Friday, July 22, 2016

Firearms Examiner May Not Testify That Bullet Was Fired From a Particular Gun With Absolute Certainty, Plus Some Other Errors, But No Harm

Eric Gardner v. United States (decided June 23, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Reid. Opinion by Judge Reid. Benjamin Brooks for Mr. Gardner. Trial judge: Robert I. Richter

Facts: A taxi driver was shot and killed.  Police canvassing the area went to a nearby motel, and received a report that a man, who turned out to be Mr. Gardner, had just recently returned to room 114.  Officers standing outside the room heard a male voice saying he "need[ed] to get this stuff off of me, I'm very amped up right now," a shower running, and what one officer claimed was the distinctive sound of a gun being racked. Another officer outside the motel saw Mr. Gardner climb out of a window.  When the officer approached, Mr. Gardner dropped his jacket and a black gun, and he ran. The jacket had a blood stain, and DNA analysis could not exclude the taxi driver as one of two different contributors of the DNA.   Police later found, in an alley where a witness had seen a man running from the taxi driver's cab, a silver and black gun.  A witness claimed Mr. Gardner had shown her a silver and black gun shortly before the shooting.  A firearms examiner testified that the silver and black gun found in the alley was the gun that fired the fatal shot. A jailhouse informant testified that Mr. Gardner had admitted that he tried to rob the taxi driver and shot him when he refused to give up his money.  

Mr. Gardner testified in his defense that he had been a passenger in the taxi and was about to pay his fare when a third person with a gun attempted a robbery of the taxi.  Mr. Gardner struggled with the robber, and the driver accelerated the car, and then a shot rang out.  The robber ran off, and the taxi continued driving some distance before it crashed.  Mr. Gardner then ran to the motel, admitting that he had gone through the alley in which the silver and black gun was found.

Issue 1:  May a ballistics expert testify that a bullet was fired from a specific gun with 100% certainty?

Holding 1: No.  The Court adopted Judge Easterly's position in her concurring opinion in Williams v. United States, 130 A.3d 343 (D.C. 2016), which we blogged about here, and held that "a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, that based on ballistics pattern comparison matching a fatal shot was fired from one firearm, to the exclusion of all other firearms."  The Court did not preclude firearms examiners from offering an opinion that a bullet or casing came from a gun, but they cannot opine that it did with absolute certainty.  The Court also expressed "doubts as to whether trial judges in this jurisdiction should permit toolmark experts to state their opinions 'with a reasonable degree of certainty.'"

However, the Court held the error was harmless, calling the remaining evidence "strong and compelling."

Issue 2:  Did the court err in allowing a government DNA expert to testify that DNA from the silver gun matched Mr. Gardner's DNA at only two of the thirteen loci that are typically analyzed?

Holding 2:  No.  Given the low bar for evidence to be relevant, the match at only two loci was relevant even if it was not uncommon for different people to match at those locations.  The evidence was also not more prejudicial than probative, given the analyst's testimony that there was insufficient DNA to obtain a profile, and it was common for different people to match at a single locus.

Issue 3:  Did the court err in preventing Mr. Gardner from testifying about his knowledge that the jailhouse informant had a reputation as a "snitch," allowing the defense to argue that Mr. Gardner would not have confessed to a known snitch?

Holding 3:  Assuming this was error, it was harmless.  The informant had admitted during cross-examination that he was a known snitch, and his credibility was otherwise substantially impeached.  Mr. Gardner's testimony that he know of the informant's reputation "would have been, at most, a small addition to the impeachment of [the witness], and not a significant contribution to enhancing Mr. Gardner’s own credibility."

Issue 4:  Did the court err in refusing to give a "plea agreement" instruction, cautioning the jury that testimony of a witness who has entered into a plea agreement should be considered with caution?

Holding 4:  No, because the informant did not have a plea agreement with the government.

Issue 5:  Did the court err in restricting the defense's cross-examination of a police officer about two investigations targeting the officer, one for harassment and the other for excessive force?

Holding 5:  Assuming this was error, it was harmless.  The officer was effectively cross-examined, and his testimony was a small piece of the government's evidence.

Issue 6:  Were Mr. Gardner's post-arrest statements to police voluntary?

Holding 6:  Yes.  Although he had been held for some time, he was sleeping for the first ten hours.  Although he was not immediately given food when he asked for it, he was not told that food be withheld unless he gave a statement.  Mr. Gardner initiated his conversation with police, and he signed a waiver form.  At one point during his statement when Mr. Gardner was shivering, officers "turned the vent off."  Mr. Gardner's will was not overborne in such a way as to render his statements the product of coercion.

Issue 7:  Did trial counsel provide ineffective assistance by failing to cross-examine the firearms examiner using a specific report; failing to object to post-arrest police statements to Mr. Gardner about multiple witnesses to the shooting, and failing proffer a basis for the admissibility of Mr. Gardner's testimony about his knowledge of the jailhouse informant's reputation as a snitch?

