ERIC GARDNER v. UNITED STATES , 2016 D.C. App. LEXIS 202 ( 2016 )

District of Columbia
Court of Appeals
Nos. 11-CF-557 & 14-CO-832
JUN 23 2016
ERIC GARDNER,
Appellant,
v. FEL-7761-04
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: WASHINGTON, Chief Judge; GLICKMAN, Associate Judge; and
REID, Senior Judge.
JUDGMENT
This 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
ORDERED 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.
For the Court:
Dated: June 23, 2016.
Opinion by Senior Judge Inez Smith Reid.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 11-CF-557 & 14-CO-832
6/23/16
ERIC GARDNER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(FEL-7761-04)
(Hon. Robert I. Richter, Trial Judge)
(Argued January 21, 2016 Decided June 23, 2016)
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 appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID,
Senior Judge.
REID, Senior Judge: These appeals arise from the indictment of appellant,
Eric Gardner, on several felony charges related to the shooting death of cab driver
2
Andrew Kamara on November 12, 2004.1 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 charges.2
In these consolidated appeals (direct and collateral),3 Mr. 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
1
The charges included attempted robbery while armed, in violation of D.C.
Code §§ 22-1803, -2801, -4502 (2001); first-degree murder while armed
(premeditated), in violation of §§ 22-2101 and -4502; first-degree felony murder
while armed, in violation of §§ 22-2101 and -4502; second-degree murder while
armed, in violation of §§ 22-2103 and -4502; carrying a pistol without a license
(CPWL), in violation of § 22-4504 (a); and two counts of possession of a firearm
during a crime of violence or dangerous offense (PFCV), in violation of § 22-4504
(b).
2
The jury found Mr. Gardner guilty of attempted robbery while armed and
the related PFCV charge; first-degree felony murder while armed and the related
PFCV charge; and CPWL. The second-degree murder charge was dismissed as
duplicative.
3
Mr. Gardner filed a direct appeal. He later filed a post-conviction motion
in the trial court alleging ineffective assistance of counsel pursuant to D.C. Code
§ 23-110 (2012 Repl.). The trial court denied his motion, and Mr. Gardner noticed
an appeal.
3
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 § 23-110motion – 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
4
warrants reversal, the cumulative impact of the errors requires reversal of his
convictions.
First, 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 error standards.
Fifth, 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
5
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.
FACTUAL SUMMARY
The 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.4 The
4
Mr. Jackson testified; he confirmed that he paid for the room with his
credit card. The government introduced into evidence a receipt for the payment,
signed by Mr. Jackson and dated November 11, 2004, at 21:25 (9:25 p.m.), as well
as a copy of Mr. Jackson’s driver’s license and credit card. Mr. Jackson later
explained that Ms. Dean and Mr. Gardner were given card keys to access the room.
6
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 . . . .”5
Mr. 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.”6
5
On cross-examination, Ms. Dean admitted to a long history of drug abuse,
particularly PCP, and memory problems related to drug abuse. She claimed that in
Fall 2004, she also suffered from acute symptoms related to bipolar disorder,
schizoid disorder, and post-traumatic stress disorder, and that the street drugs she
was taking with her prescribed medication interacted poorly and negatively
affected her memory. However, Ms. Dean stated that at the time she gave
statements to the police and testified before the grand jury, closer in time to the
criminal acts in this case, her head was clear.
6
According to Mr. Jackson, around midnight he and Mr. Gardner went to a
nearby carryout restaurant, at which point Mr. Jackson left to pick up a friend.
When he returned to the restaurant shortly thereafter, he discovered that Mr.
Gardner had already left. Mr. Jackson claimed that he was in the motel room when
Mr. Gardner returned around 1:00 a.m. Mr. Gardner looked upset upon his return.
Shortly thereafter, Mr. Jackson left. During cross-examination, Mr. Jackson
claimed Mr. Gardner was upset because Mr. Jackson had left him at the carryout
restaurant. Mr. Jackson denied seeing any blood on Mr. Gardner or any attempt by
Mr. Gardner to wash anything off his hands or his clothes.
7
At the 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.”7 She
described him as “wearing a dark jacket with a fitted waist[,] maybe a[n]
elasticized waist[,] [and] dark pants . . . .”8 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 . . . .”
When police responded to the scene, they found Mr. Kamara’s lifeless body
covered in blood.9 Police recovered a single expended cartridge casing from the
7
She described the man as young because “he moved with an ease and
grace of a young person” and she observed further, “He was tall, slim.”
8
According to one of the first officers to respond to the scene of the
shooting, MPD Officer Kimberly Kniffen, Ms. Ball told her that the young man
was wearing a “black coat” and “blue jeans.”
9
An autopsy determined that Mr. Kamara died of a single gunshot wound to
his head. The bullet entered Mr. Kamara’s face near his right eye, went through
(continued…)
8
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.
In the 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 . . . .”
After 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
(…continued)
his brain, and came to rest in the back left part of his skull, where the examiner
recovered it.
9
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.
Officer 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.”10 When he entered the room, Officer Craiger saw a window
that was open but he did not see any male person. Defense counsel extensively
10
During cross-examination, Craiger clarified that the sound “is when the
sliding of the -- the slide pulling back on a weapon, when you release the slide, it
makes a sound. It doesn’t, in fact, chamber a round into a weapon, yes, but that
sound, you can’t hear the round being chambered. It’s a sliding of the weapon.
The metal against the metal.” He admitted, however, that the sound “[p]ossibly”
indicated that someone inside the room was getting ready to fire a gun.
10
impeached Officer Craiger’s testimony about what he heard at the motel room
door.11
Officer 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,12 he dropped his jacket and a black gun13 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
11
For example, Officer Craiger admitted that he did not see any blood
inside the bathroom after he entered the room. He next admitted that despite the
importance of his status as a witness in a homicide case, he failed to take notes or
fill out a witness statement regarding anything he observed while standing outside
of the room. He then acknowledged that he did not testify at the grand jury in this
case and that his first time testifying about his observations was at Mr. Gardner’s
first trial.
12
Officer Boria was “[i]n full uniform” at the time.
13
The black gun was later found to contain a magazine with fourteen
cartridges in it, but it had no cartridge loaded in the chamber.
11
consistent with bloodstains that were on the exterior of the jacket,” and he was
concerned that rain would wash away the stains.14
Later 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 magazine.”
Gerald Cunningham met Mr. Gardner while the two were inmates together
in the D.C. Jail in February 2005.15 According to Mr. Cunningham’s testimony,
14
DNA analysis of one of the stains from the jacket indicated that the stain
contained DNA from more than one donor, and further, that the victim “c[ould ]not
be excluded as the possible predominant donor to th[e] mixture.” Ms. Amber
Moss conducted and testified about other DNA tests which will be described later
in this opinion.
