OBJECT if a Firearms Examiner Testifies with Any Degree of Certainty That Markings on Recovered Bullets Were Produced By a Specific Gun

Marlon Williams v. United States (decided January 21, 2016)

Players: Associate Judges Thompson and Easterly, Senior Judge Nebeker. Opinion by Judge Easterly. Concurrence by Judge Easterly. Enid Hinkes for Mr. Williams. Trial Judge: Russell F. Canan.

Facts: Soon after Min Soo Kang was found shot to death in Southeast D.C., police used the OnStar navigation system installed in his Cadillac Escalade to recover the vehicle. From a digital database of known fingerprints, they identified Marlon Williams as a possible source of fingerprints found on and inside the Escalade. A subsequent search of Williams’s home turned up a gun in his bedroom. A firearms and toolmark examiner test-fired the gun and compared the resulting bullet markings to markings on bullets recovered from Kang’s vehicle. At trial, the examiner testified that every gun leaves “unique” marks on the bullets it fires, and that based on his comparison, there was not “any doubt in [his] mind” that the bullets recovered from Kang’s vehicle were fired by the gun recovered from Williams’s room. On the basis of this evidence—along with a cooperating witness’s testimony that Williams made incriminating statements and eyewitness testimony that someone matching Williams’s description was opening and closing the hood of the Escalade around the time the OnStar service remotely disabled it—a jury convicted Williams of first-degree felony murder while armed, attempted robbery while armed, PFCV, and CPWL.

Issue: Should the firearms and toolmarks examiner have been permitted to testify that the markings on the bullets recovered from Kang’s Escalade were “unique” and that he was without “any doubt” that they were fired by the gun recovered from Williams’s room?

Holding: The majority opinion strongly implied — and Judge Easterly’s concurrence expressly concluded — that the examiner should not have been permitted to testify with such absolute certainty that the recovered bullets matched Williams’s gun, but the Court declined to reverse on that ground because the unobjected-to testimony did not rise to the level of plain error. Although the same issue was presented in an earlier case, Jones v. United States, 27 A.3d 1130 (D.C. 2011), the government had at that time assured the Court that its policy was “to only elicit firearms examiners’ opinions [of a match] to a reasonable degree of scientific certainty,” not “100% certain[ty].” In light of this assurance, the Court in Jones merely “assume[d], without deciding, that [firearms and toolmark] experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.” Id. at 1139 (emphasis added). Thus, there was no controlling precedent in this jurisdiction at the time of Williams’s trial, nor was there sufficient weight of authority from other jurisdictions to say that the trial court “plainly” erred in allowing the examiner’s testimony. And while the government concededly violated its own policy in this case, the Court held that such a policy is not binding law and cannot by itself form the basis of a plain error determination.

Concurrence: In addition to authoring the majority opinion, Judge Easterly wrote a separate and forceful concurrence in which she concluded that D.C. courts should “preclude a firearms and toolmark examiner from testifying with unqualified, absolute certainty.” The reason, Judge Easterly explained, can be found in two reports published by committees of the National Research Counsel (NRC), an arm of the publicly chartered National Science Foundation. The first, a 2008 report commissioned by the Department of Justice, found that there is simply not enough scientific research to establish that “firearms-related toolmarks are unique: that is, [that] a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others,” and that experts’ commonplace testimony to that effect “cloak[s] an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.” The second NRC publication, a 2009 report commissioned by Congress, similarly concluded that there is no statistical basis to say with any particular degree of certainty that toolmarks on a bullet match a specific gun or other bullets fired from that gun. In light of these findings, Judge Easterly concluded, “[c]ertainty statements” like those at issue in this case are not only not helpful to juries, they are misleading, and they create an “alarming” risk of wrongful convictions. As Judge Easterly put it, “a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic . . . .” As such, they are not admissible as expert testimony.

Of Note:

• So misleading is testimony that an examiner is certain of a match to a specific gun—and likewise, testimony that each gun leaves a “unique” mark on bullets it fires—that Judge Easterly suggested defense counsel is constitutionally ineffective if he or she fails to object, and the government is in violation of its obligation under Napue v. Illinois, 360 U.S. 264 (1959), to avoid knowingly presenting false or misleading evidence if it elicits or allows such certainty statements to go uncorrected.

• Judge Easterly’s concurrence could provide substantial support to argue that an examiner’s claim of any degree of certainty in a match, even if not 100% certainty, is impermissibly misleading. The concurrence specifically notes that firearms examiners should not be permitted to claim “a reasonable degree of scientific certainty” about a toolmark match, because the 2009 NRC report found it impossible to say “how many points of similarity are necessary for a given level of confidence in the result.” It also cites with approval cases from federal district courts that have prohibited an examiner from saying he reached his conclusions with any degree of certainty and limited an examiner to describing the observed toolmark similarities without stating any conclusion of a match.

• The majority opinion rejected, for lack of plain error, an unpreserved claim that the firearms examiner failed to present the images or other “documentation” underlying his opinions for the jury to evaluate for itself. It nevertheless left the door open for a future argument that toolmark pattern-matching testimony must include “sufficient documentation to permit the jury to meaningfully evaluate the expert’s subjective conclusions,” noting one federal district court had so held, and another had urged, but not required, supporting documentation.

• Williams also raised several other issues on appeal, including sufficiency of the evidence for attempted armed robbery; a hearsay and Confrontation Clause challenge to the firearms examiner’s report, which bore the signature of a second, non-testifying examiner; an unpreserved challenge to the admission of fingerprint evidence; an unpreserved argument that he was entitled to a hearing based on Franks v. Delaware, 438 U.S. 154 (1978), because of a discrepancy between the fingerprint examiner’s testimony and the search warrant issued for his home; and a claim that his attempted robbery and corresponding PFCV conviction must merge with his felony murder conviction. The Court rejected all but the merger argument. FT.

