September 02, 2004; as amended November 12, 2004 (see end of opinion for corrections)
Appeals from the Superior Court of the District of Columbia (F-788-99, F-8602-97) (Hon. Lee Satterfield, Motions Judge) (Hon. Judith Retchin, Trial Judge).
Before Farrell, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appellant Thomas Hager appeals his conviction in No. 01-CF-594 (F-788-99) on a charge of obstructing justice, in violation of D.C. Code § 22-722 (1996),*fn1 and his convictions in No. 01-CF-617 of first-degree burglary while armed, in violation of § 22-1801 (a), -3202,*fn2 felony murder while armed (three counts) and first-degree premeditated murder while armed, in violation of § 22-2401, -3202,*fn3 attempted robbery of Jerome Robinson and of Lora Watkins while armed, in violation of § 22-2901, -3202,*fn4 possession of a firearm during a crime of violence, in violation of § 22-3204 (b) (two counts),*fn5 and carrying a pistol without a license, in violation of § 22-3204 (a).*fn6 On appeal he primarily contends that the trial court erred by denying his motions to (1) present expert testimony on eyewitness identification, and (2) suppress evidence. We affirm the judgment of the trial court.
At Mr. Hager's second trial,*fn7 the government presented evidence showing that around 11:00 p.m. on March 30, 1995, Jerome Robinson was murdered in his home on Nelson Street in the Southeast quadrant of the District of Columbia by two armed intruders wearing ski masks. The men forced their way into Mr. Robinson's apartment and bedroom where he and his girlfriend, Lora Watkins, and their six-month-old daughter were sleeping. Mr. Robinson shook Ms. Watkins and asked if she heard a noise. She heard "three loud bangs" and Mr. Robinson "jumped up" and saw men with guns. Two men with hooded jackets and ski masks ran into the bedroom, turned on the light, and demanded money. The taller of the two gunmen, identified as David Parker, directed Mr. Robinson out of the bedroom and into the living room.*fn8 Ms. Watkins remained in the bedroom with the child. Mr. Hager asked if she knew "where any money was." When she replied, "no," he instructed her to get down on the floor. She removed the baby from the bed and "laid on top of her." Shortly thereafter she heard Mr. Robinson express willingness to give the intruders what they wanted. Mr. Parker demanded money and Ms. Watkins heard a loud struggle in the living room. She also heard gunshots and Mr. Parker's call for help. As Mr. Hager ran to the living room, Ms. Watkins heard Mr. Robinson call for his mother who lived upstairs in the four-apartment building, followed by more shots and the sound of men exiting the apartment. There were more gunshots outside the building. Ms. Watkins went upstairs with the baby, spoke with Mr. Robinson's mother, did not see Mr. Robinson, and ran back downstairs and out the front door of the building. She found Mr. Robinson breathing on the sidewalk but unresponsive. He had been shot eight times in his back and arms and soon died. Ballistics evidence revealed that two guns were used during the intrusion into Mr. Robinson's apartment and his murder, a .40 caliber Glock semi-automatic pistol, and a SWD 11semi-automatic pistol.*fn9 The SWD 11 was found in Mr. Robinson's living room, and government witness Lloyd Johnson had seen Mr. Parker with a .40 caliber Glock prior to the murder. Two fingerprints lifted from the magazine clip of the SWD 11 matched those of Mr. Hager's "right little finger." In the aftermath of the incident, Mr. Hager and Mr. Parker made incriminating statements to Charles Johnson, also a government witness, and Lloyd Johnson.
The Eyewitness Identification Issue
Mr. Hager contends that the trial court abused its discretion by denying his "motion in limine to admit expert testimony on the lack of correlation between the confidence in and accuracy of eyewitness identifications." The government argues there was no abuse of discretion since the trial court presented "sound reasons for denying the motion."
Ms. Watkins did not formally identify Mr. Hager as an assailant until almost two years after Mr. Robinson's murder. Ms. Watkins had first noticed Mr. Hager in late 1993, and for well over a year saw him on a daily basis outside Mr. Robinson's apartment building but did not know his name. She exchanged greetings with him and heard him converse with other people. She explained that she did not identify Mr. Hager immediately after Mr. Robinson's murder in part because she feared retaliation.*fn10 She claimed, however, that she reported Mr. Hager's first name to a detective shortly after the crime, asked whether he could check Tommy out, and said he committed the murder.*fn11
The investigation of Mr. Robinson's murder became dormant after May or June 1995. Then, around April 1997, the police resumed the investigation. A detective contacted Ms. Watkins and displayed a nine-picture photo array to her. She immediately identified Mr. Hager as one of the assailants. Although he wore a ski mask during the crimes, Ms. Watkins identified Mr. Hager at his first trial based on facial features that could be seen in spite of the mask -- his "eyes, mouth, complexion, height, buil[d] and voice." At that trial, she asserted that she was "real sure" that Mr. Hager was one of the assailants. During the second trial she stated that she was "[o]ne hundred percent sure" that Mr. Hager was in the apartment with a gun on the night of Mr. Robinson's murder. She identified him by his "build," "complexion," "height" and "voice."*fn12
Prior to the commencement of his second trial, Mr. Hager proposed to introduce the testimony of Dr. Solomon Fulero. That testimony would be directed only to Lora Watkins' identification of Mr. Hager as the person who fatally shot Mr. Robinson.*fn13 Dr. Fulero holds a doctorate in psychology and a law degree. He specializes in legal psychology.
A hearing on Mr. Hager's motion occurred on September 1, 2000, and on October 5, 2000, the trial court issued a memorandum opinion and order denying the motion. Following a review of decisions in this jurisdiction relating to the eyewitness identification issue, the trial court declared: "[T]he proffered expert testimony is not beyond the ken of the average lay person and would not be helpful to the trier of fact." The court pointed out that Ms. Watkins was not identifying a stranger, and as Dr. Fulero had acknowledged in another case, "in situations when the witness knows the suspect expert testimony in this area is less helpful." Furthermore, Dr. Fulero's psychological studies concentrated on "situations where the eyewitness is identifying a stranger." The court also noted "other factors that [Mr. Hager] may use and has used to discredit the accuracy of the witness's identification, such as, the witness's relationship with the decedent, the lighting conditions, the witness's inability to view the suspects because they wore masks, and the stress and fear caused by the event."
"As we have often reiterated in a number of contexts, the admission of expert testimony is committed to the broad discretion of the trial court and a ruling either admitting or excluding such evidence will not be disturbed unless manifestly erroneous." Green v. United States, 718 A.2d 1042, 1050 (D.C. 1998) (citing Dyas v. United States, 376 A.2d 827, 831 (D.C. 1977)) (quoting Salem v. United States Lines Co., 370 U.S. 31 (1962)) (internal quotation marks and other citations omitted). "[E]xpert testimony is admissible to help the jury to do its work and not to do the jury's work for it." Steele v. D.C. Tiger Market, No. 01-CV-1193 (2004), 2004 D.C. App. LEXIS 384 at *11-12. Thus, "[i]n a jury trial the judge must exercise discretion to decide whether the proffered expert testimony is likely ...