15
Mr. Cunningham had significant experience with the prison system over
the years, admitting to over a dozen convictions for which he had spent time in jail
or prison.
12
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 cross-examination.16
Mr. 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
16
Defense counsel elicited details of Mr. Cunningham’s veritable decades-
long criminal career and his incarceration for the majority of his adult life. Mr.
Cunningham admitted he had “heard about [Mr. Gardner’s case] on TV” before he
met Mr. Gardner. He also admitted that he was aware that he could receive time
off his prison sentences if he cooperated in cases unrelated to his own; he
acknowledged having done exactly this on multiple prior occasions, earning
himself a reputation as a jailhouse snitch among his fellow inmates. When pressed
by defense counsel, Mr. Cunningham denied having any agreement or
understanding with the government concerning his cooperation in Mr. Gardner’s
case, but admitted that he was cooperating in hopes of receiving leniency from the
government in his pending case. Defense counsel heavily emphasized this
impeachment evidence in closing argument.
13
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. 17
ANALYSIS
The Ballistics Expert’s Unqualified Opinion
Factual Context
Prior 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
17
During cross-examination, the government impeached some of the details
of Mr. Gardner’s testimony with a statement he had made to detectives shortly
after his arrest.
14
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.”
Mr. 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 --
15
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,18 and he stated that the silver gun was the murder
weapon.
Mr. 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.
18
On cross-examination, Mr. Watkins acknowledged that “the 14 bullets
associated with the black gun . . . were marked by the same tool as one of the
bullets that was [removed from Mr. Kamara] and associated with the silver gun,”
and that “this marking occurred . . . during the reloading process.” Thus, during
both direct examination and cross-examination, Mr. Watkins asserted that both the
black gun and the silver gun had “reloaded” ammunition with similar markings,
indicating that the ammunition was reloaded by the same reloading machine.
However, he explained that “a lot” of companies commercially produce reloaded
ammunition and a single bullet reloading machine can produce “tens of thousands
of reloaded bullets” in eight hours, meaning that “there could potentially be
millions of reloaded bullets with th[e] same marking” as that found on the
ammunition associated with the two guns in this case. He pointed out that
consumers can find reloaded ammunition at “most gun stores,” at gun shows, and
even on the internet.
16
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.”
The Parties’ Arguments
On 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.”
The 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
17
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.”
Standard of Review and Applicable Legal Principles
“The 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
18
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).
Discussion
For 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,
19
the Admissibility of “Ballistics”Evidence, 17 SUFFOLK J. TRIAL & APP. ADV. 54
(2012).
The 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);
20
Commonwealth v. Heang, 942 N.E.2d 927, 937-45 (Mass. 2011) (offering
guidelines for forensic ballistics testimony).
In 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.
21
In 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 the ground that
the law in this jurisdiction “should” “clearly preclude a firearms and toolmark
examiner from testifying with unqualified, absolute certainty.” Id. at 351.
After discussing in some detail the reports issued by the National Research
Council of the National Academy of Sciences, Judge Easterly remarked that “[t]he
government state[d] in its brief [in Williams] that it is ‘regrettable’ that its expert
was permitted to state his pattern matching conclusion with absolute certainty.” Id.
at 354. This is the second time we have noted in a published opinion the
government’s position that its ballistics experts should not give an unqualified
opinion (that is, one with “absolute certainty”), based on pattern matching, that a
fatal shot was fired from a particular gun.
22
In this preserved error case, we now hold that the trial court erred by
allowing Mr. Watkins to give an unqualified opinion about the source of the bullet
that killed Mr. Kamara. We further 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.19
Our holding leaves us with one remaining question relating to the testimony
of the ballistics expert in this case, whether the trial court’s error in admitting the
expert’s unqualified opinion was nevertheless harmless. We conclude that the
error is harmless. The government presented strong and compelling evidence
which, with reasonable inferences drawn by reasonable jurors, established that Mr.
19
The parties do not make any explicit arguments based upon either Frye v.
United States, 293 F. 1013 (D.C. 1923) or Dyas v. United States, 376 A.2d 827(D.C. 1977), and our holding does not encompass questions as to whether the art,
science, or methodology of ballistics pattern comparison matching is generally
accepted in the scientific community, or permits a reasonable opinion to be
asserted by an expert. Thus, our holding is limited in that it allows toolmark
experts to offer an opinion that a bullet or shell casing was fired by a particular
firearm, but it does not permit them to do so with absolute or 100% certainty. (Mr.
Gardner does make broad arguments about the failure of his trial counsel to render
effective assistance of counsel by cross-examining Mr. Watkins about the
reliability of his unqualified opinion; we address this issue later in the opinion).
Moreover, we have doubts as to whether trial judges in this jurisdiction should
permit toolmark experts to state their opinions “with a reasonable degree of
certainty.” See Williams, supra, 130 A.3d at 353, n.8 (J. Easterly, concurring).
23
Gardner shot and killed Mr. Kamara. Around 1:30 a.m. on the night when Mr.
Kamara was killed, Mary Ball who lived close to the Motel 6 heard a crash. She
looked out of her bedroom window that faced 9th Street. She saw a young man
running from the direction of the cab while repeatedly turning around and looking
over his shoulder, back towards the cab that had crashed. He ran down the alley
that was close to the Motel 6. Ms. Betuche, a trainee at the police academy,
noticed the silver gun towards the end of the alley, and Officer Cooper retrieved a
silver gun with a black handle from the back of a residence at 921 Aspen Street.
Ms. Dean testified that Mr. Gardner was in Room 114 of the Motel 6, located at
Georgia Avenue and Aspen Street, before and after Mr. Kamara’s murder. She
connected Mr. Gardner to a gun that she described before the grand jury as
“chrome, silver chrome,” automatic, and also black.
Sometime before 2:00 a.m. and after Mr. Kamara’s murder, Mr. Arkoful, the
front desk attendant at the motel, saw a young man walking fast into the motel. He
did not stop to show his identification but simply said, Room 114. Ms. Dean
depicted Mr. Gardner as very agitated when he returned to Room 114. Officer
Boria, who was stationed outside the motel, watched as Mr. Gardner climbed out
of a window. When Mr. Gardner saw Officer Boria, he dropped his jacket and a
black gun and started running. Officer Griffin picked up the jacket and saw a
24
reddish stain consistent with blood, and he took swabs of the stain. The
government’s DNA expert tested the swab containing a mixture of DNA. The
expert indicated that Mr. Kamara could not be excluded as the predominant donor
to the mixture.
