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Gardner v. United States

Court of Appeals of Columbia District

June 23, 2016

ERIC GARDNER, Appellant,

          Argued January 21, 2016

         Appeals from the Superior Court of the District of Columbia (FEL-7761-04) (Hon. Robert I. Richter, Trial Judge)

          Benjamin Brooks for appellant.

          Nicholas P. Coleman, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Michelle D. Jackson, and Mary Ann Snow, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: Washington, Chief Judge; Glickman, Associate Judge; and Reid, Senior Judge.


         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the appellant's convictions for first-degree felony murder while armed and the related convictions of possession of a firearm during crime of violence ("PFCV") and carrying a pistol without a license ("CPWL") are affirmed. The case is remanded, however, so that the trial court may vacate as merged appellant's conviction for attempted armed robbery and the related PFCV conviction.


          Reid, Senior Judge

         These appeals arise from the indictment of appellant, Eric Gardner, on several felony charges related to the shooting death of cab driver Andrew Kamara on November 12, 2004.[1] A jury convicted Mr. Gardner of some of the charges in November 2006, but this court reversed his convictions because of errors in the admission of DNA evidence. We remanded the case for a new trial. See Gardner v. United States, 999 A.2d 55, 63 (D.C. 2010). The government retried Mr. Gardner in late March and early April 2011. At the conclusion of that trial, a jury again convicted Mr. Gardner of some of the charges.[2]

         In these consolidated appeals (direct and collateral), [3] Mr. Gardner argues that his convictions must be reversed and the case remanded for a new trial because the trial court: (1) committed prejudicial error in permitting the firearms examiner to give an "unqualified and certain" expert opinion that the bullet recovered from the decedent's body came from a specified silver gun, and the court further plainly erred by failing to exclude the firearms examiner's testimony that he "had a second examiner confirm [his findings]"; (2) abused its discretion in admitting DNA "demonstrative evidence" (DNA testing data results depicted on two charts) to illustrate the DNA analyst's testimony; (3) precluded Mr. Gardner from testifying about a government witness' reputation as a "jailhouse snitch, " and erred by refusing to give a requested instruction on "cooperating witnesses"; (4) committed prejudicial error in limiting cross-examination of Metropolitan Police Department ("MPD") Officer Scott Craiger; (5) erred in concluding that Mr. Gardner's post-arrest statement to the police was voluntary and thus admissible to impeach his trial testimony; and (6) erred when it denied his D.C. Code § 23-110 motion - the motion alleged that defense trial counsel was constitutionally ineffective for failing to (a) effectively cross-examine the firearms examiner concerning his unqualified opinion about the identity of the murder weapon; (b) proffer a basis for admitting Mr. Gardner's knowledge of one of the government's cooperating witnesses' reputation as a snitch to bolster Mr. Gardner's testimony; (c) object to false hearsay statements made by detectives during their interrogation of Mr. Gardner. Mr. Gardner also argues that, even if no individual claim of error warrants reversal, the cumulative impact of the errors requires reversal of his convictions.

         First, we hold that in this jurisdiction a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, that based on ballistics pattern comparison matching a fatal shot was fired from one firearm, to the exclusion of all other firearms; we further hold that the error was harmless in this case. Second, we conclude that the trial court did not abuse its discretion in admitting the DNA expert's testimony and demonstrative charts. Third, we conclude that (a) even assuming that the trial court should have permitted Mr. Gardner to respond to proposed questions from his defense counsel about Mr. Gardner's knowledge of Mr. Cunningham's reputation as a snitch, Mr. Gardner suffered no prejudice; and (b) the trial court did not abuse its discretion by denying Mr. Gardner's request for the plea agreement instruction. Fourth, we conclude that even assuming the trial court erred by limiting the cross-examination of Officer Craiger, the error was harmless under the constitutional and non-constitutional harmless error standards.

