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Johnson v. United States

Court of Appeals of Columbia District

June 18, 2015

MARQUES AN'RICO JOHNSON, APPELLANT,
v.
UNITED STATES, APPELLEE

Argued: May 20, 2015.

Page 200

Appeal from the Superior Court of the District of Columbia. (CF3-22713-11). (Hon. Heidi M. Pasichow, Trial Judge).

Richard S. Stolker for appellant.

John Cummings, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time, and Elizabeth Trosman, John P. Mannarino, and Jonathan Kravis, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, and FISHER and THOMPSON, Associate Judges.

OPINION

Page 201

Fisher, Associate Judge :

A jury convicted appellant Marques Johnson of one count of aggravated assault while armed,[1] two counts of assault with a dangerous weapon,[2] two counts of possession of a firearm during a crime of violence,[3] and one count of carrying a dangerous weapon.[4] He appeals, contending that the trial court erred by (1) refusing to compel the government to allow his expert to independently test a firearm, (2) preventing him from impeaching the victim with juvenile adjudications, (3) giving an improper instruction for the crime of aggravated assault, and (4) allowing the government's expert witness on DNA testing to present a misleading slide presentation to the jury. We affirm, but remand to the trial court because three of appellant's convictions merge.

I. Background

According to evidence at trial, on November 17, 2011, Timothy Conrad and Danisha Keener went to an apartment building located at 1420 R Street in Northwest Washington, D.C. A group of six men, including appellant, was in the lobby when they arrived.

When Conrad and Keener left the building, the men followed them out. Appellant then took out a gun and fired at Conrad multiple times in quick succession. Conrad was taken to a hospital and treated for seven gunshot wounds. Police recovered seven expended shell casings at the scene of the shooting, all of which were labeled " WIN .380 auto."

After shooting Conrad, appellant fled into the building to Paulette Miles's apartment and spent fifteen to twenty minutes alone in one of the bedrooms. Later that day, police officers recovered a black, semi-automatic, 9-millimeter handgun from that bedroom. The gun was loaded with ten bullets labeled " WIN .380 auto," and the safety was off. The day after the shooting, appellant told his girlfriend that he had shot somebody on R Street seven or eight times.

Page 202

At trial, the government called an expert witness on DNA analysis who testified that there was a mix of DNA on the trigger of the 9-millimeter handgun, but that the " major male DNA profile" of the mix matched appellant's DNA. The government also called an expert witness in firearms and toolmark identification, Jonathan Pope. Pope testified that he could not determine whether the seven .380 cartridges found outside the apartment building on R Street had been fired from the 9-millimeter handgun, but that the gun was capable of firing .380 bullets and that he had successfully test-fired the weapon twice using such ammunition. Pope did note that after he test-fired the first round of ammunition, the shell casing did not eject from the gun, and he had to pull the slide back and then close it to eject the spent shell casing and chamber the next round. Doing so took one second.

Appellant called his own expert witness on firearms and toolmark examination, Dr. William Bruchey, who testified that it was " highly unlikely" that a 9-millimeter handgun could shoot seven .380 bullets in rapid succession. He opined that there were three potential outcomes of using .380 ammunition in a 9-millimeter gun: (1) the gun would not fire; (2) the gun would fire one round but would not eject the expended shell casing, preventing the next round of ...


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