Holding 8:  Assuming trial counsel's performance was deficient, there was no prejudice.

Of Note:

  • Although the opinion's holding bars only testimony that an expert is absolutely certain a bullet or casing came from a particular gun,the opinion leaves the door open to further limitations on the testimony of firearms examiners.  Defense attorneys should continue to fight for limits on this testimony, using the reports and articles cited in the opinion as ammunition.
  • The court's harm analysis leaves much to be desired.  The defense presented a plausible account of the shooting that the jury might have credited, particularly given the government's apparent inability to explain why Mr. Gardner's jacket had blood from two different (and unknown) individuals, and the failure of police to preserve a bloodstain on the right rear passenger window -- evidence which could have corroborated Mr. Gardner's account of a third person's presence.  The fact that the apparent murder weapon was found on Mr. Gardner's flight path and the purported confession he made to the jailhouse informant were thus critical pieces of evidence.  Given that the errors went to those aspects of the government's evidence, the finding of harmlessness from the cumulative prejudice is dubious.  DG

Read full opinion here.  

Tuesday, July 19, 2016

Questionable Conduct: Detective’s Interrogation Tactics Create Impermissible Risk That Waiver of the Right to Counsel Was Not Intentional

David T. Robinson v. United States (decided July 14, 2016).

Players: Associate Judges Fisher and Blackburne-Rigsby and Senior Judge Pryor.  Opinion by Judge Fisher.  PDS for Mr. Robinson. Trial Judge: Stuart G. Nash. 

Facts 1:  On May 11, 2012, following David Robinson’s arrest for violating probation, Detective Anthony Patterson went to Mr. Robinson’s interrogation room and told Mr. Robinson that he believed he was involved in the unrelated murder of Howard Sampler.  Det. Patterson said that it might help if Mr. Robinson were to talk but that he needed to be advised of his rights. When Mr. Robinson said that he would like to talk, Det. Patterson brought him to a different interrogation room.   

After a brief exchange during which Robinson claimed to have acted in self-defense, Det. Patterson read Mr. Robinson his Miranda rights from a PD-47 “advice of rights” form, adding “we don’t provide you a lawyer here.  But if . . . we ask you something and you don’t want to talk about it you can say look, I don’t have anything to say about that.”  Per the first three questions on the PD-47, Det. Patterson had Mr. Robinson acknowledge (1) that he had read or had read to him his rights, (2) that he understood those rights, and (3) that he wished to answer questions.  However, Det. Patterson purposely omitted the fourth question: “Are you willing to answer any questions without having an attorney present?”  At the suppression hearing, he testified, “Once [Mr. Robinson] agreed to talk to me I didn’t see any point in asking him if he wanted to talk to me without a lawyer present.”  In the ensuing interrogation, Mr. Robinson admitted to carrying a .40 caliber pistol and firing it at Howard Sampler multiple times in self-defense.  

Issue 1:  Whether the May statement should have been suppressed for Det. Patterson’s failure to issue proper Miranda warnings or his failure to obtain a valid waiver of Miranda rights?

Holding 1: Yes. Although the warnings were “adequate and effective,” the government failed to prove intentional relinquishment of Mr. Robinson’s known right to have a lawyer present during questioning.  There was no express waiver because Det. Patterson did not ask for one.  Further, “this court is entitled to be skeptical [of implied waiver] in a case like this, where an officer [1] deliberately pursues some express waivers but purposefully fails to complete the PD-47” and [2] “apparently fails to appreciate the distinction” between the desire to answer questions and the willingness to do so without counsel present.  Det. Patterson’s failure to appreciate this distinction creates “obvious concern” that Mr. Robinson’s waiver of counsel was not intentional (which could have easily been resolved by completing the PD-47). 

Facts 2: Following the May interrogation, Mr. Robinson was detained for violating his probation until late November.  Days after Mr. Robinson’s release, Det. Patterson called Mr. Robinson and went to his mother’s house (where Mr. Robinson was babysitting his two-year-old daughter) to speak with him.  Det. Patterson later called the child’s mother to discuss retrieving the child. 

When Det. Patterson learned that Mr. Robinson was no longer babysitting, Det. Patterson and two other officers pushed their way inside Mr. Robinson’s mother’s house to search for Mr. Robinson, without warrant or invitation.  Mr. Robinson’s mother then called and told Mr. Robinson “to go down there and take care of it and don’t come back to my house until it’s done.”  Mr. Robinson reported to the police station, where the police interviewed him in a locked interrogation room.  At no point during this interview was Mr. Robinson read his Miranda rights.

Issue 2: Whether the November statement should have been suppressed for the police’s failure to issue Miranda warnings?

