May 19, 2005
VONN WASHINGTON, APPELLANT,
UNITED STATES, APPELLEE, DISTRICT OF COLUMBIA, INTERVENOR.
Appeal from the Superior Court of the District of Columbia. (F9479-97). (Hon. Rufus G. King, III, Trial Judge).
The opinion of the court was delivered by: WAGNER,Chief Judge
Argued June 23, 2003
Before WAGNER, Chief Judge, and GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.*fn2
Appellant, Vonn Washington, was charged with one count of first-degree premeditated murder (D.C. Code §§ 22-2401, -3202 (1996)),*fn3 two counts of assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501, -3202 (1996),*fn4 three counts of possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3404 (b) (1996),*fn5 and one count of carrying a pistol without a license (CPWL) (D.C. Code § 22-3404 (a) (1996)).*fn6 Following a jury trial, appellant was found not guilty of premeditated murder and AWIKWA, but convicted, respectively, of the lesser-included offenses of involuntary manslaughter while armed and assault with a deadly weapon (ADW). He was also convicted of CPWL and all three counts of PFCV. He argues for reversal on the grounds of: (1) improper and prejudicial prosecutorial argument; (2) exclusion from evidence of a learned treatise; and (3) conviction of CPWL, which he contends is unconstitutional under the Second and Fifth Amendments. Appellant also argues, and the government concedes, that his three PFCV convictions merge. Finding no reversible error related to appellant's first three arguments, we affirm the convictions, and we remand to the trial court with instructions to vacate two of the PFCV convictions.
A. Factual Background
The government presented evidence showing that on July 10, 1996, appellant, intending to shoot Kevin Jackson, shot and killed his best friend, Kenneth Anderson. At about this time, there were two rival groups in the area of Wayne Place, Southeast, and the shooting arose out of a feud between them. Kevin Jackson testified that he associated with a group which included Antonio West and his friends, Aaron and "Poo." Appellant and Anderson were a part of another group. Jackson testified that about a week before Anderson was killed, he was in the area with West, Aaron, Poo and Shawn when shots were fired. Poo and Aaron returned the fire, and Aaron was hit in the leg. Jackson said that his car was torched after the shooting on Wayne Place.
According to Jackson, the night that Anderson was killed, Jackson was at home with his little brother, Poo, Antonio, and others. He went outside to meet a friend, Mike Ko, who parked his Land Cruiser right in front of Jackson's house. Jackson entered the vehicle, and while they were talking, Anderson drove up in a white automobile. Appellant was in the front passenger seat. Jackson testified that he saw Anderson and appellant raising their pistols, heard gunshots, ducked and started firing back. Jackson said that the vehicles were only a couple of feet apart and facing in the opposite directions. Jackson testified that he fired his .38 revolver basically out of the window, but Ko, who also had a weapon, did not fire at all. Jackson said that he did not shoot downward because he was firing over Ko's back, and he was afraid of hitting him. Jackson further testified that the Land Cruiser was taller than the car in which Anderson and appellant were sitting, with the top of the smaller car's roof reaching only up to the mirror of the Land Cruiser. The Land Cruiser's driver's side window and front passenger side window were shattered. Jackson said that glass from the vehicle went into his eyes, causing him to believe that he had been shot. After emptying his five-shooter revolver, Jackson and Ko jumped out of the car, ran around the corner, and hid behind a building. According to Jackson, Anderson's car drifted off slowly. Frightened, Jackson and Ko ran back to the house and told the people there that Anderson and appellant had tried to kill them. Jackson testified that he did not call the police because he hoped that those involved would reach an understanding, since they had all grown up together.
Jackson testified that he got rid of the .38 revolver. In searching Jackson's house pursuant to a warrant, the police found a .25 caliber gun, bullets of the same caliber and .9mm ammunition, which he said he had kept because he was told they might fit a .380 weapon that he had owned. Jackson also acknowledged having .45 and Mac-90 shells, although he denied ever having weapons of that make.
