First-degree burglary statute covers the common hallway of an occupied residential apartment building.

Hallway by Jack Zalium, licensed under Creative Commons

Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)

• Holding 1: Proof that appellant pushed complainant at knife-point through the entrance and into the common hallway of her multi-unit row house apartment building was sufficient to establish that he “enter[ed] . . . [a] dwelling” as required for the crime of first-degree burglary, even though appellant did not enter into any apartment before he fled the scene. A “dwelling” includes “any enclosed space used for human habitation,” such as a residential apartment building. Slip Op. at 9. The common hallway at issue, located behind a locked door, was “in no way . . . so open to the public at large as to be considered outside” and was therefore “part of the private dwelling.” Id. at 12.
• Holding 2: The evidence presented was sufficient to establish kidnapping, notwithstanding withstanding appellant’s argument that the only detention of complainant was brief and incidental to the assault and robbery complainant suffered. Id. at 14-15.
• Holding 3: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Id. at 20.
• Holding 4: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Id. at 24-25.

Read the full opinion here.

Relevant portions of this post have been added to Expert Testimony section and Physical Evidence section of The (Early) Year in Review (Part 2), as well as the Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

WCC

Don’t Leave Your DNA on a Gun: Constructive Possession of Firearms and Other Issues

Dorsey v. United States (decided February 23, 2017)

The Players: Associate Judges Blackburne-Rigsby, Thompson, and McLeese. Opinion by Associate Judge Thompson. Cecily E. Baskir for Mr. Dorsey. Trial Judge: Anita Josey-Herring.

Facts: As officers, wearing their “POLICE” vests, approached an apartment building to execute a search warrant, they observed Dorsey and two women standing on the balcony. Dorsey “reacted” by entering the apartment. Officers ultimately entered the apartment by using a battering ram after knocking on the door and announcing their presence. Once inside, an officer saw Dorsey exiting the kitchen, the same room where a gun was recovered in a cabinet. The government swabbed the gun for DNA, which yielded a partial DNA profile from a single male contributor. Each of the 8 alleles detected was consistent with Dorsey’s DNA profile. Dorsey was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1: Did the government present sufficient evidence that Dorsey constructively possessed the gun and ammunition?

Holding 1: Yes. First, although there was no evidence that Dorsey lived in the apartment, he was present when the police entered and was the only person seen exiting and in close proximity to the kitchen where the gun was found. Second, Dorsey immediately left the balcony as police approached. Third, the kitchen had “only one way in and one way out,” so that Dorsey did not enter the kitchen just to get to another area of the apartment. Lastly and “[m]ost important[ly],” the partial DNA profile recovered from the gun matched with Dorsey’s DNA profile. This evidence was sufficient to establish Dorsey’s knowledge of the gun’s location and his ability and intent to exercise dominion and control of the gun.

Background 2: On the morning before jury selection, the prosecutor handed defense counsel a handwritten note reading, “Officer Campanale Wesby v. DC – Case No. 12-7127, Sept. 2, 2014.” The Wesby case related to a federal D.C. Circuit decision affirming a federal D.C. District Court summary judgment ruling and subsequent jury verdict in a §1983/false arrest case where Officer Campanale was found liable for unlawfully arresting twenty-one individuals for unlawful entry. After reading the opinion, defense counsel moved to dismiss the case due to the government’s late disclosure of the Wesby case.

The following day, defense counsel moved for a continuance in order to investigate the facts of the Wesby case. The trial court denied the motion, citing an existing ability to cross-examine the officer, including on corruption bias grounds, without needing additional investigation, and a perceived “delay tactic” by Dorsey, who had previously fired two other lawyers.

The government did not call Officer Campanalle until five days after the original disclosure. While the officer acknowledged that he arrested individuals involved in the Wesby case, he denied that he was found liable or that he “lost on appeal.” The parties eventually agreed upon the trial court taking judicial notice of the Officer Campanalle’s unlawful arrests.

