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Williams v. United States

Court of Appeals of Columbia District

January 21, 2016

MARLON WILLIAMS, APPELLANT,
v.
UNITED STATES, APPELLEE

         Argued September 29, 2015.

Page 344

          Appeal from the Superior Court of the District of Columbia. (CF1-18032-10). (Hon. Russell F. Canan, Trial Judge).

         Enid Hinkes for appellant.

         John 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.

         Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior Judge. Opinion for the court by Associate Judge EASTERLY. Concurring opinion by Associate Judge EASTERLY.

          OPINION

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          Catharine Easterly, Associate Judge:

          Marlon 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,[1] attempt to commit robbery while armed,[2] two counts of possession of a firearm during a crime of violence (PFCV),[3] and carrying a pistol without a license.[4] He received an aggregate sentence of 480 months' imprisonment.

         On 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.

         I. Facts

         In the 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 Northeast D.C.

         An MPD officer inspected the Escalade. He found no damage to the exterior of the

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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.

         An MPD 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. Williams's bedroom.

         At trial,[5] the government relied almost exclusively on forensic evidence, presenting expert testimony from a fingerprint examiner and a firearms and toolmark examiner.[6] 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."

         Counsel 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.

         II. Analysis

         A. Sufficiency of the Evidence

         We first address Mr. Williams's argument that the government did not present sufficient evidence to support his felony murder conviction because it failed

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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.[7] 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).

         B. The Firearms and Toolmark Examiner's Opinion Testimony

         Mr. 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." [8] 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 statements.

         There is no precedent in this jurisdiction that limits a toolmark and firearms

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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.

         Nor can 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[9] 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.[10] United States v. Green, 405 F.Supp.2d 104, 122 (D. Mass. 2005).

         Mr. 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[11]--let ...


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