. Osuchukwu might have been stored in a third-party application (e.g.,

Facebook, Instagram, WhatsApp) rather than in the standard messaging

applications on the phones, it was readily apparent that those messages, like the 30

limited phone log information and GPS data for which probable cause also had

been established, would not be found in Mr. Burns’s internet search history,

photographs, or any of the many other broad categories of data included in the

unlimited, template-based search authorized by the warrants. The few discrete

items for which probable cause had been shown could have been obtained through

a targeted search of a tiny fraction of the phones’ data.

Second, the cases cited by the government are not as definitive as the

government suggests and, even if adopted, would not support the government’s

position here. Bass makes clear that a statement in a cell phone search warrant

limiting the search to evidence of a particular crime is sufficient to satisfy the

particularity requirement of the Warrant Clause only if a more specific description

of the items subject to seizure could not reasonably be provided: “The proper

metric of sufficient specificity is whether it was reasonable to provide a more

specific description of the items at that juncture of the investigation.” 785 F.3d at

1050 (quoting United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004)). Bishop,

the case identified by the government at oral argument as its strongest, makes the

same point: “[S]pecificity is a relative matter. A warrant may be thought ‘too

general’ only if some more-specific alternative would have done better at

protecting privacy while permitting legitimate investigation.” 910 F.3d at 337. 31

The search warrants for Mr. Burns’s phones did not satisfy the Bass/Bishop

requirement, as they easily could have provided a more specific description of the

items subject to seizure. The government has advanced no reason — and we can

think of none — why, consistent with the narrow showings of probable cause in

the supporting affidavits, the warrants could not have been limited to a search for

Mr. Burns’s text messages with Mr. Osuchukwu on November 14, 2015, the log

revealing the precise time of Mr. Burns’s phone call with his cousin later that

night, and GPS data showing the locations of the phones on November 14 and 15,

2015. Thus, even if we were inclined to follow the decisions cited by the

government, those decisions would not lead to a finding of sufficient particularity

in this case.

The government also contends, as a matter of policy, that the warrants’

extraordinary breadth was justified by the police department’s need for leads in the

investigation and Detective Littlejohn’s view of Mr. Burns’s phones as “a

promising avenue for insight into how and why Mr. Osuchukwu had been killed.”

This argument must be rejected. A law enforcement officer’s interest in

discovering leads or otherwise furthering his investigation, no matter how

understandable in the circumstances, is never an acceptable substitute for the 32

constitutionally required showing of probable cause that must be made before a

search warrant may be issued. Police might often believe that data on a smart

phone could shed light on the way a crime was committed or “help identify

potential witnesses, suspects and confederates yet unknown,” as the affidavits here

surmised. But without a proper showing of probable cause, a search warrant is not

available as a general investigative tool for law enforcement.

Questioning at oral argument fully exposed the weakness of the

government’s position. Asked whether a warrant authorizing a search of the entire

contents of the cell phone used by the neighbor who called 911 on the night of Mr.

Osuchukwu’s death would have been permissible as long as the warrant expressly

limited the data to be seized to evidence of the homicide, government counsel

readily acknowledged that such a warrant would have been overbroad and unduly

intrusive. The government thereby conceded, at least implicitly, that probable

cause to believe the neighbor’s phone contained a log showing the exact time of

the 911 call — from which the time of the shooting, a material fact in the

investigation, could have been inferred — would have been insufficient to support

an unlimited warrant. The answer must be the same for the warrants for Mr.

Burns’s phones, as in both sets of circumstances the phones were reasonably 33

believed to contain only limited and discrete items of evidence related to the

investigation.

In sum, the affidavits submitted by Detective Littlejohn in support of the

search warrant applications established probable cause to look for and seize

evidence likely to be found in at most three narrow categories of data on Mr.

Burns’s phones. The warrants, however, authorized a far more extensive search

and failed to describe the items to be seized with anywhere near as much

particularity as the Constitution required in the circumstances. Overbroad and

lacking in probable cause and particularity, the warrants were therefore issued in

violation of the Warrant Clause of the Fourth Amendment.

E. The Exclusionary Rule: the Good Faith Exception and Severability

The government contends that the good faith exception to the exclusionary

rule makes suppression of the data seized from Mr. Burns’s phones unnecessary.

In the alternative, the government argues that the invalid portions of the search

warrants should be severed from the valid portions and that only the fruits of the

invalid portions should be suppressed. We are not persuaded by either argument. 34

“It has long been the law that evidence collected in violation of the Fourth

Amendment is considered ‘fruit of the poisonous tree’ and generally may not be

used by the government to prove a defendant’s guilt.” Hooks v. United States, 208

A.3d 741, 750 (D.C. 2019) (quoting Wong Sun v. United States, 371 U.S. 471, 488

(1963)). One exception to this general rule is the so-called “good faith exception”

to the exclusionary rule, created in United States v. Leon, 468 U.S. 897 (1984).

The Supreme Court held in Leon that evidence seized pursuant to a search warrant

subsequently determined to be invalid is not subject to exclusion from the

government’s case-in-chief if the officers who executed the warrant acted in

objectively reasonable reliance on the issuing magistrate’s finding of probable

cause. Id. at 922. The Court reasoned that where the officers have acted in an

objectively reasonable manner, exclusion of the evidence does not deter unlawful

police conduct and any legitimate benefit of the exclusionary rule’s application is

outweighed by the substantial cost to society of suppressing reliable evidence. Id.

at 915-22.

