March 12, 2009
KENNETH MILLARD, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-801-05) (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued October 16, 2008
Before KRAMER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
On May 8, 2006, a jury convicted appellant Kenneth Millard of possession of marijuana, see D.C. Code § 48-904.01(d); possession of cocaine, see id.; carrying a pistol without a license ("CPWL"), see D.C. Code § 22-4504(a); possession of an unregistered firearm ("UF"), see D.C. Code § 7-2502.01; and unlawful possession of ammunition ("UA"), see D.C. Code § 7-2506.01(3). By order dated June 5, 2008, we granted appellant's unopposed motion to vacate both of his drug possession convictions on the ground that the trial court's admission of a Drug Enforcement Administration ("DEA") substance analysis report (a so-called "DEA-7 report") without testimony by the authoring chemist violated the Sixth Amendment Confrontation Clause and was not harmless error.*fn1 We now vacate appellant's weapon convictions as well because we believe there is a reasonable possibility that admission of the DEA-7 report contributed to the jury's guilty verdict on those charges.
In summary, the evidence at trial was as follows. Metropolitan Police Department (MPD) Officer Howard Anderson testified that, shortly before 8 p.m. on February 9, 2005, he and Officers Marc Wilkins and Mark Harrison, all wearing police vests, were parked in the 2700 block of Jasper Road, S.E. in their unmarked police vehicle.*fn2 The vehicle was at the bottom of a dirt path or "cut" that ran down a steep, wooded hill to the roadway. Appellant Millard "popped out of the woods" and ran into the left front quarter panel of the officers' vehicle. After bouncing off the vehicle and falling, appellant grabbed his right waist area with his right hand as he rose to his feet. Perceiving appellant's grabbing motion as an indication that appellant had a gun, Officer Anderson exited the car and began chasing appellant down the sidewalk. When they had run just a few feet away from the car, Officer Anderson tried to hit appellant's shoulder, but appellant jerked away and again 3 grabbed his right waist area. Officer Anderson then slapped appellant's right elbow and a handgun "flew out" from appellant's waistband. Appellant reversed direction and, as he was passing the police vehicle again, Officer Harrison emerged and helped Officer Anderson tackle and handcuff appellant. Besides appellant, police detained two other individuals who were in the vicinity that night. Officer Anderson also acknowledged that, in his Gerstein affidavit, he wrote that there were other individuals who ran through a "cut" in the area that night.*fn3
Officer Harrison substantially corroborated Anderson's testimony. Although he did not see a gun fly out from appellant's person, he recalled hearing the "clang" of a metallic object hitting the sidewalk when Officer Anderson was struggling with appellant. While searching appellant incident to his arrest, Officer Harrison found in the right front pocket of the jumpsuit that appellant was wearing an envelope containing cash and ten zip-lock bags containing a "greenish weed substance" and a "white chunk-like substance." The DEA-7 report that the government offered into evidence and that was admitted over defense objections identified the "greenish weed substance" as marijuana and the "white chunk-like substance" as cocaine.
Officer Matthew Nickerson testified that he recovered a loaded Colt .22 semi-automatic handgun from the sidewalk on Jasper Road. An MPD fingerprint expert testified that the analysis of latent fingerprints recovered from the gun was inconclusive. Police also recovered a second handgun from a dumpster between Jasper Road and Robinson Place. The government's evidence also included a Certificate of No Record of License to Carry a Pistol, and a Certificate of No Registration of a Firearm. Defense counsel objected to these exhibits on the basis of Crawford.
The defense called Investigator Adam Choka, who testified that he visited Jasper Road and located the three sites where (according to the defense's interpretation of the government evidence) MPD officers saw appellant emerge from the woods, effectuated the arrest, and recovered the Colt .22 handgun. Referring to photographs of the area, Investigator Choka testified that, relative to the point where appellant ran out of the woods above Jasper Road, the location from which police retrieved the gun was several feet in the opposite direction from the place where police tackled appellant. Investigator Choka further testified that the only street-lamps on Jasper Road are across the street from the sidewalk bordering the woods, and that the sidewalk itself (where police found the Colt .22 handgun) was unlit.
Defense counsel sought to call Officer Mark Harrison back to the stand to testify that, on the day after the arrest, MPD officers searched appellant's house pursuant to a warrant for drugs and drug paraphernalia, but found nothing incriminating. The trial judge (the Honorable Lynn Leibovitz) precluded the proffered testimony as irrelevant.
