Argued May 15, 2013.
[Copyrighted Material Omitted]
Shilpa S. Satoskar, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.
John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and Emily Miller, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and THOMPSON, Associate Judges, and WAGNER, Senior Judge.
THOMPSON, Associate Judge:
A jury found appellant Jeremiah Gray guilty of two counts of armed robbery and two counts of possession of a firearm during a crime of violence (" PFCV" ). On appeal, appellant contends that the trial court (1) abused its discretion when it precluded him from presenting expert testimony about factors that affect the reliability of eyewitness identifications, and (2) abused its discretion in responding to a juror note about aiding and abetting liability by doing no more than re-reading in their entirety the aiding and abetting instructions the jury had already heard (and inviting the jury to send another, more specific note if it had additional questions). Although we appreciate that the court chose to respond to the juror note in this way to avoid intruding into the jury's deliberations, we are persuaded that the response was not adequate to dispel the confusion the juror note revealed. Because we are unable to conclude beyond a reasonable doubt that the inadequate response was harmless, we reverse.
At trial, the government presented evidence that on March 14, 2010, around 3:00 a.m., Kevin Stevenson and Jonathan Gardner were leaving a nightclub and were en route to Stevenson's car, which Stevenson had parked near 14th and S Streets, N.W. After Stevenson got into the car, and as Gardner was reaching to open the passenger-side door, two men wearing hoods approached Gardner with their guns drawn. Gardner testified that the two men robbed him of his cell phone, driver's license, keys, ring, earrings, necklace, and a pendant. One of the robbers hit Gardner in the face with a gun, causing severe facial and dental injuries. An unidentified third man approached Stevenson's car door and robbed Stevenson at gunpoint of several items (his wallet, cell phone, identification, and bank cards). Stevenson testified that all three robbers had silver handguns.
Just after the robbers fled, Stevenson flagged down Metropolitan Police Department (" MPD" ) Officer John Terry. Officer Terry testified that Stevenson told him that " three black males in black jackets [who] all had handguns" had just robbed him, and that the robbers were running south on 14th Street.  Driving in his police cruiser, Officer Terry canvassed the area looking for suspects. " [A]round 40 to 45 seconds" later, near the corner of 14th and R Streets, N.W., about a " block and a quarter" from where Stevenson had
flagged him down, Officer Terry saw appellant and Frank Tate, who matched the description Stevenson had given. When Officer Terry activated his police lights, appellant and Tate " looked back ... and started running." Officer Terry followed them and, about 15 seconds after initially seeing them (and after briefly losing sight of them), caught up with them outside a house at 1432 1/2 Q Street. Tate was standing at the top of the steps to the house, holding his hand in a fist as if he were knocking on the door. (The resident of the house testified at trial, however, that he did not know Tate or appellant and was not expecting anyone that night.) Appellant was standing at the base of the steps. Both Tate and appellant were wearing " puffy black coat[s]." Officer Terry conducted a pat-down search of both men for weapons (but found none), and then handcuffed and detained them for a show-up identification procedure.
At the time of the show-up procedure, Gardner " was bleeding profusely and appeared to be in a lot of pain" and was " very upset."  Seated in separate police vehicles, Stevenson and Gardner both positively identified appellant and Tate as the persons who committed the robbery. Stevenson testified that on a scale of 1 to 10, he was " a 10 being sure" of his identification that night. Police searched the area, but recovered no guns or proceeds of the robbery. Later, at the police station, the officers searched appellant and Tate. Nothing was recovered from appellant, but officers found in Tate's possession Gardner's keys, driver's license, chain, and pendant.  Clinton Hall, an MPD fingerprint specialist, testified that he reviewed several latent prints lifted from Stevenson's car and that none of the usable prints matched either appellant's or Tate's fingerprints.
On March 31, 2010, approximately two weeks after the robbery, Stevenson and Gardner attended a line-up at police headquarters that included an individual who police suspected was the third robber (as well as five police officers serving as " fillers" ). Neither Gardner nor Stevenson identified that suspect as the robber; instead, both selected an MPD officer who stood in the line-up as number 14. Stevenson, who testified that he thought number 14 was one of the individuals he had identified during the show-up identification conducted on the night of the robbery, said that on a scale of 1 to 10, he was " a 9 as to the certainty of the identification [he] made." Gardner told the prosecutor that he was " sure that ... number 14 is one of the persons who robbed me." He explained at trial that during most of the robbery, which lasted about two or three minutes, he was down on his knees, facing forward, not looking " in anybody's face."
Stevenson explained that he " couldn't really look at" the robber who had the gun in his face because he " didn't want to turn around and be looking down the barrel of a gun."
Before trial, appellant, whose defense theory was mistaken identification, had notified the government of his intent to call Dr. Steven Penrod as an expert witness to testify about several factors adversely affecting the reliability of eyewitness identifications, including (as relevant to appellant's arguments on appeal) the effects of " high stress or fear" and " the presence of a weapon during the commission of a crime" (" weapon focus" ) and the correlation between an eyewitness's expressed confidence in an identification and the accuracy of the identification. The trial court held a lengthy hearing on the expert-testimony issue. Concluding that the proffered testimony would not address matters beyond the ken of the jury and would not aid the jury, the court granted the government's motion to exclude Dr. Penrod's testimony.
