Appeal from the Superior Court of the District of Columbia (F-3822-99) (Hon. Michael L. Rankin, Trial Judge)
Before Schwelb, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appellant, Adkin Barron, was convicted of assault with intent to kill while armed, in violation of D.C. Code §§ 22-401, -4502 (2001), aggravated assault while armed, in violation of D.C. Code §§ 22-404.01, -4502 (2001), possession of a firearm during the commission of a crime of violence, in violation of D.C. Code § 22-4504 (b) (2001), carrying a pistol without a license, in violation of D.C. Code § 22-4504 (a) (2001), possession of an unregistered firearm, in violation of D.C. Code § 7-2502.01 (a) (2001), and unlawful possession of ammunition, in violation of D.C. Code § 7-2506.01 (2001). On appeal Barron alleges: 1) the trial court abused its discretion by allowing the jury to view appellant's car during jury deliberations, when the car was not in evidence and when the court did not give the jury further instructions regarding the view; 2) the trial court abused its discretion in limiting appellant's cross-examination of a government expert witness; 3) his conviction for carrying a gun without a license violates his Second Amendment right to bear arms; and 4) his conviction for both assault with intent to kill and aggravated assault while armed violate the Double Jeopardy Clause of the Fifth Amendment. Because we find that a jury view is evidence if probative of disputed issues of material fact and that appellant was prejudiced by the court's treatment of the jury view in this case, we reverse Barron's convictions and remand this case for a new trial.
Appellant and Derrick McCrea grew up in a neighborhood referred to as Barry Farms in Washington, D.C. and were casual acquaintances. Since leaving the neighborhood, their only remaining connection was that Barron's cousin had been killed approximately fourteen years earlier in McCrea's car after McCrea loaned the automobile to him. On June 4, 1999, while both men were visiting friends in Barry Farms, appellant learned that McCrea was in the neighborhood and decided to speak to him about his cousin. However, according to appellant, when he and Tony "Crook" Johnson tried to locate McCrea, they did not see him. Therefore, he, Johnson and another friend, Quartet Smith, left Barry Farms in Barron's car. Johnson was in the backseat.
According to Barron, after leaving Barry Farms and while stopped at a street light, he heard Johnson say, "there he is right there" and then Barron saw Johnson shooting a gun from the front driver's side window of his car. Barron did not know that Johnson was shooting at McCrea nor did he look to see if anyone had actually been shot. Johnson instructed Barron to drive to a Maryland apartment complex, where Johnson got out of the car. Because Johnson had a gun, Barron complied.
Off-duty police officer, Michael A. Wiggins, witnessed the shooting while in his unmarked car and followed Barron. However, Wiggins did not follow Barron into the complex because he was unarmed and had his daughter in the vehicle. Wiggins, therefore, lost sight of Barron's car for approximately two minutes, while Barron was in the complex. When appellant left the complex, he was chased by police in marked cars and then arrested. Police did not find a gun in the car or around the outside of the apartment complex. After his arrest, Barron told police that Johnson, who had been in the backseat, was the shooter. Police tried unsuccessfully to take prints from the recovered shell casings, but did not fingerprint the backseat.
During appellant's trial, both McCrea and Wiggins testified as eyewitnesses to the shooting. Both identified Barron as the shooter and testified that there was no one in the backseat of the car. During jury deliberations, the jury sent the judge two notes. The first note stated that the jury was deadlocked. The second note stated that they wished to view Barron's car and they wanted further instruction on the concept of reasonable doubt. Defense counsel objected to the jury viewing appellant's car when the car had not been introduced into evidence and without the court instructing the jury that the position of the car's seat could have been moved since the time of the shooting. The court, however, permitted the jury to view the car without additional precautions.
Barron contends that the trial court erred by allowing the jury to view his car during jury deliberations because: 1) the case had already been submitted to the jury and, 2) the car had not been properly introduced into evidence. Specifically, Barron objects to the trial court's decision to allow the jury view because it was conducted in a manner that violated his Sixth Amendment right to confront the evidence and cross-examine the witnesses against him. We review a trial court's ruling on whether to allow a jury view for abuse of discretion. Minor v. United States, 294 A.2d 171, 173 (D.C. 1972); Washington Coca Cola Bottling Works v. Kelly, 40 A.2d 85, 86 (D.C. 1944). A jury view is proper when "an object in question cannot be produced in court because it is immovable or inconvenient" and, therefore, it is necessary for the fact-finder "to go to the object in its place and there observe it." Dailey v. District of Columbia, 554 A.2d 339, 340-41 (D.C. 1989) (quoting IV WIGMORE ON EVIDENCE § 1162 at 362 (1972 & 1988 Supp.)).
