Wonson v. United States
Wonson v. United States
Concurring Opinion
concurring:
The majority opinion does not decide whether the trial court abused its discre
“It is generally recognized that tangible objects become admissible in evidence only when proof of their original acquisition and subsequent custody forges their connection with the accused and the criminal offense.” (Dawayne) Brooks v. United States, 717 A.2d 323, 328 (D.C. 1998) (quoting Gass v. United States, 416 F.2d 767, 770 n. 8 (D.C.Cir. 1969)); see generally 2 McCoRmick on Evidence § 213 (7th ed. 2013) [hereinafter 2 McCormick on Evid. § 213] (providing background on chain of custody). A trial court has “broad discretion” when deciding whether to admit physical evidence. Plummer, 43 A.3d at 272. But before a court may admit tangible items proffered by the government, the government must address two related concerns.
First, the government must establish that the objects are genuine — i.e., that the proffered evidence is what the government says it is.
Second, the government must establish the integrity of the evidence — i.e., that the evidence has not changed in material ways. See Ford v. United States, 396 A.2d 191, 194 (D.C. 1978) (a trial court “must be satisfied” that an article the government seeks to move into evidence “has not been changed in important aspects” (quoting United States v. S.B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943))); accord Fleming, 923 A.2d at 836; Gilmore v. United States, 742 A.2d 862, 871 (D.C. 1999). “This determination is made in light of the ‘nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it.’ ” Gilmore, 742 A.2d at 871 (quoting Ford, 396 A.2d at 194).
The government may satisfy these dual concerns by establishing an unbroken chain of custody. Once it does so, courts afford the government the benefit of “an evidentiary presumption” that it properly handles and suitably preserves the evidence over which it maintains continuous custody and control. Plummer, 43 A.3d at 272 (“[W]hen physical evidence is in the hands of the government, the presumption arises that, it has been handled properly.” (quoting In re D.S., 747 A.2d 1182, 1187
To gain the benefit of this presumption and its burden-shifting framework, the government must establish an unbroken chain of custody by a “reasonable probability.” Plummer, 43 A.3d at 272. Absent proof, by a reasonable probability that challenged evidence was in the government’s continuous custody and control, the trial court generally must exclude the proffered evidence.
In its brief to this court, the government argues that a break in the chain of custody affects “only” the weight of the evidence, not its admissibility. This is incorrect. It is true that, “normally,” the government establishes a chain of custody by a reasonable probability, and whatever imperfections remain “go to the weight of the evidence rather than its admissibility.” (Herbert) Brooks v. United States, 993 A.2d 1090, 1094 (D.C. 2010) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)). After all, the government may be able to prove an unbroken chain of custody by a reasonable probability but unable to satisfy a higher standard of proof. Thus, in Plummer, this court explained that, because the government, had presented sufficient evidence that it had maintained continuous custody and control over the physical evidence in question, “[a]ppel-lant’s chain of custody concerns therefore go not to. the admissibility of the evidence, but instead to the weight that it could be given.” 43 A.3d at 273 (emphasis added). The clear implication of Plummer — which aligns with the other decisions binding on this court discussed above and with the MPD’s understanding of the import of chain of custody
Turning to the particular facts of this case, the government clearly failed to establish by a reasonable probability that it had maintained an unbroken chain of custody over the proffered ballistics material. To-be sure, the government presented evidence that Mr. Turner collected cartridge cases and a live round of ammunition from the scene of the shooting. And it presented evidence that ballistics material was later examined and engraved by the firearms and toolmark examiner, Mr. Mulderig. But between those events there was an eviden-tiary void. This void precluded a determination by a reasonable probability that’ the government maintained continuous custody and control of this ballistics material prior to trial and in fact suggests that the government lost track of it entirely for a period of time after its collection and before its examination.
Notably the trial court admitted the ballistics material after hearing relevant testU mony from only Mr. Turner. But Mr. Turner did not provide information sufficient to support a determination by a reasonable probability that the government maintained continuous custody and control over these items.
