Williams v. United States

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          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, 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 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

         Concurring opinion by Associate Judge EASTERLY at page 746.

         Separate statement in concurrence by Senior Judge NEBEKER at page 746.

         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

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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

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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 ...