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Wonson v. United States

Court of Appeals of Columbia District

April 14, 2016

Michael Wonson, Appellant
United States, Appellee.

          Argued October 6, 2015

          Amended July 21, 2016 [*]

         Appeal from the Superior Court of the District of Columbia (FEL-7080-00) (Hon. Thomas J. Motley, Trial Judge)

          Deborah A. Persico for appellant. Joseph Virgilio was on the brief for appellant.

          Katherine M. Kelly, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney, and Elizabeth Trosman, John P. Mannarino, Emory V. Cole, and Opher Shweiki, Assistant United States Attorneys, were on brief, for appellee.

          Before Blackburne-Rigsby and Easterly, Associate Judges, and Reid, Senior Judge.


          PER CURIAM.

         Michael Wonson asks us to reverse his two murder convictions because the government failed to present evidence that it maintained custody over the ballistics evidence (multiple cartridge cases and one live round) admitted at trial. Although a crime-scene search technician testified that he collected these items at the scene, and a firearms and toolmark examiner testified that he examined these items, the government never explained how the items made their way from the former to the latter. Instead, the technician who collected the cartridge cases and the live round testified that he gave them to a supervisor who was later fired for mishandling and mislabeling evidence. And the firearms and toolmark examiner did not explain how or when he obtained the ballistics material he examined. In particular, he did not elaborate on a notation in his report indicating that this material had been "personally delivered" (to whom, the report did not specify) by a different crime scene technician who did not testify at trial.

         We do not determine whether the proffered evidence should have been excluded because the admission of this evidence was harmless. The cartridge cases and the live round were only a peripheral part of the government's case against Mr. Wonson. Unpersuaded by Mr. Wonson's remaining arguments, [1] we affirm his convictions.

         I. Background and Procedural History

         A little before midnight on May 17, 2000, two men in a black pickup truck drove up to Eastern Senior High School in Washington, D.C., where more than a dozen people were socializing. The men shot into the crowd, injuring Nakita Sweeney and killing both Charles Jackson and Ivory Harrison. A week later, Ronald Brisbon was arrested and gave a videotaped confession in which he admitted to participating in the shooting with another man, whom he identified by a nickname. After further investigation, including interviews with Dana Route, Mr. Brisbon's former girlfriend, and with Michael Cobb, the man who sold Mr. Brisbon a black pickup truck one day before the shooting, the government identified Michael Wonson as the second shooter.

         The government charged both Ronald Brisbon and Michael Wonson with (1) two counts of first-degree murder while armed, [2] (2) one count of assault with intent to kill while armed, [3] (3) three counts of possession of a firearm during a crime of violence, [4] and (4) one count of felony destruction of property.[5] After a joint trial in 2002, a jury convicted both men on all counts, but this court reversed Mr. Wonson's convictions on appeal.[6] See Brisbon v. United States, 957 A.2d 931, 940, 957, 959 (D.C. 2008). The government reprosecuted Mr. Wonson in 2011 but that trial resulted in a hung jury. The government then prosecuted Mr. Wonson a third time in 2012.

         At the 2012 trial, the government called Mr. Brisbon as a witness, [7] and he gave a detailed account of Mr. Wonson's motive for and participation in the shooting. In particular, Mr. Brisbon recounted that Mr. Wonson's gun had jammed and that, to clear the jam, Mr. Wonson had removed a live round of ammunition. Ms. Route and Mr. Cobb corroborated Mr. Brisbon's testimony regarding Mr. Wonson's actions prior and subsequent to the shooting.[8] The government also presented testimony from several other witnesses, including Metropolitan Police Department crime-scene search technician Karl Turner[9] and firearms examiner Michael Mulderig. Lastly, the government presented physical evidence to the jury: one live round of ammunition and forty-three empty cartridge cases.

         At the conclusion of trial, the jury convicted Mr. Wonson on all counts, and the judge sentenced him to seventy years to life imprisonment, with a mandatory minimum of sixty years imprisonment. This appeal followed.

         II. Admission of the Ballistics Evidence

         Mr. Wonson argues that the trial court erred by admitting the proffered ballistics material because the government failed to establish an unbroken chain of custody. We review the trial court's admission of physical evidence for abuse of discretion. See Plummer v. United States, 43 A.3d 260, 272 (D.C. 2012). In order to reverse, however, we must conclude that any abuse of discretion was not harmless. See Trovers v. United States, 124 A.3d 634, 638-41 (D.C. 2015).

         A. Facts

         The ballistics material was admitted over repeated objection during Mr. Turner's testimony. Mr. Turner testified that he responded to the scene shortly after the shooting with "lead technician" Ricky Hammett and another colleague. Their attention was directed to "shell casings . . . that had been strewn throughout the street which needed to be recovered in reference to a shooting that had occurred at that location." According to Mr. Turner, he and his colleagues remained at the scene collecting evidence for about eight or nine hours.

         During Mr. Turner's testimony, the government asked him to examine two bags marked as Exhibits 1 and 2.[10] Mr. Turner identified the bags by the numbers written on them in magic marker, though he noted that the writing on the first bag was "faded" and "not very legible." He also confirmed that the material inside the bags[11] was "a fair and accurate representation" of what he "remembered to be collected . . . from the scene."