Appellant testified that he was not involved in the feud because he considered Jackson and the others to be friends. According to appellant's testimony, the night of the shooting, Anderson asked him to go with him while he attempted to "squash" the differences between the two feuding groups. Anderson was driving his white 1986 Grand Prix, and appellant was in the passenger seat. When they arrived at the corner of 25th and Savannah Street, S.E., they spotted Ko and Jackson. Anderson handed appellant a .9mm Smith &Wesson handgun, and Anderson was armed with a .9mm pistol manufactured by Ruger. Appellant testified that Ko rolled down his window until about four inches remained up, and Anderson started talking to Ko and Jackson. He said that he saw a burgundy Jetta automobile behind the car, and turned the rearview mirror toward him to the point that Anderson could not use it.*fn7 Appellant testified that Aaron and "Pooh" got out of the Jetta, and he told Anderson to pull off. According to appellant, shots were fired, and he returned the fire. Appellant testified that he had turned his upper body to the left, where the Land Cruiser was, and shot out "through the back" of that vehicle. When he told Anderson to drive away, he realized that the car was "coasting." He saw Anderson "slumped over," with blood coming from the back of his head. While still in the passenger's seat, appellant drove the car to Southeast Community Hospital. He described how he was trying to hold Anderson's head up while driving. Appellant parked the car at the hospital and ran away, leaving his friend in the vehicle.
Appellant testified that he did not call police. Six or seven days after the shooting, however, he was contacted by prosecutors and eventually spoke to them. He testified before the jury that he told the prosecutors that he had a .357 revolver because he knew that the .9mm would leave shell casings in the car, whereas the .357 would not. He also told the prosecutors that he was not in the car and did not see anything.
B. Forensic Evidence
Dr. Jacqueline Lee, deputy chief medical examiner for the District, who qualified as an expert in forensic pathology, testified that Anderson's death was a homicide caused by a gunshot wound to the head. A .9mm Luger, Winchester Western, silver-tipped, metal jacket bullet and fragments were recovered from Anderson's brain. Based on Dr. Lee's review of the autopsy, she concluded that the bullet had a "very tight spin," meaning that it was unlikely that it made contact with any object before hitting Anderson in the head. She testified that the trajectory of the bullet was upward, traveling from the back to the front of the head and upward. She testified that the circumstances were consistent with a shot fired by the passenger (appellant) and hitting the driver, Anderson, if the driver was looking out of the window.
Dr. Lee testified that the photograph of the decedent and autopsy report show an absence of stippling which could indicate that the muzzle of the gun was twenty to twenty-four inches away from the body, or that it was closer and something blocked the gunpowder from being deposited.*fn8 She indicated that her estimates were based on the type of gun powder, as well as the type of gun and that the distance at which stippling would occur depends upon several variables, such as the type of gun, type of gun powder, and length of the gun. She said that hair around the wound would impact the presence of gun powder and that any soot could have been washed away when Anderson's wound was cleaned at the hospital. However, she stated that while soot can be washed away, stippling cannot because it is a burn to the skin. Dr. Lee acknowledged that although hair can affect the amount of visible stippling, Anderson had closely cropped hair, making the scalp visible at some points. Dr. Lee testified that the decedent's wound was not consistent with the bullet passing through a door panel of a car or glass because the bullet would have been deformed.
