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Marcus Patterson v. United States


February 16, 2012


Appeals from the Superior Court of the District of Columbia (CF3-17813-07) (Hon. Robert I. Richter, Trial Judge)

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

Argued September 13, 2011

Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

Opinion for the court by Senior Judge NEBEKER.

Concurring opinion by Associate Judge GLICKMAN at page 26.

After a three-day trial, the jury found appellant guilty of armed robbery*fn1 and possession of a firearm during a crime of violence*fn2 ("PFCV").*fn3 The trial court sentenced appellant to 108 months followed by five years of supervised release for each crime, to be served concurrently. This court consolidated appellant's direct appeal and his appeal from the trial court's denial of his § 23-110/new trial motion. Appellant argues on direct appeal that the trial court erred by (1) refusing to allow appellant to present an expert witness on the subject of identification testimony, (2) failing during trial to conduct an appropriate inquiry into appellant's dissatisfaction with defense counsel's conduct, and (3) failing to correct the government's assertedly impermissible closing argument that appellant's defense was "malarkey" and "garbage," sua sponte. Appellant also contends that the trial court erred in denying his § 23-110 motion without a hearing on appellant's allegation of ineffective assistance of counsel based on his attorney's failure to present evidence regarding his hand tattoo and failing to investigate another suspect's claim of guilt of the crime.*fn4 We disagree and affirm.


At approximately 6:30 PM on April 11, 2007, near 31st Street and Avon Lane, a man, whose face was unobstructed, approached the victim, Mira Kuczynska, within three to four feet. The man mumbled what sounded like "this is a robbery," and he displayed a "western-style" revolver with a brown and dark yellow handle in his waistband. After approximately ten seconds, the man grabbed her purse and then ran off. Her purse contained, among other things, her wallet, credit cards, identification, a checkbook, and mobile phones.

After the incident, Ms. Kuczynska described the man to police as an AfricanAmerican male in his late twenties or thirties who was about six feet tall,*fn5 thin-figured, with a medium skin complexion, and short hair with some facial hair. Shortly thereafter when police stopped a person for Ms. Kuczynska to perform a show-up identification, she stated that the person the police presented to her was not the one who robbed her.

After the robbery a number of significant events occurred. Approximately twenty minutes after the robbery, Monica Barnes, a person that appellant, while being interviewed by police, characterized as his girlfriend, placed a phone call using Ms. Kuczynska's cellular telephone. A Giant store video surveillance revealed that on April 14th, 2007, Monica Barnes alighted from a silver minivan in a Giant food store parking lot in Laurel, Maryland, entered the store, and used an altered check belonging to Ms. Kuczynska to purchase gift cards. Approximately twenty minutes later, appellant, wearing a multi-colored sweater-jacket, returned to the same cashier to purchase a large amount of gift cards with another one of Ms. Kuczynska's altered checks, but the store detective refused to accept the check and escorted appellant out of the store. Appellant entered a silver minivan in the parking lot and drove off with Monica Barnes. On April 19, 2007, Anthony Gain, accompanied by his girlfriend and appellant, returned a silver Dodge Caravan minivan to Progressive Rent-a-Car that he had rented three days earlier. The three were arrested by Laurel police. Assisted by D.C. Metropolitan Police Department ("MPD") detectives, Laurel police interviewed appellant, who provided information leading to a Motel 6 location in Laurel.

Police obtained a search warrant to search the Motel 6 room. When they arrived at the motel, its guest registry reflected that the motel management had rented a room to Ms. Kuczynska.*fn6 MPD Detectives Michael Ross and Keith Tabron went to the room and after knocking on the door and announcing their presence and purpose, Monica Barnes opened the door. One Jarwon Scott was inside.*fn7 In the room police recovered a multi- colored jacket appearing to be the same jacket worn by appellant in the surveillance tape from the Giant food store. Inside the jacket was a prescription bottle belonging to a person named "Franklin Powell," the same name used by appellant to introduce himself to the police in his interview on April 19th.*fn8 Police seized a cell phone, personal check,*fn9 and a credit or debit card--all Ms. Kuczynska's stolen property. A black, .38 caliber revolver with a brown handle - similar to the description provided by Ms. Kuczynska - was hidden under the mattress. Police also located a Giant store receipt and an identification card with a photograph of Barnes and Ms. Kuczynska's name on it.

Nine days after the robbery, Ms. Kuczynska identified appellant in a photo array and stated she was positive that appellant was the robber. She also identified appellant at trial. As will be seen later, there is significance to the fact that a motion to suppress photo identification was denied and that issue is not presented on this appeal.


