September 29, 2015.
from the Superior Court of the District of Columbia.
(CF1-18032-10). (Hon. Russell F. Canan, Trial Judge).
Hinkes for appellant.
Cummings, Assistant United States Attorney, with whom Ronald
C. Machen, Jr., United States Attorney at the time the brief
was filed, Elizabeth Trosman, John P. Mannarino, and Gary
Wheeler, Assistant United States Attorneys, were on the
brief, for appellee.
THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge. Opinion for the court by Associate Judge EASTERLY.
Concurring opinion by Associate Judge EASTERLY.
Catharine Easterly, Associate Judge:
Williams was arrested and prosecuted for the shooting death
of Min Soo Kang. As no eyewitnesses to the crime were
discovered and as Mr. Williams had no known relationship with
Mr. Kang, it took a number of investigative steps for the
police to connect Mr. Williams with the crime: after finding
Mr. Kang's body, the police located his car; after
examining fingerprints recovered from Mr. Kang's car, the
police identified Mr. Williams as a potential suspect; and
after searching Mr. Williams's apartment, the police
recovered a gun that, when test-fired, left markings on the
bullets that appeared to match the markings on bullets
recovered from Mr. Kang's car. This evidence, in
conjunction with the testimony of an individual to whom Mr.
Williams had made incriminating statements while they were in
the courthouse cellblock, formed the bulk of the
government's case. After considering this evidence, a
jury convicted Mr. Williams of first-degree felony murder
while armed, attempt to commit robbery while
armed, two counts of possession of a firearm
during a crime of violence (PFCV), and carrying a pistol
without a license. He received an aggregate sentence of
480 months' imprisonment.
appeal Mr. Williams primarily attacks the firearms and
toolmark evidence presented against him, arguing among other
things that, although defense counsel never objected, the
examiner should not have been permitted to testify that the
markings on the bullets recovered from Mr. Kang's car
were " unique" to the gun recovered from Mr.
Williams's apartment and thus that he did not have any
doubt of their source. Because, to date, this court has only
assumed without deciding that such testimony of absolute
certainty is impermissible, we conclude that Mr. Williams has
failed to establish that it was plain error for the trial
court to permit the jury to hear it. We discern no other
error warranting reversal, although we agree that Mr.
Williams's attempted robbery conviction and associated
PFCV conviction merge with his felony murder conviction and
must be vacated.
early morning hours of September 13, 2010, the bullet-riddled
body of Min Soo Kang was discovered lying on the side of the
road in Southeast D.C. The Metropolitan Police Department
(MPD) began investigating and learned that Mr. Kang drove a
Cadillac Escalade equipped with OnStar, a service that could
remotely disable the vehicle. At MPD's request, OnStar
disabled Mr. Kang's Escalade by the evening of September
13 and directed MPD officers to the vehicle's location in
officer inspected the Escalade. He found no damage to the
exterior of the
car but discovered what he suspected were bullet holes in the
backrest of the driver's seat. The officer cut into the
seat and recovered three bullets. He also collected
fingerprints from the Escalade.
fingerprint examiner entered the fingerprints lifted from the
Escalade into the national Automated Fingerprint
Identification System (AFIS), which connects unknown prints
to known prints in a digital database. AFIS identified Mr.
Williams as a possible source of the fingerprints. Based on
the fingerprint examiner's preliminary conclusion that
the prints on the Escalade belonged to Mr. Williams, MPD
applied for and was granted a search warrant for Mr.
Williams's residence. Executing this warrant, MPD
officers recovered a High Point brand firearm from Mr.
trial, the government relied almost
exclusively on forensic evidence, presenting expert testimony
from a fingerprint examiner and a firearms and toolmark
examiner. The fingerprint examiner testified to
his conclusion that the prints recovered from the Escalade
belonged to Mr. Williams. The firearms and toolmark examiner,
Luciano Morales, testified on direct examination that when a
bullet is fired from a particular gun, the gun leaves "
unique" identifying marks, " similar to a
fingerprint, basically." He then testified that he had
compared the markings on the bullets recovered from Mr.
Kang's car with the markings on the bullets test-fired
from the gun recovered from Mr. Williams's apartment
(manufactured by High Point and admitted as Exhibit No. 58),
and he had concluded that the bullets were fired by the same
gun. On redirect, when the prosecutor asked whether there was
" any doubt in [his] mind" that the bullets
recovered from Mr. Kang's Escalade were fired from the
gun found in Mr. Williams's room, the examiner responded,
" [n]o sir." He elaborated that " [t]hese
three bullets were identified as being fired out of Exhibit
No. 58. And it doesn't matter how many firearms High
Point made. Those markings are unique to that gun and that
gun only." The prosecutor then asked the examiner
whether, " judging from the markings that you find in
58, it's your conclusion that those three bullets were
fired from 58?" The examiner was unequivocal: "
Item Number 58 fired these three bullets."
for Mr. Williams did not object to any of this testimony. The
jury also heard stipulations that a print lifted from the gun
did not match Mr. Williams and that the blood and DNA
recovered from the gun did not match Mr. Kang or Mr.