Mr. Leon Krebs, who qualified as an expert on gunshot residue, firearms and ammunitation identification, and trajectory analysis, testified that the .9mm cartridges in question are loaded with disk or flake powder. He stated that in the case of flake powder, stippling would occur if the muzzle of the gun was within twelve inches of the victim's skin. Krebs also testified that Anderson's wound was consistent with a shot being fired from the passenger seat of the car striking the driver in the head. Krebs testified that, considering that the .9mm silver-tipped bullet in this case was propelled by flake or disk powder, one would expect to see stippling only if the gun had been fired within a distance of twelve inches of the decedent. Krebs testified that since the decedent's wound had a fairly round margin of abrasion, it was most likely caused by an intact bullet passing through the skin. He testified that a regular or circular wound and the lodging of the core and jacket of the bullet inside the decedent's brain, as the evidence showed in this case, indicates that the bullet had not passed through any intermediate targets before striking the victim.*fn9
Appellant argues that the prosecutor's closing argument was improper and prejudicial in that it: (1) appealed to the sympathy of the jury, and (2) included facts not in evidence. The government responds that the challenged argument was based properly on the evidence or reasonable inferences therefrom. The government contends that, in any event, appellant was not prejudiced by the argument.
A. Legal Standard
When reviewing claims of improper prosecutorial argument, we determine first whether the challenged argument is improper. Burgess v. United States, 786 A.2d 561, 570-71 (D.C. 2001) (internal citation omitted), cert. denied, 537 U.S. 854 (2002). If appellant has made a timely objection to the argument, then we must determine whether the court's error, if any, in overruling the objection was harmless under the standard set forth in Kotteakos v. United States, 328 U.S. 750, 765 (1946). Clayborne v. United States, 751 A.2d 956, 968 (D.C. 2003). Under that standard, we consider whether we can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error[.]" Kotteakos, 328 U.S. at 765. In making that determination, we "consider the gravity of the impropriety, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case." Burgess, 786 A.2d at 570 (citations and internal quotations omitted). If appellant did not object, then our review is for plain error. Id. (citing McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991)). Under that standard, this court will reverse only if the defendant's substantial rights were so clearly prejudiced as to jeopardize the fairness of the trial. Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992) (citations omitted).
B. Argument Concerning Julia Lane
The government presented the testimony of Julia Lane, who lived in the area of the shooting. Ms. Lane testified that she was at home on the night of the shooting with her sixteen-month old son, when she heard a loud crash that sounded like a breaking dish. The next morning she saw broken glass and a hole in the window shade that she thought to be a bullet hole. Ms. Lane called the police who came and found a bullet near her son's high chair. Over defense objection, the trial court precluded any general reference to what might have happened to Ms. Lane and her child, but ruled that the prosecutor could use the incident to illustrate transferred intent as the prosecutor had requested. The prosecutor then argued that "[appellant] would have been just as guilty of shooting someone in Julia Lane's apartment as he . . . is guilty of shooting at and trying to kill Kevin Jackson and Michael Ko. He's also guilty of the murder of his best friend, Kenny Anderson." Appellant argues that permitting this argument was error because: (1) it appealed to the passions and prejudice of the jury; (2) it was not necessary for an explanation of the concept of transferred intent; and (3) it implicitly asked the jury to convict despite appellant's self-defense claim because there was no evidence of self-defense related to "the hypothetical shooting of Ms. Lane or her son."
A prosecutor should refrain from making statements that are designed to inflame the passions of the jury. See Butts v. United States, 822 A.2d 407, 420 (D.C. 2003) (citing Nelson v. United States, 601 A.2d 582, 587-88 (D.C. 1991)). To that end, prosecutors are prohibited from making statements that "attempt to appeal to the jurors' sympathies[.]" Carpenter v. United States, 635 A.2d 1289, 1296 (D.C. 1993). Prosecutorial remarks that urge the jury to render a verdict based upon the larger social policy implications of the crime are improper. See Hart v. United States, 538 A.2d 1146, 1150 (D.C. 1988) (finding improper the prosecutor's argument to find defendant guilty "for everything [he] did" was improper, as it asked jurors to render a verdict based upon a larger societal policy).
