Appeal from the Superior Court for the District of Columbia (FEL-6183-05) (Hon. Hiram E. Puig-Lugo, Motions Judge) (Hon. Craig Iscoe, Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge
(Argued November 29, 2011 (Remanded December 8, 2011
Before GLICKMAN and OBERLY, Associate Judges, and FARRELL, Senior Judge.
Calvin Minor, appellant, was convicted for armed carjacking, armed robbery, possession of a firearm during a crime of violence ("PFCV"), and unauthorized use of a vehicle ("UUV").*fn1 On appeal, Mr. Minor argued that the trial court erred in excluding the testimony of Dr. Ronald Fisher, a professor of psychology, who was proffered to testify about issues related to the reliability of eyewitness identifications. After briefing and argument, we remanded the record and ordered the trial court to conduct a hearing to consider the admission of Dr. Fisher‟s proffered testimony. We directed the trial court to consider Benn v. United States, 978 A.2d 1257 (D.C. 2009) (Benn II), and Russell v. United States, 17 A.3d 581 (D.C. 2011), which were issued subsequent to the trial court‟s ruling to exclude the expert testimony but which contain substantial guidance on the factors to be considered in determining the admissibility of expert testimony in this field. Those cases build upon the three-pronged test we established in Dyas v. United States, 376 A.2d 827 (D.C. 1977), to determine the admissibility of expert testimony generally:
(1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman" . . . ; (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth" . . . ; and (3) expert testimony is inadmissible "if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert."
Dyas, 376 A.2d at 832 (quoting MCCORMICK ON EVIDENCE § 13 at 29-31 (E. Cleary, 2d ed. 1972)) (emphasis omitted).
On remand, the trial court again ruled that it would exclude Dr. Fisher‟s testimony, finding that his testimony would not aid the trier of fact, and therefore would not satisfy the second Dyas factor, because his conclusions were "equivocal" and the underlying studies did not mirror the "real world." In his challenge to the trial court‟s ruling on remand, Mr. Minor argues that the trial court abused its discretion because the underpinnings for its exclusion of the testimony go solely to the weight of the expert testimony and not to its admissibility under Dyas. We agree. We hold that all three prongs of the Dyas test have been satisfied, that the testimony would be more probative than prejudicial, and that its exclusion was not harmless. We therefore reverse and remand for a new trial at which Mr. Minor shall be allowed to present Dr. Fisher‟s expert testimony.
I.FACTUAL AND PROCEDURAL BACKGROUND
On October 10, 2005, on her way home from a night club, Crystal Nunnley stopped at the 7-Eleven store located at 950 Eastern Avenue in Northeast Washington, D.C. Upon exiting the store, she heard a voice say, "Give me the keys." When the perpetrator again demanded her keys and also money, Ms. Nunnley looked up to see a "child" pointing a gun at her. She said she had no money, threw her keys on the ground, and ran back inside the store. The perpetrator sped away in Ms. Nunnley‟s car, a white Acura, followed by two cars, a burgundy Toyota Celica or Chevy Cavalier and a green car. The incident lasted only "seconds."
Ms. Nunnley testified that she was "terrified" and "in total shock" and that she was "so frantic" she did not realize she was holding her cell phone, so she used a phone in the 7-Eleven to call 911. When asked by the 911 operator to describe the carjacker, Ms. Nunnley said, "I don‟t know," or "I don‟t remember"; she testified at trial that her response merely reflected her exasperation at the operator‟s questions. Metropolitan Police Department Detective Laura Aceto and Officers Thomas Caddell and Dale Vernick arrived on the scene a few minutes later. Officer Caddell testified that Ms. Nunnley was "very hysterical." Ms. Nunnley described the carjacker to the officers as a "young [male], between 16 to 18 years old," with dark skin, hair done in braids or dreads, and wearing jeans and a jacket with the hood "slightly pulled over his head."