In ruling that the bállistics material was admissible after hearing Mr. Turner’s testimony, the trial court determined it was sufficient that these items had, at some point, been “stored in a police property office,” because “the presumption here” is that the office “preserve[s] the property.” But the trial court overlooked the government’s failure to present any evidence explaining when the police property office took possession of the ballistics material or how the material got there. Cf. Gilmore v. United States, 742 A.2d 862, 872 (D.C. 1999) (holding that the trial court did not abuse its discretion by rejecting, a defendant’s chain of custody challenge, despite an officer’s , “plainly careless” handling of an object recovered from the crime scene and his inability to locate the object for eight months, because the officer eventually found the object in his evidence locker and “was able to account for its whereabouts during the entire time. period”). Effectively, the trial court gave the government the benefit of a double presumption: it presumed both that the government maintained .continuous custody and control over the ballistics material and that it properly handled and preserved these items. By presuming too much, the trial court relieved the government of its burden of establishing the admissibility of the proffered, evidence.
As a coda to the above analysis, it should be noted that the admission of the ballistics material was not contingent on the government’s subsequent presentation of other chain-of-custody evidence. But even if it had been, none was .forthcoming. To the contrary,- the missing links in the government’s chain of custody were revealed more starkly. Because the ballistics material was last seen in the possession of Mr. Hammett, the government needed to explain what .Mr. Hammett did with it. But to avoid a damaging cross-examination about Mr. Hammett’s termination for mislabeling arid mishandling evidence, the government opted not to forge the next link in the chain by calling Mr. Hammett
Instead, the government presented the testimony of Mr. Mulderig, who testified that he examined some ballistics material in “[ajpproximately June of 2000.” See supra note 19. Mr. Mulderig said nothing about where these items came from (because the government never asked him). The only certainty is that Mr. Mulderig did not get these items from Mr. Hammett. Mr. Mulderig’s report notes that the cartridge cases and the live round of ammunition were “personally delivered” by “Technician Elizabeth Sharp-Hamlet” on the day after the shooting. But Ms. Sharp-Hamlet’s role in the investigation is a complete unknown: she did not testify, no witness mentioned her, and her name is absent from every other document admitted at trial. Thus, there is no way to discern from this record who she was, where she obtained the ballistics material from, or whom she “personally delivered” it to.
In sum, whether one starts with Mr. Turner’s collection of ballistics material and moves forward to Mr. Hammett, or whether one works backward from Mr. Mulderig’s receipt of ballistics material from Ms. Sharp-Hamlet, one reaches a point where one cannot connect the dots— a point where one must conclude that the government’s chain of custody was simply “insufficiently proved.” Turney, 626 A.2d at 874. To provide sufficient proof, the government need not “call to the stand every witness who may have handled a piece of evidence,” Mejia, 597 F.3d at 1336 n.4, but it must construct a foundation far stronger than the one in this case. Given the clear break in the chain of custody, the trial court abused its discretion by admitting the proffered ballistics material,
. Demonstrating that an object is what a party says it is may also be referred to as establishing "authenticity/’ but that term can also have broader meaning. See 2 McCormick on Evid. § 213 (explaining that "authentication" of non-unique crime scene evidence may require proof both that it was found at the crime scene and that the object "has neither been exchanged nor altered” "from the moment it was found to its appearance in the courtroom”). Moreover, "authenticity” risks confusion with Federal Rule of Evidence 901, which this court has not adopted. See supra note 17.
. See also 2 McCormick on Evid. § 213 (explaining that to establish the admissibility of physical evidence, the proponent typically "traces the chain of custody of the item from the moment it was found to its appearance in the courtroom, with sufficient completeness to render it reasonably probable that the original item has neither been exchanged nor altered”).
. As a practical matter, the government's inability to demonstrate an unbroken chain of custody by a reasonable probability may result in the exclusion of its proffered evidence. But the government may still seek to establish the genuineness and integrity of the evidence directly. See infra.
. Novak is binding on this court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
. In its general order addressing the collection of physical evidence, the MPD acknowledges that "[t]he admissibility of evidence in a court of law will depend, in large part, on the . manner in which the evidence was collected, and the precautions taken to ensure, its integrity.” Metropolitan Police Department, General
. Isolated sentences in this court’s opinions in Hammond v. United States, 77 A.3d 964, 970 (D.C. 2013), Garcia v. United States, 897 A.2d 796, 801 (D.C. 2006), and In re D.S., 747 A.2d 1182, 1187 (D.C. 2000), superficially support the government's argument because these sentences omit the critical qualifier, employed by the Supreme Court and endorsed by this court, that chain of custody deficiencies "normally” go to the weight of the proffered evidence. But far from exposing substantive conflict within our precedent, it appears this omission is attributable solely to inexact citation.