The Supreme Court stressed in Leon that the newly-created exception to the

exclusionary rule is based on an “objective” standard of reasonableness. Id. at 919

n.20. Essential to the objective nature of the inquiry is the expectation that law

enforcement officers “have a reasonable knowledge of what the law prohibits.” Id. 35

(citing United States v. Peltier, 422 U.S. 531, 542 (1975)). “The key to the

exclusionary rule’s effectiveness as a deterrent lies . . . in the impetus it has

provided to police training programs that make officers aware of the limits

imposed by the [F]ourth [A]mendment and emphasize the need to operate within

those limits.” Id. (internal quotation marks omitted). Evidence obtained pursuant

to an invalid search warrant thus remains subject to suppression “if it can be said

that the law enforcement officer had knowledge, or may properly be charged with

knowledge, that the search was unconstitutional under the Fourth Amendment.”

Id. at 919 (quoting Peltier, 422 U.S. at 542). Ultimately, the inquiry comes down

to “whether a reasonably well trained officer,” reasonably knowledgeable about

what the law prohibits, “would have known that the search was illegal despite the

magistrate’s authorization.” Id. at 922 n.23.

The good faith exception, moreover, is itself subject to several exceptions

expressly recognized in Leon. Specifically, the good faith exception is

inapplicable where (1) the magistrate who issued the warrant “was misled by

information in an affidavit that the affiant knew was false or would have known

was false except for [the affiant’s] reckless disregard of the truth”; (2) the issuing

magistrate “wholly abandoned his [neutral and detached] judicial role”; (3) the

affidavit submitted in support of the warrant was “so lacking in indicia of probable 36

cause as to render official belief in its existence entirely unreasonable”; or (4) the

warrant was “so facially deficient — i.e., in failing to particularize the place to be

searched or the things to be seized — that the executing officers [could not]

reasonably presume it to be valid.” Id. at 923 (quoting Brown v. Illinois, 422 U.S.

590, 611 (1975) (Powell, J., concurring in part)). In each of these circumstances,

suppression of any evidence seized pursuant to the invalid warrant is an

appropriate remedy because the officer executing the warrant “will have no

reasonable grounds for believing that the warrant was properly issued.” Id.

The federal courts have consistently viewed “bare bones” search warrant

affidavits as fitting squarely within the third exception to the good faith exception

recognized in Leon. See, e.g., Griffith, 867 F.3d at 1278-79 (declining to apply the

good faith exception to evidence seized pursuant to a “bare bones” affidavit);

Underwood, 725 F.3d at 1085 (equating a “bare bones” affidavit with an affidavit

“so lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable” (quoting Leon, 468 U.S. at 923)); United States v. Craig,

861 F.2d 818, 821 (5th Cir. 1988) (referring to the third Leon exception as the

“bare bones affidavit exception”). We agree with this view and adopt it as part of

our analysis. And given our earlier conclusion that the affidavits submitted here 37

were bare bones (or less), we conclude, on this ground alone, that the good faith

exception provides the government no refuge from the exclusionary rule.

There is more in the record, however, that precludes application of the good

faith exception in this case. As discussed above, Detective Littlejohn prepared the

warrants using the boilerplate language of a template and made no effort to tailor

their scope to the facts of the case or the slender showings of probable cause made

in the supporting affidavits. The result was a pair of search warrants of truly

extreme overbreadth — warrants that authorized a search of everything on both

phones and listed internet browsing histories, web search terms, and photographs

among the categories of items to be seized, even though, as the detective later

acknowledged, he had no information that any such data related to the death of Mr.

Osuchukwu. Indeed, the detective’s knowledge at the time he submitted the

warrants that Mr. Burns was not a suspect made the existence of any nexus

between the great majority of the data on the phones and the crime under

investigation even more unlikely.

These were obviously deficient warrants issued more than a year after the

Supreme Court’s decision in Riley, and any reasonably well-trained police officer

with a reasonable knowledge of what the Fourth Amendment prohibits would have 38

known they were invalid notwithstanding their approval by a judge. The

Metropolitan Police Department had an obligation to make its officers aware of the

limits imposed by the Fourth Amendment and to emphasize the need to operate

within those limits, but that training responsibility appears to have gone unfulfilled.

For all of these reasons, the good faith exception to the exclusionary rule does not

apply.

The government’s severance argument fares no better. The government

cites United States v. Sells, 463 F.3d 1148, 1154-55 (10th Cir. 2006), for the

proposition that in certain circumstances a trial judge may sever the valid and

invalid portions of a search warrant and allow the government to present any

evidence seized pursuant to the valid portions while suppressing all evidence

obtained pursuant to the invalid portions. Mr. Burns agrees that Sells provides the

proper framework for our analysis but argues that the government cannot satisfy its

requirements.

We briefly addressed the severability doctrine in United States v. Ketterman,

276 A.2d 243, 246-47 (D.C. 1971), and held there that the partial invalidity of a

search warrant does not necessarily require the suppression of all evidence seized

pursuant to the warrant. Instead, we stated, there are some situations in which a 39

partially invalid warrant can be severed and evidence seized pursuant to its valid

portions admitted. Id. (quoting Aday v. Superior Court of Alameda County, 362

P.2d 47, 52 (Cal. 1961)).

Ketterman, however, did not define the requirements for a severance, and we

have not revisited the severability doctrine in the nearly fifty years since the

decision was issued. In the meantime, Sells has prescribed a three-part test under

which severance is available only if there are valid portions of an otherwise invalid

search warrant that (1) “describe[] with sufficient particularity items to be seized

for which there is probable cause,” 463 F.3d at 1156; (2) are “distinguishable from

the invalid portions,” id. at 1158 (internal quotation marks omitted); and (3) “make

up the greater part of the warrant,” id. (internal quotation marks omitted). There

has been some disagreement within the federal courts over the specifics of the third

element of the Sells test. See Cassady v. Goering, 567 F.3d 628, 657 (10th Cir.

