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Robert A. Russell v. United States

April 14, 2011


Appeal from the Superior Court of the District of Columbia (CF3-28438-08) (Hon. Harold L. Cushenberry, Jr., Trial Judge)

The opinion of the court was delivered by: Wagner, Senior Judge:

Argued April 23, 2010

Before REID, Associate Judge, and WAGNER andFARRELL, Senior Judges.

Appellant, Robert A. Russell, appeals from his convictions of armed carjacking, armed robbery, possession of a firearm during commission of a crime of violence (PFCV), unauthorized use of a motor vehicle (UUV), and theft.*fn1 The sole issue raised by his appeal is whether the trial court abused its discretion in precluding appellant from presenting expert testimony concerning the reliability and accuracy of eyewitness testimony. Concluding that more recent developments in the scientific community and in our case law require more in-depth consideration of the factors affecting admissibility than was afforded here, we reverse and remand for further proceedings consistent with this opinion.


A. Factual Background

The charges arose out of an armed carjacking and robbery of Damon Warren that occurred on December 23, 2006 at about 3:50 a.m. Having consumed some beer and concerned about a pending driving under the influence charge, Warren allowed his friend, Terence Childs to drive his Mercury Grand Marquis automobile to Childs' home in the 1900 block of Jackson Street, N.E. Warren remained in the car while Childs went inside to get some of his belongings. Warren testified that he noticed two young black men wearing hoods and North Face jackets conversing and walking down Jackson Street. Warren testified that he did not feel threatened, and he got out of the car to urinate with his back to the two men. Warren then heard someone curse and demand that he "give it up." Warren turned and saw the same two men, one of whom was masked, pointing guns in his face; they demanded his keys and identification. Warren threw his driver's license, cell phone, and about $400 in cash to the ground and told them more than once that he did not have the keys. One of the robbers exclaimed that the keys were in the ignition, jumped in the vehicle, and drove off toward 18th Street. The masked man ran to a cream, white or light colored car that was parked up the street and drove away in front of Warren's Mercury. Warren ran to Childs' house and informed Childs, who called the police. Warren described the man who drove away in his car as weighing between 145 and 160 pounds, wearing dark jeans and a black North Face jacket with the hood on and no mask. Warren also said that the man was an inch or two taller than his own height (about 5' 10" to 5' 11"),*fn2 "youthful," with braided hair hanging "[c]lose to the chin, and "smooth" "cinnamon-brown skin."

Metropolitan Police Department Officers Eric Hairston and Carlos Heraud, responding to a radio assignment for the car jacking, met Warren at the Jackson Street location. Appellant described his assailants to the police as two black males, both wearing black North Face jackets with hoods, blue or dark-colored jeans, and black boots. Warren told the police that the man who drove his car had dreadlocks, and the second man had hair twists. Officer Heraud broadcast a lookout for the suspects and the vehicles. A few minutes later, Officer Evely spotted the Mercury turning left onto Rhode Island Avenue, N.E. from 18th Street. Officer Evely followed the car, which made a right turn on 20th Street, and a left on Hamlin Street before both cars speeded away. The driver of the Mercury lost control of the car and crashed it into a tree. When Officer Evely was about 15 feet from the vehicle, a man, whom the officer identified in court as appellant, got out of the car, looked in his direction and ran down Hamlin Street. The officer chased appellant for three to four minutes before appellant ran into a wooded area near Franklin Street, N.E. Officer Terrence Liddell, who responded to Officer Evely's request for K-9 assistance, found Warren's driver's license about halfway into the woods; however, he did not find the suspect.

About 5:10 a.m., Officers Ludovick Rock and Greg Pamer, who had participated in the search for the carjacking suspect earlier, spotted appellant, who matched the description, walking in the 2200 block of Douglas Street, N.E. Officer Rock noticed that appellant's blue jeans were wet and muddy. At the officer's request, appellant removed his hood, revealing that he had shoulder-length dreadlocks. Officer Rock reported that he had a suspect fitting the broadcast description, and Officer Evely went to the area and identified appellant as the person he had chased from the wrecked Mercury. The police first showed Warren a heavy-set, light skinned, unconscious man with braids or dreadlocks, wearing a black North Face jacket on Irving Street, N.E., but Warren said that he was not one of the carjackers. Warren said that the police told him later that they had another person for him to look at. At that show-up, Warren remained in the police cruiser about 20 feet from where appellant was standing with Officers Rock and Palmer. A police officer told Warren that "we have an individual we want you to ID," and that he should "look at him." At first, Warren told the officer that he was not sure. Warren then asked to have appellant stand up with his hood up over his head. Once appellant pulled the hood up, Warren identified him as the unmasked carjacker.

B. Proffered Expert Evidence

At trial, defense counsel sought to call as an expert Dr. Lori Van Wallendael, a university professor of cognitive psychology with specialized experience in eyewitness perception and memory.*fn3 He asserted that Dr. Wallendael would "testify about the factors present in this case that are known to affect adversely eyewitness perception, memory, and identification." He also stated that the professor's area of expertise was a well-established field, that the subject areas "are supported by extensive research and have broad acceptance in the scientific community," and that she had been qualified to testify in these areas in the Superior Court of the District of Columbia and in other jurisdictions. The defense proffered that the expert would testify that: (1) there is little correlation between a witness' level of confidence and the accuracy of the identification; (2) police officers perform no better than lay witnesses in witness identifications; (3) the presence of a weapon adversely affects the witness' ability to focus and remember the face of the perpetrator; (4) presenting a suspect in clothing similar to that of the perpetrator undermines the reliability of the identification, an effect known as "clothing bias"; and (5) post-event information (contamination) leads to distortions and memory errors.

In the trial court, the government challenged the admissibility of appellant's expert's testimony principally on the ground that it did not meet the first Dyas factor. Specifically, the government argued that the subject matter of the proffered testimony was within the common experience of every juror and that defense counsel could probe on cross-examination and present argument on the matters he sought to bring out through the expert. The trial court concluded that none of the subject areas were beyond the ken of lay jurors to understand, evaluate, and to deal with effectively through cross-examination, and therefore, it excluded the evidence.



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