Furthermore, Mr. Gardner’s own testimony for the defense placed himself in
the cab with Mr. Kamara, as well as at the motel before and after Mr. Kamara’s
murder. Mr. Gardner admitted jumping out of the motel window and running
before being tackled by the police, as well as wearing the jacket (which appeared
to have a blood stain) while he was in the cab. Mr. Gardner’s account of a third
party who allegedly killed Mr. Kamara was neither strong nor convincing. He
stated that the gun which the alleged third party used “wasn’t really pointed at”
him (Mr. Gardner); it was “in [Mr. Gardner’s] face” but “it was mostly pointed at
[Mr. Kamara].” On cross-examination, Mr. Gardner asserted that the alleged third
party did not run in the direction of the motel, and hence, by Mr. Gardner’s own
testimony this alleged person ran in a direction that did not take him past the point
where the silver gun was found. However, Mr. Gardner stated that he, Mr.
Gardner, ran through the alley, “straight out to Georgia Avenue straight to Motel
6,” a path that took him in the direction where the silver gun was found. In the
face of this strong and compelling direct and circumstantial evidence linking Mr.
25
Gardner and the silver gun to Mr. Kamara’s murder, and even given the rigorous
cross-examination of Mr. Watkins on the subject of reloaded bullets, we are able to
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.’” (Ricardo) Jones, supra, 27 A.3d at 1140 (quoting, inter alia,
Kotteakos, supra, 328 U.S. at 765).20
Admission of DNA Demonstrative Evidence (Two Charts)
Factual Context
As indicated above, the government’s DNA expert was Amber Moss. At the
time of Mr. Kamara’s murder, she was a senior forensic analyst at the Orchid
Cellmark DNA private testing laboratory in Farmer’s Branch, Texas. Prior to Ms.
Moss’ testimony, defense counsel objected to any attempt by the prosecutor to
make a positive comparison between the incomplete DNA profile drawn from the
20
Given this resolution, we need not further examine the government’s
evidence as a whole to determine whether the error relating to Mr. Watkins’
opinion was harmless, as Mr. Gardner suggests we must. The error relating to Mr.
Watkins’ opinion went only to the strength of the evidence connecting the silver
gun to the murder. Since we conclude that even in this limited context, the error
was harmless, it follows that the error was harmless in the context of the case as a
whole.
26
silver gun and Mr. Gardner’s own DNA profile, that is, the objection was to any
attempt “to connect the one locus [out of thirteen loci] that was developed as a
[handgrips] profile on [the silver] gun with … Mr. Gardner’s locus.” When the
prosecutor proffered that it would not elicit such a comparison, defense counsel
noted that he “wouldn’t object as long as she doesn’t elicit the specific alleles and
in any way draw that connection . . . .”
Ms. Moss testified about her “extraction of the evidence samples in this
case,” including swabs from the handgrips relating to the silver gun. Before she
gave her opinion about the handgrips profile, the government introduced
demonstrative evidence charts, Exhibits 131 and 132, which together reflected
results (or no results) on 13 loci for items tested (including swabs of facial area and
silver gun handgrips). Defense counsel voiced objection to the charts.21 The
prosecutor responded that the testimony she would elicit from Ms. Moss would
establish that “no conclusions can be drawn” about the silver gun “because it’s an
incomplete [DNA] profile.” The trial court overruled the objection, stated that
defense counsel could make his points during cross-examination, and allowed the
prosecutor to use the charts as demonstrative evidence.
21
Defense counsel argued that the charts had no relevance and also were
“incredibl[y] prejudicial” to Mr. Gardner.
27
Ms. Moss testified that the DNA profile from the silver gun, which was only
a partial profile, yielded results at two loci out of the typical thirteen.22 One locus
revealed that the contributor of the DNA was male, and the other locus returning a
result had peaks that were identical to Mr. Gardner’s peaks at that same locus in
his DNA. Ms. Moss opined that it is “not uncommon” for that locus to have those
numbers; there was “no result” for “the rest of the chart” (eight loci); and hence,
her “conclusion was an insufficient amount of DNA was obtained from the [silver
gun handgrips] sample . . . to obtain a complete DNA profile.” During cross-
examination, Ms. Moss confirmed that it is “common” for a person’s DNA profile
to match another DNA profile at a single location.23
22
In general, DNA profile comparison involves analyzing each profile at
thirteen separate locations, or “loci.” Each locus has two alleles that are
represented by peaks on an electropherogram, which is a chart generated by
software that analyzes the results from a machine that in turn analyzes the DNA
sample. The peaks of the samples are then compared to determine if there is a
match or not.
23
We do not believe that the trial court’s admission of the demonstrative
DNA charts and the DNA expert’s testimony was inconsistent with the
government’s proffer that the evidence would show that no conclusions could be
drawn. After discussing the partial profile of the swab from the silver hand gun
grip, in response to the prosecutor’s statement that the expert could not reach any
conclusion, the expert responded, “Correct. Our conclusion was an insufficient
amount of DNA was obtained from the sample to - - to obtain a complete DNA
profile.” In addition, cross-examination by defense counsel underscored the fact
that the DNA testimony regarding the silver handgun grip was of limited probative
value, and that no stains were visible from a second, small cutting from the jacket.
28
Mr. Gardner’s Arguments, Standard of Review and Legal Principles
Mr. Gardner argues the trial court abused its discretion in admitting evidence
related to an incomplete DNA profile from a swab taken from the murder
weapon—specifically, Ms. Moss’s testimony regarding her analysis of the profile
and charts presented to the jury to help it understand her testimony. He contends
that this evidence was irrelevant and substantially more prejudicial than probative.
“Our general rule is to grant broad deference to the trial court’s
determination of relevance, but we do not regard relevance as a particularly high
bar for the proponent of the evidence to clear.” Richardson v. United States, 98
A.3d 178, 186 (D.C. 2014) (citation omitted). Moreover, “[t]he probativity
threshold for purposes of admissibility is low: An item of evidence, to be relevant,
need only tend[] to make the existence or nonexistence of a fact more or less
probable than would be the case without that evidence.” In re L.C., 92 A.3d 290,
297 (D.C. 2014) (internal quotation marks and citations omitted). But, relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice it poses.” Johnson v. United States, 683 A.2d 1087,
1101 (D.C. 1996) (en banc). Trial judges have discretion in balancing probative
29
value and prejudice, and we will only reverse the trial court’s ruling for abuse of
discretion. Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000).
