October 6, 2015
Amended July 21, 2016 [*]
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.
Blackburne-Rigsby and Easterly, Associate Judges, and Reid,
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.
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,
affirm his convictions.
Background and Procedural History
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.
government charged both Ronald Brisbon and Michael Wonson
with (1) two counts of first-degree murder while armed,
one count of assault with intent to kill while armed,
three counts of possession of a firearm during a crime of
violence,  and (4) one count of felony destruction of
property. After a joint trial in 2002, a jury
convicted both men on all counts, but this court reversed Mr.
Wonson's convictions on appeal. 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.
2012 trial, the government called Mr. Brisbon as a witness,
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. The government also
presented testimony from several other witnesses, including
Metropolitan Police Department crime-scene search technician
Karl Turner and firearms examiner Michael Mulderig.
Lastly, the government presented physical evidence to the
jury: one live round of ammunition and forty-three empty
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.
Admission of the Ballistics Evidence
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
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.
Mr. Turner's testimony, the government asked him to
examine two bags marked as Exhibits 1 and 2. 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 was "a
fair and accurate representation" of what he
"remembered to be collected . . . from the scene."
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." 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
some prompting from the court,  the government asked Mr.
Turner to explain how he and his colleagues collected the
ballistics material discovered at the scene. 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."
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
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." The court declined this request and
Mr. Turner subsequently testified on cross-examination that
he had "no idea how the hole got there."
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. 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 "chose[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 . . .
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
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."
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."
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."
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. 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.
the court ruled, the government called Mr. Mulderig, who had
examined the cartridge cases and live bullet admitted as
Exhibits 1-44. 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." 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." Lastly, Mr.
Mulderig could not explain the origin of the hole in the bag
containing the ...