Appellant argues that the erroneous admission of the DEA-7 report tainted the entire trial, entitling him to reversal not only of his drug-possession convictions, but also of his weapon convictions. As appellant emphasizes, where constitutional error has occurred at trial, we may affirm a judgment of conviction only if the error was "harmless beyond a reasonable doubt" as to the conviction. Chapman v. California, 386 U.S. 18, 24 (1967); Fields v. United States, 952 A.2d 859, 860 (2008). Here, reversal is required if there is a "reasonable possibility" that the error in admitting the DEA-7 report "might have contributed" to the guilty verdict on the weapon charges. Smith v. United States, __D.C. App. LEXIS ___, * ___(D.C., Feb. 26, 2009) (citing Chapman, supra, 386 U.S. at 23). Only if there was "overwhelming evidence" of guilt, aside from the DEA-7 report, may the weapon convictions stand. Smith, ___ D.C. App. LEXIS ___ at *___,(citing Harrington v. California, 395 U.S. 250, 254 (1969)).
We conclude that there is a reasonable possibility that admission of the DEA drug analysis report did contribute to the guilty verdict on the weapon charges. During closing arguments, defense counsel's remarks focused exclusively on the evidence related to those charges. In rebuttal, the prosecutor urged the jury to reject the defense theory that there was a merely coincidental relationship between appellant's possession of drugs when he ran through the cut toward Jasper Road, and the gun found on the sidewalk along Jasper Road. Telling the jury that "the defendant is not, as the defense seems to want you to believe, the unluckiest person in the world," the prosecutor mocked the defense suggestion that appellant "just happened to be on Jasper Road with cocaine and marijuana in his pocket and a gun was lying there." Thus, the prosecution invited jurors to draw a connection between the drugs that appellant was carrying (which the defense did not deny during closing argument) and the Colt .22 handgun found in the vicinity of appellant's arrest. In this context, the DEA-7 report confirming that the weed substance and white "chunk-like" substance that police found on appellant actually were marijuana and cocaine could well have helped persuade the jury that appellant had been carrying the loaded gun that police recovered.
Further, we cannot say that the government's evidence against appellant as to the weapon charges was overwhelming. Officer Harrison heard a metallic "clang" but never saw appellant with a gun. Officer Anderson testified to seeing a gun fly out of appellant's waistband, but the defense challenged the accuracy and credibility of his testimony on several grounds. The incident took place on the unlit side of Jasper Road around 8 p.m. on a February night, when it would have been dark outside, making clear observation more difficult. Defense counsel argued to the jury that Officer Anderson's general credibility was undermined by his "reluctan[ce]" to "admit that it would be nighttime."*fn4 Defense counsel also emphasized that a photograph entered into evidence showed that on the night of his arrest, appellant was wearing coveralls, an article of clothing on which "[t]here is no waistband and there is no way a gun pops out of that waistband." The latent fingerprints lifted from the gun that police recovered could not be matched to anyone, and (the defense argued, on the basis of Investigator Choka's testimony) the gun was found some distance from where it would likely have fallen if it had "flown" out of appellant's possession at the location where Officer Anderson slapped appellant's arm. Both Officers Anderson and Harrison testified that appellant was holding his waistband area after he got up from falling and continued running, but that action was not inconsistent with the possibility that appellant injured himself when he ran into the police vehicle and fell to the ground. Further, the police officers' testimony confirmed that other individuals scattered at the sight of police and ran through a "cut" toward Jasper Road that same evening, that a second gun was recovered nearby, and that two other individuals were arrested in the vicinity the same evening.
Of course, to prove its case, the government was "not required to negate every possible inference of [appellant's] innocence," Coleman v. United States, 948 A.2d 534 (D.C. 2008), and appellant does not argue before us that the evidence was insufficient to convict him of the weapon charges. But we agree with appellant that, on the whole, the evidence was not so overwhelming that any reasonable juror would have been compelled to find that appellant carried and possessed the loaded Colt .22 handgun that police recovered on the Jasper Road sidewalk. Indeed, having found appellant guilty on the drug-possession charges, the jury was initially deadlocked on the weapon charges, and found appellant guilty on those charges only after the court gave a Winters anti-deadlock instruction*fn5 and asked the jury to resume its deliberations.