Discussion
Contrary to Mr. Gardner’s contention, the fact that an incomplete DNA
profile taken from the murder weapon matched his profile at two of the thirteen
loci typically analyzed for comparison (one of which only indicated the gender of
the donor—male, which would implicate almost half the world’s population) was
not irrelevant, given the low admissibility threshold regarding relevance. See In re
L.C., 92 A.3d at 297. Thus, neither Ms. Moss’s testimony nor the charts
illustrating her testimony were irrelevant, even though the DNA evidence of Mr.
Gardner’s connection to the silver gun was tenuous.
Similarly, the prejudicial effect of the analyst’s testimony and demonstrative
charts did not substantially outweigh their probative value. Ms. Moss clearly
testified that the handgrips profile was only a partial one, and that there were no
results for the majority of the thirteen loci. She also clearly articulated her
conclusion that there “was an insufficient amount of DNA . . . to obtain a complete
profile,” and that it was “common” to find a match at a single locus. The
30
government did not attempt to overemphasize the probative value of the charts,
which were presented to help the jury understand the expert’s testimony. The trial
court observed that Ms. Moss’ testimony was “hard to understand” because she
was “not an exact lay model of clarity.” Mr. Gardner does not explain why exactly
the jury, listening to this testimony and looking at the demonstrative charts, would
erroneously focus in on the two matches, rather than the eleven loci that show no
results whatsoever and the testimony that matching at two loci is “common.” In
short, we conclude that the trial court did not abuse its discretion in admitting Ms.
Moss’s testimony and the demonstrative charts.
Mr. Cunningham, and the Plea Agreement Instruction
Mr. Gardner complains that the trial court abused its discretion and
committed reversible error not only when it refused to allow him (Mr. Gardner) to
testify about his knowledge of Mr. Cunningham’s reputation as a snitch, but also
when it denied his request for the plea agreement instruction.24 He contends that
24
During Mr. Gardner’s testimony for the defense, he stated that he would
not tell Mr. Cunningham anything about his case, and that “there was a lot of
things . . . being said about [Mr. Cunningham] around the jail.” When defense
counsel asked, “What were those things[,]” the prosecutor objected; the trial court
sustained the objection and instructed Mr. Gardner not to respond.
31
“if he had been able to tell the jury that he knew of [Mr.] Cunningham’s reputation
as a jail house snitch, the jury might well have rejected [Mr.] Cunningham’s
testimony entirely, and the outcome of the case might have been different.” He
claims that the plea agreement instruction (indicating that “[t]he testimony of a
witness who has entered into a plea agreement should be considered with caution”)
“was important to balance the prejudice caused by the tacit implication that the
government and its agents believed [Mr.] Cunningham’s account, and had
therefore been willing to show him considerable leniency, despite his long and
troubled criminal history.”
“A decision on the admissibility of evidence . . . is committed to the sound
discretion of the trial court, and we will not disturb its ruling absent an abuse of
discretion.” Smith v. United States, 665 A.2d 962, 967 (D.C. 1995) (citations
omitted); see also Matthews v. United States, 892 A.2d 1100, 1105 (D.C. 2006)
(the decision whether to allow impeachment is committed to the sound discretion
of the trial judge). Furthermore, “[t]he trial court has broad discretion in
formulating jury instructions, and its refusal to grant a request for a particular
instruction is not a ground for reversal if the court’s charge, considered as a whole,
fairly and accurately states the applicable law.” Jung v. George Washington Univ.,
875 A.2d 95, 110 (D.C. 2005) (internal citations and question marks omitted).
32
Even assuming that the trial court should have permitted Mr. Gardner to
explain why he would not have talked to Mr. Cunningham at the jail, and what Mr.
Gardner meant by his statement that “there was a lot of things going on, being said
about [Mr. Cunningham] around the jail,” we conclude that Mr. Gardner suffered
no prejudice when the trial court directed him not to respond to his counsel’s
question, “What were those things.” Defense counsel’s extensive and rigorous
cross-examination of Mr. Cunningham, before Mr. Gardner testified, brought out
information about his (Mr. Cunningham’s) reputation as a snitch. Defense counsel
established, and Mr. Cunningham agreed, that “snitch” refers to someone “who
testifies against another person to try to get their sentence reduced.” Defense
counsel also elicited an admission from Mr. Cunningham that “starting back in
1988, [he] was branded as a snitch,” and he had been placed in a special unit next
to the jail, with people who help the prosecution, or in maximum security when he
served time in prison. Defense counsel brought out Mr. Cunningham’s admission
that he heard about Mr. Gardner’s case on television in 2004, after he had been
released from prison in mid-September 2004. He admitted that he was charged
with two robberies, and that after pleading to one count he began cooperating with
the government in another case. As a result he received only a 24 month sentence,
even though he could have received fifteen years for robbery, given his long
criminal record. After that sentence, he acknowledged that he was once again
33
placed in the special unit for cooperating witnesses, and subsequently met Mr.
Gardner. He acknowledged that he was “hoping that the [g]overnment [would]
help him get out of jail again.” Defense counsel emphasized this impeachment
evidence during closing argument. In short, defense counsel cast serious doubt on
Mr. Cunningham’s credibility and reliability as a witness. Mr. Gardner’s
testimony that he would not have talked to Mr. Cunningham about his case
because of his reputation as a snitch would have been, at most, a small addition to
the impeachment of Mr. Cunningham, and not a significant contribution to
enhancing Mr. Gardner’s own credibility with respect to his account of Mr.
Kamara’s murder.
With respect to defense counsel’s request for the plea agreement instruction,
Mr. Cunningham had no plea agreement with the government, as trial counsel
conceded. Thus, strictly speaking, there was no evidence supporting this request,
and Mr. Gardner was not entitled to the requested instruction. See Fearwell v.
United States, 886 A.2d 95, 101 (D.C. 2005) (“[A] party is entitled to a requested
instruction only if there is evidence in the record to support the request.”).
Moreover, the trial court gave general instructions regarding witness testimony that
the jury could have applied to completely disregard Mr. Cunningham’s
34
testimony.25 Under these circumstances, we discern no abuse of discretion. See
Jung, supra, 875 A.2d at 110.
Limitation of Officer Craiger’s Cross-Examination
The Factual Context
Officer Craiger testified at Mr. Gardner’s first trial, in 2006. Prior to his
testimony, the prosecutor, with defense counsel present, represented to the trial
25
Specifically, the trial court instructed the jury as follows:
In reaching a conclusion as to the credibility of any
witness, you may consider any matter that may have a
bearing on the subject. You may consider . . . whether
the witness has any motive for not telling the truth, . . .
[and] whether the witness has any interest in the outcome
of this case . . . .
