Argued: May 30, 2013.
Appeal from the Superior Court of the District of Columbia. (CF1-15017-09). (Hon. Russell F. Canan, Trial Judge).
Christine A. Monta, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.
Kathryn L. Rakoczy, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Michael T. Truscott, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
A jury found appellant Deangelo Foote guilty of first-degree premeditated murder and of related firearms offenses after a trial in which the court struck certain opinion testimony of the government's ballistics expert and instructed the jury to disregard it as a remedy and sanction for the government's failure to disclose it to the defense in pretrial discovery as required by Criminal Rule 16 (a)(1)(E). Appellant
contends this relief was inadequate, and tat the trial judge abused his discretion by declining to grant him a mistrial instead. We disagree. We conclude that appellant failed to make an adequate record to justify his request for a mistrial, and that the judge carefully and appropriately exercised his discretion in imposing the alternative sanction he selected. Accordingly, we affirm the judgment of conviction.
The evidence at trial established that on the afternoon of July 9, 2009, Kevin Allen was shot to death in an alley that runs behind N Street, S.W., between Half Street and First Street. There was no dispute that appellant was in the alley at the time of the shooting; the parties stipulated that appellant was wearing a GPS tracking device that placed him there.
The government's first eyewitness was Darius Rowe, who testified that he, too, was in the alley just before the shooting and noticed that another man who was there -- " Roger," also called " Roderick" -- " was being robbed[.]" Rowe testified that the assailant was appellant (whom Rowe knew as " D" ), who was holding a gun and patting Roger's pockets, telling Roger to " give it up[.]" Rowe described the gun as looking " [l]ike a rectangle, box," with a " long" (" not regular" but " longer" ) clip. Rowe testified that a tussle ensued between Roger and appellant and that Allen tried to break up the fight and separate the two men. Eventually, Roger was able to grab the clip (" the thing that actually holds the bullets" ) and pull it out of the gun. Roger then ran towards First Street, and both Allen and appellant followed him. Rowe testified that he walked in the other direction, but shortly thereafter heard gunshots coming from the far end of the alley toward which the other men had run.
The second eyewitness to the incident in the alley was Ginee Stover, who was inside a residence at 60 N Street, S.W., located towards the Half Street end of the alley. Stover testified that she heard a commotion outside, including someone yelling the word " money," and looked out a second-floor window to see what was going on. She called downstairs to her son's father, Curtis Dorsey, and asked him to join her. Looking out the window, Stover saw appellant (whom she recognized as " D" ) walking down the alley in the direction of a group of " other boys," where there was " kind of a fight going on[.]" Much of the rest of the government's examination of Stover consisted of Stover saying that she did not remember what she saw and the prosecutor reading from the transcript of her grand jury testimony and eliciting her agreement that she had testified truthfully before the grand jury. Stover agreed that she had told the grand jury truthfully that, after fighting with Roger, appellant " drew a gun" ; that appellant and Roger both fell to the ground while fighting; that one of the other boys tried to break up the fight; that when Roger got up, he had the clip in his hand; that when appellant got up from the ground with a gun in his hand, he followed Roger and Allen and was walking fast, with the gun raised. Stover testified that the clip Roger had in his hand looked like a " [r]ectangle box." Stover eventually lost sight of appellant (i.e., appellant " left [her] field of vision" ) but, seconds or a minute thereafter, she " heard gunshots." After Stover heard the gunshots, she saw appellant coming back up the alley toward Half Street. Stover agreed that she truthfully
told the grand jury that appellant still had the gun in his hand.