Because there is a reasonable possibility that the erroneously-admitted DEA-7 report contributed to the verdict on the weapon charges and because the evidence supporting those charges was not overwhelming, we vacate appellant's CPWL, UF and UA convictions.
We turn to appellant's remaining arguments in the event that they arise on (possible) retrial.*fn6 First, we analyze appellant's argument that, under the Supreme Court's holdings in Crawford and in Davis v. Washington, 547 U.S. 813 (2006),and this court's holding in Thomas, the "Certificate of No Record for a License to Carry a Pistol"*fn7 and the "Certificate of No Record of a Registered Firearm"*fn8 (documents that we refer to hereinafter as "CNRs") that the government introduced were constitutionally inadmissible without the in-court testimony of the individual(s) who searched the relevant records.
In Crawford, the Supreme Court held that the admission of hearsay evidence against a criminal defendant without affording the defendant an opportunity to cross-examine the declarant violates the Sixth Amendment Confrontation Clause if the hearsay is "testimonial."*fn9 See Crawford, 547 U.S. at 59.*fn10 The Court noted that, according to its dictionary definition, "testimony" is "typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,'" id. at 51(citation omitted), and that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Court observed that the "history underlying the common-law right of confrontation thus reflects an especially acute concern with a specific type of out-of-court statement." Id. (internal punctuation omitted). The Court left "for another day any effort to spell out a comprehensive definition of 'testimonial'," id. at 68, but stated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial; and to police interrogations," which are "the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id.*fn11
Following the Supreme Court's decision in Crawford, this court held in Thomas that the DEA-7 chemical analysis report at issue in the case was "core" testimonial evidence. 914 A.2d at 12. We cited in our analysis several factors, which tracked portions of the "various formulations" that the petitioner and amici urged, and that the Supreme Court described, in Crawford: (1) that the author of the report created it "expressly for use in [a] criminal prosecution," Thomas, supra, 914 A.2d at 14; (2) that the report was "a formal and solemn" attestation, much like an affidavit, id. at 13; (3) that law enforcement officials were involved in obtaining the report, id. at 13-14; and (4) that the report was offered "in lieu of the chemist's live testimony to prove an essential element of the charged offense," id. at 13.*fn12
Many of the factors that led us to conclude in Thomas that DEA-7 reports are testimonial weigh in favor of a similar conclusion about the CNRs in issue here. However, the CNRs are not entirely analogous to the DEA-7 report at issue in Thomas, and we do not believe that Thomas, or Crawford, requires us to hold that the CNRs are testimonial.
Like the DEA-7 report at issue in Thomas, the CNRs are formal and solemn documents that were prepared at the instance of and in response to an inquiry by law enforcement officials and were obtained expressly for use in prosecuting appellant. Thomas did not hold, however, that this subset of the factors it discussed is dispositive of whether a statement is testimonial.*fn13 And, in contrast to DEA-7 reports, we think it is appropriate to regard the CNRs not as "substitutes for live testimony," which was how we characterized the DEA-7 report at issue in Thomas. 914 A.2d at 13. Rather -- quite unlike DEA-7 reports -- the CNRs were substitutes for carting in the entire set of MPD files memorializing the issuance of firearm registration certificates and licenses, so that the jury could determine whether a registration certificate and license had been issued in appellant's name.*fn14 Cf.
Polk's Lessee v. Wendell, 18 U.S. (5 Wheat.) 293, 310-11 (1820) (holding that certificate as to nonexistence of entry in public records was not competent evidence, and that production of the entire record was required, "from which the Court might, by inspection, have ascertained the fact of the non-existence of the contested entries").*fn15 It is this distinction that persuades us -- and we now hold -- that CNRs are not "testimonial" for purposes of the Sixth Amendment Confrontation Clause.