***
You may consider the reasonableness or
unreasonableness, the probability or improbability of the
testimony of a witness in determining whether to accept
it as true and accurate.
***
If you believe that any witness has shown himself or
herself to be biased or prejudiced for or against either
side in this trial, you may consider and determine
whether such bias or prejudice has colored the testimony
of the witness so as to affect the desire and capability of
that witness to tell the truth.
35
court that Officer Craiger was “unaware that he’s being investigated by the U.S.
Attorney’s Office for unlawful force,” but that he was aware that he had been
under investigation by MPD. The prosecutor declared that the MPD investigation
had been “clearly resolved” with Officer Craiger “receiv[ing] no suspension.” As
a result of a post-trial motion filed by Mr. Gardner following his conviction at his
first trial, it became clear that the prosecutor had inaccurately stated the status of
the excessive force complaint against Officer Craiger.
However, during a hearing on April 25, 2007, the trial court found that the
misinformation was not intentional, and that there was “an innocent
misunderstanding in the communications between the prosecutor and the police
officials and the police union attorneys, including the general counsel.” The court
further determined that Officer Craiger’s trial testimony was “a very small piece in
the government’s chain” of evidence, that “the only material points that Officer
Craiger testified to are corroborated by everyone else, with one exception.” That
exception was Officer Craiger’s testimony that he “heard a male voice saying he
needed to get the stuff off him.” The court rejected the defense argument that “the
lack of DNA on [Mr. Gardner’s] jacket” was attributable to Mr. Gardner’s washing
it off in the shower. The trial court found that there was “a significant amount of
36
rain” and the jacket had been left outside in the rain. The court also indicated that
despite the rain, Mr. Kamara’s “DNA was on the defendant’s jacket.”26
During cross-examination at Mr. Gardner’s second trial, in 2011, defense
counsel sought to show that Officer Craiger was not a credible witness because of
two investigations of complaints against him, one for harassment and the other for
excessive use of force. After objection by the prosecutor, the trial court limited the
defense questions to the official finding that Officer Craiger harassed someone and
MPD reprimanded him. Officer Craiger testified that MPD had investigated him
for harassment.
Officer Craiger admitted that he had been under investigation in November
2006, during Mr. Gardner’s first trial, for excessive use of force, but he asserted
that the complaint against him “was ultimately withdrawn and [he] served no
suspension days whatsoever.” He claimed that he was offered a ten-day
suspension but that “the case was completely withdrawn all together,” and that “all
complaints were taken away, so [he] served no suspension days, no disciplinary
action in reference to that incident.” Defense counsel pressed Officer Craiger as to
26
The DNA expert actually testified that the stain on the jacket included a
mixture of DNA from at least two individuals, and that Mr. Kamara could not be
excluded as the “possible predominant donor to this mixture.”
37
whether he told the prosecutor during Mr. Gardner’s first trial that he had been
“totally cleared without any administrative hearing.” Officer Craiger responded
that he did not recall what he had told the prosecutor five, six years ago. Defense
counsel asserted, “the fact is you weren’t totally cleared, is that right?” The trial
court sustained the prosecutor’s objection. When defense counsel sought a bench
conference, the trial judge stated, “No, let’s move on to something else.” After
further discussion between counsel and the trial judge, the judge declared that
defense counsel established that Officer Craiger was facing disciplinary
proceedings at the time of the previous trial, showing potential for bias, and thus,
defense counsel had “gotten all [he was] entitled to.”27
27
When defense counsel later continued to argue that he should be allowed
to impeach Officer Craiger with a December 2006 document that he signed,
indicating that “he was not cleared” but had been given a ten-day suspension
without pay and placed on probation, the trial court declared that “what matters [is]
if [Officer Craiger’s] knowingly lying.” The trial judge asked the prosecutor to
“look into” the matter, and “if there’s no good explanation” for Officer Craiger’s
statement, then he would allow defense counsel to “do it” (apparently meaning to
allow defense counsel to ask Officer Craiger about the document he signed in
December 2006). The following day, defense counsel again broached the issue of
Officer Craiger’s December 2006 signed settlement document. The trial court
asserted that Officer Craiger did not say that the excessive force investigation “was
all over at the time of [Mr. Gardner’s first] trial.” Rather, Officer Craiger was
referring to “the final resolution” of the excessive force complaint.
38
The Parties’ Arguments
Mr. Gardner contends that the trial court violated his Confrontation Clause
rights by limiting defense counsel’s cross-examination of Officer Craiger as to “his
bias and his unreliability as a witness.” Mr. Gardner claims that “exposing the
timing of [Officer] Craiger’s disciplinary proceedings and [Mr.] Gardner’s first
trial would have established that [Mr.] Craiger had a strong motive to exaggerate
his testimony to help convict [Mr.] Gardner.” Moreover, Officer Craiger’s
inaccurate statement that he had been “totally cleared” of the pending charges,
would have undermined his reliability as a witness in general.” Mr. Gardner
further asserts that “it cannot be said that foreclosure of a full cross-examination
was harmless” under constitutional harmless error standard. He argues that Officer
Craiger’s “testimony was an important piece in the government’s theory that [Mr.]
Gardner was the shooter and that absence of more blood or biological material on
[Mr.] Gardner’s person and clothes was explained by the fact that he washed it off
in the motel room.” The government maintains that the trial court did not commit
error, but that “[e]ven if it had erred, such error was harmless under any standard
of review,” that is, constitutional or nonconstitutional harmless error.
39
Applicable Legal Standards and Principles
“[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) (internal citation and quotation marks omitted). As a result, “trial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.”28 Id.28
“When a defendant claims that his right to cross-examination was
improperly restricted, our standard of review depends on whether the trial court has
permitted sufficient cross-examination to comport with the requirements of the
Sixth Amendment right to confrontation.” (Marques) Johnson v. United States,
118 A.3d 199, 204 (D.C. 2015) (internal citations and quotation marks omitted). If
appellant was “wholly deprived . . . of any opportunity to cross-examine a witness
or present evidence concerning bias or a central issue in the case, we may only
affirm if we are convinced that the error was harmless beyond a reasonable doubt.”
Id. (internal citations and quotation marks omitted). If, however, “the trial court’s
limitation of . . . cross-examination d[oes] not violate the Sixth Amendment[, we]
review only for abuse of discretion.” Id. In the latter circumstance, we also review
any error under the “less stringent test for harmless error set forth in Kotteakos v.
United States, 328 U.S. 750, 765 (1946).” Clark v. United States, 639 A.2d 76, 82
(D.C. 1993).