         As soon as he did so, the government moved to admit these two exhibits into evidence. Defense counsel objected, however, noting that there was "a hole in the bag" marked as Exhibit 1. Without disagreement from the government, counsel represented that the hole was big enough for a bullet to fit through. She expressed concern about "the one round that they're saying is the misfired bullet" because "there was a hole in the bag and they placed the piece of tape on top of it."[12] The court sustained defense counsel's objection to the admission of these exhibits, noting that the government had not yet presented sufficient information about "how these things are maintained over an 11-year period of time" and that it "need[ed] that necessarily in order ... to make the final determination."

         With some prompting from the court, [13] the government asked Mr. Turner to explain how he and his colleagues collected the ballistics material discovered at the scene.[14] Mr. Turner explained that they placed the items they recovered in plastic bags numbered one through forty-four, and that he helped diagram the location of each item and held the bags as the other officers "picked the items up and placed them in the bag[s]." According to Mr. Turner, these bags were put in one larger bag. The bagged items were then "turned over to the lead technician, " Mr. Hammett, who, according to Mr. Turner, took them back to his "office, " i.e., the "mobile crime lab."

         Having presented this additional testimony, the government again requested admission of Exhibits 1 and 2, as well as Exhibits 3 through 44, over defense counsel's objection. Out of the presence of the jury, the court again refused to admit the evidence, observing, "I'm at the office [the mobile crime lab] now, I've got 11 years to [ac]count for. You're trying to get the evidence in at trial today."

         The government then raised two issues related to defense counsel's cross-examination of Mr. Turner. The first issue was the hole in the bag marked as Exhibit 1. The government sought to preclude cross-examination of Mr. Turner about the hole because he had "no self-knowledge of that particular item."[15] The court declined this request and Mr. Turner subsequently testified on cross-examination that he had "no idea how the hole got there."

         The second issue was Mr. Hammett's termination for mishandling and mislabeling evidence and the fact that the government had opted not to call him to testify.[16] The government sought to limit cross-examination of Mr. Turner on this subject too. Again the court declined to grant the government's request. The court observed that the government had "cho[]se[n] not to call [Mr. Hammett] because if [he] was here testifying, " defense counsel "could ask him questions about the fact that he had misappropriate[d]-he had in essence mislabeled matters and had discipline for that." The court rejected the government's argument that Mr. Hammett's misconduct was irrelevant, explaining that Mr. Hammett had not gotten in trouble for "drunk driving ... or some other issue. This witness got in trouble with regard to the same issue here and that's the preservation . . . of evidence."

         Returning to its examination of Mr. Turner, the government established that Mr. Turner's personal knowledge of the custody and control of the ballistics material ended when Mr. Hammett "took this evidence to the mobile crime lab from the . . . crime scene." Mr. Turner explained that he was not "aware of what happened to the evidence" because he "wasn't part of his-him [Mr. Hammett] processing the evidence."

         Nonetheless, the government asked Mr. Turner to testify "as a general matter" about what happens to evidence brought to the mobile crime lab. Mr. Turner explained that it should be "tagged, marked, placed on a mobile crime property book[, ] and it is determined where it needs to go[, ] if it needs to go to a lab or ... to the firearms examination section." Logging evidence in the property book, Mr. Turner explained, is meant to "catalog the evidence that's collected [at] the scene so it can be tracked at a later date if necessary."

         Mr. Turner also testified "as a general matter" about what happens after evidence "is processed, " explaining that "it's sent to the property division, " where it is "stored until it's recalled." Because he did not work for the property division, Mr. Turner could not testify "intelligently" about "property storage" procedures; "all [he] kn[e]w" was that "we send it to them and they store it until it's recalled . . . at a later date." He testified that the evidence in Mr. Wonson's case had been transported from the property division to the courthouse, later qualifying, "[a]s far as my knowledge it was." Finally he testified that there were no irregularities with the government's Exhibits 1-44 "to [his] knowledge."

         At this point the trial court asked defense counsel to "put on [the] record [her] objections" to the admission of these exhibits. Defense counsel argued that Mr. Turner did not "have personal knowledge of the evidence and how it's been stored in any way, shape or form from the time it was collected, " that he did not "have personal knowledge that the evidence that he has in that bag is the exact same evidence that was recovered from that scene, " and thus that the "[government hasn't established in any way, shape or form [that] the chain of custody has been maintained."

         The court acknowledged that in order to admit these items, it had to determine that the proffered evidence "is what it is claimed to be, " i.e., bullets recovered from the crime scene.[17] The court also acknowledged that it had to determine that this material was in "the same or substantially the same condition as it was at the time it was recovered from the [crime] scene." Noting, however, that it could "take into consideration that the property was stored in a police property office, " and that "the presumption here" is that this office "preserve[s] the property, " the court concluded that Exhibits 1-44 "are what they purport to be, ballistics evidence recovered from the scene." Thus, the court ruled that it would "permit those exhibits to come into evidence" over defense counsel's objection.

         After the court ruled, the government called Mr. Mulderig, who had examined the cartridge cases and live bullet admitted as Exhibits 1-44.[18] Mr. Mulderig testified that when he conducted his examination, he engraved Exhibits 1-44 with his initials and a lab number. He then identified his engravings at trial. But Mr. Mulderig could not say precisely when he conducted the examination; he only knew that it was "[approximately June of 2000."[19] And the government never asked him how or when he received the bullets. When defense counsel asked Mr. Mulderig whether he knew "where the evidence was in between the time of the incident and the time it arrived at your office, " he responded, "[n]o, I don't."[20] Lastly, Mr. Mulderig could not explain the origin of the hole in the bag containing the ...

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