A. Direct Appeal

1. Expert Testimony

Prior to the beginning of the first of his three trials, appellant filed a motion seeking leave to introduce expert testimony of Dr. Henry Shulman, a professor of psychology at Ohio State University, "on psychological factors of memory and perception that may affect the accuracy of eyewitness identifications." The government filed a "motion in opposition" to the expert testimony arguing that the victim's identification was corroborated by the fact that appellant was arrested in a vehicle containing some of Ms. Kuczynska's stolen property, appellant was seen on the Giant store surveillance video attempting to pass checks in Ms. Kuczynska's name, and because appellant sent police to the motel room where more of Ms. Kuczynska's stolen property was located.

The trial judge denied the motion, distinguishing appellant's case from past cases where he had admitted such testimony. For the court, the key distinction was that cases where the court had admitted expert testimony in the past were ones where there was little corroborating evidence; in those cases, the court reasoned, expert testimony on identification "would [have been] helpful to the [jury]" on cross-racial identification. In appellant's case, the court concluded:

[W]ith respect to eyewitness identification I have ruled previously in cases that - having heard from Dr. Schulman (phonetic) that on a very narrow issue of cross racial (phonetic) identification I have permitted expert testimony in that area where the government didn't have much other evidence in the case and I thought it would be of assistance to the trier of fact. I thought Dr. Schulman has demonstrated to me there was sufficient basis under Dias (phonetic) to admit the testimony in one - maybe two cases I've tried. I do remember one where there is very little corroborative evidence in the case and there was sufficient evidence. I thought the testimony about cross racial identification would be helpful to the trier of fact. . . . [T]he calculus in this case is a little bit different. This is certainly not one of those cases where I think, you know, the issue of cross racial identification is one that I think needs to be explored by an expert. There is abundant corroborative evidence in this case with regard to demonstrating Mr. Patterson's involvement in these offenses. He was observed cashing some of these check in another jurisdiction or trying to pass those checks. A room that's associated with him in Maryland. There are proceeds of the robbery that were found in that room. It was his girlfriend's room apparently but he was associated with that room in Maryland. He was identified in a vehicle that's been associated with those robberies. In a case like this I think that weighing the probative value versus prejudice having an expert testify in a case like this would put an unnecessary (indiscernible) on his opinion testimony and I'm not prepared to admit the testimony in this type of case. I have done it in other cases where the government had little or no other corroborative evidence and I thought it would be helpful to the trier of fact.

Moreover, the trial court added, the standard jury instruction would provide the jury "with all the guidance it needs to be able to determine the accuracy and reliability of eyewitness identification." Finally, the witness would be impermissibly involved in the jury reaching its "ultimate opinion about the reliability of the identification and give undue weight to [the expert's] opinion in the narrow area of cross racial identification." During appellant's second trial, presided over by a different judge, appellant renewed his request to introduce expert testimony, but that trial judge, too, denied the motion, stating that it had no reason "to revisit what was a . . . perfectly reasonable discretionary decision by [the previous trial judge]."*fn10

Appellant contends that the first trial court erred when it refused to permit appellant to present an expert witness on identification testimony. Appellant argues that the first trial court failed to exercise its discretion by basing its decision on corroborative evidence, which is not part of the Dyas test. See Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977).*fn11 He also asserts that the second trial court's acceptance of the ruling of the first trial court was erroneous because some of the "corroborative evidence [relied upon by the first trial judge] was different than that which the [third trial judge] based his decision to exclude [the expert testimony]."

We begin this part of the opinion by observing that appellant's assertion that corroborative evidence relied on by the first trial judge was different than that relied on by the third trial judge is belied by the record because all of the corroborative evidence referred to by the first trial court, save one minor fact,*fn12 was admitted during the third trial.

Although some observe that the initial decision whether to admit or exclude expert testimony must be made in a vacuum, there is logic to stating that this particular proffer of asserted expert testimony could reasonably be evaluated in light of the government's opposition outlining corroborative facts establishing appellant's identity.*fn13 This is so because the fundamental inquiry is whether the asserted expert testimony would assist the jury in rendering its verdict. See, e.g., Smith v. United States, 27 A.3d 1189, 1195 (D.C. 2011) ("[T]he decision to exclude expert evidence must be made on a case-by-case basis, grounded on the proffer made and on its potential to assist the jury in the particular case before the court." (alteration in original) (internal quotation marks omitted)); Benn v. United States (Benn II), 978 A.2d 1257, 1274 (D.C. 2009) ("As we emphasized in Green [v. United States, 718 A.2d 1042, 1051 (D.C. 1998)], the decision to admit or exclude expert testimony must be made on a case-by-case basis, grounded on the proffer made and on its potential to assist the jury in the particular case before the court."); Hager v. United States, 856 A.2d 1143, 1147 (D.C. 2004) ("Thus, [i]n a jury trial the judge must exercise discretion to decide whether the proffered expert testimony is likely to assist the jury in the performance of its duties-that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict." (internal quotation marks omitted)); Green, supra, 718 A.2d at 1051 ("Surely it would be unnecessary and undesirable to present expert testimony in each and every case involving eyewitnesses, but there may be cases in which a jury would find such testimony helpful." (footnote omitted)). We fully respect our colleague's view that under some, but not all circumstances, this type of testimony should be admitted when the jury requires assistance in deciding the verity of an identification. But, this issue, in discrete cases, must be tested on whether it was an erroneous exercise of discretion exercised under all circumstances present, not under a rule that such testimony must always be admitted because jurors are not fit to decide the issue unaided by expert testimony. When other evidence points to the verity of a victim's identification of the accused, such as the victim's depiction of the gun in a sketch immediately after the crime and the police's recovery of a gun in the motel matching that description, that evidence is a legitimate consideration for the trial judge in exercising judgment on whether to exclude such expert testimony. Life experiences are sufficient and a trial judge must be vested with discretion to sort out the various situations where experts may illuminate the question.