Issue 2: Did the trial court’s refusal to grant a continuance violate Dorsey’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), when on the day before jury selection began, the government dropped a “cryptic” disclosure—the name and number of a case involving one of the testifying police officers—that revealed the unlawful arrests of twenty-one individuals for unlawful entry?

Holding 2: The Court did not find a Brady violation or that Dorsey was precluded from effectively using the disclosures in preparation of his defense. In support of its holding, the Court noted (1) Dorsey’s willingness to go forward with trial after having fully reviewed the Wesby opinion, (2) the five days between the disclosure and the officer’s testimony, and (3) defense counsel’s ability to impeach the officer during the trial. Interestingly, the Court also took into account defense counsel’s post-trial failure to “contact[] the attorneys in Wesby to learn of any additional impeaching material” and the failure to present other new information about the Wesby matter that would have “made a difference to the outcome of [Dorsey’s] case.”

Background 3: After the government closed its case, defense counsel notified the trial court that Dorsey needed to secure his own defense DNA expert to testify about “the preservation and collection” of DNA and not to “actual tests.” This came on the heels of an officer’s testimony that he placed the gun on the kitchen counter before putting it into an evidence bag. Since the government’s DNA expert had already testified, Dorsey would need to procure his own expert to “clear up some DNA matters.”

The trial court admonished defense counsel for not providing Rule 16 expert notice, but nonetheless, said that she would sign a voucher if Dorsey could not afford the expert. Calling the expert, however, would be conditioned on Dorsey’s ability to have the expert prepared to testify by the following morning. The next day, defense counsel told the trial court that the expert was unavailable for the day and could only testify the following day. The trial court denied the request to delay the trial.

Issue 3: Did the trial court abuse its discretion by denying Dorsey a mid-trial continuance to secure the presence of a defense DNA expert to rebut the government’s DNA evidence?

Holding 3: No. The trial court made sure that the reason for not having previously secured the expert was not financial; the court was legitimately concerned about defense “delay tactics”; the defense had no other witnesses and would have wasted an entire day; the government would have had to consult with its own expert again; and, defense counsel did not give the trial court a reason that Dorsey would be prejudiced. Assuming arguendo that the trial court erred, the error was harmless.

Background 4: The trial court gave Dorsey a three-year mandatory minimum sentence for being convicted of unlawful possession of a firearm after a prior conviction for a crime of violence. Dorsey argued that the trial court’s determination that his 1999 Maryland conviction for first-degree assault was a “crime of violence” was a matter for the jury. Alternatively, Dorsey argued that the trial court committed plain error by concluding that a Maryland first-degree assault was equivalent to a D.C. aggravated assault conviction to qualify for the three-year sentence.

Issue 4: Did the trial court commit constitutional error in not submitting Dorsey’s prior Maryland conviction to the jury to determine whether he was subject to the three-year mandatory minimum, and if no constitutional violation occurred, did the trial court commit plain error by determining that the Maryland first-degree assault was the equivalent of the D.C. aggravated assault?

Holding 4: No and no. The Court found that under Apprendi v. United States, 530 U.S. 466 (2000), the fact of a prior conviction does not need to be submitted to the jury to be proved beyond a reasonable doubt. In this case, because the increase in Dorsey’s penalty resulted from a “legal analysis concluding that the elements of a prior predicate crime match[ed] those of the type of offense that the penalty statute establishe[d] as the trigger for the enhanced penalty, the court’s determination [was] not the type of factual finding” that would have necessitated submission to the jury. The Court determined that “as a matter of law,” the elements of first-degree assault in Maryland are subsumed within the scope of serious bodily injury in D.C.’s aggravated assault.  JW

Read full opinion here.

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.  