40
Discussion
Even assuming that the trial court erred by not allowing defense counsel to
pose additional questions as to whether Officer Craiger was “totally cleared” of the
excessive force accusation, we conclude that the error was harmless under the
constitutional and nonconstitutional harmless error standards.29 Defense counsel
conducted a rigorous and effective cross-examination of Officer Craiger by
bringing out the following. At the time of Mr. Kamara’s murder, Officer Craiger
was assigned to MPD’s auto theft unit and did not normally work homicides.
Officer Craiger listened outside of Room 114 at the Motel 6 for twenty to thirty
minutes but made no effort to obtain a search warrant. Upon entering and
examining Room 114, Officer Craiger saw no blood in the room – on towels or on
the floor. He took no notes on the conversations he heard inside the room before
he went in, even though he acknowledged that homicides are perhaps the most
29
Officer Craiger also acknowledged that the excessive force investigation
was pending during Mr. Gardner’s first trial in November 2006. He also gave his
view as to the conclusion of the investigation, including that he “served no
suspension days, no disciplinary action in reference to that incident.” When asked
whether he had told the prosecutor during the first trial that he was “totally cleared
without any administrative hearing,” Officer Craiger said he did not “recall exactly
what [he] said [to the prosecutor]. It’s been five, six years ago.” When defense
counsel pressed the point by saying, “Well, the fact is that you weren’t totally
cleared, is that right,” the prosecutor objected and the trial court sustained the
objection.
41
serious types of crimes investigated by the MPD. Nor did Officer Craiger fill out
any witness statement form, or testify before the grand jury. In fact, he did not
testify about what he heard while listening at the door of Room 114 until two years
later, at Mr. Gardner’s first trial.
We see no reason to disturb the motions judge’s finding on April 25, 2007,
that Officer Craiger’s testimony “is a very small piece in the government’s chain”
of evidence. Officer Craiger’s testimony established, at most, three things: (1) Mr.
Gardner said he was amped up and needed to get stuff off of him; (2) the shower in
Room 114 was running; and (3) there was the sound of metal sliding on metal that
Officer Craiger thought sounded like someone sliding a gun rack. We are
convinced that this testimony presented minimal prejudice to Mr. Gardner. The
first two pieces of Officer Craiger’s testimony had minimal significance in light of
Mr. Gardner’s own testimony placing himself in Mr. Kamara’s cab at the time of
the murder, and confirming that after the murder, he got out of the cab, ran down
the same alley, close to the Motel 6, where Ms. Ball saw a young man running
after he exited the cab, and the same alley where the police found the silver gun
linked to Mr. Kamara’s murder; Mr. Gardner had the alleged third person (who
allegedly murdered Mr. Kamara) running away from the direction of the Motel 6.
Both Ms. Dean and Mr. Arkoful testified about Mr. Gardner’s arrival at the motel
42
(after the murder) in an agitated or hurried state. Officer Craiger’s testimony about
the sound he heard that appeared to be that made by someone sliding a gun rack
was minimized by the fact that the black gun that Mr. Gardner dropped out of the
window of Room 114 was not loaded; it was also minimized by Ms. Dean’s grand
jury testimony that earlier on the day of Mr. Kamara’s murder, Mr. Gardner
showed her a “[s]ilver, chrome” gun with either a black handle or “a black strip on
the front.” In short, Officer Craiger’s testimony was minimally prejudicial to Mr.
Gardner.
Weighed against this minimal prejudice is the government’s strong and
compelling case, as indicated by (1) the testimony set forth (in the factual summary
section of this opinion) of Ms. Ball, Ms. Dean, Mr. Arkoful, Officer Boria, and
police cadet Butuche, and (2) the reasonable inferences that reasonable jurors
could draw from that evidence. We summarized the strength of the government’s
case earlier in this opinion. In sum, in light of the government’s strong and
compelling evidence against Mr. Gardner, compared to the minimal significance of
Officer Craiger’s testimony, we are persuaded that any error by the trial court in
limiting cross-examination of Officer Craiger would be harmless under the
constitutional and nonconstitutional harmless error standards.
43
The Impeachment of Mr. Gardner with His Statement to the Police
The Parties’ Arguments
Mr. Gardner argues that the trial court erred in finding that his initial
statement to police after his arrest was voluntary and in consequently allowing the
government to use it to impeach his testimony. He relies largely on the length of
his detention (more than thirteen hours post-arrest); the fact that he was shackled in
a small (eight feet by eight feet), cold room wearing nothing but a paper suit; the
failure of police to feed him for hours after he initially requested food; and his own
behavior during his statement, including shivering, sniffling, crying, and his
expression of a desire to go home. The government argues that Mr. Gardner’s will
was not overborne, and hence, his statement was not the product of coercion; the
government respected his initial invocation of his right to silence; the police never
told Mr. Gardner that they were withholding food until he responded to their
questions; the police turned off the vent when they saw Mr. Gardner shivering; and
Mr. Gardner’s statement to the police was not involuntary.
44
Applicable Legal Standard and Principles
“Voluntary statements are admissible to impeach a defendant’s trial
testimony.” United States v. Turner, 761 A.2d 845, 853 (D.C. 2000). Although
the government must prove voluntariness by a preponderance of the evidence and
we review the trial court’s finding of voluntariness de novo and supporting factual
findings “for clear error,” we also view the evidence in the light most favorable to
sustaining the trial court’s ruling. Id. To determine whether a statement is
voluntary, we look to “whether, under the totality of the circumstances, the will of
the suspect was overborne in such a way as to render his confession the product of
coercion.” Id. at 854 (internal alteration, citations, and quotation marks omitted).
The factors we examine “in determining voluntariness include the circumstances
surrounding the questioning, the accused’s age, education, and prior experience
with the law, his physical and mental condition at the time the statement was made,
other factors showing coercion or trickery, and the delay between the suspect’s
arrest and confession.” Id. (citation omitted).
45
Discussion
Mr. Gardner was held for a long time with no apparent police activity,
primarily because he was left alone to sleep off his drug-induced high for hours.30
It was not until over ten hours into his confinement that he was found by the lead
detective to be awake and responsive. Although his request for food was not
immediately granted, he was not led to believe it would not be honored unless he
gave a statement, and he did not renew his request prior to or during his statement
to police. Moreover, it was Mr. Gardner who indicated he wished to talk with
police,31 and he waived his rights in writing.
Throughout the questioning by the detectives, Mr. Gardner admitted being in
Mr. Kamara’s cab, and being with his brother and Ms. Dean, but denied having a
gun and denied shooting Mr. Kamara, even though the detectives accused him of
30
After about two hours of being alone, he was awakened; his eyes were
glassy. He asked for a lawyer, and was given his Miranda warnings. The police
posed no questions about the case and he continued sleeping.