         Fifth, we hold that Mr. Gardner's statement to the police was not involuntary, and that during the police interrogation, Mr. Gardner's will was not overborne in such a way as to render his confession the product of coercion. Sixth, we conclude that Mr. Gardner has failed to satisfy the prejudice prong of an ineffective assistance of counsel claim. Sixth, we conclude that there were no cumulative errors requiring reversal of Mr. Gardner's convictions. Consequently, we affirm his conviction for first-degree felony murder while armed and the related PFCV and CPWL convictions, but remand this case so that the trial court may vacate as merged Mr. Gardner's conviction for attempted armed robbery and the related PFCV conviction.


         The government presented testimony showing that Tahisha Dean was with Mr. Gardner most of the day on November 11, 2004, and continuing until the early morning hours of November 12, 2004. Ms. Dean testified that she, Mr. Gardner, and his brother, Floyd Jackson, rented room 114 at the Motel 6 on Georgia Avenue and Aspen Street, in the Northwest quadrant of the District of Columbia.[4] The prosecutor confronted Ms. Dean with her grand jury testimony where she stated, under oath, that Mr. Gardner showed her a "[s]ilver, chrome" gun with either a black handle or "a black strip on the front" that "[l]ooks like a .45 or something like that. Automatic . . . ."[5]

         Mr. Gardner and Mr. Jackson later left the motel room together, and Mr. Gardner returned alone at "[a]bout 2:00 o'clock" in the morning on November 12. He was acting "[n]ervous and in shock."[6]

          At the time of the shooting, Mary Ball lived across the street from the crime scene. In the early morning hours of November 12, 2004, Ms. Ball was asleep in her bedroom when she awoke to the sound of "a loud crash which sounded like a car hitting another car." She went to her bedroom window, which gave her a view of 9th Street. She noticed that "a cab had run into the back of a parked car." She "saw a young man running from the cab -- from the direction of the cab."[7] She described him as "wearing a dark jacket with a fitted waist[, ] maybe a[n] elasticized waist[, ] [and] dark pants . . . ."[8] He "kept turning back and looking towards the cab [and] he was also running through the front lawns of the houses along 9th Street." Just before he ran out her line of sight, Ms. Ball watched him run "towards [her] house" and "down the alley towards Georgia Avenue . . . ."

         When police responded to the scene, they found Mr. Kamara's lifeless body covered in blood.[9] Police recovered a single expended cartridge casing from the inside of the cab. They were not able, however, to preserve a bloodstain that an officer observed on the right rear passenger window of the cab when she first arrived at the scene.

         In the early morning hours of November 12, 2004, Daniel Arkorful, the front desk attendant at the Motel 6 on the night of the shooting, saw a young man "c[o]me in walking fast . . . as if somebody was after him or something." He asked the man to show ID, but the man simply "said Room 114" and "didn't stop, he didn't turn . . . ." Although he did not see the young man's face clearly, Mr. Arkorful described him as a "black person" wearing "sneakers, he was in jeans, and he had a jacket on him . . . ."

         After the report of the traffic accident led to the discovery of Mr. Kamara's body, police canvassed the area. Former MPD Officer Scott Craiger began the canvass at the Motel 6 due to its proximity to the shooting, his familiarity with the area, and his knowledge that the motel was often used by criminals as a hiding place. He went into the motel lobby with other officers, one of whom asked Mr. Arkorful "if someone had come in, you know, like excited[, ] in a hurry or anything like that, " to which Mr. Arkorful responded "that an individual wearing a black coat had come in, asked to be buzzed into Room 114." The officers went to the door of room 114, but waited to knock and announce their presence, to confirm their suspicion that the suspect was in the room and to allow backup to arrive.