In short, one may argue that the Dyas test does not include corroboration. And they would be correct. But our inquiry does not end there. Because we review the trial court's exercise of its discretion in the exclusion of expert testimony for an abuse of discretion, our caselaw holds that the existence of corroborative evidence is probative of the verity of the trial court's decision-making.*fn14 See Benn II, supra, 978 A.2d at 1280; Hager, supra, 856 A.2d at 1149.*fn15 Here, the evidence as proffered, and as admitted at trial, hardly left the verity of identification of appellant as the actual robber beyond the ken of the jury. Cf. Benn II, supra, 978 A.2d at 1268 (concluding that although jurors "are not fully aware of the factors that influence eyewitness testimony," "[c]ertain factors that can influence an eyewitnesses' observation and recall are familiar to lay persons [including] cross-racial identifications" (internal quotation marks omitted)).

What is said above on this issue is hardly dicta as the concurrence asserts. It is necessary to our decision that the correct decisional law be stated so the trial court and the Bar are not confused by the concurrence, which views the proffered testimony as intrinsically or automatically admissible upon a determination of relevance. Indeed, the concurrence looks only to relevance, and jumps from that to the conclusion that discretion to deny admission of the testimony is abused unless the "error" is deemed harmless. It leaves no room for considering other evidence which alleviates the need to assist the jury in deciding the issue of identity. That predicate is not available to a division of the Court until, and if, the en banc court overturns the holdings of many decisions leaving to the trial judges whether, from all the evidence proffered or received, the jury will be assisted, confused or awed by the expert testimony. See M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).

However, in the interest of unanimity as to the result, we may, as the concurrence does, take the course of least resistance by assuming that if error there be, it was harmless, accord, Benn II, supra, 978 A.2d at 1283 ("In a case grounded on eyewitness identifications of a stranger, without other corroborating evidence, and in which the defense depends entirely upon demonstrating that the identifying witnesses are not as reliable as they believe themselves to be, to preclude the defendant from presenting the scientific testimony of a qualified expert on research that is generally accepted and not known to lay jurors to prove this point is not harmless under Kotteakos . . . ." (emphasis added)). See generally Kotteakos v. United States, 328 U.S. 750, 765 (1946).

Here, the corroborative evidence establishing the accuracy of the victim's identification of appellant is quite notable, thus making any assumed error as to expert testimony harmless. It included Ms. Kuczynska's description of the perpetrator matching appellant and not Jarwon Scott,*fn16 Ms. Kuczynska's declining to identify a suspect as the perpetrator in a show-up immediately after the crime, her identification of appellant in the photo array, and the fact that appellant's effort to put the actual robbery at the hands of another in the gang would not have established actual innocence, but rather as one who shared in the spoils of the robbery by receiving the stolen property. In addition, Ms. Kuczynska had no opportunity to view the appellant other than during the crime, during the only photo array, and during trial. All of this justifies a harmlessness holding in this case.It is also noteworthy that appellant fails to pursue the effort to suppress the photo identification. Thus for our purposes the reliability of Ms. Kuczynska's identification is further enhanced because there is no probability of an irreparable misidentification. See, e.g., West v. United States, 866 A.2d 74, 82-83 (D.C. 2005).

2. Right to Present a Defense

Appellant also argues that by excluding his expert testimony, the trial court denied him his constitutional right to present a defense. In Heath v. United States, we expounded on the meaning of the right to present a defense. There we noted that "[t]he Constitution guarantees a criminal defendant a meaningful opportunity to call witnesses in order to present a complete defense." Heath v. United States, 26 A.3d 266, 275 (D.C. 2011). But "'[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence,' and . . . 'trial judges [may] exclude evidence if its probative value is outweighed by . . . unfair prejudice, confusion of the issues, or potential to mislead the jury.'" Id. at 276 (footnote omitted). "Rulings excluding (or admitting) evidence ordinarily are within the ambit of the trial court's discretion and are subject to review only for abuse of that discretion under the Kotteakos standard of harmlessness." Id. "It is the 'rare' case in which a trial court's 'application of a rule of evidence is so erroneous and unfair' as to deprive a defendant of a meaningful opportunity to present a complete defense." Id.