Indeed, for the proposition that a bréale in the chain of custody affects only- weight not admissibility, Hammond and Garcia both cite to In re D.S., which in turn cites to Tumey, But Tumey contains no limitation on the import of a break in the chain of custody; instead, as noted above, it approvingly cites cases where courts held that evidence was improperiy admitted because the government failed to .sufficiently prove an unbroken chain of custody. See Turney, 626 A.2d at 874-75. Garcia also cites to Key v. United States, 587 A.2d 1072 (D.C. 1991), which in turn relies on Bartley v. United States, 530 A.2d 692 (D.C. 1987), and Morrison v. United States, 417 A.2d 409 (D.C. 1980). But neither case involved a challenge to the government’s proof of chain of custody, and the cited passages in these two cases address only the sufficiency of the evidence regarding the operability of a weapon. • .
. At.least initially, the court recognized the deficiencies in Mr. Turner's testimony regard- . ing chain of custody and twice denied premature motions from the government to admit ballistics material into evidence. The government made the first motion without having elicited any evidence about chain of custody from Mr. Turner — indeed, without eliciting any evidence that his crime-scene search team had taken possession of ballistics material at,the scene. The government made the second motion having established only that ballistics material was collected by the crime-scene search team but having elicited no testi
. Mr. Turner’s testimony that this evidence should have been documented is consistent with MPD General Order 304.08, supra note 6, which provides that the "crime scene examination section supervisor” is "responsible for ... [m]aintaining an appropriate file documenting actions taken at all crime scenes,” including "[a] complete inventory of all items taken as evidence” as well as "[t]he results of any examination made of such evidence.” Id. at 13.
. As noted above, a break in the chain of custody does not require exclusion of physical evidence if the government can establish its genuineness and integrity by other means. See supra note 3; see also, e.g., Mejia, 597 F.3d at 1337 (D.C.Cir. 2010) (holding that the trial court did not abuse its discretion by admitting the government’s proffered document, notwithstanding a break in the chain of custody, because the government offered “substantial corroborative evidence tying the [document] to Mejia,” and "the brief (ten-minute) gap [in the chain of custody] ma[d]e[] implausible that it was planted, tampered with or misidentified.”).
But the government did not carry that burden here. That Mr. Mulderig engraved the ballistics material might resolve questions about genuineness and integrity after thát point, but it has no bearing on the break in the government’s chain of custody evidence that preceded Mr, Mulderig’s involvement. Mr. Turner’s testimony purporting to identify the live bullet in Exhibit 1 is also insufficient to justify admission of all of the ballistics material proffered by the government: his testimony concerned only one of the government’s forty-four exhibits. Even as to Exhibit 1, Mr. Turner never explained how it was possible for him to identify a single, fungible bullet; he did not even testify as to its make or caliber. Instead it appeared that he relied on its presence in the bag marked as Exhibit 1— a bag with a hole that Mr. Turner could not account for.
Opinion of the Court
Michael Wonson asks us to reverse his two murder convictions because the government failed to present evidence that it maintained custody over the ballistics evidence (multiple cartridge cases and one live round) admitted at trial. Although a crime-scene search technician testified that he collected these items at the scene, and a firearms and toolmark examiner testified that he examined these items, the government never explained how the items made their way from the former to the latter. Instead, the technician who collected the cartridge cases and the live round testified that he gave them to a supervisor who was later fired for mishandling and mislabeling evidence. And the firearms and toolmark examiner did not explain how or when he obtained the ballistics material he examined. In particular, he did not elaborate on a notation in his report indicating that this material had been “personally delivered” (to whom, the report did not specify) by a different crime scene technician who did not testify at trial.
