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%
...