The evidence is also subject to "a materiality requirement," meaning that "a defendant must demonstrate that the excluded evidence was important to his defense in order to show that the error was of constitutional magnitude." Id. at 277 (internal quotation marks omitted). "[I]t must be reasonably probable (and not merely possible) that the jury would have harbored a reasonable doubt regarding the defendant's guilt if the evidence had [been admitted]." Id. at 280. This standard is less demanding than the preponderance-of-the-evidence test. Id. As the Heath Court explained: "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id.

Here, appellant was not denied a meaningful opportunity to present a defense. Appellant presented Monica Barnes in his defense, and Barnes corroborated appellant's argument of misidentification by stating that Ms. Kuczynska's book of checks and cell phone were given to her by Scott and Gain, not appellant. Moreover, the trial court did not prevent appellant from arguing that the witness misidentified appellant. Appellant "conducted ample cross-examination of Ms. [Kuczynska] on her ability to observe" the face of her assailant. Id. at 284. Appellant also argued, during closing argument, that stranger identification is less reliable, and that Ms. Kuczynska did not have enough time to observe appellant and focused on the gun instead. Given appellant's extensive presentation of his misidentification through argument and a witness, we conclude that the trial court did not violate appellant's constitutional right to present a defense. "We find it highly probable that the trial court's ruling did not influence the jury's verdict; we see no reasonable probability that the expert's testimony would have engendered an otherwise-nonexistent reasonable doubt of appellant's guilt in the juror's minds." Id. at 275.

3. Monroe-Farrell Claim

We now turn to appellant's argument that the trial court should have conducted a Monroe-Farrell inquiry because of "trial counsel's motion to withdraw filed [after the first trial, but] prior to the second trial." Appellant contends that as a result of that motion between the first and third trial, the third trial court should have made an inquiry into the relationship between counsel and appellant during the third trial when appellant stated to the court that he "could do better as [his] own lawyer." This argument does not persuade us.

Under Monroe-Farrell, appellant would have needed to make a "pretrial challenge to the effectiveness of counsel," see Moore v. United States, 675 A.2d 71, 74 (D.C. 1996) (quoting Monroe v. United States, 389 A.2d 811, 820 (D.C.1978)), and appellant's satisfaction with counsel, as noted on the record, fails to be a challenge to counsel. The basis of appellant's challenge appears actually to be something that occurred during the previous trial. Moreover, "[a]ny claim of ineffectiveness must be specific and detailed; '[g]eneral assertions that a defendant wants a new lawyer are not enough to trigger a Monroe-Farrell inquiry.'" Oliver v. United States, 832 A.2d 153, 157 (D.C. 2003) (quoting Matthews v. United States, 629 A.2d 1185, 1191 (D.C. 1993)).

4. Right to Proceed Pro Se

Appellant also argues that the trial court erred because it did not "conduct an appropriate inquiry" into trial counsel's performance after appellant's statement that he "could do a lot better as [his] own lawyer." We find no error by the court as to this contention.

Although "[a] defendant has a Sixth Amendment 'constitutional right to conduct his own defense,'" Hill v. United States, 959 A.2d 702, 708 (D.C. 2008) (quoting Faretta v. California, 422 U.S. 806, 836 (1975)), a court will not recognize a defendant's desire to proceed pro se unless the defendant "make[s] a positive demand upon the trial court for leave to proceed without counsel." Perry v. United States, 364 A.2d 617, 620 (D.C. 1976). "In view of the fact that appellant did not at any time make a positive demand upon the trial court for leave to proceed without counsel, we are unable to find substance in his contention that Faretta provides cause for reversal." Perry, supra, 364 A.2d at 620. Appellant's statement was, at most, an expression of frustration with his attorney, not a clear and unequivocal declaration of a desire to represent himself to a judge.

5. Prosecutorial Argument Claim

Appellant argues that the trial court erred by not, sua sponte,correcting the government's assertedly improper comment during closing argument. Referring to appellant's use of Monica Barnes as a defense witness, the government stated during closing argument: "That is a bunch of malarkey. Frankly, shame on the [appellant] for putting his girl friend on the stand to try to sell you that garbage. . . . All of the evidence points to [appellant]." The government went on to describe the corroborative evidence. Appellant contends that, by using the term "malarkey," the government characterized appellant as a liar. The government's argument, appellant continues, also represented improper personal belief by the prosecutor.