2009) (McConnell, J., dissenting) (arguing that the valid parts of the warrant

should have to be merely “not insignificant” rather than predominant). But all

agree that the first two conditions delineated in Sells must be met; and as to the

third, it bears noting that we felt it important to “emphasize” in Ketterman “that

warrants essentially general in character may not be saved by minor items

described with requisite particularity.” 276 A.2d at 247 n.6. 40

We need not determine the precise contours of the severability doctrine —

or to choose sides in the debate over the third element of the Sells test — because

the government cannot show that the warrants for Mr. Burns’s phones satisfied

either of the first two elements. The warrants did not specifically authorize a

search for Mr. Burns’s text messages with Mr. Osuchukwu on November 14, 2015

or for any of the other discrete items for which the affidavits established probable

cause. Thus, no portion of the warrants described with sufficient particularity (or

even mentioned) any of the items that could have been permissible subjects of a

search, and the warrants made no distinction between those few items and the

broad and unsupported categories of data included within the warrants’ template-

based language. The warrants therefore had no valid portions that could be

properly severed under any construction of the severability doctrine.

F. The Trial Judge’s Role

In denying Mr. Burns’s pretrial motion to suppress, the trial judge stated that

he had no authority to overrule the warrant judge’s decision to issue the warrants

for Mr. Burns’s phones (and that he saw no problem with the warrants in any 41

event). This was an inaccurate statement of the role of a trial judge considering a

motion to suppress evidence seized pursuant to a warrant issued by another judge.

The trial judge is responsible for deciding all pretrial motions to suppress,

see D.C. Code § 23-104(a)(2) (2012 Repl.); Super. Ct. Crim. R. 12(d), including

those seeking the suppression of evidence seized pursuant to search warrants. In

carrying out this responsibility, the trial judge plays an indispensable role in the

criminal process. No matter how awkward it might be to review the work of a

colleague, the trial judge has an obligation to conduct a meaningful review of the

validity of the warrant in dispute and the clear authority to come to a contrary

conclusion from that reached by the issuing judge. As the Supreme Court stated in

Gates, “courts must continue to conscientiously review the sufficiency of affidavits

on which warrants are issued” to make sure, in each case, that the action of the

issuing judge was not “a mere ratification of the bare conclusions of others.” 462

U.S. at 239.

* * *

For the reasons stated, the search warrants for Mr. Burns’s phones were

invalid, with constitutional deficiencies so obvious that any reasonably well- 42

trained police officer would have known the warrants were issued in violation of

the Fourth Amendment notwithstanding their approval by a judge. The trial judge

thus erred in denying Mr. Burns’s motion to suppress the evidence seized pursuant

to the warrants.

II. The Chief Medical Examiner’s Surrogate Expert Testimony

A. The Homicide Investigation and the Autopsy Performed by the Deputy Medical Examiner

A brief summary of the police investigation leading to the autopsy

performed on Mr. Osuchukwu’s remains is essential to our analysis under the

Confrontation Clause.

A Metropolitan Police Department patrol officer was the first to respond to

the 911 call from Mr. Burns’s mother on November 15, 2015. Five homicide

detectives and four crime scene search officers followed soon thereafter, and all

entered Apt. 23 at 2958 Second Street, S.E. and observed Mr. Osuchukwu’s body

on the living room floor. Bloodstains surrounded the body, and five spent

cartridge casings and an unfired bullet were nearby. 43

A detective directed the crime scene search officers to collect and document

evidence of the apparent homicide. The crime scene officers took photographs of

the apartment and Mr. Osuchukwu’s body, swabbed surfaces for DNA and

fingerprints, and collected the cartridge casings and unfired bullet — all destined

for forensic testing at the Department of Forensic Sciences. The detectives took

witness statements from Mr. Burns, his mother, and his cousin.

Police promptly notified the Office of the Chief Medical Examiner (OCME)

of the discovery of Mr. Osuchukwu’s body. An OCME investigator went to the

apartment and inspected Mr. Osuchukwu’s remains, recording the way “the body

was found on the scene, [the] injuries [on] the body, the level of rigor mortis; and

the level of lividity, body temperature, [and] ambient temperature.” OCME

officials later transported Mr. Osuchukwu’s remains to OCME for an autopsy.

Dr. Terrill L. Tops, a deputy medical examiner at OCME, performed an

autopsy on Mr. Osuchukwu’s remains on November 16, 2015. To document the

autopsy, Dr. Tops made contemporaneous handwritten notes and diagrams

memorializing his own observations and directed that photographs of the body be

taken at each stage of the examination. Dr. Tops subsequently prepared a formal

autopsy report in which he detailed the condition in which the body was received 44

at OCME; the procedures he followed in performing the autopsy; the physical

evidence, including clothing and bullets, recovered during the examination; the

location, dimensions, and path of each of four gunshot wounds suffered by Mr.

Osuchukwu; and the injuries and amount of blood loss associated with each of

those wounds. Based on his findings, Dr. Tops concluded in his report that the

cause of death was multiple gunshot wounds and that the manner of death was

homicide. All of these records of the autopsy were placed in an OCME file made

specifically for the case.

One of the homicide detectives assigned to the investigation attended the

autopsy. The detective was present throughout the examination and took

possession of the clothing and bullets recovered during the procedure. Following

the autopsy, the detective interviewed Dr. Tops about his findings and conclusions.

By contrast, Dr. Roger Mitchell, the Chief Medical Examiner, did not attend

any part of the autopsy or have any involvement in the examination. Dr. Mitchell

did sign the autopsy report in February 2016 as a reviewing official, but he took no

notes in the case, did not otherwise participate in the drafting or review of the

report, and made no edits to it. 45

B. Mr. Burns’s Motion to Exclude the Chief Medical Examiner’s Surrogate Expert Testimony

The government notified Mr. Burns’s counsel a few weeks before trial that it

intended to call Dr. Mitchell instead of Dr. Tops to testify as an expert witness

about the results of the autopsy. As government counsel later explained at a

pretrial hearing, Dr. Tops was no longer employed by OCME and was working in

Florida by the time of trial. After speaking with Dr. Tops and Dr. Mitchell, the

government decided to call Dr. Mitchell, who was still employed by OCME as

Chief Medical Examiner.

