from the Superior Court of the District of Columbia
(CF1-18032-10), (Hon. Russell F. Canan, Trial Judge)
Petition for Rehearing
Hinkes for appellant.
D. Phillips, Washington, DC, United States Attorney at the
time the briefs were filed, Elizabeth Trosman, Washington,
DC, Suzanne Grealy Curt, Gary Wheeler, and Peter S. Smith,
Huntington, NY, Assistant United States Attorneys, were on
the appellees response to appellants initial and
supplemental petition for rehearing or rehearing en banc.
Fam and Alice Wang, Public Defender Service, filed a brief as
amicus curiae in support of appellants petition for
rehearing or rehearing en banc.
Thompson and Easterly, Associate Judges, and Nebeker, Senior
opinion by Associate Judge EASTERLY at page 746.
statement in concurrence by Senior Judge NEBEKER at page 746.
Williams seeks rehearing of our initial decision in his case,
Williams v. United States (Williams I), 130 A.3d 343 (D.C.
2016), in which we rejected his unpreserved challenge to the
trial courts admission of opinion testimony from a firearms
and toolmark examiner that markings on the bullets recovered
from the decedents car were "unique"; that, when
the gun recovered from Mr. Williamss apartment was
test-fired, the bullets had "match[ing]" markings;
and thus that the
examiner did not have "any doubt" that the bullets
recovered from the car were fired by Mr. Williamss gun.
Id. at 346-47. Because this court had not yet held
expert opinion testimony of this sort to be impermissible, we
held that any possible error was not "plain" such
that it justified reversal under our four-prong test for
review of unpreserved errors in criminal cases. Id.
Williams I, this court has issued decisions
regarding the admission of firearms and toolmark testimony,
Gardner v. United States, 140 A.3d 1172 (D.C. 2016),
and expert testimony in general, Motorola Inc. v.
Murray, 147 A.3d 751 (D.C. 2016) (en banc). In light of
these decisions, which apply to Mr. Williams because his case
is not yet final, we revisit our plain error analysis. We now
conclude that (1) the admission of the examiners opinion
testimony, which was based on toolmark pattern matching and
unqualifiedly identified the bullets that killed Mr. Kang as
having come from the gun recovered from Mr. Williamss
apartment, was error, and (2) this error is plain. We further
conclude, however, that Mr. Williams cannot satisfy the third
prong of our test for plain error because he cannot show a
reasonable probability of a different result absent this
error. Thus, although we grant Mr. Williamss petition for
rehearing, we affirm his convictions.
I. Facts and Procedural History
there were no eyewitnesses to the shooting death of Min Soo
Kang, the government primarily relied on circumstantial
evidence to prove Mr. Williamss guilt at
trial. Specifically, the government presented
evidence that in the early morning hours of September 13,
2010, Mr. Kang, who lived in Dunn Loring, Virginia, drove his
new Cadillac Escalade SUV to a Virginia convenience store and
purchased two cartons of Newport cigarettes— a brand he
was not known to smoke— at over $100 in value. Around 4
a.m., Mr. Kangs body was discovered lying on the side of the
road in Southeast D.C. He had been shot at least five times
at close range. His wallet, containing his drivers license,
was still in his front pants pocket, but he did not have his
car key. Using OnStar, the police both located Mr. Kangs SUV
and remotely disabled the vehicle in the early evening of
September 13. The MPD subsequently recovered the vehicle in
the 5200 block of Ames Street NE. The ignition was intact.
There were bullet holes in the backrest and blood on the
drivers seat. There was also blood on the passengers side
of the car. Five packs of Newport cigarettes were found in
the car, two in the drivers side door.
the time OnStar remotely disabled Mr. Kangs SUV, Ebony Hood
saw a man whose description was consistent with Mr. Williams
get out of that vehicle, put the hood up, and then slam it
down. He told Ms. Hood he was waiting for a jump, but his
behavior seemed "strange"; she took note of the
fact that, when she heard sirens, she saw the man walk away
from the car and discard something small. After
the sirens passed, he retrieved the object but subsequently
threw it away again. The following day, as Mary Gaffney was
walking in the 5200 block of Ames Street NE, a man approached
her, told her he had found some car keys, and handed them to
her. Ms. Gaffney gave the keys to her friend, Rena Ross, who
turned them into the police. The keys belonged to Mr. Kangs
recovered a number of latent fingerprints from the SUV. A
fingerprint examiner subsequently opined that six
prints— recovered from the exterior of the SUV,
including the hood, and from the interior of the SUV on both
the passengers side door and the drivers side door—
were left by Mr. Williams. The MPD recovered additional
evidence from Mr. Williamss apartment, which was less than a
half mile from where Mr. Kangs body was found: a
Hi-Point brand firearm in Mr. Williamss
bedroom, and a number of packs of Newport
cigarettes. A firearms and toolmark examiner, Luciano
Morales, compared the markings on the bullets test-fired from
the gun found in Mr. Williamss apartment to the markings on
the bullets recovered from the backrest of the drivers seat
of the SUV and concluded that that gun was the murder weapon.
In addition to this circumstantial evidence, the government
called a cooperating witness, who testified that Mr. Williams
made incriminating statements to him while they were both in
a holding cell at the courthouse.
on this evidence, a jury convicted Mr. Williams of
first-degree felony murder while armed, attempt to commit
robbery while armed, and other weapons-related
offenses. Mr. Williams appealed his convictions,
arguing inter alia, that the trial court should not
have permitted the governments firearms and toolmark
examiner to unqualifiedly testify that, based on pattern
matching, the gun recovered from Mr. Williamss apartment was
the murder weapon. Williams I, 130 A.3d at 345, 347.
This court affirmed on the ground that, in the absence of any
objection at trial, the admission of the examiners opinion
testimony was subject to the test for plain error and there