"If appellant did not object, then our review is for plain error." Washington v. United States, 884 A.2d 1080, 1088 (D.C. 2005). Under plain error review, appellant bears the burden of proving "(1) error, (2) that is plain, and (3) that affected appellant's substantial rights. Even if all three of these conditions are met, this court will not reverse unless (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."

Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010) (internal quotation marks omitted). Plain error is error that was "clear or obvious," and this is a formidable burden. Comford v. United States, 947 A.2d 1181, 1189 (D.C. 2008) (internal quotation marks omitted).

We evaluate claims of improper prosecutorial argument by first determining whether or not the challenged argument was improper. See, e.g., Finch v. United States, 867 A.2d 222, 225 (D.C. 2005). As this court has repeatedly stated, "[i]t is improper for a lawyer to express a personal opinion about a witness' veracity [or credibility] during arguments to the jury." Id. at 226 (internal quotation marks omitted). Yet, "it is proper for an advocate to argue that the evidence supports the conclusion that a witness is incredible." Id. The central distinction is "whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo. 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." Irick v. United States, 565 A.2d 26, 36 (D.C. 1989).

"Under the circumstances, including the strength of the government's case, we cannot conclude that the judge . . . plainly erred." Finch, supra, 867 A.2d at 228. The government having argued from the evidence, there is nothing improper about the use of the words "malarkey" or "garbage." Any dictionary definition of those terms will show just what the prosecutor was suggesting - foolish talk or worthless talk. See, e.g., COLLINS ENGLISH DICTIONARY-COMPLETE & UNABRIDGED (10th ed. 2009); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1993); MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (10th ed. 1993); see also Soto v. Commonwealth, 139 S.W.3d 827, 825 (Ky. 2004); State v. Williams, 650 P.2d 1202, 1211-12 (Ariz. 1982). As this Court has put it: "[the prosecutor] is not required to be boring." See Erick v. United States, 565 A.2d 26, 37 (D.C. 1989). The arguments were made in the context of the overwhelming corroborative evidence in the case and, in all likelihood, had very little effect on the outcome of the trial. The government's attorney was attempting to discredit the appellant's misidentification defense and reinforce Ms. Kuczynska's identification of the appellant by showing that appellant and Scott were physically distinguishable. This was a reasonable inference from the evidence.

B. § 23-110 Appeal

In an appeal of the denial of his § 23-110 motion without a hearing, appellant asserts that the court incorrectly concluded that appellant's allegations in his § 23-110 motion, even if true, would merit no relief. Specifically, appellant argues that defense counsel was ineffective because counsel failed to pursue Jarwon Scott's alleged admission to the April 11th robbery for presentation at trial and failed to present evidence of appellant's distinctive hand tattoo.

"We review the trial court's denial of appellant's D.C. Code § 23-110 motion without a hearing for an abuse of a discretion." Freeman v. United States, 971 A.2d 188, 201 (D.C. 2009). "To uphold the denial of [appellant's D.C. Code] § 23-110 motion without a hearing, this court must conclude that under no circumstances could [appellant] establish facts warranting relief." Id. (alteration in original) (internal quotation marks omitted). "Although a hearing is particularly appropriate when ineffective assistance of counsel is alleged, an evidentiary hearing is not required in every case." Id. Specifically, a hearing is not necessary "[w]hen 'the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.'" D.C. Code § 23-110 (c); Freeman, supra, 971 A.2d at 201. A court may summarily dismiss claims that are (1) vague and conclusory or (2) palpably incredible or (3) that would not merit relief even if true. Id. (internal quotation marks omitted).

"An appellant alleging the constitutional ineffectiveness of his trial counsel must demonstrate both deficient performance and prejudice in order to merit relief under D.C. Code § 23-110." Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient performance requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Jones v. United States, 918 A.2d 389, 402 (D.C. 2007) (quoting Strickland, supra, 466 U.S. at 687 (1984)) (internal quotation marks omitted). In assessing counsel's performance we must determine "whether counsel's assistance was reasonable considering all the circumstances."

In re R.E.S., 978 A.2d 182, 192 (D.C. 2009) (quoting Strickland, supra, 466 U.S. at 688) (internal quotation marks omitted). Appellant must demonstrate prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Jones, supra, 918 A.2d at 402 (internal quotation marks omitted). "[J]udicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, [and] . . . a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." In re R.E.S., supra, 978 A.2d at 192 (quoting Strickland, supra, 466 U.S. at 689) (internal quotation marks omitted).

