Complainant’s failure to correct first responder’s inconsistent ID was admissible to impeach complainant; complainant’s later ID of the defendant to a detective was NOT admissible to rehabilitate complainant.

In re C.A. (decided June 14, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ruiz. Opinion by Judge Easterly. PDS for C.A. Trial Judge: Kimberley S. Knowles.

Facts: The trial court found C.A. responsible for two counts of attempted first degree murder as well as related lesser charges. Complainants A.H. and M.L. testified that C.A. and his companion, Mike, wearing white and black clothing, respectively, confronted and followed them, before C.A. shot at them with a gun he got from the older Mike. Shell casings, video surveillance, and gunshot audio corroborated the complainants’ account that someone in white shot at them. However, the surveillance footage was too pixelated to corroborate that C.A. was the person in white. 

The case against C.A. rested heavily upon A.H. and M.L.’s testimony. Counsel for C.A. sought to impeach A.H.’s testimony with police body camera footage showing A.H.’s failure to correct one of the first officers to respond to the scene when that officer told another that “the one in black,” i.e., Mike, was the shooter.  The trial court prevented counsel from confronting A.H. with the body camera footage based on A.H.’s denial that he heard the officer’s statement, reasoning that counsel “could not prove” that A.H. heard the officer. The court further allowed the government to introduce A.H.’s later statement to a detective, identifying C.A. as the shooter. 

Issue 1: Did the trial court err by barring extrinsic evidence of A.H.’s failure to correct the police’s statements identifying “the one in black” as the shooter?

Holding 1: Yes. The trial court overstated the foundation required to impeach with extrinsic evidence. Impeachment requires only relevance and a “good faith basis” for the impeaching fact. A party may use extrinsic evidence to impeach as long as the impeachment does not concern a collateral matter. A.H.’s failure to correct the officer when he was within earshot was directly relevant to A.H.’s credibility. Since the line of questioning challenged the central issue at trial, the identity of the shooter, the evidence was not collateral. 

Issue 2: Did the trial court err in admitting A.H.’s identification of C.A. to the detective as a prior consistent statement?

Holding 2: Yes. A.H.’s identification of C.A. did not constitute a prior consistent statement because it occurred after the prior inconsistent statement at issue—A.H.’s failure to identify C.A. to the uniformed officers on the scene—and was neither a part of, nor designed to rebut, the prior inconsistent statement. A.H.’s identification to the detective was not “directed only at the particular impeachment that occurred” in the narrow sense contemplated by Worthy v. United States, 100 A.3d 1095 (D.C. 2012), because it happened after, not before, A.H. failed to identify C.A. to first responders and did not help to explain that failure.

Issue 3: Were trial court’s errors harmless under the Kotteakos standard for nonconstitutional error set out in? 

Holding 3: No. The errors in precluding the impeachment evidence and admitting the prior consistent statements are not harmless because of its influence on the trial court’s assessment of witness credibility, and the case against C.A. was solely built upon such witness identification. WC and Christine Liu, guest blogging.

Read the 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.  

Silky Gates Did It! Defendant should have been allowed to point the finger at someone else.

Terry Johnson v. United States (Decided April 14, 2016)

Players: Judges Glickman and Thompson, and Senior Judge Farrell. Opinion by Judge Glickman. PDS for Mr. Johnson. Trial Judge: Herbert B. Dixon, Jr..

Facts: A masked man shot and killed Andre Wiggins in broad daylight. Nobody could identify the shooter. The government’s case against Terry Johnson turned on the “pre-existing enmity” between him and Wiggins. Indeed, the government argued Mr. Johnson was the “only” person who had a motive to kill Wiggins. As it turns out, that was not true. The defense proffered two other people’s beef with Wiggins—Silky Gates and Quannine Payne. Wiggins had pistol-whipped and robbed Mr. Gates days before the murder—a fact the government knew about but failed to disclose to the defense until five weeks before trial. And Wiggins robbed Mr. Payne of his motorbike shortly before the murder. The trial court precluded the defense from introducing the third-party perpetrator (aka Winfield) evidence, deeming the proffers “too speculative.”

The defense thereafter asked the trial court to admit the Silky Gates Winfield evidence as a Brady sanction for the government’s belated disclosure of the evidence. The court refused to impose sanctions finding it would be “incongruous” to allow Mr. Johnson to present a Winfield defense for this Brady violation after it had already decided the defense’s proffer was insufficient to present that defense. The court also denied sanctions because Mr. Johnson already knew about Gates’ motive to kill Wiggins independent of the government and thus it was not prejudiced by the belated disclosure.

Issue 1: Was it error for the trial court to exclude the Winfield evidence?

Holding 1: Yes. A defendant has a constitutional right to present Winfield evidence. For it to be admissible, the evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” When a Winfield defense is based on a third party’s motive, the defense must also proffer the person had the “practical opportunity” to commit the crime, meaning the third party had at least “inferential knowledge” of the complainant’s whereabouts. Mr. Johnson’s proffers satisfied the test for admissibility; moreover, the trial court was required to “resolve close questions of admissibility in this setting in favor of inclusion, not exclusion.”

Issue 2: Were the trial court’s reasons for not imposing Brady sanctions erroneous?

Holding 2: Yes. The Court found that the Silky Gates evidence was admissible and material and thus the government was required to disclose the evidence under Brady. That Mr. Johnson learned of Gates from another source “does not get the government off the hook for its tardiness.”

Notes: The trial court also precluded the defense from cross-examining a jailhouse snitch, who was attempting to curry favor from the government based on his testimony in this case, about the lies he had told police during the investigation of his own murder case. The DCCA held that preclusion of this line of cross was error because these past falsifications were relevant and admissible to show testimonial bias because they demonstrated the snitch’s willingness to lie to avoid punishment.  DH

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.