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.
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 ...