Mr. Burns filed a motion in limine to exclude “the autopsy report and any

attendant documents, as well as any testimony repeating the findings of these

documents or the oral statements of the medical examiner.” Mr. Burns argued in

his written motion that any testimony by Dr. Mitchell “based, in any way, on the

notes, findings, and/or conclusions of Dr. Tops would be unconfronted testimonial

hearsay offered in violation of the Confrontation Clause of the Sixth Amendment.” 46

The trial judge held a hearing on Mr. Burns’s motion shortly before trial.

The government opposed the motion, stating that Dr. Mitchell’s testimony would

be based only on the diagrams and photographs created during the autopsy and not

on the contents of the autopsy report or any other writings generated by Dr. Tops.

Mr. Burns’s counsel argued in response that Dr. Mitchell had reviewed the autopsy

report and the diagrams and photographs and that “all of those things will be the

basis of his testimony and will adhere to hearsay.”

The trial judge denied Mr. Burns’s motion, explaining that Dr. Mitchell

would be “relying on the type of information that expert witnesses rely on when

they formulate an opinion and provide testimony at trial.”

C. The Chief Medical Examiner’s Testimony at Trial

Despite its pretrial assurances, the government elicited testimony from Dr.

Mitchell at trial that far exceeded whatever independent opinions Dr. Mitchell

might have held based solely on a review of the autopsy diagrams and

photographs. The government sought repeatedly to bolster Dr. Mitchell’s

credibility before the jury by presenting his opinions as consistent with Dr. Tops’s

findings and conclusions and as supported by the entirety of the autopsy records of 47

the case. In the process, Dr. Mitchell directly told the jury of several specific

findings and conclusions made by Dr. Tops and indirectly suggested many others.

The government began by having Dr. Mitchell confirm he had reviewed the

complete OCME file in the case, including the autopsy report, notes, and diagrams

prepared by Dr. Tops and the photographs taken during the examination.

Government counsel then asked Dr. Mitchell to state the conclusions reached by

Dr. Tops at the time of the autopsy and to tell the jury whether he agreed with

them. Dr. Mitchell summarized Dr. Tops’s principal conclusions from the autopsy

report — that the cause of death was multiple gunshot wounds and the manner of

death a homicide — and stated his full agreement with those conclusions.

The discussion then moved on to the four gunshot wounds suffered by Mr.

Osuchukwu. The government elicited from Dr. Mitchell that one of the diagrams

drawn by Dr. Tops during the autopsy accurately reflected the locations of the

gunshot wounds shown in the photographs. The diagram, one of three appended to

the autopsy report, showed the location of each entrance and exit wound on the

front and back of Mr. Osuchukwu’s body and included Dr. Tops’s handwritten

notes of measurements taken during the autopsy to memorialize the precise size

and distance of each wound from the midline or other part of the body. 48

Government counsel then gave Dr. Mitchell a blank sheet of paper and asked him

to “more or less recreate” Dr. Tops’s diagram in front of the jury. When Dr.

Mitchell agreed to undertake the task, government counsel asked him if he needed

to see the autopsy report as he re-drew Dr. Tops’s diagram and answered questions

about the gunshot wounds. Dr. Mitchell stated that, yes, he did need the autopsy

report to be able to draw a copy of Dr. Tops’s diagram, and government counsel

marked the report (which included Dr. Tops’s diagram) as an exhibit and gave it to

Dr. Mitchell on the witness stand.

Dr. Mitchell proceeded to describe the entrance location, the trajectory

inside the body, and, where applicable, the exit location of each of the four gunshot

wounds. He told the jury that bullets entered Mr. Osuchukwu’s body through the

left cheek, left shoulder, left lower abdomen, and right lower back, with the two

entering through the left shoulder and right lower back piercing the heart, lungs,

and other vital organs and likely causing Mr. Osuchukwu’s death. With regard to

one of the gunshot wounds, Dr. Mitchell stated that he needed to “refer to the

report” before he could answer a question about the wound’s path inside the body.

Most of the government’s questioning relating to the gunshot wounds,

however, was focused on whether soot or stippling was found at any of the wound 49

sites. Dr. Mitchell described soot as burnt gunpowder that is propelled out of a

firearm along with a bullet and is often deposited on the skin of the person shot

when the firearm is fired from less than six to eight inches away. He described

stippling as unburnt gunpowder that is also propelled out of a firearm and can

cause abrasions to the skin when the firearm is fired from within twelve to eighteen

inches of the person shot. The presence or absence of soot and stippling at the sites

of the gunshot wounds was critical to the case, given Mr. Burns’s defense that he

fired at Mr. Osuchukwu at close range only after Mr. Osuchukwu rushed him and

tried to take away his gun.

The government questioned Dr. Mitchell in detail about the four gunshot

wounds to establish that no soot or stippling was found at the entrance location of

any of the wounds. As worded, the government’s questions directed Dr. Mitchell

to base his testimony about the presence or absence of soot and stippling on his

review of all of the materials in the autopsy file, including the photographs and the

autopsy report, diagrams, and notes authored by Dr. Tops. Government counsel

did not simply ask Dr. Mitchell whether he was able to see soot or stippling in the

photographs of the gunshot wounds (which, for clarity, Dr. Mitchell referred to as

Wounds A, B, C, and D). Instead, the government used passive-voice questions to 50

inquire, as to each of the wounds, whether, based on Dr. Mitchell’s review of the

entire file, soot or stippling was “observed”:

Q: Was there soot observed in the entrance or exit wounds that are depicted before you in Government’s Exhibit Number 24 [a photograph of Wound A]?

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

A: No.

...

Q: Based on your review of not only the photographs that have been put before you as to those wounds that you designated as A, but the entire file as well, was there stippling observed as to those wounds?