Williams. The jury convicted Mr. Williams on all charges.
Sufficiency of the Evidence
first address Mr. Williams's argument that the government
did not present sufficient evidence to support his felony
murder conviction because it failed
to establish the underlying felony of attempted robbery, and
specifically failed to prove that Mr. Williams, and not
another person, had stolen Mr. Kang's Escalade. Reviewing
the sufficiency of the evidence de novo, Nero v. United
States, 73 A.3d 153, 157 (D.C. 2013), we disagree. As
Mr. Williams acknowledges in his brief, the government
presented the following evidence to support an attempted
robbery conviction: (1) testimony by the fingerprint examiner
that the fingerprints lifted from both the exterior and
interior of Mr. Kang's Escalade matched Mr. Williams; (2)
eyewitness testimony that a person consistent with Mr.
Williams's physical description was seen opening and
closing the hood of the Escalade around the time it was
disabled; and (3) testimony by the firearms and toolmark
examiner that the bullets recovered from the Escalade matched
bullets fired from Mr. Williams's gun. From this
evidence, drawing all reasonable inferences in favor of the
government as we must, Nero, 73 A.3d at 157, we
conclude that the jury reasonably could have determined that
Mr. Williams stole Mr. Kang's car, and thus necessarily
committed the crime of attempted robbery. See Ray
v. United States, 575 A.2d 1196, 1199 (D.C. 1990) (
" Every completed criminal offense necessarily includes
an attempt to commit that offense." ). But see
( Richard ) Jones v. United States, 124
A.3d 127, 132-34 (D.C. 2015) (Beckwith, J., concurring)
(highlighting conflicting precedent from this court
indicating that for general intent crimes, an attempt
conviction requires proof of a higher mens rea than
conviction for the completed offense).
The Firearms and Toolmark Examiner's Opinion
Williams argues that the firearms and toolmark examiner
should not have been able to testify that the markings on the
bullets recovered from Mr. Kang's Escalade were unique or
that he was without " any doubt" that these bullets
were fired from the gun found in Mr. Williams's room.
Because Mr. Williams did not object at trial to this
testimony, we review only for plain error. See (
John ) Jones v. United States, 990 A.2d
970, 980-81 (D.C. 2010). To prevail under this test, it is
not enough for an appellant to demonstrate error; the
appellant must also show that the error is plain, i.e., that
the error is " so egregious and obvious as to make the
trial judge and prosecutor derelict in permitting it, despite
the defendant's failure to object." Id. at
981. We attribute such dereliction to the trial court only
when an error is " clear under current law."
Conley v. United States, 79 A.3d 270, 289 (D.C.
2013) (quoting United States v. Olano, 507 U.S. 725,
734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Applying this
standard, we cannot say the trial court plainly erred by
permitting the jury to hear the examiner's certainty
is no precedent in this jurisdiction that limits a toolmark
examiner's testimony about the certainty of his
pattern-matching conclusions. The closest this court has come
to addressing this issue was in (Ricardo) Jones
v. United States, 27 A.3d 1130 (D.C. 2011). In that case
the defense argued inter alia that toolmark and
firearms examiners could not " stat[e] their conclusions
with 'absolute certainty excluding all other possible
firearms.'" Id. at 1138. In response, the
government assured this court, both in its appellate brief
and at oral argument, that it was the government's policy
not to present such testimony. " In light of the
government's representation," this court "
assume[d], without deciding, that such experts should not be
permitted to testify that they are 100% certain of a match,
to the exclusion of all other firearms." Id. at
1139. The court then determined that any such error was
harmless. Id. Jones did not plainly bar the toolmark
examiner in this case from testifying as he did and does not
provide a foundation for a determination of plain error.
we say that the weight of non-binding authority outside this
jurisdiction is a sufficient foundation for a determination
that the trial court " plainly" erred by not sua
sponte limiting the toolmark examiner's testimony.
See Euceda v. United States, 66 A.3d 994,
1012 (D.C. 2013) (holding that error cannot be plain where
neither this court nor the Supreme Court has decided the
issue, and other courts are split on the issue). We are aware
of only one state supreme court decision and no federal
appellate decisions limiting the opinion testimony of
firearms and toolmark examiners. Indeed, as one federal
district court judge has observed, " [a]lthough the
scholarly literature is extraordinarily critical" of
toolmark pattern-matching, it appears that courts have made
little effort to limit or qualify the admission of such
evidence. United States v. Green, 405
F.Supp.2d 104, 122 (D. Mass. 2005).
Williams refers us to the policy representation made by the
government in Jones. The government concedes that,
at Mr. Williams's trial, it violated its policy " to
only elicit firearms examiners' opinions to a reasonable
degree of scientific certainty." But this concession
cannot serve as the sole foundation for a determination of
plain error. The government's internal policy does not
constitute binding law--let ...