Both Barron's counsel and government counsel informed the trial court that it was problematic for the jury to view the car when it had not yet been introduced into evidence. *fn1 The court's position, however, was that the car was not evidence and that the request was "nothing more than a juror's request to visit the scene." The court's characterization of a jury view as non-evidence is consistent with the perspective that many courts have historically used to justify jury views without introducing the object of the view as evidence. See Wright v. Carpenter, 49 Cal. 607 (Cal. 1875) (the jury view is not to be considered evidence) (repudiated by People v. Milner, 122 Cal. 171, 54 P. 833 (Cal. 1898) (a jury view is evidence); State v. Landry, 74 P. 418, 421 (Mont. 1903) (a jury view is for the purpose of "enabl[ing the jury] to understand and apply the evidence").
Historically, the perspective that jury views are not in evidence "rests in large part upon the consideration that facts garnered by the jury from a view are difficult or impossible to embody in the written record, thus rendering review of questions concerning weight or sufficiency of the evidence impracticable." *fn2 John W. Strong, 2 MCCORMICK ON EVIDENCE § 216, at 29 (5th ed. 1999). In those jurisdictions, jurors are typically instructed to use the view as a tool to help evaluate the other evidence presented, rather than as evidence itself. See Crowe v. State, 458 S.E.2d 799, 808-09 (Ga. 1995) ("the trial court properly instructed the jury that the view was not evidence"); Schultz v. Bower, 59 N.W. 631 (Minn. 1894) (the view is merely to apply the evidence); State v. Landry, 74 P. 418, 421 (Mont. 1903) (jury's view is only to "enable them to understand and apply the evidence"); State v. Nobles, 665 N.E.2d 1137, 1151 (Ohio Ct. App. 1995) ("The only purpose of [the view] is to help [the jury] understand the evidence as it is presented in the courtroom"); Ernst v. Broughton, 324 P.2d 241, 243 (Ore. 1958) ("Such view is never permitted for the purpose of using it as substantive evidence, but only in order to enable the jury to understand the testimony"); Avins v. Commonwealth, 108 A.2d 788, 790 (Pa. 1954) ("The purpose of the view is to enable the trier of the facts more thoroughly to comprehend and weigh the testimony . . . the jury may resort to the knowledge acquired by a view of the premises only for the purposes of understanding the testimony of the witnesses"); Flower v. Baltimore P.R.R., 19 A. 274 (Pa. 1890) (a view merely illustrates the testimony); Betty v. Depue, 103 N.W.2d 187, 190 (S.D. 1960) ("While eminent authorities consider knowledge derived from a view as evidence . . . this court does not so regard it. However, . . . it does enable the trier of facts to more satisfactorily weigh the evidence given in court and is of assistance to him in determining the issues of fact."); State v. Bernson, 700 P.2d 758, 767-68 (Wash. Ct. App. 1985) ("[A] jury view of a crime scene is a means of helping the jury to understand the evidence, and is not itself evidence").
Commentators have largely rejected this position, however, observing that: 1) jurors consider other factors that cannot be reproduced for the appellate court, such as the demeanor of a witness, and 2) jurors are unlikely to assign less importance to jury views than to other types of evidence merely because they are instructed that the view is not evidence. *fn3 See WIGMORE ON EVIDENCE § 1168, at 385; 22 Charles Alan Wright & Kenneth W. Graham Jr., FEDERAL PRACTICE AND PROCEDURE § 5176, at 141 (1978) ("The notion that a view is not 'evidence' has been discredited by the writers, and explicitly rejected by our modern code.") (citations omitted); 2 Joseph McLaughlin, ed., WEINSTEIN'S FEDERAL EVIDENCE § 403.079 (2d ed. 1999) ("The modern position is that the view does provide independent evidence.")). Furthermore, the Supreme Court in Snyder v. Massachusetts, 291 U.S. 97, 121 (1934), concurred with the view that jurors were unlikely to make the subtle distinction between views as non-evidence and other information as evidence stating that the view's "inevitable effect is that of evidence, no matter what label the judge may choose to give it." Snyder, 291 U.S. at 121, overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964). It is primarily for these reasons that most courts now characterize jury views as evidence. See Lillie v. United States, 953 F.2d 1188, 1192 (10th Cir. 1992) ("a view should always be considered evidence"); In re Application to Take Testimony in Criminal Case Outside District, 102 F.R.D. 521, 524 (E.D.N.Y. 1984) ("[a]uthorities now generally agree that the view provides independent evidence"); Neel v. Mannings, Inc., 122 P.2d 576 (Cal. 1942) ("the knowledge acquired by the [jury view] was independent evidence in the case"); Chouinard ...