Holding 2: No. Despite Det. Patterson’s persistence in urging Mr. Robinson to come to the station, he was not in custody.  His friend drove him there.  He was not physically restrained, and his movements were not restricted to the degree associated with formal arrest (although police escorted him to use the bathroom and smoke).  Although the door was closed and locked once questioning began, that would have been true for any witness “who came back to one of those interview rooms.”

The environment was not so coercive as to be custodial.  Det. Patterson told Mr. Robinson that he was not under arrest and “if you want to leave here . . . you can leave.”  Mr. Robinson stated he would act accordingly.  Det. Patterson told Mr. Robinson that the interview would probably take an hour and agreed to help him coordinate with the friend who drove him, in case the interview took longer.  

Although Mr. Robinson once asked to leave and terminate the interview, he did not actually try to do so.  Moreover, by then, he had incriminated himself.  These facts compare favorably with Spencer v. United States, 132 A.2d 1163 (D.C. 2016), in which the Court found no custody.

Of note:

  • This opinion highlights the government’s burden to prove that any supposed waiver is intentional as well as knowing.  The Court disagreed that anything Det. Patterson did or said left Mr. Robinson “uncomprehending of and inattentive to the Miranda right to counsel” but still found unacceptable risk that he did not intentionally waive that right.  Judges and attorneys should be mindful of the government’s distinct burden in this regard. 

  • In a footnote, the Court acknowledged the possibility that the police violated the Fourth Amendment when three officers, including Det. Patterson, forced their way into Mr. Robinson’s mother’s house in November to search for Mr. Robinson and the further possibility that his November confession was the fruit of this illegal search.  The Court deemed this argument waived and disclaimed the significance of this fact for purposes of deciding whether Mr. Robinson was in custody under Miranda.

  • The Court also acknowledged the possibility that the November confession was a fruit of the May confession under the “cat-out-of-the-bag” doctrine but deemed this argument waived.  WC

Monday, July 18, 2016

On remand, appellant gets jury trial on charges that typically aren't jury eligible

LeJune C. Smith v. United States (decided July 7, 2016)

Players: Associate Judges Beckwith and McLeese, Senior Judge Pryor.  Opinion by Judge Pryor.  Dissent by Judge McLeese.  Sean R. Day for Mr. Smith.  Trial judge: A. Franklin Burgess, Jr.

Facts: Mr. Smith requested a jury trial on six counts stemming from a hit-and-run incident after which Mr. Smith was found to be intoxicated.  The maximum sentence Mr. Smith faced for the six charges was 2 years and 9 months, and a fine of $5,500.  The trial court denied the request and proceeded with a bench trial, at which Mr. Smith was acquitted on three counts and convicted on three counts.  On appeal, Mr. Smith argued that his statutory right to a jury trial was violated because he faced a cumulative maximum sentence of more than two years or $4000.  See D.C. Code § 16-705(b).  The government conceded that Mr. Smith’s right to a jury trial was violated, but argued that the three convictions should nonetheless be affirmed because cumulatively, they represent a maximum potential sentence of 1 year and 90 days and a fine of $2,500, and therefore would not entitle Mr. Smith to a jury trial under D.C. Code § 16-705(b).

Issue: Is remand for a jury trial a viable remedy when a defendant has been erroneously denied a jury trial, but would not independently be entitled to a jury trial on the counts being remanded?

Holding:  Yes.  Under D.C. Code § 17-306, the DCCA may “affirm, modify, vacate, set aside or reverse any order or judgment . . . lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances.”  Slip op. at 8-9 (citing D.C. Code § 17-306).  NG

Friday, July 15, 2016

Trial court finding of guilt reversed based on doctrine of “inherent incredibility” . . . for the first time in 50 years!

Dion M. Slater-El v. United States (decided July 7, 2016).

Players: Associate Judges Thompson and Easterly, Senior Judge Ferren.  Opinion by Judge Thompson.  Dissent by Judge Ferren.  Edward E. Schwab for Mr. Slater-El.  Trial judge: Marisa Demeo.

Facts: Louisetta Koh and Mr. Slater-El have a son, D.S., who was 16 months old at the time of this incident.  A dispute arose after Ms. Koh informed Mr. Slater-El that she would be taking D.S. to North Carolina the following day.  D.S. was seated in a high chair at the time.  Mr. Slater-El grabbed D.S. while the baby remained in the high chair.  A melee ensued.  Mr. Slater-El and Ms. Koh ended up on a couch, with Ms. Koh on her back at the bottom, Mr. Slater-El facing her on top, and D.S. in the middle, still in the high chair.  Mr. Slater-El’s sister, Donna Robinson, tried to pull Mr. Slater-El off, and her husband, Ellsworth Robinson, began to hit Mr. Slater-El.  Mr. Slater-El was charged with attempted second-degree cruelty to children.

