Appeal from the Superior Court of the District of Columbia (FEL1316-02) (Hon. Susan R. Winfield, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, Associate Judge, and FERREN and STEADMAN, Senior Judges.
A jury convicted appellant, Shawn Burgess, on several counts of criminal offenses.*fn1 On appeal, his primary challenge*fn2 is to the decision of the trial court denying his motion in limine "to present expert testimony on the psychological factors of memory and perception that affect the accuracy of eyewitness identifications especially when it involves cross-racial identification." We hold that because Mr. Burgess failed to identify his expert witness, the expert's qualifications, and the particular opinions to be rendered (together with the bases for the opinions), the trial court did not abuse its discretion in denying his motion.
The government presented evidence showing that on October 5, 2001, Mr. Burgess approached a group of Gonzaga High School students at Union Station. He asked the black students in the group whether two others, including Mr. Williams, were part of their group.
The students responded that they were, and that Mr. Burgess should leave them alone. After Mr. Williams and the other non-black student had separated from the group, Mr. Burgess directed them into a secluded area. There, Mr. Burgess pressed an object against Mr. Williams' side and ordered the students to hand over their wallets.
The students gave Mr. Burgess money from their wallets. Later, Mr. Burgess again approached Mr. Williams, directed him to the same secluded area, pressed a hard object into his back, and when Mr. Williams said he did not believe Mr. Burgess had a gun, the appellant pulled out a silver gun with a wooden handle, cocked it, pressed it against Mr. Williams' leg, and told the student that he was not afraid to shoot because he had "nothing to lose." He demanded the rest of Mr. Williams' money and his watch. After obtaining the money and watch, Mr. Burgess informed Mr. Williams that he knew he played basketball at Gonzaga, and that "he would come back and get [him] later if anything happened." Mr. Williams did not report the incident immediately, but subsequently told his father what had happened. And, two weeks after the incident, a Metropolitan Police Department ("MPD") detective showed Mr. Williams a photo array, and he selected a picture of Mr. Burgess as his assailant. He had described the man who robbed him as a black male in his late teens to early twenties, who was wearing a tan leather jacket tied around his waist, a white undershirt, and a skull cap.
On the evening of October 13, 2001, Mr. Burgess approached Mr. Rodriguez and Mr. Hagen while they were standing at the bottom of the escalator at the Eastern Market Metro station, waiting for a train. He began to talk with them about the September 11, 2001 events.
With one hand in his bag, Mr. Burgess announced that he had a gun and asked Mr. Rodriguez and Mr. Hagen to reveal what they had in their pockets. Mr. Rodriguez expressed doubt that Mr. Burgess had a gun. Mr. Burgess said he would go a short distance away, "around the corner and switch it from the bag to his pocket." Mr. Burgess went behind a pillar, kept his eyes on Mr. Rodriguez and Mr. Hagen, zipped up his bag, placed it on his back and returned.
Still doubting that Mr. Burgess had a gun, Mr. Rodriguez confronted him up close. Mr. Burgess "started to get a little shaky," and when Mr. Rodriguez put his hand behind Mr. Burgess' back, the appellant "ran up the down escalator." Mr. Rodriguez alerted the guard at the metro station. Subsequently, Mr. Hagen and Mr. Rodriguez met separately with an MPD detective and each picked Mr. Burgess' picture out of a photo array. Mr. Rodriguez said he would "recognize [Mr. Burgess'] smirk anywhere."
The Expert Testimony Issue: Cross-Racial Identification
On October 8, 2004, prior to trial, Mr. Burgess filed a motion in limine "to present expert testimony on the psychological factors of memory and perception that affect the accuracy of eyewitness identifications especially when it involves cross-racial identification . . . ." In his ...