Appellant argues that Jarwon Scott's claim of responsibility for the April 11th robbery in an affidavit submitted with the § 23-110 motion, well after the end of the third trial, would have been sufficient to cast doubt on the outcome of the third trial even though the trial judge in the third trial only had access to a different, unsworn letter written by Scott. A careful reading of the two letters demonstrates that appellant's claims, even if true, would have merited no relief. In the unsworn letter Scott stated "[Appellant] did not have anything to do with what I did back in April, which I have taken full responsibility for, and I am doing so now realizing that I was being selfish thinking about myself in which I have committed the crime and have accepted my punishment." We do not know what charges against appellant Scott was aware of for the third trial, and Scott's knowledge is relevant because appellant and Scott were tried for many of the same April crimes during appellant's first trial. Coupled with Scott's usage of the past tense form of "accept" while describing his acceptance of his punishment for the April 17th crimes (for which he pled guilty), the most natural reading of the unsworn letter is Scott taking responsibility for the April 17th crimes and not appellant's April 11th crime. Scott submitted a sworn affidavit after the third trial was completed, but before the trial court heard the § 23-110 motion, in which he implicated himself and absolved appellant of the April 11th crime. Yet, since appellant could not have used Scott's subsequent affidavit during the third trial, Scott's unsworn, vague letter, which was submitted before the third trial could not have changed the outcome of the trial. Moreover, because Scott's attorney prevented appellant's attorney from interviewing Scott at all during the trial, appellant cannot demonstrate prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Jones, supra, 918 A.2d at 402 (internal quotation marks omitted).*fn17

Appellant also argues that counsel was ineffective for failing to present evidence of appellant's hand tattoo at trial in order to undermine Ms. Kuczynska's failure to mention the tattoo in her eyewitness identification. Appellant adds that a number of correction officers could have testified that appellant had the hand tattoo prior to the robbery. Considering all the circumstances, including, inter alia, the limited probative value of the hand tattoo, the uncertainty as to the victim's memory with respect to the tattoo, and the potential prejudice to appellant of the testimony of former law enforcement officials, counsel's performance was neither deficient nor prejudicial to appellant. Thus, "[b]ecause the allegations contained in appellant's motion can fairly be characterized as falling into the[] [three] categories [providing for the denial of a § 23-110 motion without a hearing], we find no error by the trial judge in denying the motion without a hearing." Freeman, supra, 971 A.2d at 201.

Accordingly, appellant's convictions are affirmed and the order denying the collateral attack without a hearing is affirmed.

So ordered.

GLICKMAN, Associate Judge, concurring in the result: My colleagues ultimately conclude that the trial court's exclusion of appellant's proffered expert testimony on eyewitness identification was harmless in view of the strong corroborative evidence of appellant's guilt. I do not take issue with that conclusion. However, in what could be viewed as extended dicta, my colleagues assert it was not error for the trial court to exclude the expert testimony based on the anticipated strength of the government's evidence, rather than on the particularized inquiry required by our decisions in Dyas v. United States*fn1 and

Benn v. United States (Benn II).*fn2 I write separately to express my disagreement with that assertion. In my view, fundamental principles of the law of evidence make it clear that the strength of the government's evidence of appellant's guilt was not a proper factor for the trial court to consider. Moreover, a rule of evidence allowing the trial court to exclude a criminal defendant's expert witness because of the perceived strength of the prosecution's evidence would be unconstitutional, for it would constitute an arbitrary infringement on the defendant's right to a meaningful opportunity to present a complete defense.

Appellant's defense at trial was misidentification -- he claimed that Ms. Kuczynska was mistaken in identifying him as the unknown person who robbed her at gunpoint. In support of that claim, appellant called Monica Barnes to the witness stand. She testified that it was Jarwon Scott, not appellant, who gave her Ms. Kuczynska's cell phone and checkbook after the robbery. In further support of his misidentification defense, appellant sought to call Dr. Henry Shulman, a psychologist. According to appellant's proffer, Dr. Shulman could have testified as an expert on factors present in this case that had been shown in controlled scientific experiments to reduce the accuracy of eyewitness identifications of strangers. These factors included the cross-racial nature of the identification,*fn3 the brevity of Ms. Kuczynska's interaction with her assailant, and the stress and emotional arousal she experienced during the armed robbery. Dr. Shulman would have identified and discussed these factors and the science behind them without offering any opinion of his own on the ultimate question of whether Ms. Kuczynska's identification of appellant was reliable. Appellant argued that the information provided by Dr. Shulman would assist the jury in deciding for itself how much weight to give Ms. Kuczynska's identification testimony.