Dorsey, the only witness who claimed to have seen the actual shooting, testified that from a window he saw " a group of guys" standing and talking in the alley behind the house at 60 N Street. He recognized Rowe, Roderick, and Allen. He then saw appellant (" Dee" ) arrive on the scene. Appellant and the other men in the alley stood and talked for a short time, and Dorsey then noticed that " everybody's smile just dropped . . . when the gun came up." Dorsey saw that appellant had in his hand a gun that looked like a " Mac ten." Dorsey testified that the gun had " a box shape[,] [l]ike a square," and he demonstrated with his finger the approximately one-inch-long length of the barrel. Dorsey said that after appellant pulled out the gun, the men in the alley started wrestling with him, trying to grab the gun. Dorsey testified that he saw Allen grab appellant and saw Roderick grab the clip (a " black [approximately seven-inch] long clip" ) and walk down the alley with it. Dorsey, who explained that by this time he had moved to his back door to continue watching, testified that appellant, still holding the gun, walked behind Roderick. Subsequently, Dorsey testified, he saw appellant (who by then was standing directly across from Dorsey's house) put the clip back in the boxy gun, look around, and then start shooting toward Allen. Appellant then turned away and ran.
MPD Officer Eric Walsh testified that on the day after the shooting, he was assigned to " crime patrol" in the area near where the shooting occurred, in response to " information of a possible suspect [appellant Foote] in reference to the homicide." He testified that when he observed an individual who fit the description of appellant and called out his name, appellant looked over at him and " began to flee" and he (Officer Walsh) gave chase. A minute later, appellant was apprehended and arrested.
Crime scene technicians recovered eight expended cartridges, one unfired cartridge, and three bullet fragments in the alley where Allen's body was found. Most
of the cartridge casings were found near the " cut" in the alley closest to First Street. No weapon was recovered, and there was no fingerprint or DNA evidence that linked appellant to the recovered ammunition.
Robert Freese, a firearms examiner, examined the ballistics evidence and testified both as an expert witness and as a fact witness about his analysis. Consistently with his report and workpapers, which the government had given appellant in discovery, Freese testified that the eight expended cartridges recovered from the scene were all fired from the same weapon. He could not say whether two of the bullet fragments had come from the same gun, but had determined that one fragment was consistent with a 9mm Luger bullet. From the rifling on the bullets, Freese was able to say that " the guns that may have fired those bullets" included guns made by the manufacturers SWD, Astra, Barretta, IMI, Lama, Sig Arms, Smith & Wesson, Stalwart Arms, and Worthier.
Freese further testified that as part of his ballistics examination, he looked at the firing pin and breech face impressions left on the cartridge primer. When the prosecutor asked Freese about his observations, Freese said that he observed " a rectangular firing pin impression with a circle around it." He also gave the following opinion, which was the basis for the defense's Rule 16 objection:
[T]he firing pin impression and the bre[e]ch face impression are unique impressions that's [sic] consistent with a Mac 10 or Mac 11-type weapons.
After Freese gave that testimony, the prosecutor asked him about the length of the barrel of a Mac 10. Freese testified that the barrel length of the Mac 10 varies, but that " [t]he ones we usually see in the street are somewhere about five-and-a-half inches" and " [a] little bit of the barrel protrudes out the front end about two inches[.]" He added that Mac 10s " do have some other sized barrels, but that's the standard I usually see working in the Firearms Unit." Asked by the prosecutor to describe the shape of a Mac 10, Freese testified that the Mac 10 is a " boxy-type" or " rectangular shaped weapon about eleven inches in length."
Appellant's trial counsel did not immediately object to Freese's testimony about the " unique" firing pin and breech face impressions of the Mac 10 and Mac 11, but, after the prosecutor completed his direct examination of Freese and after a short recess, counsel told the court that the defense had not been " given specific notice," in either Freese's expert report or in the government's Rule 16 (a)(1)(E) summary of his anticipated opinion testimony, that Freese would testify about " unique characteristics [left when cartridges are] fired from a Mac 10 or Mac 11." All that had been disclosed, counsel asserted, was Freese's opinion that " a number of guns . . . could have left the impressions" on the bullets found at the scene. Counsel told the court, " I'm asking that the [c]ourt exclude it and actually move for a mistrial."
In response, the prosecutor argued that the government had given the defense sufficient notice of Freese's opinion, citing the following grounds for this assertion: that the Mac 10 is made by one of the possible manufacturers (SWD) specifically listed in Freese's report; that the government disclosed in its Rule 16 (a)(1)(E) summary that the basis for Freese's testimony would be " his observations made during his examination of the ballistic evidence," including the cartridge cases, and his " education, training and experience as a firearms examiner" ; that the prosecutor also ...