Q: Now, is there soot observed on [Wound B]?

Q: I guess I should say was there soot observed on [Wound B]?

Q: And was there stippling observed on that wound?

A: No. 51

Q: And looking at the photograph there, is there soot or stippling observed on [Wound C]?

Q: Based on your review of the file, the photographs, the diagram and notes and everything observed in the file, was there soot or stippling observed on that wound in an unwashed condition?

Q: And was there soot or stippling observed in the unclean observation – in the observation of [Wound D] uncleaned based on your review of the file?

Dr. Mitchell’s responses to the government’s initial questions about Dr.

Tops’s ultimate conclusions, moreover, were not the only point at which Dr.

Mitchell referred directly to information in the autopsy report. As one additional

example, when government counsel asked Dr. Mitchell to describe any scars found

on Mr. Osuchukwu’s body, Dr. Mitchell stated that he needed to refer to the report

before he could answer the question. He then reviewed the relevant portion of the

autopsy report and testified, contrary to Mr. Burns’s claim of self-defense, that all 52

of the scars on Mr. Osuchukwu’s body were healed, with none being a fresh

abrasion or bruise that might have resulted from a scuffle.

Dr. Mitchell also gave testimony about several other aspects of the autopsy

that appear to have been based on information in the autopsy report and other

materials in the OCME file. He told the jury about the recovery of bullets from

Mr. Osuchukwu’s body and clothing during the autopsy, about the precise volume

of blood found pooled in Mr. Osuchukwu’s chest and abdomen at the time of the

autopsy, and about the viewing of Mr. Osuchukwu’s clothing in the course of the

examination. No suggestion was or could have been made that any of this

testimony was based on something other than Dr. Tops’s writings.

Dr. Mitchell did testify to two opinions that were not included in the autopsy

report. He told the jury that the steep upward path of the bullet entering through

the right lower back was consistent with Mr. Osuchukwu “being — or his chest at

the very least being parallel to the floor” when that shot struck him. And he said

there was “a possibility” that pink discoloration of the tissue beneath the entrance

wound on the left lower abdomen indicated that the muzzle of the gun was “flush

up against” Mr. Osuchukwu’s belly at the time the shot was fired. 53

The government formally moved the autopsy photographs into evidence.

Mr. Burns raised no further objection beyond his pretrial motion in limine, and the

photographs were admitted. However, despite the many direct and indirect

references in Dr. Mitchell’s testimony to the autopsy report and other materials in

the OCME file, the government never moved the autopsy report, notes, or

diagrams into evidence, and none of those items was admitted.

D. Analysis Under the Confrontation Clause

The Confrontation Clause of the Sixth Amendment guarantees the accused

“[i]n all criminal prosecutions . . . the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36

(2004), the Supreme Court held that the clause precludes the government from

presenting evidence of the “testimonial statements” of a witness who will not

testify at trial unless the witness is unavailable and the defendant has had a prior

opportunity to cross-examine him. Id. at 68-69. “The Constitution prescribes a

procedure for determining the reliability of testimony in criminal trials, and we, no

less than the state courts, lack authority to replace it with one of our own devising.”

Id. at 67. “Where testimonial statements are at issue, the only indicium of 54

reliability sufficient to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.” Id. at 68-69.

Subsequent decisions of both this court and the Supreme Court have

addressed an array of subsidiary issues left undecided in Crawford. Our analysis

of Dr. Mitchell’s testimony is guided by three important principles that have

emerged from those decisions.

First, forensic evidence is not exempt from the requirements of the

Confrontation Clause. Jenkins v. United States, 75 A.3d 174, 180 (D.C. 2013);

Young v. United States, 63 A.3d 1033, 1039 (D.C. 2013). “Serious deficiencies

have been found in the forensic evidence used in criminal trials,” and the right to

confrontation guaranteed by the Constitution “is designed to weed out not only the

fraudulent analyst, but the incompetent one as well.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 319 (2009).

Second, the government cannot avoid the requirements of the Confrontation

Clause by presenting an expert witness to testify as a surrogate for the person who

performed a forensic examination. Jenkins, 75 A.3d at 180. “Permitting the

defendant to cross-examine a surrogate expert who did not personally perform or 55

observe the forensic analysis at issue is not a constitutionally permissible substitute

for cross-examination of the scientist who actually did the testing.” Young, 63

A.3d at 1039; accord Bullcoming v. New Mexico, 564 U.S. 647, 661-62 (2011)

(“[S]urrogate [expert] testimony . . . could not convey what [the performing

forensic analyst] knew or observed about the events his certification concerned,

i.e., the particular test and testing procedure he employed. Nor could such

surrogate testimony expose any lapses or lies on the certifying analyst’s part.”).

And third, the “dispositive question” whenever the government seeks to

present an expert witness to testify about a forensic examination the expert did not

perform or observe is whether the expert will relay testimonial hearsay statements

of others regarding the examination. Young, 63 A.3d at 1044. This is a question of

law, subject to our de novo review on appeal. 3 Id.; Thomas v. United States, 978

3 Citing Jones v. United States, 127 A.3d 1173, 1187 (D.C. 2015), the government argues that Mr. Burns’s Confrontation Clause claim should be limited to plain error review on appeal because Mr. Burns failed to object at trial when Dr. Mitchell’s testimony exceeded the promised limits on which the trial court based its pretrial decision to allow the testimony. We are not persuaded. Mr. Burns filed a pretrial motion in limine raising the same constitutional arguments he now advances before us. When the trial judge indicated at a pretrial hearing that he was inclined to deny Mr. Burns’s motion in light of the government’s assurances that Dr. Mitchell’s testimony would be based solely on the autopsy photographs and diagrams — and not on the autopsy report — Mr. Burns argued that the testimony would still “adhere to hearsay” in violation of the Confrontation Clause. The trial judge disagreed and denied Mr. Burns’s motion. Mr. Burns then renewed his (continued…) 56

A.2d 1211, 1225 (D.C. 2009). The question has two parts: (1) whether the expert

transmitted hearsay; and (2) if so, whether that hearsay was testimonial. Young, 63

A.3d at 1044.

