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Williams v. United States

Court of Appeals of The District of Columbia

June 27, 2019

Marlon Williams, Appellant,
v.
United States, Appellee.

          Appeal from the Superior Court of the District of Columbia (CF1-18032-10) (Hon. Russell F. Canan, Trial Judge)

          On Petition for Rehearing

          Enid Hinkes for appellant.

          Channing D. Phillips, United States Attorney at the time the briefs were filed, Elizabeth Trosman, Suzanne Grealy Curt, Gary Wheeler, and Peter S. Smith, Assistant United States Attorneys, were on the appellee's response to appellant's initial and supplemental petition for rehearing or rehearing en banc.

          Samia Fam and Alice Wang, Public Defender Service, filed a brief as amicus curiae in support of appellant's petition for rehearing or rehearing en banc.

          Before Thompson and Easterly, Associate Judges, and Nebeker, Senior Judge.

          OPINION

          Easterly Associate Judge.

         Marlon 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 court's admission of opinion testimony from a firearms and toolmark examiner that markings on the bullets recovered from the decedent's car were "unique"; that, when the gun recovered from Mr. Williams's 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. Williams's 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. at 347.

         Since 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 examiner's 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. Williams's 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. Williams's petition for rehearing, we affirm his convictions.

         I. Facts and Procedural History

         As there were no eyewitnesses to the shooting death of Min Soo Kang, the government primarily relied on circumstantial evidence to prove Mr. Williams's guilt at trial.[1] 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. Kang's 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 driver's license, was still in his front pants pocket, but he did not have his car key. Using OnStar, [2] the police both located Mr. Kang's 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 driver's seat. There was also blood on the passenger's side of the car. Five packs of Newport cigarettes were found in the car, two in the driver's side door.

         Around the time OnStar remotely disabled Mr. Kang's 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. Kang's SUV.

         The MPD 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 passenger's side door and the driver's side door-were left by Mr. Williams. The MPD recovered additional evidence from Mr. Williams's apartment, which was less than a half mile from where Mr. Kang's body was found: a Hi-Point[3]brand firearm in Mr. Williams's bedroom, [4] 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. Williams's apartment to the markings on the bullets recovered from the backrest of the driver's 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.

         Based 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.[5] Mr. Williams appealed his convictions, arguing inter alia, that the trial court should not have permitted the government's firearms and toolmark examiner to unqualifiedly testify that, based on pattern matching, the gun recovered from Mr. Williams's 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 examiner's opinion testimony was subject to the test for plain error and there was as yet "no precedent in this jurisdiction that limits a toolmark and firearms examiner's testimony about the certainty of his pattern-matching conclusions." Id. at 347-48.

         Thereafter, Mr. Williams filed a petition for Rehearing and Rehearing En Banc, staying the issuance of the mandate.[6] See D.C. App. R. 41(d). He amended his petition after this court issued its opinion in Gardner, 140 A.3d 1172. The en banc court initially denied Mr. Williams's petition for rehearing or rehearing en banc but later granted his motion for reconsideration and continued to stay the issuance of the mandate. The en banc court also authorized Mr. Williams to file a supplemental petition and the Public Defender Service for the District of Columbia (PDS) to file an amicus brief in support of Mr. Williams's petition. Upon receipt of these pleadings, this division directed the government to file a response addressing, inter alia, whether rehearing was warranted in light of Gardner and/or Motorola, 147 A.3d 751. We now resolve Mr. Williams's petition for rehearing.

         II. Analysis

         As detailed in Williams I, the firearms and toolmark examiner called by the government testified on direct examination that when a bullet is fired from a particular gun, the gun leaves "unique" identifying marks, "similar to a fingerprint, basically." 130 A.3d at 346. He testified that he microscopically examined the markings on the three bullets recovered from Mr. Kang's SUV; and he concluded that these bullets had all been fired by the same gun. Id. The examiner also testified that he test-fired the Hi-Point brand gun recovered from Mr. Williams's apartment (admitted as Exhibit No. 58); he compared the markings on those bullets with the bullets found in the SUV and determined that they "matched." Id. at 347. Based on this examination, the examiner opined that "these three bullets were fired from this firearm." See id. at 346. On redirect, when asked whether there was "any doubt in [his] mind" that the bullets recovered from Mr. Kang's SUV were fired from the gun found in Mr. Williams's bedroom, the examiner responded, "[n]o, sir." Id. The examiner elaborated that "[t]hese three bullets were identified as being fired out of Exhibit No. 58. And it doesn't matter how many firearms Hi[-]Point made. Those markings are unique to that gun and that gun only." Id. The examiner then restated his unequivocal opinion: "Item Number 58 fired these three bullets." Id.