Prior to the start of appellant's first trial, the trial judge excluded Dr. Shulman's testimony. In other cases, the judge acknowledged, he had found Dr. Shulman's expert testimony on cross-racial identifications to be helpful to the jury and admitted it.*fn4 But as the judge explained, there was little evidence corroborating the identifications in those cases. The judge understood appellant's case to be different, in that the government expected to present "abundant corroborative evidence" of Ms. Kuczynska's identification of appellant. Relying on the government's proffer, the judge cited appellant's attempt to pass one of Ms. Kuczynska's stolen checks, the discovery of the robbery proceeds in a motel room associated with appellant, and his presence in a vehicle linked to the charged robberies. Given such corroboration, the judge concluded, Dr. Shulman's expert testimony "would [not] be of any assistance to the trier of fact" in assessing the reliability of Ms. Kuczynska's identification. Rather, the judge stated, "on these facts" the jury would likely "give undue weight to [Dr. Shulman's] opinion in the narrow area of cross-racial identification," and the probative value of the testimony would be outweighed by the danger of unfair prejudice.

The logic of the judge's ruling is not entirely clear. It appears the judge reasoned that if Ms. Kuczynska's identification of appellant was corroborated by the proffered circumstantial evidence of appellant's guilt, a sensible jury could not find the identification unreliable for the reasons Dr. Shulman would have identified. But it is difficult to see how that conclusion follows, inasmuch as the corroborative evidence did not invalidate Dr. Shulman's proffered testimony or render it irrelevant to the facts of this case. The corroborative evidence certainly was not conclusive, and the judge could not know whether the defense would succeed in weakening it at trial, or what weight the jury would give to it. It is equally difficult to understand the judge's conclusion that because the circumstantial evidence corroborated Ms. Kuczynska's identification, the probative value of the expert testimony would be outweighed by the danger of unfair prejudice. As used in this context, the term "unfair prejudice" is understood to "mean[] an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."*fn5 No such

danger was identified in this case. Nor did the judge explain why he feared the jury would give "undue weight" to Dr. Shulman's testimony. It is the jury's prerogative to weigh the admissible evidence as it sees fit. (If anything, though, one would think the impact of defense evidence would be greatest when the government's case is weak, not when it is strong.) In sum, from all appearances, the judge prejudged the strength of the prosecution's evidence and excluded the defense expert only because he believed the government's evidence in toto would be too powerful for the expert testimony by itself to rebut.

Whatever the judge's precise rationale, I think he exercised his discretion erroneously in relying on the fact that Ms. Kuczynska's identification was corroborated by circumstantial evidence to exclude Dr. Shulman's testimony. The ruling runs counter to basic principles of the law of evidence. The judge did not find, nor could he have found, that Dr. Shulman's testimony was irrelevant. In general, if evidence is relevant, it should be admitted unless it is barred by some other legal rule.*fn6 "There are two components to relevant evidence: materiality and probative value."*fn7 "[T]he fact sought to be established by the evidence must be material, which is to say that the party must establish that fact as a condition to prevailing on the merits of his case."*fn8 And the evidence must have probative value, meaning "the tendency of evidence to establish the proposition that it is offered to prove."*fn9 The probativity threshold for purposes of admissibility is low: An item of evidence, to be relevant, need only "tend[] to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence."*fn10 As Professor McCormick explains:

An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to the case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable.*fn11

"Ordinarily," therefore, "any evidence which is logically probative of some fact in issue is admissible[,] and if the evidence offered conduces in any reasonable degree to establish the probability or improbability of a fact in controversy, it should go to the jury."*fn12 Thus, evidence may not be rejected as irrelevant merely because it is contradicted by other evidence. "This is an inappropriate basis to exclude evidence, because it preempts the jury's role as factfinder."*fn13

Furthermore, this Court has recognized that "[p]robative evidence should not be excluded because of 'crabbed notions of relevance or excessive mistrust of juries,'"*fn14 and we have embraced "the policy of admitting as much relevant evidence as it is reasonable and fair to include."*fn15 Accordingly, we have chosen to follow the federal rule that relevant and otherwise admissible evidence may be excluded only "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."*fn16

I see no reason why the foregoing principles should not apply with equal force to the admission of relevant expert testimony. The standard of relevance is the same for expert testimony as it is for other evidence; as we have held, "there is only one standard of relevance."*fn17 And in Benn II we endorsed the principle that "judges should rely on the adversary system, rather than on the exclusion of evidence, to guard against potential juror confusion from the presentation of scientific evidence."*fn18 We added that "[a]ny remaining concern a trial judge may have that admission of expert testimony could confuse or overwhelm the jury is more appropriately dealt with, not by exclusion, but by placing reasonable limitations on the expert's testimony and instructing the jurors that they -- and only they -- are the ultimate fact finders."*fn19