Trial Issue Potpourri: Witness Mental Health, Partial Jurors, Sufficiency, Voluntariness of Statements, and More

Marcellus McCray, Lamonte Henson, Antonio Fortson, and Timothy Parker v. United States (decided March 10, 2016)

The Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by  Judge Reid. Stephen Domenic Scavuzzo for Mr. McCray, Thomas T. Heslep for Mr. Henson, William R. Cowden for Mr. Fortson, Peter H. Meyers for Mr. Parker. Trial Judge: Henry F. Greene.

Facts: This case involves multiple shootings that stem from a long-standing feud between two rival groups of young men from the Benning Terrace housing complex in Southeast D.C. Men from “the circle” and from “the Avenue” quarreled over drugs and respect. McCray, Henson, Fortson, and Parker, alleged members of “the circle,” were charged with two separate shootings which took place on May 30, 2011. The violence of the day culminated in the shooting death of Antwan Buckner.

After a two-month trial in 2012, the jury found guilty McCray of AWIKWA, voluntary manslaughter and associated weapons charges; Fortson guilty of voluntary manslaughter, ADW and weapons charges; Parker guilty of voluntary manslaughter and weapons charges; and Henson guilty of CPWL.

Issue 1: Did the trial court deny Fortson the Sixth Amendment right to an impartial jury when it allowed a juror to continue serving without properly investigating a claim that the juror had “pre-decided the case at the outset of the trial, and possibly spoken about her decision with even more jurors”?

Background: On a Thursday afternoon during deliberations, the judge received two jury notes from the foreperson, one of which requested a “private conversation” about an allegation that a specific juror “had their mind made up on the first week,” while the other note indicated a deadlocked jury. The judge excused the jury for the weekend. The following Monday, the parties met with the foreperson who clarified that the juror in question had made up his/her mind in the “first week of trial” when the juror expressed the opinion in a single conversation with the foreperson, out of the presence of the other jurors. After much discussion among the parties, and without objection from any defense counsel, the trial court instructed the foreperson to not discuss the matter with other jurors rather than seek further information as to the potential impact of the juror’s thoughts.

The entire jury was brought back into the courtroom where the judge addressed the “hung note.” Within the judge’s instruction, it acknowledged the difficulty of the jury’s job, asked the jury to maintain civility and an open mind, and specifically charged the jury:

Now, if any of you feel for any reason that you have not been able to, or are not able to follow the instructions I have given you, please let me know in a written note, but do not discuss any personal concerns you may have in this regard with any of the other jurors. You can send me a note in writing if you have a concern about whether you can follow the instructions I have given you.

Defense counsel did not object to the judge’s instructions.

Fortson argued that the judge proceeded too cautiously in its investigation of the juror’s misconduct and that it abused its discretion by only instructing the jurors to advise the court if they “were unable to follow the court’s instructions.”

Holding 1: The judge did not abuse his discretion in handling the juror’s misconduct because (1) the conversation between the foreperson and the juror happened during the first week of the two-month trial; (2) the conversation did not occur with any other juror present; (3) the jury was apparently deadlocked on only one count; and (4) the judge’s instruction was “thorough and balanced.”

Issue 2: With respect to McCray, Fortson, and Parker, did the trial court err by giving the jury urban gun battle and aiding and abetting instructions pertaining to a murder count in the indictment, and did this constitute a constructive amendment?

Holding 2: No. First, any potential error in providing the jury with both the urban gun battle and aiding and abetting instructions in conjunction with the murder count would have been harmless. The government did not make an aiding and abetting argument to the jury. The evidence was sufficient to convict the defendants of voluntary manslaughter as co-principals. The record reflects thoughtful consideration by the jury in convicting Parker, Fortson, and McCray of manslaughter and acquitting Henson.

Second, there was no constructive amendment because “the prosecution did not rely at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment” by stressing an urban gun battle theory and not arguing aiding and abetting during closing.

Issue 3: McCray, Fortson, and Henson independently raise sufficiency claims.

• McCray: Was there sufficient evidence to convict McCray of AWIKWA, its related PFCV count, and also of separate murder count?