We begin by addressing whether Dr. Mitchell transmitted hearsay statements

of Dr. Tops.

“An out-of-court statement offered in evidence to prove the truth of the

matter asserted is hearsay whether the statement is quoted verbatim or conveyed

only in substance; [and] whether it is relayed explicitly or merely implied[.]”

Young, 63 A.3d at 1044 (footnote omitted). The fact “that a written forensic

analysis report was not formally entered into evidence, or that [the testifying

expert] did not read verbatim from any such report, is [therefore] not

determinative.” Id. Instead, “[t]he appropriate question is whether the substance

(continued…) objection on several occasions at trial when the government’s breaches of its pretrial assurances were most egregious — specifically, when the government asked Dr. Mitchell to tell the jury whether soot was “observed” on Wound A at the time of the autopsy, again when government counsel asked Dr. Mitchell to identify the location within Mr. Osuchukwu’s body at which Dr. Tops found a bullet had become lodged, and a third time when the government asked Dr. Mitchell to indicate whether Mr. Osuchukwu’s clothing was viewed and photographed during the autopsy. The trial judge overruled all of the objections. In the circumstances, Jones required no more of Mr. Burns, who we conclude properly preserved his Confrontation Clause claim for our de novo review of the trial judge’s rulings. 57

of the testimonial materials is shared with the fact-finder to suggest its truth,

without the report’s author being available for cross-examination.” Id. (quoting

David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore:

Expert Evidence § 4.10.2, at 200 (2d ed. 2011)); see also Gardner v. United States,

999 A.2d 55, 61 (D.C. 2010) (“[A]n expert’s use of testimonial hearsay is a matter

of degree. The question is whether the expert is, in essence, giving an independent

judgment or merely acting as a transmitter for testimonial hearsay.” (emphasis and

internal quotation marks omitted)).

In its arguments to this court, the government departs from its pretrial

promise that Dr. Mitchell’s testimony would be based on the autopsy photographs

and diagrams and asserts instead that Dr. Mitchell based his testimony primarily on

an independent review of the photographs alone. The government pairs this

assertion with an argument that autopsy photographs are not testimonial.

The record contradicts the government’s assertion about the nature of Dr.

Mitchell’s testimony at trial. Even though the photographs were the only items

from the OCME file formally admitted in evidence, the government and Dr.

Mitchell made clear to the jury throughout Dr. Mitchell’s testimony that his 58

opinions were based on all of the materials in the file, including the autopsy report,

diagrams, and notes written by Dr. Tops.

More important, Dr. Mitchell’s testimony was not merely “based on” Dr.

Tops’s hearsay statements; the testimony clearly conveyed the substance of those

statements to the jury. The government’s questions repeatedly indicated that Dr.

Mitchell’s opinions came from the materials in the OCME file and were consistent

with the findings and conclusions reached by Dr. Tops. Government counsel

provided Dr. Mitchell a copy of Dr. Tops’s autopsy report to review on the witness

stand. Dr. Mitchell directly recited Dr. Tops’s final conclusions from the report

and stated his agreement with them. He said on several occasions that he needed

to refer back to the report before he could answer a question. He did his best to

recreate Dr. Tops’s diagram of the four bullet wounds by drawing a copy of the

diagram in front of the jury. He provided specifics about the recovery of bullets

and clothing during the autopsy and the precise volume of blood pooled inside Mr.

Osuchukwu’s chest and abdomen — information that surely came from the

autopsy report and notes. And as detailed in the testimony excerpted above, he

answered the government’s passive-voice questions about soot and stippling in a

way that clearly, if indirectly, communicated to the jury Dr. Tops’s first-hand

observations, set forth in the autopsy report, that no soot or stippling was observed 59

at the time of the autopsy around the four entrance wounds on Mr. Osuchukwu’s

body.

Thus, although a small part of Dr. Mitchell’s testimony was grounded in his

own independent opinions — that Mr. Osuchukwu’s chest was parallel to the floor

when a bullet entered his right lower back, and that there was a possible contact

wound to Mr. Osuchukwu’s belly — the great majority of Dr. Mitchell’s testimony

was focused on transmitting the substance of the findings and conclusions made by

Dr. Tops during the autopsy. The government presented Dr. Mitchell to the jury

far more as a “transmitter” of the hearsay in the autopsy report and other OCME

materials than as an expert communicating his own independent judgment. See

Gardner, 999 A.2d at 61.

Moreover, virtually all of the materials in the OCME file contained hearsay.

The handwritten notes Dr. Tops took during the autopsy and the formal typewritten

report he drafted later both consisted entirely of Dr. Tops’s out-of-court statements

describing the examination and memorializing his observations, findings, and

conclusions. And the diagrams Dr. Tops prepared during the autopsy included his

handwritten notations specifying, among other things, the exact locations, sizes,

and directions of the four gunshot wounds. 60

Finally, concerning this first prong of our analysis, it is important to note

that the trial judge did not instruct the jury, as urged by our precedents, that the

hearsay bases of Dr. Mitchell’s opinions were being presented only for the limited

purpose of assisting the jury in assessing the reasonableness of the opinions and

were not to be considered as substantive evidence. See In re Amey, 40 A.3d 902,

911 (D.C. 2012); In re Melton, 597 A.2d 892, 906-07 (D.C. 1991) (en banc). As a

matter of law, therefore, all of the hearsay statements in the OCME materials

conveyed to the jury through Dr. Mitchell’s testimony came in as substantive

evidence, admitted as proof of the truth of the matters asserted therein by Dr. Tops.