The argument calling the jury's attention to appellant's actions that placed Ms. Lane and her infant son in harm's way tends to arouse the passions of the jury. Viewed in context, the reference to Ms. Lane's apartment was a fleeting, even if an unnecessary, effort to explain the concept of transferred intent. The main focus of the prosecutor's transferred intent*fn10 explanation was upon the person appellant intended shoot, Jackson, and the actual victim, Kenny Anderson. However, this hypothetical "example in argument," as the trial court described it, picked up on a questionable theme of the prosecutor's opening statement, to which appellant had objected, that Ms. Lane was one of appellant's "unintended victims." These references were more likely to evoke an emotional reaction and deflect the jury from its task than they were to elucidate the concept of transferred intent. Nevertheless, given the brevity of the prosecutor's remarks, their context, and the strength of the government's case, we are persuaded that any error of the trial court in not taking corrective action was harmless.
C. The Rear View Mirror and Veracity Arguments*fn11
Appellant argues that the prosecutor engaged in improper rebuttal argument by: (1) misstating evidence concerning whether the position of the rear view mirror in the vehicle that appellant was driving had been moved; (2) guaranteeing that, contrary to appellant's testimony, the rear view mirror had not been moved; and (3) urging the jury to conclude from these circumstances that appellant was not telling the truth when he said he was watching Aaron and "Poo" through the mirror. He contends that the argument was improper because it was not based on the evidence, suggested essentially that appellant was lying, and expressed the prosecutor's personal opinion.
Several principles guide our disposition of these arguments. First, a prosecutor may comment on the evidence presented and make reasonable inferences based thereon. Tuckson v. United States, 364 A.2d 138, 142 (D.C. 1976) (citing Mallory v. United States, 178 A.2d 918, 919 (D.C. 1962)). However, "'[i]t is improper for an attorney to make an argument to the jury based on facts not in evidence and not reasonably inferable from the evidence.'" Russell v. United States, 701 A.2d 1093, 1099 (D.C. 1997) (quoting Morrison v. United States, 547 A.2d 996, 999 (D.C. 1988)). Second, what constitutes an improper comment on the credibility of a testifying witness is sometimes difficult to discern, but such comments " will be within the acceptable range as long as it is in the general nature of argument, and not an outright expression of opinion." Irick v. United States, 565 A.2d 26, 36 (D.C. 1989) (citing Logan v. United States, 489 A.2d 485, 490-91 (D.C. 1985) (other citations omitted; emphasis in original)). "[T]he key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo." Id. at 36. With these principles in mind, we consider each of appellant's challenges to the argument.
(1) Rear View Mirror Argument
In closing argument, the prosecutor argued that, contrary to appellant's version of events, the mirror was never touched while appellant drove his friend to the hospital after he was shot, and he "guaranteed" that appellant had not touched it.*fn12 Appellant contends that the record does not support the inference that the mirror had not been moved, while the government contends that it was a fair inference from the testimony and a photograph of the vehicle taken after appellant hurriedly left the decedent at the hospital, which showed the rear view mirror in its customary position.
Appellant testified that before the shooting, he had moved the mirror so far towards the passenger seat where he was seated that the driver, Anderson, could not see what was going on behind him. Appellant then described a fast developing scene during which he warned Anderson of the approach of Aaron and "Pooh" from the rear, which he was observing through the rearview mirror. He testified that shots rang out, and then he and Anderson pulled their weapons. He testified that the car swerved, and Anderson slumped over the wheel, requiring appellant to grab the wheel and drive to the hospital, while trying to hold Anderson up. The evidence showed that appellant got out of the vehicle and immediately ran away. The government argues, persuasively, that in order to credit appellant's version of the events, the mirror had to be placed back into its customary position between the time appellant used it to observe Aaron and Poo approaching from the rear and the time that he arrived at the hospital where he left his mortally wounded friend. This evidence, along with evidence that the mirror was in its customary position when photographed at the hospital by the crime scene officers, is sufficient to permit a reasonable inference that no opportunity was shown when appellant could have moved the mirror back to its customary position, and therefore, it had not been turned toward appellant as he described. The prosecutor is permitted to argue reasonable inferences from the evidence. Streater v. United States, 478 A.2d 1055, 1059 (D.C. 1984) (citing Tuckson, supra, 364 A.2d at 142) (other citation omitted)). It does not appear that the prosecutor treaded into the area of impermissible speculation with this argument. See Clayborne, supra, 751 A.2d at 969 (citation omitted). The argument had a basis in the evidence and reasonable inferences from it. Therefore, we find no abuse of discretion in the trial court's decision to permit the argument over appellant's objection.