At trial, Ms. Robinson, Mr. Robinson, and one of the responding police officers testified for the government; a second responding officer, Ms. Koh, and Mr. Slater-El testified for the defense.  The trial court relied heavily on Ms. Robinson’s testimony in finding Mr. Slater-El guilty of attempted second-degree cruelty to children.  

Issue: Was Ms. Robinson, upon whom the trial court relied in making its finding of guilt, “inherently incredible,” such that the court’s credibility finding was not entitled to deference? 

Holding:  Yes.  The trial court’s finding rested on Ms. Robinson’s claims that Mr. Slater-El held D.S. in a tight grip while D.S. remained in his high chair; and that Mr. Slater-El gripped the baby very tightly for several minutes while D.S. was pinned between Mr. Slater-El and the high chair.  The DCCA found that each of these findings was clearly erroneous and contrary to the physical evidence, and therefore were not entitled to deference.  Ms. Robinson’s claim that Mr. Slater-El had a tight grip on the baby was internally unsupported and contradicted by many other statements Ms. Robinson made, including her admissions that “you really couldn’t see the baby,” and that she was standing behind Mr. Slater-El.  Likewise, Ms. Robinson’s claim that Mr. Slater-El put his weight on D.S. was speculative.

Of Note:

  • Since this is the first time in more than 50 years that a conviction has been reversed in this jurisdiction based on the doctrine of inherent incredibility, a review of the standard is perhaps in order.  A fact-finder’s credibility determination is not entitled to deference “if the testimony of a witness is inherently incredible under the circumstances.”  Slip op. at 17 (quoting Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007).  In order for the doctrine to apply, the testimony must be capable of being “disproved as a matter of logic by the uncontradicted facts or by scientific evidence, or when the person whose testimony is under scrutiny made allegations which seem highly questionable in light of common experience and knowledge, or behaved in a manner strongly at variance with the way in which we would normally expect a similarly situated person to behave.” Id. (quoting Payne v. United States, 516 A.2d 484, 494 (D.C. 1986).

  • Consider keeping this case in your trial folder for MJOAs.  The Court’s analysis will be helpful in cases where a determination of guilt would have to rely on witness testimony that is internally inconsistent or illogical.  NG

Thursday, June 30, 2016

A blow to the head, dizziness, gushing blood, and treatment in the hospital are not sufficient to establish “significant bodily injury” needed for felony assault

Daric M. Wilson v. United States (decided June 30, 2016).

Players: Associate Judges Beckwith and Easterly, Senior Judge Belson.  Opinion by Judge Beckwith.  Dissent by Judge Belson.  PDS for Mr. Wilson.  Trial judge: Stuart Nash.

Facts: Mr. Wilson and two companions got into Salim Abubakar’s cab for a ride from Arlington to Adams Morgan.  A dispute arose over the fare, and a physical altercation between Mr. Abubakar and Mr. Wilson ensued.  Mr. Wilson and Mr. Abubakar offered sharply conflicting versions of the fight.  Mr. Abubakar sustained an injury to the top of his left eye.  He testified that he felt dizzy and that Mr. Wilson placed him in a hold that made it difficult to breathe.  Responding police officers testified that Mr. Abubakar appeared to be in visible pain, was bleeding from his face, was “gushing blood,” had cuts all over his face, and moaned instead of responding to questions.  Paramedics treated Mr. Abubakar at the ambulance for as long as half an hour before taking him to the hospital and, according to one of the police officers, thought that Mr. Abubakar’s jaw might be broken.  The government introduced photographs of Mr. Abubakar in a hospital bed with lacerations and dried blood on his face, a brace around his neck, a cuff on his arm, and electrodes attached to his chest.

Issue: Whether Mr. Abubakar’s injuries amounted to “significant bodily injury,” as required for a felony assault conviction under D.C. Code § 22-404(a)(2).

Holding: No.  The government’s evidence failed to show that “immediate medical attention’ was required to ‘prevent long-term physical damage and other potentially permanent injuries’ or ‘abate pain that is severe’ instead of ‘lesser, short-term hurts.’”  Slip op. at 13 (quoting Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015)).

Of Note:

  • The government failed to elicit testimony from paramedics or treating physicians, who presumably could have explained whether Mr. Abubakar’s injuries required medical treatment to prevent “long term physical damage, possible disfigurement, or severe pain.”  Slip op. at 13 (quoting Teneyck, 112 A.3d at 909).  The key issue in analyzing sufficiency of the evidence on a felony assault charge is whether the evidence establishes that medical attention was required to prevent these effects.  Slip op. at 13 n.9.

  • Senior Judge Belson attached one of the photographs of Mr. Abubakar in the hospital to his dissent.  The majority rejected the relevance of the photographs, pointing out that without more, they did not show that Mr. Abubakar’s injuries required immediate medical attention.  NG