See Jenkins, 75 A.3d at 190-91; Young, 63 A.3d at 1046-47; Gardner, 999 A.2d at

60-61.

This violated the Confrontation Clause if any of those hearsay statements

was testimonial. We thus turn to the second part of the question before us: the

extent to which the hearsay statements in the OCME materials were testimonial

within the meaning of Crawford and the Sixth Amendment.

To be “testimonial,” a hearsay statement “must have been made, primarily,

for an evidentiary purpose.” Young, 63 A.3d at 1040. This means that the 61

statement “must [have been either] ‘a solemn declaration or affirmation made for

the purpose of establishing or proving some fact’ for use in the prosecution or

investigation of a crime, or a statement made under ‘circumstances objectively

indicating that’ the declarant’s ‘primary purpose was to establish or prove past

events potentially relevant to later criminal prosecution.’” Id. at 1039-40 (quoting

Crawford, 541 U.S at 51; Davis v. Washington, 547 U.S. 813, 822 (2006)). “A

statement made primarily for a different purpose, such as enlisting police

assistance to ‘meet an ongoing emergency,’ is not testimonial.” Id. at 1040

(quoting Davis, 547 U.S. at 822).

It is clear from the record that the primary purpose of the autopsy performed

on Mr. Osuchukwu’s remains was to develop forensic evidence of the cause and

manner of Mr. Osuchukwu’s death for use in the ongoing police investigation and

any subsequent criminal prosecution. Mr. Osuchukwu’s body had been discovered

the day before in a setting that overwhelmingly suggested the commission of a

crime, and an active law enforcement investigation was in progress at the time of

the autopsy, with a detective present to observe the examination and take custody

of any bullets, clothing, or other evidence recovered. In the circumstances, any

objectively reasonable forensic pathologist would have understood that the 62

principal purpose of the autopsy and its documentation was to further the criminal

Dr. Tops certainly recognized this reality. Everything he did to document

his findings — from his written notes and diagrams memorializing the precise

location, size, and direction of each gunshot wound; to the scores of photographs

he directed be taken at all stages of the examination; to the formal autopsy report

he subsequently submitted within OCME — was done to generate reliable and

readily understandable evidence of his findings and conclusions relating to the

cause and manner of Mr. Osuchukwu’s death.

Indeed, statutory provisions defining OCME’s duties and responsibilities

effectively compel the conclusion that an autopsy performed with knowledge of an

active and ongoing police homicide investigation has as its primary purpose the

development of forensic evidence for use in the investigation and any subsequent

criminal prosecution. By law, OCME is required to investigate all deaths likely to

be the subjects of criminal investigations, including “[v]iolent deaths”; “[s]udden,

unexpected[,] or unexplained deaths”; “[d]eaths under suspicious circumstances”;

and “[d]eaths for which the Metropolitan Police Department, or other law

enforcement agency, or the United States Attorney’s Office requests, or a court 63

orders[,] investigation.” D.C. Code § 5-1405(b)(1), (2), (3), (11) (2019 Repl.).

Police must “promptly notify the OCME” of any death requiring OCME

investigation, id. § 5-1406(b), and OCME is authorized to “respond to the scene of

the death” and must “take charge of the body” upon such notification, id. § 5-

1406(a). “If, in the opinion of the [Chief Medical Examiner], or the United States

Attorney, further investigation as to the cause and manner of death is required,”

then an OCME or other qualified forensic pathologist must perform “an autopsy of

the body of the decedent” and “retain tissues and biological specimens deemed

necessary to an investigation.” Id. § 5-1409(b). The forensic pathologist who

conducts the examination must “make a complete record of the findings and

conclusions of [the] autopsy” and “prepare a report thereon.” Id. § 5-1409(c).

OCME must maintain “full and complete records and files” relating to all

autopsies, id. § 5-1412(a), and retain records “related to an open investigation of a

homicide . . . for 65 years,” id. § 5-1412(a-1). Finally, autopsy records maintained

by OCME are “admissible as evidence in any court in the District,” id. § 5-1413,

making plain their primary evidentiary purpose, at least when prepared with

knowledge of a related criminal investigation.

Perhaps most unambiguously indicative of the primacy of OCME’s

evidentiary purpose in performing certain autopsies, however, is an introductory 64

statement in OCME’s own standard operating procedures. In an SOP issued just a

few months before Dr. Tops performed the autopsy on Mr. Osuchukwu’s remains,

OCME instructed its forensic pathologists:

The medical examiner should approach the decedent and postmortem examination as evidence to be presented in court. This is best accomplished by thorough written, diagrammatic, and photographic documentation of the examination at the time of the original examination.

D.C. Office of the Chief Medical Examiner, Standard Operating Procedure:

Postmortem Examination Types § 1.1 (2015) (emphasis added),

https://ocme.dc.gov/sites/default/files/dc/sites/ocme/publication/attachments/Postm

ortem%20Examination%20Types.pdf https://perma.cc/V38T-R23N. It is difficult

to imagine a clearer statement of the primary evidentiary purpose of an autopsy

performed in conjunction with an active police homicide investigation.

The D.C. Circuit reached the same conclusion in United States v. Moore,

651 F.3d 30 (D.C. Cir. 2011), a case in which multiple defendants were tried on

charges of conspiracy and other felonies involving thirty-one murders. Id. at 39.

At trial, the government called the then-Chief Medical Examiner to testify to the

contents of approximately thirty autopsy reports authored by other pathologists in

his office, even though the Chief Medical Examiner did not perform or attend any 65

of the autopsies. Id. at 71. The trial court admitted the autopsy reports in evidence

over the defendants’ Confrontation Clause objections. Id.