(2) Guarantee Language
Appellant also contends that by using the word, "guarantee," the prosecutor improperly injected his personal opinion and implied that he had personal knowledge of the events he was summarizing. The government contends that the statement is not an outright expression of opinion and did not suggest any personal knowledge. The government concedes that such phrases as "I guarantee" should be avoided because of their potential for confusion. It contends, however, that the prosecutor was not expressing a personal opinion or indicating that he had personal knowledge of the events when he used this language.
As stated previously, "the key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo." Irick, supra, 565 A.2d at 36. We agree that the comment here was not an outright expression of opinion. In context, the language appears to have been used for emphasis in making arguments based on the evidence. As such, it remained within an acceptable range of argument. See id. ("A comment will be within the acceptable range as long as it is in the general nature of argument and not an outright expression of opinion.") (citing Logan, supra, 489 A.2d at 490-91 (other citation omitted) (emphasis in original)).*fn13 Therefore, we find no error, and clearly no plain error.*fn14
Washington also contends that the prosecutor improperly indicated that he was not telling the truth by using phrases such as, "that is all not the truth," "[e]verything he told you about Aaron and Poo being out there that day, is not the truth," and "his entire house of cards comes tumbling down with all the other things he told you up there that weren't the truth, but this is one he can't get away from."
"[C]haracterizing testimony as incredible is an accepted and proper form of comment on contradictory testimony" so long as that characterization has an evidentiary basis. See Irick, supra, 565 A.2d at 35 (citing Dyson v. United States, 418 A.2d 127, 130 (D.C. 1980)). Here, the prosecutor's comments were based upon logical inferences from the evidence. The prosecutor was asking the jury to conclude that Aaron and Poo had not been out there that day, as some witnesses testified, and therefore appellant was not forthcoming about the events. The prosecutor made his point using facts and inferences from the evidence, including the testimony of Jackson and Exhibit 65.
(3) "House of Cards" Argument
Finally, appellant contends that the prosecutor erred in referring to his testimony as a "house of cards" that had come tumbling down, and otherwise commenting on his veracity, since the references implied that Washington was lying. Again, the government argues that these statements were fair comments on the evidence. Specifically, the government notes that appellant admitted that he had not been forthcoming initially about his role in the offense, and that defense counsel so stated in closing argument. Therefore, the government contends that it was justified in commenting on Washington's veracity. The government additionally argues that even if the remark were improper, no prejudice flowed from it, as defense counsel used "equally explicit language" in attacking the government's witnesses.
This argument was a fair argument on appellant's credibility based on the evidence. Counsel is not precluded "from arguing that the testimony of a particular witness should not be believed when the jury could reasonably draw that inference from contradictory evidence in the record[.]" McGrier, supra, 597 A.2d at 43. In this case, appellant admitted in testimony that he did not tell the truth initially about his involvement in the shooting. Although we have condemned assertions by counsel that a witness lied on the witness stand, "saying that a witness' testimony is incredible is permissible when that is a logical inference from the evidence and not merely the opinion of counsel." Id. (citing Irick, supra, 565 A.2d at 35). The "house of cards" formulation was fair comment, given the many bases in the evidence to challenge appellant's credibility.