We do not determine whether the proffered evidence should have been excluded because the admission of this evidence was harmless. The cartridge cases and the live round were only a peripheral part of the government’s case against Mr. Wonson. Unpersuaded by Mr. Wonson’s remaining arguments,
I. Background and Procedural History
A little before midnight on May 17,2000, two men in a black pickup truck drove up to Eastern Senior High School in Washington, D.C., where more than a dozen people were socializing. The men shot into the crowd, injuring Nakita Sweeney and killing both Charles Jackson and Ivory Harrison. A week later, Ronald Brisbon was arrested and gave a videotaped confession in which he admitted to participating in the shooting with another man, whom he identified by a nickname. After further investigation, including interviews with Dana Route, Mr. Brisbon’s former girlfriend, and with Michael Cobb, the man who sold Mr. Brisbon a black pickup truck
The government charged both Ronald Brisbon and Michael Wonson with (1) two counts of first-degree murder while armed,
At the 2012 trial, the government called Mr. Brisbon as a witness,
At the conclusion of trial, the jury convicted Mr.' Wonson on all counts, and the judge sentenced him to seventy years to life imprisonment, with a mandatory minimum of sixty -years imprisonment. This appeal followed. ■
II. Admission of the Ballistics Evidence
Mr. Wonson argues that the trial court erred by admitting the proffered ballistics material because the ■ government failed to establish an unbroken chain of custody. We review the trial court’s admission of physical evidence for abuse of discretion. See Plummer v. United States, 43 A.3d 260, 272 (D.C. 2012). In order to reverse, however, we must conclude that any abuse of discretion was not harmless. See Travers v. United States, 124 A.3d 634, 638-41 (D.C. 2015).
A. Facts
The ballistics material was admitted over repeated objection during Mr. Turner’s testimony. Mr. Turner testified that
During Mr. Turner’s testimony, the government asked him to examine two bags marked as Exhibits 1 and 2.
As soon as he did so, the government moved to admit these two exhibits into evidence; Defense counsel objected, however, noting that there was “a hole in the bag” marked as Exhibit 1. Without disagreement from the government, counsel represented that the hole was big enough for a bullet to fit through. She expressed concern about “the one round that they’re saying is the misfired bullet” because “there was a hole in the bag and they placed the piece of tape on top of it.”
With some prompting, from the court,
Having presented this additional testimony, the government again requested admission of Exhibits 1 and 2, as well as Exhibits'3 through'44, over defense counsel’s objection. Otit of the presence of the jury, the court again refused to admit the evidence, observing, “I’m at the office [the mobile crime lab] now, I’ve got 11 years to [ac]count for. You’re trying to get the evidence in at trial today.”
The government then raised two issues related to defense counsél’s cross-examination of Mr. Turner. The firstissue was the hole' in the bag marked as Exhibit 1. The government sought to preclude cross-examination of Mr. Turner about the hole because he had “no self-knowledge of that particular item.”
The second issue' was Mr. Hammett’s termination for mishandling and mislabeling evidence and the fact that the government had opted not to call him to testify.
■Returning to its examination of Mr. Turner, the government established that Mr. Turner’s personal knowledge of the custody and control of- the ballistics material ended‘when Mr. Hammett “took this evidence to the mobile crime lab from the ... crime' scene.” Mr. Turner explained that he was not “aware of what happened to the evidence” because he “wasn’t part of his— him [Mr. Hammett] processing the evidence.”
Nonetheless, the' government asked Mr. Turner to testify “as a general matter” about what happens to evidence brought to the mobile crime lab. Mr. Turner explained that it should be “tagged, marked, placed on a mobile crime property book[,] and it is determined where it heeds to go[,] if it needs to go to a lab or ... to the firearms examination section.” Logging evidence in the property book, Mr. Turner explained, is meant to “catalog the evidence that’s collected [at] the scene so it can be tracked at a later date if necessary.”
At this point the trial court asked defense counsel to “put on [the] record [her] objections” to the admission of these exhibits. Defense counsel argued that Mr, Turner did not “have personal knowledge of the evidence and how it’s been stored in any way, shape or form from the time it was collected,” that he did not “have personal knowledge that the evidence that he has in that bag is the exact same evidence that was recovered from that scene,” and thus that the “[g]overnment hasn’t established in any way, shape or form [that] the chain of custody has been maintained.”