The D.C. Circuit found constitutional error on appeal. Id. at 72. Citing,

among other things, the context of an ongoing criminal investigation into shooting

deaths, the presence of detectives and mobile crime lab officers at several of the

autopsies, and the formality of the autopsy reports, the court concluded that the

autopsy reports were testimonial statements within the meaning of Crawford and

the Confrontation Clause:

Law enforcement officers thus not only observed the autopsies, a fact that would have signaled to the medical examiner that the autopsy might bear on a criminal investigation, they participated in the creation of reports. Furthermore, the autopsy reports were formalized in signed documents entitled “reports.” These factors, combined with the fact that each autopsy found the manner of death to be a homicide caused by gunshot wounds, are “circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id. at 73 (quoting Melendez-Diaz, 557 U.S. at 310).

The government nonetheless urges us to deem all autopsy records non-

testimonial, stating that autopsies are conducted in a wide array of circumstances,

often without any connection to any ongoing or anticipated criminal investigation 66

or prosecution. As examples, the government points to statutory requirements that

OCME perform autopsies not only in the crime-related contexts cited above, but

also where there have been “[d]eaths of persons whose bodies are to be cremated,

dissected, buried at sea[,] or otherwise disposed of”; “[d]eaths related to disease

resulting from employment or on-the-job injury or illness”; “[d]eaths related to

disease which might constitute a threat to public health”; “[d]eaths of persons who

are wards of the District of Columbia government”; “[d]eaths related to medical or

surgical intervention”; “[d]eaths of persons while in legal custody of the District”;

“[f]etal deaths related to maternal trauma”; and “[d]ead bodies brought within the

District of Columbia without proper medical certification.” D.C. Code § 5-

1405(b)(4), (5), (6), (7), (8), (9), (10), (12).

We recognize that not every autopsy conducted in the District of Columbia

has as its primary purpose the creation and documentation of forensic evidence for

use in a criminal investigation or prosecution. We also presume the accuracy of

data in a recent OCME annual report showing that the manner of death was

determined to be homicide in fewer than 16% of the autopsies OCME performed in

2016. See D.C. Office of the Chief Medical Examiner, 2016 Annual Report 9

(2017),

https://ocme.dc.gov/sites/default/files/dc/sites/ocme/2016%20OCME%20Annual% 67

20Report%20FINAL%2011%2030%2017%20v3.pdf https://perma.cc/44NV-

R6UN.

But we must reject the government’s argument that all autopsy records are

non-testimonial simply because many autopsies are performed primarily to serve

governmental interests other than the development of forensic evidence for use in

criminal investigations. At least where the person whose remains are being

autopsied appears to be the victim of a homicide and the forensic pathologist

performing the examination knows of or anticipates the commencement of a law

enforcement investigation into the person’s death, we can say with assurance that

the autopsy’s primary purpose is evidentiary. Any objectively reasonable

pathologist performing an autopsy in those circumstances would understand that

the main purpose of the examination and its documentation is to develop forensic

evidence of past facts relevant to the cause and manner of death for use in the

investigation and any later criminal prosecution.

We thus hold that the hearsay statements in the autopsy report, notes, and

diagrams conveyed to the jury by Dr. Mitchell were testimonial within the meaning

of Crawford and the Sixth Amendment. Although the materials were prepared in

differing formats and with varying levels of formality, all were created in the 68

context of an ongoing criminal investigation of a suspected homicide and for the

primary evidentiary purpose of communicating and explaining Dr. Tops’s findings

and conclusions regarding the cause and manner of Mr. Osuchukwu’s death.

The question whether any hearsay contained within the autopsy photographs

was testimonial is more nuanced. The government argues that a reference to “non-

testimonial photographs” in Mungo v. United States, 987 A.2d 1145, 1154 (D.C.

2010), constitutes a binding decision on the issue, while Mr. Burns contends that

the reference was a mere stray comment made in the context of a plain error

analysis.

We need not determine whether Mungo’s reference to non-testimonial

photographs has any precedential value. As we have already concluded, the

government’s assertion that Dr. Mitchell’s testimony was based primarily on the

autopsy photographs is not supported by the record, and Dr. Mitchell

communicated to the jury a substantial amount of testimonial hearsay contained

within the other materials in the autopsy file.

We accordingly conclude that Dr. Mitchell transmitted Dr. Tops’s

testimonial hearsay statements to the jury. Because Dr. Tops was not shown to be 69

unavailable, and because Mr. Burns had no prior opportunity to cross-examine him

in any event, Dr. Mitchell’s testimony was admitted in violation of the

Confrontation Clause of the Sixth Amendment. See Crawford, 541 U.S. at 68-69.

III. Prejudice

An error of constitutional magnitude in the trial court requires reversal of a

criminal conviction on appeal unless the government establishes that the error was

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24

(1967). Where multiple errors have occurred, their impact must be viewed

cumulatively in determining whether the government has met its burden. Sims v.

United States, 213 A.3d 1260, 1272 (D.C. 2019). Mr. Burns’s convictions

therefore must be reversed unless they were “surely unattributable” to the

erroneous admission of his cell phone data and Dr. Mitchell’s testimony,

considered in combination. See Jenkins, 75 A.3d at 192 (quoting Kaliku v. United

States, 994 A.2d 765, 775 (D.C. 2010)).

The government has not made the requisite showing. The cell phone data

was the centerpiece of the government’s case, and Mr. Burns’s internet search

history, in particular, was critical to the government’s proof of premeditation and 70

deliberation. As government counsel put it in his opening statement to the jury,

Mr. Burns’s cell phones “contain the evidence . . . that traces the thoughts, the

actions, the movements, and everything else pertaining to Mr. Burns having to do

with the murder of Mr. Onyekachi Osuchukwu.” Dr. Mitchell’s testimony about

the absence of soot and stippling at the sites of the four gunshot wounds was

similarly essential to the government’s success in disproving beyond a reasonable

doubt Mr. Burns’s claim of having shot Mr. Osuchukwu in self-defense at very

close range.

Mr. Burns’s convictions, accordingly, must be reversed. APPENDIX