Appellant argues that the trial court abused its discretion by precluding defense counsel from reading to the jury from a learned treatise, which the government's firearms expert had acknowledged was an authoritative source.*fn15 He contends that he complied with the foundational requirements for admission of the evidence under FED. R. EVID. 803 (18), which he urges this court to adopt, if it is not already applicable. The government responds that the trial court properly precluded admission of this evidence because appellant failed to confront the expert witness with the particular passages that he sought to present to the jury.
A. Factual Background
Before the defense rested its case, defense counsel sought to read into evidence, but not send back to the jury, statements from a treatise entitled GUNSHOT WOUNDS by Vincent Dimaio. Mr. Leon Krebs, who testified as an expert witness on gunshot residue, firearms and ammunition identification, and trajectory analysis, had acknowledged during testimony that he had reviewed this treatise and that it was an authoritative source.*fn16 During cross-examination, defense counsel did not confront the witness with a particular passage from the book. However, he contends that he adequately met the foundational requirements of FED. R. EVID. 803 (18) by calling the witness' attention to specific studies done with .38 and .22 caliber ammunition that were published in the Dimaio treatise, eliciting some of the results, and having the witness confirm that he knew of no other scientific studies that had produced different results. Pertinent portions of the testimony appear in the margin.*fn17 Before the defense rested, counsel requested the court's permission to read to the jury from the Dimaio treatise, citing as authority FED. R. EVID. 803 (18). The government objected, stating that Rule 803 (18) permits the introduction of treatises to the extent called to the attention of an expert. The court precluded admission of the evidence, noting that although the treatise had been called to the witness' attention, its meaning would have to be at least the subject of direct or cross-examination of the expert. The court also observed by way of example that "you can't just call a witness to say this [is] in the Encyclopedia Britannica and it's [a] well-recognized authority in its field and then go pick anything out of the encyclopedia." Appellant argues that the court erred in its ruling and that he was prejudiced thereby.*fn18
B. Applicable Legal Principles
The decision to admit or exclude evidence is committed to the trial court's discretion. See Plummer v. United States, 813 A.2d 182, 188 (D.C. 2002) (citing Mercer v. United States, 724 A.2d 1176, 1182 (D.C. 1999)). Thus, we review its evidentiary rulings for an abuse of discretion. Id. In determining whether the trial court has abused its discretion in making an evidentiary ruling, we consider "whether the exercise of discretion was in error and, if so[,] whether the impact of that error requires reversal." (James W.) Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979).
Federal Rule of Evidence 803 (18) governs the admission of learned treatises as an exception to the hearsay rule in the federal courts. Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir. 1985). Rule 803 (18) permits the use of learned treatises as substantive evidence "'to the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination . . .,' as long as it is established that such literature is authoritative."*fn19 Tart v. McGann, 697 F.2d 75, 78 (2d Cir. 1982) (quoting Rule 803 (18)). The court explained, however, that the Advisory Committee to the rules had rejected admission of such evidence independent of the expert's testimony, and thus, "the Rule permits the admission of learned treatises as substantive evidence, but only when 'an expert is on the stand and available to explain and assist in the application of the treatise . . . .'" Id. (citingFED. R. EVID. 803 (18) advisory committee note). Additional references in the Advisory Committee's note indicate that the intention was to permit the use of the treatise in connection with cross-examination. In that regard, the Note states, "[t]he greatest liberality is found in decisions allowing use of the treatise on cross-examination, when its status as an authority is established by any means . . . . [Rule 803 (18)] is hinged upon this last position . . . ." Allen v. Safeco Ins. Co. of America, 782 F.2d 1517, 1520 (11th Cir. 1986) (quoting FED. R. EVID. 803 (18) advisory committee note) (alterations in original). The reason for the rule is to avoid jury misunderstanding and misapplication of technical information in the treatise or article that might occur if the jury were permitted to consider the publication itself "instead of receiving the information through the testimony of an expert in the field." Dartez, supra, 765 F.2d at 465 (citation omitted).