         Officer Craiger testified that he heard several things when he was waiting at the door to Mr. Gardner's motel room prior to entering. He heard a male voice inside the room (which turned out to be Mr. Gardner) saying he "need[ed] to get this stuff off of me, I'm very amped up right now." He heard "a shower running in the background" and just before entering the room, he "heard the distinct sound of a weapon -- the slide of a weapon being racked like as if someone pulled it back and let it go like that."[10] When he entered the room, Officer Craiger saw a window that was open but he did not see any male person. Defense counsel extensively impeached Officer Craiger's testimony about what he heard at the motel room door.[11]

         Officer Eldred Boria, who had responded to the call for backup, was sitting in her police car when she saw Mr. Gardner climb out of a window on the side of the motel. She exited her car and approached him, and when he saw her approaching, [12] he dropped his jacket and a black gun[13] and began running. She and her fellow officers were able to apprehend Mr. Gardner soon thereafter. At the time, Mr. Gardner was wearing "black jeans, " "a black T-shirt, " and a "silk black cap." Another officer observed that on the sidewalk near the motel there was a black coat that "had what appeared to . . . be blood on it." An MPD evidence technician, Officer Richard Steven Griffin, collected the jacket as evidence and took swabs from it because he observed "some reddish stains that . . . were consistent with bloodstains that were on the exterior of the jacket, " and he was concerned that rain would wash away the stains.[14]

         Later on November 12, police canvassed the area for additional evidence. Brenda Maria Butuche, who at the time was in training at the police academy, participated in the canvassing. While searching in the same alley in which Ms. Ball saw a young man running that morning, Ms. Butuche found a "[s]ilver and black" gun "towards the end of the alley inside of, like, a hole in the rear of a -- I guess a house at the end of the alley. And like the rear end had a little cubby hole." The gun was found with "[o]ne round . . . in the chamber[] and . . . three rounds in the magazine."

         Gerald Cunningham met Mr. Gardner while the two were inmates together in the D.C. Jail in February 2005.[15] According to Mr. Cunningham's testimony, Mr. Gardner approached him to ask for advice about Mr. Gardner's case. Eventually Mr. Gardner admitted to trying to rob Mr. Kamara and shooting him "in the back of the head" when he refused to give up the money. Defense counsel strongly impeached Mr. Cunningham's testimony on cross-examination.[16]

         Mr. Gardner testified for the defense, as follows. He was in the cab at the time of the shooting, and there was a third person who tried to rob him and Mr. Kamara. After the cab had stopped on Aspen Street next to the Motel 6, he had pulled out cash for his cab fare. "A gun was placed through the window" "in [his] face" but "it was mostly pointed at [Mr. Kamara]." Mr. Gardner struggled with this alleged third person, after which Mr. Kamara hit the gas to accelerate the cab. The cab started moving, and a shot rang out. Mr. Gardner turned to see if the shooter was still there, only to witness him running away from the Motel 6. The cab turned from Aspen Street onto 9th Street and eventually crashed into a parked car, after which Mr. Gardner got out of the car and "ran to the Motel 6." Mr. Gardner stated that "there was probably a possibility [that] some [blood] was on [his person], " but he did not see any on his clothes. He also admitted during cross-examination that he ran down the same alley that Ms. Ball had seen the young man run down that early morning. [17]


         The Ballistics Expert's Unqualified Opinion

         Factual Context

         Prior to the government calling Lyndon Watkins, its ballistics expert, defense counsel asked that the trial court rule that "what is appropriate is for the expert to testify specifically in this case that the bullet that was recovered from the decedent is consistent with . . . one of the pistols that he was given to examine but not state that it was . . . [with] any scientific certainty." In response to the trial court's question as to what the expert planned to say, the prosecutor responded, "That Government Exhibit 71 fired the bullet that was found in Mr. Kamara's [body] and also expended the cartridge that was found on the 9th Street scene outside. That was his previous testimony." The trial court replied that he would let the expert "state his conclusions -- his reasonable conclusions and you can impeach him up and down, if you want."