Read full opinion here

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Trust, but Verify

Jesus A. Hernandez v. United States (decided January 14, 2016).

Players:  Associate Judges Fisher and McLeese, Senior Judge Ruiz.  Opinion by Judge McLeese.  Trial judge Fern Flanagan Saddler.  Geneva G. Vanderhorst for Mr. Hernandez.

Facts:  Mr. Hernandez was convicted of simple assault; his girlfriend, Ms. Argueta-Avila, was the complainant.  The government’s evidence consisted of Ms. Argueta-Avila’s testimony that an intoxicated Mr. Hernandez grabbed her and pushed her, the testimony of a bystander who said that he saw Mr. Hernandez choke her, and testimony of a police officer regarding out-of-court statements by Ms. Argueta-Avila (that she had not been assaulted) as well as his observation of her torn shirt and scratches on her chin and arm.

Issue:  After affirming on sufficiency grounds, the Court was presented with the question whether the trial court conducted an adequate Jencks inquiry after the defense established that the prosecutor took notes during an interview with the complainant. 

Held:  The trial court erred in failing to conduct an adequate inquiry into whether the United States was required to disclose the notes of the prosecutor’s interview with the complainant.  After defense counsel established that the complainant had met with the prosecutor and the prosecutor was taking notes, counsel had no further obligation to establish that the notes were “verbatim,” as the trial judge erroneously believed.  Rather, the trial judge had to make an adequate inquiry or review the notes to see if they were Jencks material.  While the trial judge here inquired of the prosecutor whether she was in possession of any Jencks material, the judge erred in relying on the “assurance from the prosecutor, who is an officer of the [c]ourt” that she had no notes that would constitute Jencks.  The Court of Appeals held that because there is “no clear line” between what is substantially verbatim and what is not, a trial court cannot deny a Jencks request solely by accepting a prosecutor’s “bare conclusion,” but rather has “an affirmative duty to make its own determination whether requested notes come within the purview of Jencks.”  

Of Note:

• The Court distinguished the situation in which a prosecutor represents that she did not take any notes – which is essentially the representation of a prosecutor as to a “pure question of fact as to which the prosecutor had personal knowledge” – something a judge is entitled to credit.  The Court noted that the question whether notes are “substantially verbatim,” by contrast, is “to a degree a legal question” (although the Supreme Court has characterized it as predominantly factual in nature) and therefore “a trial court cannot simply accept, without further inquiry, a prosecutor’s conclusory assertion.”

• After concluding the Jencks inquiry was inadequate, the Court engaged in a harmless error analysis, noting that when the Court does not have access to the Jencks material in question, it must assess harmlessness by assuming that the undisclosed material contained a Jencks statement and that the trial court therefore would have struck the witness’s direct testimony.  Concluding the error was not harmless under that test, the Court remanded the case for an appropriate Jencks inquiry, noting that if the trial court concluded that there was Jencks material that should have been disclosed, the parties should brief the question whether the nondisclosure was harmless given the content of the notes.  If the trial judge concluded the notes do not contain Jencks material, or that any nondisclosure was harmless, Mr. Hernandez would have the right to seek further appellate review.  Presumably, review of the harmlessness determination by the trial court would have to be de novo, under Davis v. United States, 564 A.2d 31, 42 (D.C. 1989 ) (en banc) (appellate court owes no deference to trial court determination of harmlessness).  JF

Read full opinion here.

Plain when? Plain now!

Krishna Patrick Muir v. District of Columbia (decided January 14, 2016).

Players:  Associate Judges Glickman and McLeese, Senior Judge Newman.  Opinion by Judge Glickman; Judge Newman concurs in the judgment.  Trial judge: Anthony Epstein.  Daniel K. Dorsey for Mr. Muir.

Facts:     Mr. Muir was tried for driving under the influence (DUI) and operating a vehicle while impaired (OWI) in 2011, before the Court of Appeals decided, in Taylor v. District of Columbia, 49 A.2d 1259, 1267 (D.C. 2012), that the alcohol impairment threshold is the same for both offenses, and that both require proof of an “appreciable degree” of impairment.  Mr. Muir’s jury was instructed that it could convict Mr. Muir of OWI if it found that his consumption of alcohol impaired his ability to operate a motor vehicle “in any way,” while in order to convict him of DUI, it would have to find “an appreciable degree” of impairment.  The jury convicted Mr. Muir of OWI and acquitted him of DUI.

Issue:  Whether the erroneous instruction, given at a time when the law was unsettled, constituted plain error necessitating reversal of the OWI conviction.   

Held:  Mr. Muir’s conviction was reversed because the Court of Appeals held that all four prongs of the Olano test were satisfied.  Of interest is the “plainness” analysis.  In 1997, the Supreme Court held in Johnson v. United States, 520 U.S. 461 (1997), that when the law at the time of trial was settled and contrary to the law at the time of appeal, it is sufficient for plain error purposes that the error be “plain” at the time of appellate consideration.  Johnson left open, however, the question whether the same rule applies when the law at the time of trial is unsettled.  This question was decided in Henderson v. United States, 133 S.Ct. 1121, 1130-31 (2013), when the Supreme Court held that “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration for the second [plainness] part of the four-part Olano test to be satisfied.”  

In this case, the Court of Appeals adopted the analysis of the Supreme Court in Henderson for the purpose of interpreting local Super. Ct. Crim. R. 52(b).  Following Henderson, it held that plainness will be determined at the time of appellate review, even when the law was unsettled at the time of trial.  Applying this test, the Court concluded the instruction was error and the error was plain.  Because the Court found the remaining prongs of the plain error test were met, it reversed Mr. Muir’s OWI conviction. JF

Read full opinion here.