Although this court has adopted some of the Federal Rules of Evidence,*fn20 it has not formally adopted Rule 803 (18). However, this court has cited the rule as authority, in part, for rejecting summarily an argument that the trial court erred in refusing to admit into evidence two medical journal articles to impeach the testimony of a defendant physician. See Quin v. George Wash. Univ., 407 A.2d 580, 581 (D.C. 1979). In Quin, a wrongful death and survival action based on medical negligence, both of the decedent's surgeons had testified to several medical journal articles in support of their opinions on causation.*fn21 Id. at 581-82.
We concluded that there was no error in excluding the articles, which had been used extensively on re-direct and re-cross, citing "2 JONES ON EVIDENCE § 12.31 (1972) ('the prevailing view of the courts is that books or treatises which deal with [medicine, surgery, and mechanics] are barred by the rule against hearsay as evidence of facts or opinions stated therein, no general exception having been developed to make them admissible')[.]" Id. at 581 n.3. This court has also cited Rule 803 (18) with a parenthetical reference to that portion of the rule that provides that "statements contained in learned treatises may be read into evidence but may not be received as exhibit[s]." Id. Thus, as one commentator noted, the federal rule "appears consistent with D.C. law and practice." GRAAE & FITZPATRICK, THE LAW OF EVIDENCE IN THE DISTRICT OF COLUMBIA, 8-112 (2002). We agree. Therefore, we consider the argument raised by appellant applying FED. R. EVID. 803 (18).
Appellant acknowledges that he did not confront the expert witness, Mr. Krebs, with the specific passages he sought to read from the Dimaio book. However, he urges this court to conclude that confrontation of the expert with the specific language a party seeks to have admitted under the rule is not required. The government argues that there is no authority supporting appellant's argument and that case precedents adhere to an interpretation to the contrary.
The plain language of Rule 803 (18) and the principles previously outlined tend to support the interpretation advanced by the government. The rule states explicitly, "[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statementscontained in published treatises . . . [are not hearsay]." FED. R. EVID. 803 (18) (emphasis added). Thus, the admissibility of the subject "statements" is dependent upon meeting one of the requirements expressed in the disjunctive in the rule. Like the rule for statutory construction, "words of a [rule] should be construed according to their ordinary sense and with the meaning commonly attributed to them." Thompson v. District of Columbia, 863 A.2d 814, 817-18 (D.C. 2004) (citation and internal quotations omitted). This language plainly shows that to qualify for admission under the rule, it is the particular "statement contained in the treatise" that must be called to the attention of the expert. FED. R. EVID. 803 (18). Federal courts have so interpreted the rule. See, e.g., Tart, supra, 697 F.2d at 78 (Rule 803 (18) "permits the admission of learned treatises as substantive evidence, but only when 'an expert is on the stand and available to explain and assist in the application of the treatise . . . . '") (citation and internal quotations omitted); United States v. McQuiston, 998 F.2d 627, 629 (8th Cir. 1993) (The court did not abuse its discretion in rejecting a proffered periodical article not offered in connection with any witness' testimony.). Some states with a similar evidentiary rule have concluded likewise that the expert's attention must be directed not just to the treatise, but to the particular statement in the treatise sought to be placed before the jury.*fn22 Thus, these state decisions are consistent with the purpose of the federal rule, which is to avoid jury confusion by prohibiting the introduction of treatise material without expert interpretation. FED. R. EVID. 803 (18) (advisory committee to ¶ 18)). If the expert's attention is not drawn to the specific material while on the stand, the material could be read to the jury without the benefit of expert guidance. Under the interpretation of the rule that appellant advances, the mere mention of a treatise by the expert would be sufficient to justify reading it later during the trial. However, it has been noted that such a "hide-the-ball" approach is disfavored. Mueller & Kirkpatrick, EVIDENCE § 8.60, at 1263 (1995).*fn23
Requiring specificity assists the jury and protects the integrity of the adversarial process. Id. .