         Mr. Watkins testified that he examined both the black gun that Mr. Gardner dropped when he exited the Motel 6 window (Government Exhibit 7) and the silver gun found near the crime scene (Government Exhibit 71), as well as a .9mm Luger cartridge case found at the crime scene (Government Exhibit 2) and the copper jacketed bullet removed from Mr. Kamara's head (Government Exhibit 18), to determine whether either gun was linked to the shooting. He concluded that "Government's Exhibit 2 and Government's Exhibit 18 were not fired in Government's Exhibit 7"; hence, the black gun was not the murder weapon. Mr. Watkins also compared ammunition test-fired from the silver gun (Government Exhibit 71) with the bullet removed from the decedent (Government Exhibit 18) and with the cartridge casing recovered from the crime scene (Government Exhibit 2). He opined "that Government Exhibit 2 was fired in Government Exhibit 71 -- firearm, and Government Exhibit 18, which is the copper jacketed bullet was fired from the barrel of Government's Exhibit 71." In essence, Mr. Watkins found that the markings made on the test ammunition were consistent with the markings on the recovered bullet and casing, [18] and he stated that the silver gun was the murder weapon.

         Mr. Watkins confirmed his unqualified opinion on cross-examination and redirect examination. From his analysis, Mr. Watkins testified unequivocally that in his opinion, the silver gun fired the killing shot, reiterating that conclusion on cross examination when defense counsel stated, "I believe your . . . expert opinion was the bullet recovered from Mr. Kamara, which is Item Number 18, was consistent with having been fired from the silver pistol; is that correct?" Mr.

          Watkins responded, "It was fired from the pistol, yes sir." On redirect examination, the prosecutor specifically asked Mr. Watkins, "Just to be clear, sir, your -- your scientific -- your opinion here is Government Exhibit Number 18, the bullet, [was] fired from Government 71[, ] or was it consistent with being fired from Government Exhibit 71?" Mr. Watkins replied, "It was identified as having been fired from Government Exhibit 71." Defense counsel again objected "to that sort of unqualified statement of opinion."

         The Parties' Arguments

         On appeal, Mr. Gardner argues that he (1) objected to Mr. Watkins expressing an opinion "with scientific certainty" ("essentially an unqualified opinion") that the silver gun found near the scene of the crime fired the fatal bullet, and (2) asked the trial court to "limit such opinion testimony to the statement that the recovered bullet and casing were 'consistent with' subsequent test firings from the silver gun.'" He maintains that "the trial court's refusal to exclude [Mr.] Watkins' unqualified opinion in this case was error."

         The government does not deny that the trial court erred in allowing Mr. Watkins to give an unqualified opinion that the silver gun fired the bullet that killed Mr. Kamara. Rather, the government contends that "any possible error in the admission of [Mr.] Watkins' testimony without 'qualification' was harmless." In reply, Mr. Gardner argues that the error in admitting Mr. Watkins' unqualified opinion was not harmless because "it cannot be said with a 'fair assurance' that the unchallenged and essentially uncontroverted nature of [Mr. Watkins'] testimony that the silver gun was the murder weapon did not have a substantial effect on the jury, " and "the difference between whether the silver gun was definitely the murder weapon or whether it was simply believed by the ballistician to be the murder weapon may well have affected the jury's deliberations."

         Standard of Review and Applicable Legal Principles

         "The trial judge has wide latitude in the admission or exclusion of expert testimony." (John) Jones v. United States, 990 A.2d 970, 977 (D.C. 2010). "Ordinarily, where the claim of error was preserved by timely and proper assertion in the trial court, we review the judge's ruling for abuse of discretion." Id. "In assessing whether non-constitutional error was harmless, we apply the standard set forth in Kotteakos v. United States, [328 U.S. 750, 765 (1946)]." Hernandez v. United States, 129 A.3d 914, 923 (D.C. 2016). Under Kotteakos, this court must determine "whether we can say, 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.'" Clayborne v. United States, 751 A.2d 956, 968 n.12 (D.C. 2000).