31
Indeed, the police did not in any way attempt to interrogate Mr. Gardner
until he indicated his desire to talk, materially distinguishing this case from Dorsey
v. United States, 60 A.3d 1171, 1178-86 (D.C. 2013), on which Mr. Gardner
heavily relies. Mr. Gardner again was given his Miranda rights before any
questions were posed about the case; he waived his rights. After about forty
minutes of questioning, Mr. Gardner invoked his right to stop talking and the
session ended.
46
lying, told him that a lot of people had witnessed him shooting Mr. Kamara, that
blood was on the jacket he threw out of the motel window, and further accused him
of not coming to the door of Room 114 but instead jumping out of the motel
window, because he knew he had shot Mr. Kamara. Mr. Gardner maintained that
while he was getting money out of his pocket to pay the cab driver, a man pointed
a gun at him and demanded his money. He struggled with the man, grabbed his
arm, and tried to make him drop his gun. The cab driver attempted to speed off but
the man shot him.32
We conclude that Mr. Gardner’s statement was not involuntary. During his
statement, when police saw him “shaking” from cold, they “turned the vent off.”
Further weighing against Mr. Gardner are the facts that (1) he had previous
32
During cross-examination of Mr. Gardner at trial, the prosecutor used the
2004 police interview in an attempt to impeach Mr. Gardner about the following:
(1) his failure to tell the police that he put the money he pulled out to pay Mr.
Kamara back in his pocket (no money was found in the taxi after Mr. Kamara’s
murder); (2) the failure to tell the police that the alleged third person pointed the
gun at Mr. Kamara rather than at Mr. Gardner (at trial Mr. Gardner testified that
the gun was pointed at Mr. Kamara when he, Mr. Gardner, grabbed the third
person’s arm); (3) the directions in which the third person and Mr. Gardner ran
after Mr. Kamara was shot (during the police interview Mr. Gardner said he did
not know in which direction he ran when he left the cab but he testified at trial that
he ran through the alley); (4) although Mr. Gardner stated at trial that when he
returned to the motel, he told his brother that someone tried to rob him, he told the
police in his 2004 statement that after he returned to the motel, he “just couldn’t
talk”; and (5) his 2004 denial that he had a black gun (at trial he stated that the
black gun was his).
47
experience with the criminal justice system, (2) he was a young adult at the time,
but not so young that he was easily influenced or intimidated by sitting alone and
sleeping in a room for hours, and (3) there is no evidence that police used any
physical or unduly coercive psychological tactics on him during his confinement.
Despite the police statements about other witnesses to Mr. Kamara’s murder and
assertions that none of these other witnesses saw a third person by the cab, Mr.
Gardner steadfastly denied that he had shot Mr. Kamara, and insisted that a third
party did the shooting. Considering the totality of these facts and circumstances,
we agree with the first trial judge that “there was not any type of involuntariness
that would result in a statement being precluded for all purposes.”33 In short, based
on our review of the police interview with Mr. Gardner, and the factual findings of
the trial court, we conclude that Mr. Gardner’s “will . . . was [not] overborne in
such a way as to render his confession the product of coercion,” Turner, supra, 761
33
In its initial ruling on October 25, 2006, on the motion to suppress, the
trial court focused solely on the delay in presentment, finding it to be unreasonable.
In making that finding, the court stated that “because of the unreasonable delay the
statements likewise are involuntary.” However, on November 7, 2006, the court
declared that it should not have used the word “involuntary,” that its finding was
confined to the delay in presentment. The court found “that there was nothing in
the conduct of the police that resulted in an involuntary statement in this case.”
Prior to the second trial, defense counsel also filed a motion to suppress Mr.
Gardner’s statements for all purposes. The motions judge essentially stated that he
was bound by the initial factual finding and the law of the case and denied the
motion after discussing it with defense and government counsel.
48
A.2d at 853; hence, the trial court did not err in allowing the government to use
Mr. Gardner’s statement to impeach his testimony at trial.34 Id.
Ineffective Assistance of Counsel
The Parties’ Arguments
Mr. Gardner contends that his trial counsel was constitutionally ineffective
because he failed to (1) cross-examine Mr. Watkins on the reliability of his expert
opinion;35 (2) object to police statements, during the November 2004 questioning
of Mr. Gardner, that there were witnesses to the shooting of Mr. Kamara, and that
no one mentioned a second man standing next to the cab;36 and (3) proffer a basis
34
In the next section of this opinion, Ineffective Assistance of Counsel, we
discuss Mr. Gardner’s arguments about the statements police made to him during
the 2004 police interview.
35
Mr. Gardner argues that his trial counsel was constitutionally ineffective
because he failed to cross-examine Mr. Watkins, on the reliability of his opinion,
by using the NRC Report (mentioned earlier in this opinion) to question him
“about the subjective nature of his conclusions, the lack of specified standards for
determining a match, the lack of safeguards against bias, or the lack of research
demonstrating the ability to determine the uniqueness of firearms evidence in the
first place.”
36
Mr. Gardner claims that his counsel rendered ineffective assistance of
counsel by failing to object to the admissibility of false statements made by the
(continued…)
49
for questioning Mr. Gardner about information given him concerning Mr.
Cunningham’s status as a snitch.37 The government contends that Mr. Gardner
failed to show “that any deficiency in counsel’s performance prejudiced him.”
(…continued)
police during his 2004 police interview. Specifically, he cites the following
statements: (1) “There’s people that saw the shooting occur, okay, and they don’t
say anything about a dude in a black hoody sticking a gun all the way across and
shooting the gun and running. They don’t say anything about that”; (2) “Now
explain it because people don’t say anything when the shooting occurs about a
dude standing next to the cab. Nobody says it. You’re the only one . . . .” Mr.
Gardner contends he was substantially prejudiced because these statements
“misinformed the jury on a critical point that directly contradicted and undermined
[his] account of the evidence, and no effort was made to correct the evidence.” He
maintains that the jury may not have known that police tactics such as lying,
trickery, or exaggeration “are generally permissible.” Hence, “the jury may well
have believed that the police officers’ statements as to [him] were true, and that
there were in fact witnesses to the shooting who contradicted his account that some
other person shot [Mr.] Kamara, even if such witnesses did not personally testify at
trial.”
37
Mr. Gardner complains that his trial counsel rendered ineffective
assistance by failing to make a proffer to the trial court about the relevance of an
unexpected answer to a question he posed to Mr. Gardner about his knowledge of
Mr. Cunningham’s reputation as a jailhouse snitch. He asserts that if he “had been
able to tell the jury that he knew of [Mr.] Cunningham’s reputation as a jailhouse
snitch, the jury might well have rejected [Mr.] Cunningham’s testimony entirely,
and the outcome of the case might have been different.”