The court acknowledged that in order to admit these items, it had to determine that the proffered evidence “is what it is claimed to be,” i.e., bullets recovered from the crime scene.
After the court ruled, the government called Mr. Mulderig, who had examined the cartridge cases and live bullet admitted as Exhibits 1-44.
B. Analysis
Without deciding whether the trial court abused its discretion by admitting the ballistics material in this case, we conclude that Mr. Wonson is not entitled to reversal because the court’s ruling was harmless. When a trial court makes a non-constitutional error, we will nonetheless affirm the conviction if we can 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.” Robinson v. United States, 50 A.3d 508, 528 (D.C. 2012) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We examine the error “in relation to all else that happened” at trial, Kotteakos, 328 U.S. at 764, 66 S.Ct. 1239, to discern “the likely impact of the ... error on the jury’s verdict,” Robinson, 50 A.3d at 528. If “the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.” Smith v. United States, 26 A.3d 248, 264 (D.C. 2011) (quoting Kotteakos, 328 U.S. at 764, 66 S.Ct. 1239). In this case, we conclude that the jury’s consideration of the ballistics evidence did not “substantially sway[ ]” its verdict. See Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.
To begin, the ballistics material did not directly link Mr. Wonson to the shooting. Although the police found ammunition in Mr. Wonson’s truck, it was not the same brand of ammunition found at the scene. And although the police used an examination of toolmarks on the recovered casings to match them to a gun, the government presented no evidence to connect the gun to Mr. Wonson.
Instead, the ballistics material played a subtler and less central role at trial: the government used it to corroborate Mr. Brisbon’s account of the shooting as a two-man operation and his identification of Mr. Wonson as his accomplice. These items corroborated Mr. Brisbon’s testimony because they (1) consisted of two types of cartridge cases, suggesting that the shooting involved two guns and two shooters, as Mr. Brisbon testified; and (2) included one live cartridge, supporting Mr. Brisbon’s narrative that Mr. Wonson’s gun had jammed and that Mr. Wonson had removed and discarded a live round at the scene of the shooting.
Any benefit to the government from this corroboration was slight, however, given the other evidence presented to'the jury. First, Mr. Brisbon’s 2012 testimony that this was a two-man operation was corroborated by his own prior consistent statements. Indeed, as the jury heard, when the police arrested Mr. Brisbon a week after the shooting, he told them that he had committed the murders with a second man.
The admission of the live round likewise had minimal force when placed in the context of Mr. Wonson’s trial., Although it meshed with Mr. Brisbon’s narrative that Mr. Wonson’s gun had jammed, it was not the only evidence corroborating this detail; Ms. Route testified that “[wjhen Michael Wonson and Mr. Brisbon came back into the house with the two rifles, Mr. Brisbon said to Michael Wonson, ‘I can’t believe the gun jammed.’ ” Moreover, Mr. Turner specifically recalled collecting a live round from the scene of the shooting. Lastly, although the government mentioned in closing that a jammed gun might explain the live cartridge recovered from the scene, this was a peripheral observation. The government’s central focus was on the testimony from Mr. Brisbon, Ms. Route, and Mr. Cobb, not the ballistics material.
For all of these reasons and in the absence of any evidence indicating that the jury attached particular significance to the cartridge or cartridge cases as it deliberated, we conclude that admission of the ballistics material at Mr. Wonson’s trial does not require reversal.
III. Remaining Arguments
We are unpersuaded, by Mr. Wonson’s three remaining arguments. First, he argues that “a remand is necessary , for the government to provide the full OIA [Office of Internal Affairs] investigation report concerning Officer Hammett,” to determine if the government fulfilled its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But assuming that the government should have disclosed the full report (instead of a mere summary) to the defense prior to trial, Mr. Wonson has no Brady claim on appeal. Our conclusion, with the benefit of hindsight, that the admission of the bullet evidence was harmless, likewise compels a conclusion that this report would not have satisfied the materiality component of a successful Brady claim.
