Appeal from the Superior Court of the District of Columbia (CF2-9999-08) (Hon. Gregory E. Jackson, Trial Judge)
The opinion of the court was delivered by: Reid, Associate Judge, Retired:
Before GLICKMAN, Associate Judge, REID,*fn1 Associate Judge, Retired, and SCHWELB, Senior Judge.
Opinion for the court by Associate Judge, Retired, REID.
Concurring opinion by Senior Judge SCHWELB, at p. 20.
Appellant, Michael Smith, appeals his conviction for carrying a pistol without a license ("CPWL"), possession of an unregistered firearm, unlawful possession of ammunition, and unlawful possession of a firearm.*fn2 He asserts that the trial court committed "reversible error" in excluding his expert testimony on relevancy grounds, and that the court violated his Sixth Amendment right to present a defense. For the reasons stated below, we are constrained to reverse the trial court's judgment and remand this case for a new trial.
The government presented evidence showing that on May 2, 2008, Metropolitan Police Department ("MPD") Officers Dioni Fernandez, Thomas Sheehan, and Matthew Jones responded to a "radio run" for a six foot tall black male with a gun, wearing jeans and a white t-shirt and located in an apartment complex in the 6600 block of Georgia Avenue, in the Northwest quadrant of the District. Officer Fernandez entered the apartment complex first, with Officers Sheehan and Jones following immediately behind him. Upon entry, Officer Fernandez saw Mr. Smith amidst a group of five or six people. He was holding, perhaps sitting on or straddling, a bicycle. Mr. Smith was the only person in the group who matched the description given on the radio run, and upon seeing the officers, he dropped the bike and began walking away "at a fast pace" while holding his waistband. He ignored Officer Fernandez's initial "commands to show his hands."
Officer Sheehan saw Mr. Smith "walking briskly . . . , with his hand in his waistband[,] . . . looking over his shoulder." He ordered him to stop approximately five times, and then he stopped Mr. Smith and searched him, but the search produced no weapons. Officer Fernandez returned to the bike that he saw Mr. Smith holding and found "a pouch underneath the seat." He touched the pouch, felt what he believed was a gun, unzipped the pouch, and saw a gun handle. Officer Fernandez informed Officer Sheehan about the gun. Officer Sheehan transported Mr. Smith "off the scene." Officer Fernandez rode the bike, with the gun zipped in the pouch, to the nearby Fourth District police station for processing.
Officer Holly Paige of MPD's Crime Scene section, Forensic Science Division, used an ultraviolet blue powder*fn3 to process the gun for fingerprints on the night of May 2, 2008. The test revealed one fingerprint. Officer Paige was unable to process the bike for fingerprints because Officer Fernandez contaminated it when he rode it to the police station. Officer Paige swabbed the gun for DNA, but never sent the swab for processing because the procedure was costly. MPD fingerprint specialist Barbara Evans also testified as an expert witness in "the examination of latent prints." In her thirty-six years with the FBI and MPD, she examined "at least 10,000 or more" latent fingerprints. Ms. Evans examined the fingerprint that Officer Paige recovered and stated that it was not usable because it did not contain enough identifiable points or characteristics to be successfully matched to, or exclude, Mr. Smith. Officer Paige testified that in her experience only five to ten percent of fingerprints recovered from guns are usable.
During cross-examination, Officer Paige admitted that the District of Columbia's MPD had issued a Special Order*fn4 requiring officers to use the Superglue*fn5 fuming method to recover latent fingerprints from guns that were not found on the defendant's person.*fn6 She was asked whether the Special Order stated that: "Where a firearm is not found on the defendant's person, the CSSO . . . shall . . . us[e] the [S]uperglue method (unless the Forensic Sciences Lab personnel determine that another method would have a better likelihood of success because of the surface involved)."*fn7 Officer Paige responded: "Correct." She acknowledged that the MPD had Superglue available as well as "mobile units that can come to the case to perform Super[g]lue fuming." On re-direct, Officer Paige stated that she preferred to use the powder method.
Mr. Smith intended to call his own fingerprint expert, Mr. Wynn, to rebut Officer Paige's and Ms. Evans's testimony. On August 19, 2008, the defense provided notice to the government of its intent to call Mr. Wynn "as an expert in the lifting, analysis, and comparison of fingerprints." The government made an oral motion to exclude Mr. Wynn's testimony. Mr. Smith's written Opposition to the government's motion indicated, in part, that:
Mr. Wynn would testify that [S]uperglue fuming is a superior method to the powder method used in this case by the Crime Scene Search Officer (CSSO). The fact that the police did not use a method available to them is an argument that the jury hould acquit based on the government's lack of evidence. Further, to the extent the government presented the CSSO as a trained professional who did her [investigation] adequately and sufficiently, the defense is entitled to be able to put Mr. Wynn on to rebut that inference that the CSSO is a witness who the factfinder can credit and believe that she did her job adequately. Mr. Wynn would allow Mr. Smith to argue by way of substantive, affirmative evidence that the CSSO's work is a reason to doubt the government's case.
In addition, the Opposition stated:
Mr. Wynn would testify that the choice of the powder method utilized in this case decreased the likelihood of recovering a latent print that would be of value to either build a case of conviction against Mr. Smith or to exclude him as having left a print. Mr. Wynn would also testify about recovery rates of latent prints on different porous surfaces, particularly guns. Mr. Wynn would also testify as to the likelihood of recovering a latent print from a bicycle using the [S]uperglue fuming method and other techniques.
Mr. Smith's Opposition further emphasized that "[t]estimony about the methods used by the [MPD] and the methods they had available [would] go to the quality of the police investigation[,]" and would be "relevant to the contested issue of whether Mr. Smith possessed a gun." [Id.] He also stressed that Mr. Wynn would address areas about which Ms. Paige and Ms. Evans testified:
Further, and importantly, these areas: recovery rates, comparison of latent fingerprints for both inclusion and exclusion purposes, and recovery of fingerprints from certain surfaces, the dusting of a bike for fingerprints were all areas of testimony by the [g]overnment's witnesses . . . . Mr. Smith now simply seeks to put on his own expert in his defense in these and related areas.
The government objected to Mr. Wynn's testimony "on relevancy grounds" and stated that it would be cumulative. The prosecutor argued that Mr. Smith was able to elicit all of Mr. Wynn's proffered testimony ...