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.  

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

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.

Police interrogation tactics threatening prison rape and requiring a confession before granting access to an attorney render confession involuntary

 Jalonte Little v. United States (decided November 12, 2015).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Beckwith.  Debra Soltis and Paul Kiyonaga for Mr. Little.  Trial Judge: Ronna L. Beck.

Facts: Police arrested eighteen-year-old Jalonta Little in connection with an attempted carjacking and brought him to the stationhouse for questioning.  Detective Joe Crespo read Mr. Little his rights, which Mr. Little voluntarily waived.  For the next two hours, Det. Crespo used a number of coercive interrogation tactics in an attempt to elicit a confession from Mr. Little.  He falsely told Mr. Little that several witnesses identified him as the perpetrator, falsely told Mr. Little that police recovered his fingerprints from the vehicle, and offered illusory promises of leniency if the eighteen-year-old confessed to the crime.  Mr. Little steadfastly denied involvement.  Det. Crespo upped the pressure, informing Mr. Little that he risked sexual assault should he go to prison, that he would be incarcerated in a faraway prison while his girlfriend forgot about him and moved on to someone new, and that his son would never visit him.  Still, Mr. Little did not confess.  Det. Crespo had one last trick up his sleeve.  He told Mr. Little that he would arrange a meeting with his at-this-point hypothetical attorney before seeking an arrest warrant, to which Mr. Little asked, “So where my attorney at?”  Crespo responded that Mr. Little would not see an attorney until after arraignment, and before he could set up the meeting Mr. Little had to tell him what happened—he had “to have some meat to put on the table.”  Mr. Little confessed two minutes later.

Issue: Was Mr. Little’s confession voluntary?

Holding:  Looking at the totality of the circumstances, the Court determined it was not.  Two aspects of the interrogation stood out as “most coercive.”  First, the Court found Det. Crespo’s comments urging Mr. Little to confess in order to avoid sexual assault in prison “offensive to a civilized system of justice.”  The comments were similar to those that rendered a confession involuntary in Arizona v. Fulminate, 499 U.S. 279, 287 (1991) (where police told Mr. Fulminate they would protect him from fellow inmates only if he confessed).  Second, the Court found that Det. Crespo’s comments to Mr. Little that he would not have access to an attorney until after arraignment and that he had to “put some meat on the table,” i.e. confess, before an attorney would be provided were “unquestionably coercive.”  At that point, “any assumption of continued voluntariness that stemmed from Mr. Little’s signing of the Miranda rights form faded.”  These two tactics, coupled with the other coercive tactics employed by the police, such as lying to Mr. Little about the evidence against him and threatening prosecution for crimes they openly thought he did not commit, proved Mr. Little’s confession involuntary. 

Of Note: 

• In footnote 9, the Court notes that it need not decide whether Mr. Little’s question, “So where my attorney at?” was an invocation of his right to counsel.  The Court did note, however, that this statement “conveyed essentially the same message as the statement the Supreme Court assumed was an invocation of rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981).” 

• In footnote 16, the Court held that while the harmless error rule applies to erroneously admitted confessions, “a confession is like no other evidence” and “the risk that the coerced confession is unreliable, coupled with the profound impact that the confession has on the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.”  Thus, the government “sensibly” did not argue that the admission of the involuntary confession was harmless.  DH

Read full opinion here.