Finally, Mr. Wonson argues that the prosecutor’s closing argument was “inflammatory” and violated the Fifth Amendment’s Due Process Clause. In par-ticulár, he complains that the prosecutor “repeatedly mentioned] the length of time it had been between the time the victims were killed and.the 2012 trial,” and that the prosecutor “juxtaposed that argument with repeated comments that justice had come to Brisbon in 2002.” Because Mr. Wonson never objected to these comments, we review for plain error. Even assuming error that is plain, the prosecutor’s argument, while melodramatic, did not “so clearly prejudice!]” Mr. Wonson’s rights “as to jeopardize the fairness and integrity of his trial.” Burgess v. United States, 786 A.2d 561, 570 (D.C. 2001) (quoting Irick v. United States, 565 A.2d 26, 32 (D.C. 1989)).
IV. Conclusion
For the foregoing reasons, we affirm Mr. Wonson’s cQnvictions.
So ordered:,
. In addition to attacking the admissibility of this evidence, Mr. Wonson argues that reversal is required because the government failed to meet its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because his Sixth Amendment right to confrontation was violated, and because the government engaged in misconduct during its closing argument.
. D.C. Code - §§ 22-2401 (2000 Supp.), - 2404.1 (b)(6) (2000 Supp.), -3202 (1996 Repl.).
. D.C. Code §§ 22-501, -3202 (1996 Repl.).
. D.C. Code § 2-2-3204(b) (1996 Repl.).
. This court held that the trial court erred by admitting at a joint trial Mr. Brisbon's unre-dacted videotaped confession, which incriminated Mr. Wonson. See Brisbon v. United States, 957 A.2d 931, 953-57 (D.C. 2008). We determined that this error was not harmless because the government’s remaining evidence against Mr. Wonson at the 2002 trial was “largely circumstantial.” Id. at 956.
. Mr. Brisbon had also testified for the government at the 2011 trial.
. Ms. Route and Mr. Cobb had both previously testified for the government at the 2002 and 2011 trials.
. Due to illness, Mr. Turner was deemed unavailable at the 2012 trial. His testimony from the 2011 trial was read aloud to the jury, and defense counsel’s objections from the 2011 proceeding were incorporated into the record.
. Even before this point, defense counsel had flagged the admissibility of the ballistics material as an issue. The trial court observed that it "need[ed] to hear the testimony about where it’s kept,, how it’s kept, all sorts of things in order to make that determination .... [T]hey need to make an attempt to get it in for me to make that determination. I don’t know anything now. ... I have to listen to evidence and say [whether] that’s satisfactory
. Mr, Turner testified that the bag marked as Exhibit 1 contained a live round but he was never asked to identify the contents of Exhibit 2,
. Counsel acknowledged that this exhibit had Been admitted “in the first trial,” when Mr, Wonson was represented by a different attorney, and that “there was no objection to it or ... concern about its foundation at that point.”
. In its questioning, the goyernment jumped from trying to establish that Mr. Turner could identify all the' items marked as exhibits as items he saw at the scene, to asking how these items were eventually stored, prompting the court to inquire, ”[I]s there a step before? How do you recover it? Shouldn’t that be the first step, counsel? .... Let’s get to that.”
. The government did not seem to think that it needed to present this testimony, protesting to the court that it had, in its view, already "established more than enough of a basis for [exhibit] number one to currently be admitted.” The court responded by informing the government that it could lay a proper foundation "or ... not” for the admission of its evidence, but it would “[p]roceed at [its] own risk.”
. The government proffered that, at an unspecified time, another individual, identified as Officer Slaughter, had placed the tape over the hole in the bag "so that the bullet wouldn’t fall out,” and that Mr. Turner "wasn’t there, didn’t do it.” But the government never called Officer Slaughter to testify.
. The government had notified defense counsel prior to the 2011 trial that Mr. Hammett had been terminated in 2005 "for neglect of duty,” According to the government, "[o]n several occasions between’ 2003 and 2004, Officer Hammett failed to comply with proper procedure's for labeling and hándling evidence, malting it impossible in some cases to determine wdiat evidence related to a particular investigation.” Although Mr. Hammett had since been "reinstated” by the MPD, the government hád informed counsel that it "d[id] not intend to call Officer Hammett as a witness at trial.”