As part of its instructions to the jury following the parties' closing arguments, the court included an aiding and abetting instruction. The jury was given a written copy of the instructions when it retired to deliberate. During the jury's deliberations, one of the jurors (not the foreperson) sent a note asking, " [f]or someone to be found guilty of aiding and abetting an armed robbery and possession of a firearm during a crime of violence or dangerous crime, do they have to have participated at the time of the crime, or could they have participated after the crime occurred?" After a discussion with counsel, and over defense counsel's objection, the court responded to the note by rereading the aiding and abetting instruction it had given before the jury retired to deliberate and advising the jury that if it had additional questions, it should " go back and attempt to specify a little bit more particularly what you're asking."
Shortly after receiving the court's response to a second jury note (described infra ), the jury returned its verdicts convicting appellants of two counts of armed robbery and two counts of PFCV. Before sentencing, appellant filed a motion for a new trial on the basis of newly discovered information, viz. a statement by Tate (who had pled guilty before trial) that appellant was not involved in the robbery. During the proceeding at which the trial court considered (and denied ) that motion, appellant's trial counsel told the court that the jury had " in essence rejected the identifications of ... Mr. Gardner and Mr. Stevenson when they started asking questions by way of [the first] jury note."
Counsel argued that the jury " had seen beyond the identifications and they had acknowledged that the identifications were not reliable and in essence chose not to rely on the identifications.... [T]hey went on to ask well, if Mr. Gray is not involved in the actual robbery could he still be convicted of these offenses under a theory of aiding and abetting if he acted after the fact."
Appellant argues that he is entitled to reversal of his convictions on the grounds that the trial court (1) abused its discretion in precluding the testimony by Dr. Penrod and (2) failed to explain to the jury, in response to the first jury note, that aiding and abetting liability cannot be based on a defendant's conduct after a completed crime. We address these arguments in turn.
When ruling from the bench on the government's motion in limine to exclude the proposed expert testimony, the trial court noted that in previous cases it had admitted and heard Dr. Penrod's testimony about factors affecting the reliability of eyewitness identifications. The court acknowledged Dr. Penrod's qualifications, recognized that expert testimony on the reliability of eyewitness testimony is helpful to the jury in some cases, expressed its understanding that a trial court's decision whether to allow an expert to testify is a discretionary decision that must be made on a case-by-case basis, gave " individualized consideration to the defense's proffer in the context of the facts in this case,"  and, applying the Dyas factors that govern the admission of expert testimony in this jurisdiction, explained at length its conclusion that Dr. Penrod's testimony should be excluded. Summarized briefly, the court's reasoning was that Dr. Penrod's testimony " should not be admitted because it [would] not assist the jury and [might], in fact, distract them from the more probative evidence, some favoring validity of identification and some undermining identification evidence [,] which counsel will be presenting" (much of which the court had already heard during an August 30-31 hearing on appellant's and Tate's motions to suppress the show-up identifications and statements to police).
The court also remarked that " [t]he fact that people who profess a great degree of confidence aren't necessarily accurate to a correlating degree doesn't require scientific testimony in the [c]ourt's judgment." As to Dr. Penrod's proffered testimony about the effect of stress and weapon-focus on the reliability of identifications, the court said that it had " always had some doubts as to whether this was really beyond the [ken] of laypeople, and [had in the past] permitted [expert testimony on these matters] out of an abundance of caution." Finally, the court focused both on the " weight of the Government evidence" that " provide[d] some corroboration to the victims' identification[s]" and on the " robust array of areas of cross-examination" that it knew the defense would pursue to challenge the reliability of the show-up identifications, including the facts that both Stevenson and Gardner confidently but erroneously chose a police officer from the line-up and that Gardner was badly injured at the time he made the show-up identification. The court did not believe that Dr. Penrod had " much that [would] be beyond the k [e]n of the jurors
or [would] assist [them] in deciding the evidence in this case."
Well after the trial court's ruling, this court issued its opinion in Minor v. United States, 57 A.3d 406 (D.C.2012), and its amended opinion in Patterson v. United States. See 56 A.3d 1152 (D.C.2012) (amending 37 A.3d 230 (D.C.2012)). These opinions reflect the evolution of this court's jurisprudence regarding the admissibility of expert testimony about factors affecting the reliability of eyewitness identifications of strangers, in the wake of " new developments in relevant scientific studies and case law concerning eyewitness identification."  In light of Minor and Patterson, appellant's argument that the trial court erroneously exercised its discretion in excluding all of Dr. Penrod's proffered testimony has some traction. We conclude, however, for two reasons, that we need not definitively decide whether the trial court erred in excluding the testimony.
First, as described above, during the hearing on appellant's motion for a new trial, appellant's trial counsel contended that the jury note about aiding and abetting liability based on " participat[ion] after the crime occurred" indicated that the jury had " rejected the identifications both of Mr. Gardner and Mr. Stevenson," had seen " beyond the identifications," and had " acknowledged that the identifications were not reliable and in essence chose not to rely on the identifications." We are inclined to agree with trial counsel's assessment, and on that basis are persuaded that the exclusion of Dr. Penrod's ...