         For decades this jurisdiction has allowed the admission of expert testimony concerning ballistics comparison matching techniques. See Laney v. United States, 294 F. 412, 416 (D.C. Cir. 1923) (the court admitted expert testimony "tending to establish that the bullet, extracted from the head of the deceased, was shot from the pistol found in the defendant's possession"); see also (Ricardo) Jones v. United States, 27 A.3d 1130, 1137 (D.C. 2011) ("Pattern matching is not new, and courts in this jurisdiction have long been admitting firearms identifications based on this method."). Beginning around 2008, however, questions about pattern matching generally, and bullet pattern matching specifically, surfaced in the scientific community. See Jules Epstein, Preferring the "Wise Man" to Science: The Failure of Courts and Non-Litigation Mechanisms to Demand Validity in Forensic Matching Testimony, 20 Widener L. Rev. 81 (2014); Note, Firearms Identification: The Need for a Critical Approach To, and Possible Guidelines For, the Admissibility of "Ballistics" Evidence, 17 Suffolk J. Trial & App. Adv. 54 (2012).

         The National Research Council, an arm of the National Academy of Sciences, commissioned a committee to study the matter, and in 2008 the committee issued a report on ballistics imaging, see Daniel L. Cork, et al., Ballistics Imaging 3 (2008), stating in part: "The validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated." Epstein, supra, 20 Widener L. Rev. at 86. The Congress of the United States also commissioned a study of the forensic sciences, and the National Research Council of the National Academy of Sciences designated another committee which produced a report in 2009, Committee on Identifying the Needs of the Forensic Science Community, Strengthening Forensic Science in the United States: A Path Forward (2009) (NRC Report). See Pettus v. United States, 37 A.3d 213, 225-28 (D.C. 2012) (discussing the NRC Report); Epstein, 20 Widener L. Rev. at 81-83, 85-88. After the NRC Report issued, some jurisdictions began to limit the scope of a ballistics expert's testimony. See (Ricardo) Jones, supra, 27 A.3d at 1137, n.8 (identifying cases); Note, supra, 17 Suffolk J. Trial & App. Adv. at 65-67 (discussing cases); Commonwealth v. Heang, 942 N.E.2d 927, 937-45 (Mass. 2011) (offering guidelines for forensic ballistics testimony).

         In 2011, this court faced the issue of ballistics experts' unqualified opinions in (Ricardo) Jones, supra. There, appellant argued "that the trial court should have . . . precluded the experts from stating their conclusions with 'absolute certainty excluding all other possible firearms.'" 27 A.3d at 1138. Unlike the situation in the case before us, the alleged error in (Ricardo) Jones was not preserved. However, Judge Fisher, writing for the court, explicitly noted the government's "represent[ation] that the current policy of the United States' Attorney's Office is to have firearms examiners qualify their conclusions to a reasonable degree of scientific certainty." Id. at 1138-39. Consequently, rather than deciding whether the trial court committed plain error by allowing an unqualified ballistics expert opinion, this court resolved the issue under the harmless error doctrine. We said: "In light of the government's representation and the growing consensus that firearms examiners should testify only to a reasonable degree of certainty . . ., we will assume, 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 1138.

         In 2016, the issue as to whether the trial court erred by allowing the ballistics expert to give an unqualified opinion was raised in another unpreserved error case, Williams v. United States, 130 A.3d 343 (D.C. 2016). We again did not decide the issue on the merits. However, "we question[ed] whether this court would want to endorse a policy of 'only elicit[ing] firearms examiners' opinions to a reasonable degree of scientific certainty, ' in light of criticism that firearms examination does not involve any 'scientific' measure of certainty, " citing both the Ballistics Imaging report, and the NRC Report. 130 A.3d at 348 n.11. The author of the opinion for the court in Williams, Judge Easterly, also concurred on ...

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