January 21, 2016
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
BEFORE: Washington, Chief Judge; Glickman, Associate Judge;
and Reid, Senior Judge.
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
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.
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. 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
these consolidated appeals (direct and collateral),
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.
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
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.
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. 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 . . . ."
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."
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." She described him as
"wearing a dark jacket with a fitted waist[, ] maybe
a[n] elasticized waist[, ] [and] dark pants . . .
." 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 . . . ."
police responded to the scene, they found Mr. Kamara's
lifeless body covered in blood. 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.
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 .
. . ."
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.
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." 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
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,
he dropped his jacket and a black gun 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.
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
Cunningham met Mr. Gardner while the two were inmates
together in the D.C. Jail in February 2005. 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
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.
Ballistics Expert's Unqualified Opinion
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."
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,  and he stated that the silver gun was
the murder weapon.
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."
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."
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."
of Review and Applicable Legal Principles
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).
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).
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).
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.
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 ...