It is true that "[i]n a jury trial the judge must exercise discretion to decide whether the proffered expert testimony is likely to assist the jury in the performance of its duties -- that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict."*fn20 But such helpfulness to the jury is determined by the three criteria governing the admissibility of expert opinion testimony set forth in Dyas,*fn21 and ultimately turns on "the relevance and probative value of the proposed scientific evidence."*fn22 This seems to me to mean that the criterion of helpfulness is met if the expert testimony is relevant and if its probative value is not substantially outweighed by the danger of unfair prejudice or other legitimate concerns. It would be anomalous to interpret the criterion of helpfulness to allow the judge to exclude relevant and otherwise admissible expert testimony merely because the judge is convinced by the strength of the opposing party's evidence and therefore believes the expert's testimony is unconvincing. Such concerns go to the weight of the expert testimony, which is "exclusively for the jury" to determine,*fn23 not to its admissibility. As Judge Posner has explained (addressing a trial judge's erroneous exclusion of expert opinion testimony), "a judge in our system does not have the right to prevent evidence from getting to the jury merely because he does not think it deserves to be given much weight. He may comment to the jury on the weight of the evidence (though few federal judges do that nowadays), and he may have to balance weight against prejudice in ruling on objections under Fed. R. Evid. 403, but he may not screen witnesses simply to decide whether their testimony is persuasive."*fn24

In taking the opposing view, my colleagues rely on cases in which we have said that where corroboration of a challenged identification exists, the exclusion of proffered expert testimony on eyewitness identification generally does not constitute an abuse of discretion.*fn25

But that does not mean the existence of corroboration is a legitimate reason for the trial court to exclude the expert testimony; it only means that the exclusion likely will not be so prejudicial as to necessitate reversal by the appellate court. Abuse of discretion is a standard of appellate review incorporating an assessment of prejudice. A trial court exercises its discretion erroneously when it relies on an improper factor,*fn26 but "the reviewing court must weigh the severity of the error against the importance of the determination in the whole proceeding and the possibility for prejudice as a result."*fn27 It is only when the impact of the error is so serious we must reverse that we say the trial court "abused" its discretion.*fn28 I readily grant that where a challenged identification is corroborated, the appellate court may be able to conclude that the erroneous exclusion of expert testimony on eyewitness identification was harmless, and hence that there was no "abuse" of discretion. That is what we conclude in this case.*fn29 But to say the trial court did not abuse its discretion is not to say the court exercised its discretion properly.*fn30

Furthermore, at least in criminal cases, a rule of evidence permitting the trial judge to bar a defendant from introducing relevant and otherwise admissible expert testimony merely because the judge perceives the prosecution's proffered opposing evidence to be strong would raise a serious constitutional question. As the Supreme Court made clear in Holmes v. South Carolina,*fn31 such a rule likely would violate the defendant's constitutional right to a meaningful opportunity to present a complete defense.

Holmes considered a South Carolina rule of evidence under which the defendant was barred from introducing proof of third-party guilt if the prosecution had forensic evidence (e.g., DNA testing) that, if believed, strongly proved the defendant's guilt. Under this rule, the Supreme Court noted, the trial judge did not "focus on the probative value or the potential adverse effects of admitting the defense evidence," and did not assess the strength of the prosecution's evidence in light of the defendant's challenges to its reliability.*fn32

With those features, the Court found, the South Carolina evidentiary rule was an arbitrary infringement on the defendant's right to have a meaningful opportunity to present a complete defense. As the Court explained:

Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution's witnesses or the reliability of the evidence is not conceded, the strength of the prosecution's case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.

The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant's guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. . . .

The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.*fn33

As is demonstrated in the present case, a rule allowing the trial judge to exclude the defendant's expert testimony on eyewitness identification if the prosecution proffers strong corroboration of the defendant's guilt is analogous to, and suffers from the same fatal flaws as, the South Carolina rule held unconstitutional in Holmes. The judge in this case did not appraise the probative value or potential adverse effects of Dr. Shulman's testimony, nor did he assess the prosecution's evidence in light of the defendant's challenges to its reliability. By evaluating only the prosecution's proffered evidence, the judge could reach no logical conclusion regarding the strength of the expert testimony offered by appellant to rebut or cast doubt on the government's case. And if the judge had attempted to weigh all the evidence in order to determine the question of admissibility, he would have exceeded his mandate and invaded the role of the jury as trier of fact.

Thus, I think the trial judge in the present case erred in concluding that the existence of circumstantial evidence corroborating Ms. Kuczynska's identification of appellant justified excluding Dr. Shulman's expert testimony. As proffered, that testimony would have been relevant, i.e., material and probative, because it would have tended to make Ms. Kuczynska's identification of appellant less probable.*fn34 The proffer sufficed to oblige the judge to conduct a particularized inquiry and evaluate the expert testimony under the criteria for admissibility set forth in Dyas.*fn35 Without a proper inquiry, as we explained in Benn II, it was error to reject any of the proffered testimony as unnecessary.*fn36

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