Appellant contends that he sufficiently met the requirements for admissibility by having the expert witness acknowledge the book as authoritative and by eliciting from him that he knew of no other scientific studies that produced different results for .38 and .22 ammunition than those appearing in the Dimaio book. The question is whether defense counsel's questioning was sufficient to call the witness' attention to the specific portion of the treatise that he sought to call to the jury's attention. Appellant did question Mr. Krebs about the Dimaio book, and he addressed during cross-examination some part of it. We recognize that cross-examination can be sufficient to meet the attention-calling requirement. EVIDENCE, supra, § 8.60 at 1263. However, a passing reference is insufficient, and "if [counsel] plans to make substantive use of the material by reading from it and arguing that it proves what it says, [counsel] has to ask the expert to explain the passages and relate them to what he conveys in his testimony." Id.
In the present case, the attention-calling requirement was not adequate to permit admission of the material as substantive evidence. Here, counsel did not call the expert's attention to the pages of the Dimaio book from which he sought to read, apparently pages 113-114.*fn24 Although some of defense counsel's questioning was based on information that appears in the book, it is not clear that Mr. Krebs' responses were based on the specific pages of the treatise defense counsel wanted to read. Appellant did not elicit the expert's interpretation of that portion of the treatise prior to seeking to read it to the jury. The failure to ask the expert specifically about the particular portion of the treatise deprived the witness of the opportunity to explain, counter or interpret those particular passages concerning distances that defense counsel wanted to present to the jury. Mr. Krebs testified that tests that he conducted and a book edited by a Dr. Spitz differed slightly from Dimaio on distances, but were well within his ranges. Since Mr. Krebs' attention was not called to the part of the book that counsel asserts differs from Mr. Krebs' opinion, Krebs had no opportunity to reconcile or explain any differences and their significance, if any, to the issue or to identify other portions of the text that might have been relevant to his position. For these reasons, we conclude that the trial court did not abuse its discretion in concluding that the examination was not sufficiently specific to meet the foundational requirement for reading the portions of the treatises offered as proof of the matter asserted.*fn25
Appellant argues for the first time on appeal that his convictions of carrying a pistol without a license should be vacated on constitutional grounds. Specifically, he contends that the statute under which he was convicted, D.C. Code § 22-3204 (a) (1981) (recodified as D.C. Code § 22-4504 (a) (2001)) unconstitutionally infringes upon his rights under the Second Amendment to bear arms and his due process rights under the Fifth Amendment. He contends that the District's licensing statute constricts too narrowly the class of citizens to whom a license is available and is unconstitutionally vague. The government argues that appellant waived these arguments because he did not raise them in the trial court and they fail on the merits, in any event.*fn26
Appellant concedes that he did not challenge the constitutionality of the CPWL statute in the trial court. We have rejected as waived such belated constitutional challenges. See Hager v. United States, 856 A.2d 1143, 1151 (D.C. 2004) (citing Mitchell v. United States, 746 A.2d 877, 885 n.11 (D.C. 2000)). Even if we were to review for plain error,*fn27 appellant cannot prevail because his arguments are foreclosed by this court's binding precedents.*fn28 See Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987) (holding that D.C. Code §§ 6-2311, 6-2361 and 22-3204 (1981) (CPWL statute) do not violate the Second Amendment); see also Hager, 856 A.2d at 1151 (noting Second and Fifth Amendment challenges foreclosed by Sandidge and Austin v. United States, 847 A.2d 391, 393 (D.C. 2004) (rejecting due process challenge)).
Finally, appellant argues that his three convictions of PFCV merge because they result from a single act of violence during which there was possession of a single weapon. The government concedes that in light of Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999), appellant can stand convicted of only a single count of PFCV. We agree.
For the foregoing reasons, we affirm the judgment of the trial court and remand with instructions for the court to vacate two of the convictions of PFCV.