. The only authority the trial court invoked was the federal rule on authenticity, Federal Rule of Evidence 901, but this court has not adopted that rule. See Stewart v. United States, 881 A.2d 1100, 1111 (D.C. 2005).
. Mr. Mulderig was an MPD employee at the time he conducted his examination of the bullets; by the time of the 2012 trial, he had retired but was still “doing the same work” for the MPD as an independent contractor.
. Mr. Mulderig’s report, which was admitted into evidence, is dated June 9, 2000, a little more than three weeks after the shooting.
. Mr. Mulderig’s report provides a snippet of information: it contains a notation that what became Exhibits 1-44 "were personally delivered on May 18, 2000 by Technician Elizabeth Sharp-Hamlet.” The government did not ask Mr. Mulderig any questions about this notation.
. Mr. Wonson does not argue on appeal that Mr. Mulderig’s testimony should have been struck or that the admission of his testimony affected the verdict in any way, but even if he had done so, our harmlessness analysis would remain unchanged.
. In fact, the government stipulated that the gun had been used in another crime at a time when Mr. Wonson could not have had access to it.
.The government also introduced an August 2000 letter from Mr. Brisbon to Ms. Route’s mother in which Mr. Brisbon acknowledged that he had committed the shooting with another man, although he claimed that he had falsely implicated Mr. Wonson in his stdtement to thfe police, because he “could not tell on my mans,” i.e., his true accomplice: "that’s why I put myself and another dude
. Indeed, as an apparent concession to its force, the defense tried to argue that Mr. Brisbon had directed Ms.- Route and Mr. Cobb to falsely implicate Mr. Wonson to protect Mr. Brisbon’s real accomplice. We need not assess the plausibility of this argument because the ballistics evidence did not impact it one way or another. Insofar as the ballistics evidence corroborated that this was a two-person operation, it was consistent with the defense theory.
. This conclusion has no bearing on the gov-ernmént's disclosure obligations pretrial.' See Vaughn v. United States, 93 A.3d 1237, 1262 n. 29 (D.C. 2014) ("The materiality assessment this court conducts on appellate review is necessarily different from the materiality assessment the government’ can make pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the government must disclose information that is ‘arguably’ material."); Boyd v. United States, 908 A.2d 39, 60 (D.C. 2006) (explaining that a "broad” "duty of disclosure exists even when the items disclosed later prove not to be material”).
. When the prosecutor asked Mr. Brisbon what happened at his trial in January 2002, Mr. Brisbon responded, "I got found guilty.”
. Because, with the exception of admitting Mr. Turner’s testimony from the 2011 trial, the court made clear that the lawyers were trying the case anew, directing" counsel to “[p]retend I’m a new judge,” we do not consider any objections from Mr. Wonson’s mistrial in 2011. Compare United States v. Akers, 702, F.2d 1145, 1147-48 (D.C.Cir. 1983) (‘‘When ... the previous trial is a nullity, the court in the new trial tries the case as if it were being tried for the first time, as if there had been no prior trial.”) (internal quotation marks omitted), with Williams v. United States, 858 A.2d 978, 981 n. 7 (D.C. 2004) (explaining that, where ‘‘it was understood from the beginning of the new trial that the judge was adopting the evidentiary rulings made in the prior trial," ‘‘the trial, court's • general adoption of its prior rulings and [the defendant’s] prior notice to adopt the motions of his co-defendants was sufficient to preserve [the defendant’s] objection”).
As for the trial we are now reviewing on appeal, Mr. Wonson’s counsel never raised an objection under the Confrontation Clause. U.S. Const, amend. VI. Rather the record reflects only that the court and counsel discussed how to refer to Mr. Brisbon’s and Mr. Wonson’s joint 2002 trial in a way that would not reveal that Mr. Wonson had been ‘‘convicted at a prior occasion.”
.Because we conclude that Mr. Wonson waived his argument that admission of Mr. Brisbon’s testimony somehow violated the Confrontation Clause, we do not decide whether, as Mr. Wonson argues, “the trial court was required to give a proper cautionary instruction, sua sponte, to prevent substantial prejudice” arising from such a violation. . We note, however, that the court .specifically instructed the jury not to consider Mr; Brisbon’s convictions, as evidence of Mr. Wonson’s guilt. . ■ .
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