Approximately one hour later, the police located the burgundy car, and shortly thereafter Ms. Nunnley arrived and identified items scattered on the ground beside the vehicle as hers. At the same time, less than half a block away, police officers stopped a dark-complected black male, with his hair in long twists and wearing a green jacket. Ms. Nunnley did not recognize the man and the officers released him without recording his name. Later that night, Ms. Nunnley‟s vehicle was located in an alley less than half a block from where the burgundy car was found.
B. Ms. Nunnley's Identification of Mr. Minor as the Carjacker
Approximately one week later, Detective James Francis showed Ms. Nunnley three photo arrays. She pointed to Mr. Minor‟s picture and said, "[t]hat looks like him." Detective Francis thought she seemed "very confident" but acknowledged that Ms. Nunnley did not say she was "100 percent sure." Ms. Nunnley testified that she did not express more confidence in her identification because she was "terrified" of the carjacker‟s accomplices who had been driving the burgundy car and the green car. Sometime thereafter, Detective Francis called Ms. Nunnley and told her he was going to arrest the person she had identified. On February 2, 2006, Mr. Minor, who was sixteen years old at the time of the carjacking, was charged with carjacking and three associated offenses.
C.Motion to Admit Expert Testimony
On June 28, 2006, Mr. Minor filed a motion in limine to admit the expert testimony of Dr. Fisher on the reliability of eyewitness identifications. Mr. Minor proffered that "Dr. Fisher would testify about psychological studies that have consistently shown how several factors that are present in this case could have an [e]ffect on the reliability of eyewitness identifications." Attached to the motion were the results of a 2004 telephone survey of potential jurors in the District of Columbia conducted by Peter D. Hart Research Associates, Inc. (the "Hart survey") that summarized respondents‟ answers about the reliability of eyewitness identifications.
The government did not file an opposition to Mr. Minor‟s motion to admit the expert testimony of Dr. Fisher nor did the trial court hold an evidentiary hearing. In denying Mr. Minor‟s motion, Judge Puig-Lugo looked at nothing more than statistics from the Hart survey and stated that they "squarely address[ed] . . . the conclusions that the defense would like to proffer and which underline the conclusion that [six of the seven] matters are not beyond the k[e]n of the average layperson," the first prong of the Dyas test. For example, Judge Puig-Lugo noted that 80 percent of respondents said it was "false" that "if an eyewitness was under high stress at the time of the crime, the eyewitness will have better recall for the details of the event." The court concluded that the opportunity for cross-examination and the jury instructions would be sufficient to focus the jury on the factors it should consider in evaluating the reliability of the identification testimony to be given at trial.
On February 28, 2007, the day trial was scheduled to begin before Judge Craig Iscoe, the prosecution announced that it had just learned that Mr. Kenneth Redfear, a prisoner, claimed he had observed the carjacking while he was panhandling at the 7-Eleven. The court granted a continuance to April 4, 2007, to enable defense counsel time to investigate Mr. Redfear‟s story and prepare a defense that would no longer be based on the one-witness case the government had previewed pretrial.
At trial, Mr. Redfear testified that he told the detective that Mr. Minor‟s photo "may not be the individual, but this is the closest one of the individuals that‟s on this photo array." He testified that he knew the carjacker because he was the same person who once robbed him and subsequently Mr. Redfear purchased drugs from him. He said the carjacker went by the name of "Snoop" or possibly "Scoop" and that he was a student at H.D. Woodson High School. The only other evidence presented by the government was the testimony of Ms. Nunnley who said that she "will never forget the face . . . . I can visualize that gun. And then if I see that gun, I go back to that same moment when I looked directly into his eyes and saw his face." Mr. Minor also took the stand and testified that at the time of the carjacking he was a student at H.D. Woodson and that "[m]ostly everybody" called him "C.J.," he had never been known as "Snoop" or "Scoop," and that he had never robbed or sold drugs to Mr. Redfear. On April 10, 2007, the jury ...