Notably, in the immigration context, where the government uses the absence of any record that an alien has been lawfully re-admitted to the United States as evidence supporting criminal prosecution for violation of an order of deportation,*fn16 every court to rule on the issue has concluded that CNRs are non-testimonial. See United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008); United States v. Urqhart, 469 F.3d 745, 749 (8th Cir. 2006); United States v. Provencio-Sandoval, 272 F. App'x. 683, 685 (10th Cir. 2008) (unpublished); United States v. Salazar-Gonzales, 458 F.3d 851, 854 (9th Cir. 2006); United States v. Cervantes-Flores, supra note 16, 421 F.3d at 834; United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005); United States v. Mendoza-Orellana, 133 Fed. Appx. 68, 70 (4th Cir. 2005) (unpublished); see also Jackson, supra, 924 A.2d at 1021-22 (citing favorably Salazar-Gonzalez, Cervantes-Flores, and Rueda-Rivera). But see Earle v. United States, 488 F.3d 537, 545 (1st Cir. 2007) (declining to decide whether a CNR is "testimonial" evidence); United States v. Salinas-Valenciano, 220 Fed. App'x 879, 883, 885 (10th Cir. 2007) (unpublished) (stating "we are not certain that the CNR evidence falls within the ambit of the Confrontation Clause, or that any violation could be other than harmless," but reaching no conclusion on the issue). There are relatively few reported cases in which courts have evaluated confrontation challenges to other types of CNRs, but those that have resolved such challenges generally have treated CNRs as non-testimonial. See State v. Kirkpatrick, 161 P.3d 990, 997 (Wash. 2007) (certification of no record of driver's license); Michels v. Commonwealth, 624 S.E.2d 675, 680 (Va. Ct. App. 2006) (certifications of no record of license to operate as an LLC); Dickens v. Commonwealth, 663 S.E.2d 548, 551-52 (Va. Ct. App. 2008) (certification of failure to register as a sex offender); see also State v. Shipley, 757 N.W.2d 228, 237 (Iowa 2008) (rejecting confrontation challenge to the admission of a summary of defendant's pre-existing driving record, which a state official created after the initiation of prosecution); Dukes, supra, 174 P.3d at 918 (same).*fn17 In short, the weight of relevant authority supports our conclusion that CNRs are not testimonial.*fn18
The original indictment charged appellant with possession of cocaine with intent to distribute while armed ("PWIDWA"). During trial, Judge Leibovitz precluded the government, as a discovery sanction, from presenting certain expert testimony. Because the expert testimony was essential to the government's case on the PWIDWA charge, the court reduced the charge to one of simple possession and dismissed the PWIDWA charge. Earlier, however, before the PWIDWA charge was dismissed, the court had ruled that the defense would not be permitted, in an effort to counter the intent-to-distribute charge, to elicit testimony that police had executed a search warrant at appellant's home on the day after appellant's arrest and found no evidence of drugs or drug paraphernalia. Judge Leibovitz reasoned that whether or not appellant had such items in his home the next day was not probative of his intent to distribute on the day of his arrest, and thus not relevant. After the court dismissed the PWIDWA charge, the defense renewed its request to present evidence about the fruits of the search, proffering that the testimony would be that police "did not find anything associated with guns or drugs." Judge Leibovitz declined to change her ruling. Appellant now argues that the ruling was in error as to the weapon and drug possession charges. We address this issue because, like the CNR/Confrontation Clause issue, it could arise again if the government seeks to retry appellant.
"Relevant evidence is that which tends to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence." Brown v. United States, 932 A.2d 521, 525 (D.C. 2007) (citation omitted). If, for example, police had discovered extra ammunition or a gun holster in appellant's home on February 10, 2005, the government could be expected to argue -- with justification -- that such evidence makes it likely that appellant had access to a gun and "more probable" that he possessed one on February 9, 2005, the day of his arrest. See New York v. Quarles, 467 U.S. 649, 657 (1984) (recognizing that the presence of an empty holster on defendant's person strongly indicated that he had recently possessed a gun). But, we think, the converse of that argument is not true. Although if we were ruling in the first instance, we might allow the evidence, case law contains many accounts of police finding no ammunition in the homes of individuals found in possession of guns.*fn19 And, without straining logic or engaging in fanciful hypotheses, there are ready explanations for why an individual would be in possession of drugs without ever handling drugs or drug paraphernalia in his home.*fn20 A trial judge could reasonably conclude that evidence that police found no gun accessories or drug paraphernalia in appellant's home on the day after his arrest does not make it less likely that he possessed the gun found on Jasper Road or the substances found in his pocket on the day he was arrested.*fn21
For the foregoing reasons, we vacate appellant's convictions. In the event the government retries appellant, the trial court is not precluded from admitting into evidence, without testimony by the individual who searched the MPD's firearm licensure and registration records, certificates of no record that appellant possessed a firearm registration certificate or a license to carry a firearm on February 9, 2005. The court may also exclude evidence that police found no gun or drug paraphernalia when they searched appellant's home on February 10, 2005.