50
Applicable Legal Standards and Principles
We review a trial court’s denial of a § 23-110 motion for abuse of discretion,
Wright v. United States, 979 A.2d 26, 30 (D.C. 2009), assessing the trial court’s
findings of fact for clear error and determinations on questions of law de novo,
Jenkins v. United States, 870 A.2d 27, 33-34 (D.C. 2005). A criminal defendant
claiming ineffective assistance of counsel “must prove both incompetence and
prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland
v. Washington, 466 U.S. 668, 688 (1984)). To prove incompetence, the defendant
must “show[] that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. To prove prejudice, the defendant must “show[] that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. Specifically, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “The likelihood of a different
result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.
86, 112 (2011) (citing Strickland, supra, 466 U.S. at 693). It is not essential to
examine both the performance and the prejudice prongs of an ineffective assistance
claim. Strickland, supra, 466 U.S. at 697. “If it is easier to dispose of an
51
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.” Id.Discussion
As indicated, to establish ineffective assistance of counsel, Mr. Gardner
must prove both constitutionally deficient performance by counsel and prejudice.
However, as Strickland makes clear, “a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.” Id. at 697. In light of that
legal principle, as well as the record before us, we need not determine whether Mr.
Gardner’s trial counsel rendered constitutionally deficient representation because
we are convinced that Mr. Gardner has not shown a reasonable probability or a
substantial likelihood that the outcome of the proceeding against him would have
been different. See Harrington, supra, 562 U.S. at 112.
First, we are unable to conclude that cross-examination of Mr. Watkins by
using the NRC Report, in place of the trial strategy that defense counsel followed
to discredit Mr. Watkins’ unqualified opinion, would have produced a different
result in Mr. Gardner’s trial. As the trial judge declared in ruling on Mr. Gardner’s
52
D.C. Code § 23-110 motion, Mr. Gardner’s trial counsel “effectively counter[ed]
the conclusions presented by the expert witness, and there is no assurance that the
trial strategy that [Mr. Gardner] now proposes would have been any more
effective.” In particular, our review of defense counsel’s cross-examination of Mr.
Watkins shows that he was particularly effective in focusing on the mass
production of reloaded bullets and getting Mr. Watkins’ agreement that “there
could potentially be millions of reloaded bullets with the same marking,” and that
he could not “say at all how many bullets were made with the[] particular
markings” that characterized the ballistics evidence in this case. More important to
the outcome of this case was the other strong and compelling evidence tying Mr.
Gardner to the silver gun, evidence that we recounted earlier in this opinion.
Therefore, in light of the strength of the government’s case against Mr. Gardner,
even if we were to determine that defense counsel’s failure to use the NRC Report
to cross-examine Mr. Watkins constituted an unprofessional error, we could not
conclude that the error was “ so serious as to deprive [Mr. Gardner] of a fair trial, a
trial whose result is reliable,” Strickland, supra, 466 U.S. at 687, or that “there is a
reasonable probability” that the outcome of Mr. Gardner’s trial “would have been
different.” Id. at 694.
53
Second, we agree with the trial court’s analysis of the specific interview
statements made by the police that the prosecutor used to impeach Mr. Gardner,
and the court’s conclusion in its § 23-110 order that “[a]ny possible prejudice . . .
does not rise to the level of ineffective assistance.” The motions judge, who also
presided over Mr. Gardner’s 2011 trial, found that “[t]he statements were but a
brief part in a lengthy cross-examination and were introduced to contextualize [Mr.
Gardner’s] responses.” Importantly, “[t]he jury was instructed not to consider
information introduced for impeachment purposes as evidence.” As the motions
judge found, “[t]he statements were never again raised or alluded to during the
course of the trial, and neither party’s closing statement made any mention of
them.” Given the trial court’s instruction to the jury, we agree that “the jury could
not have reasonably interpreted the [police interview] statements as evidence of the
truth” that there were in fact other witnesses to Mr. Kamara’s murder. In short, we
agree with the motions judge that “there is no reason whatsoever to think that [Mr.
Gardner] was prejudiced by the[] introduction” of the identified statements at
trial.”
Third, as we indicated earlier in this opinion, in response to defense
counsel’s question on cross-examination, Mr. Cunningham explicitly admitted that
he had a reputation for being a jailhouse snitch. Thus, Mr. Gardner’s testimony
54
that he knew of Mr. Cunningham’s reputation as a snitch would have had at most a
small, incremental impeachment effect on Mr. Cunningham’s testimony.
Moreover, we perceive no likelihood of sufficient prejudice because Mr. Gardner’s
assertion that he knew of Mr. Cunningham’s reputation as a snitch would have
been unsubstantiated. In short, we are convinced that Mr. Gardner has failed to
satisfy the prejudice prong of his ineffective assistance of counsel claim.38 See
Strickland, supra, 466 U.S. at 687.
Accordingly, for the foregoing reasons, we affirm Mr. Gardner’s convictions
for first-degree felony murder while armed and the related PFCV and CPWL
38
Mr. Gardner argues that that the cumulative effect of the alleged errors,
preserved and unpreserved, requires reversal of his convictions. “‘[I]ndividual
errors, not warranting reversal, may when combined so impair the right to a fair
trial’ that reversal is required.” Smith v. United States, 26 A.3d 248, 264 (D.C.
2011) (quoting Foreman v. United States, 792 A.2d 1043, 1058 (D.C. 2002)). To
determine whether reversal is warranted, we evaluate “whether the cumulative
impact of the errors substantially influenced the jury’s verdict.” Id. (internal
quotation marks omitted). In making this evaluation, we weigh “the significance
of the alleged errors and their combined effect against the strength of the
prosecution’s case.” Id. (internal quotation marks omitted). See also Hagans v.
United States, 96 A.3d 1, 44 (D.C. 2014) (discussing mixed alleged errors – such
as preserved constitutional, preserved non-constitutional, and unpreserved errors).
We have concluded that virtually all of the alleged errors in this case, or errors that
we have assumed arguendo, require no reversal. As we said in Hagans, “[o]ur
assessment of the strength of the government’s case and the innocuousness (as we
have discussed) of the few errors we have found or assumed arguendo convinces
us that, even in combination, and even applying [a constitutional harmless error]
standard across the board, there is no reasonable possibility the errors affected the
outcome of [Mr. Gardner’s] trial.” Id. at 44 (footnote omitted).
55
convictions, but we 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.
So ordered.