• Holding: Yes. McCray claims that the government failed to prove the specific intent to kill for AWIKWA because the government did not establish the distance between the shooter and the individuals who were assaulted. Case law “does not require the government to prove specific intent by establishing the exact distance between the shooter and the unknown persons who were assaulted.” The DCCA affirmed primarily on McCray’s own statements to witnesses that he had been shooting at people.  The Court also found sufficient evidence for murder given that, immediately after the shooting, McCray was seen walking in an area where shell casings were later found.

• Henson: Was there sufficient evidence to convict Henson of CPWL?

• Holding: No. The government failed to prove that Henson carried a “gun with a barrel less than 12 inches in length.” No witness could identify the type of firearm Henson possessed. Testimony that Henson used handguns on other occasions did not suffice.

• Fortson: Was there sufficient evidence to convict Fortson of ADW and PFCV?

• Holding: Yes. A witness testified that he saw Fortson, gun in hand, go behind a building where “a whole lot of shooting” took place. After the shooting, Fortson said “my bad” or “my bag.” This evidence was sufficient.

Issue 4: With respect to Parker and McCray, did the trial court commit reversible error by precluding the defense from challenging the credibility of a testifying former co-defendant by denying an opportunity to cross-examine or retain an expert on the witness’s mental disabilities?

Background: Curtis Faison initially was a co-defendant in the case, but pleaded guilty during the trial and agreed to testify on behalf of the government. Defense counsel collectively obtained Faison’s juvenile records, which revealed a 2006 psychiatric evaluation which showed a diagnosis of bipolar disorder. Trial counsel also proffered a recent episode in which Faison threw feces and urine at a guard at the D.C. Jail. Parker sought an expert to evaluate Faison and determine the impact of his mental illness on credibility.

During the ensuing litigation, the trial court admonished the government for putting a person with “serious questions regarding credibility, in terms of his history, on the stand in the last minute in the trial” when “the defense has no chance to investigate him.” The judge also showed skepticism in Faison’s credibility, but recognized the “powerful” nature of his testimony if the jury were to believe him.

The judge ultimately denied Parker’s request.

Holding 4: Yes, the trial court did err, but only enough to warrant a remand. The DCCA stated:

[I]n light of defendant’s right to present a defense, and given the seriousness of the bipolar disorder and the proffer about Mr. Faison’s recent episode of throwing urine and feces at a prison guard, we believe Mr. Parker and Mr. McCray were at least entitled to an opportunity to show what an expert might contribute in an effort to determine any impact of Mr. Faison’s mental disabilities on his credibility.

On remand, McCray and Parker will have the ability to call experts. The judge will then determine “whether at the time of his trial testimony, Mr. Faison’s mental disabilities seriously impacted his credibility.” Applying the Kotteakos standard for harmless error, the judge will either affirm the convictions or order a new trial.

Issue 5: Did the trial court err in failing to suppress McCray’s videotaped statement on voluntariness grounds?


Holding 5: The trial court did not err because McCray’s statements were voluntary. At the time of his statement, (1) McCray was seventeen years old; (2) detectives threatened that his family would face eviction; and (3) detectives threatened that his mother, brother, and sister – who were in the room where a gun was found – would be “locked up.” The Court reasoned that McCray’s admission that he participated in one of the shootings was not the product of coercion.

Issue 6: Did the trial court err in failing to grant McCray’s severance motion so that he could be tried with only co-defendants Hebron and Mungo, who were ultimately tried separately, and were the only other defendants charged with AWIKWA in Counts 8 and 9 of the indictment?

Holding 6: No. McCray argued that evidence of a conspiracy was “very weak” and that the evidence against the other defendants with whom he was tried “was much stronger” than the evidence against him. The DCCA rejected this argument and noted that McCray was tried with three individuals who were also charged with the murder of Antwan Buckner. JW

Read full opinion here.

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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