         Mr. Williams argues rehearing is warranted because, although defense counsel did not object to the examiner's opinion testimony, based on toolmark pattern matching, that the gun recovered from Mr. Williams's apartment was the murder weapon, it is now clear that admission of this testimony constitutes plain error[7] and requires reversal. We conclude that the first two prongs of the test for plain error are satisfied-that is, the admission of this opinion testimony was error and plainly so-but Mr. Williams's claim fails on the third prong because he cannot show the requisite measure of harm.

         A. Was There Error?

         There have been two significant developments in this court's jurisprudence since the publication of Williams I. First, in Gardner v. United States, 140 A.3d 1172 (D.C. 2016), this court reviewed a preserved challenge to the admission of opinion testimony by a firearms and toolmark examiner, who purported to match a specific gun to a specific bullet unqualifiedly, and concluded that such unqualified opinion testimony should not have been admitted. Id. at 1184. Second, in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), this court retired the test for the admission of expert testimony under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Dyas v. United States, 376 A.2d 827 (D.C. 1977), and adopted the test set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702 (FRE 702). Id. at 752. Based on these changes to the law, we conclude that it was error to admit the examiner's opinion testimony, based on pattern matching, that the gun recovered from Mr. Williams's apartment was the murder weapon.

         In Gardner, this court reviewed a preserved challenge to "unqualified and certain expert opinion that the bullet recovered from the decedent's body came from a specified silver gun." Id. at 1177 (internal quotation marks omitted); see also id. at 1182 (noting that examiner testified that "the silver gun was the murder weapon").[8] The court acknowledged that "the admission of expert testimony concerning ballistics comparison matching techniques" had been allowed in this jurisdiction "[f]or decades." Id. at 1183. But the court explained that "[b]eginning around 2008, . . . questions about pattern matching generally, and bullet pattern matching specifically, surfaced in the scientific community." Id. The court highlighted two federal government reports concluding that pattern matching should not be relied upon to link specific firearms to specific bullets.[9] Id. at 1183.

         The first report cited by Gardner, Ballistic Imaging, was written by a committee of scientists and statisticians at the behest and with the sponsorship of the Department of Justice. The National Research Council (NRC)[10]Committee to Assess the Feasibility, Accuracy, and Technical Capability of a National Ballistics Database, Ballistic Imaging ix, xi (Daniel L. Cork et al. eds., 2008) [hereinafter Ballistic Imaging]. Although the NRC Committee's charge was to assess the feasibility and utility of establishing "a national reference ballistic image database," id. at 1, it first had to address the "[u]nderlying . . . question" of "whether firearms-related toolmarks are unique: that is, whether a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others." Id. at 3. The NRC Committee determined that there was no data-based foundation to make such pronouncements with any certainty. Id.; see also Gardner, 140 A.3d at 1183 (explaining that one conclusion of the Ballistic Imaging report was that "[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated").[11]

         The second report cited by Gardner, Strengthening Forensic Science in the United States: A Path Forward, was commissioned directly by Congress and reviewed a range of forensic analyses. The National Research Council, Committee on Identifying the Needs of the Forensic Science Community, Strengthening Forensic Science in the United States: A Path Forward xv- xviii, xix (2009) [hereinafter Strengthening Forensic Science]. Regarding toolmark evidence in particular, the report explained that "[i]ndividual patterns from manufacture or from wear might, in some cases, be distinctive enough to suggest one particular source." Id. at 154 (emphasis added). But a definitive "match" could not be declared "[b]ecause not enough is known about the variabilities among individual tools and guns" or "how many points of similarity are necessary for a given level of confidence in the result." Id.[12]

         This court in Gardner commented that, particularly after the issuance of the Strengthening Forensic Science report, "some jurisdictions began to limit the scope of a ballistics expert's testimony." 140 A.3d at 1183. Following suit, the court in Gardner held that the trial court had "erred by allowing [the firearms and toolmark examiner] to give an unqualified opinion about the source of the bullet that killed [the decedent]." Id. at 1184. The court "further h[e]ld that in this jurisdiction a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% ...


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